Opinion
No. NNH CV01 0448262
July 28, 2006
MEMORANDUM OF DECISION ON OBJECTION TO REQUEST TO AMEND COMPLAINT AND ON MOTION FOR DIRECTED VERDICT
The plaintiff brings this action for money damages against the defendant Lee Jung, M.D., and against Community Health Care Physicians, P.C. The claim is that the defendants breached the standard of care in failing to arrange for adequate follow-up of the plaintiff's decedent Peter Haskos after a diagnosis of bronchitis. The follow-up examination would have revealed that Peter Haskos had lung cancer. The plaintiff brings this action under the theory that in the last months of Peter Haskos's life, he lived with the knowledge that his diagnosis could have been made earlier and that this knowledge caused him to suffer emotional distress. It is for this emotional distress that the plaintiff seeks compensation.
The defendants request that the court dispose of this matter in their favor by sustaining their objection to the plaintiff's request to amend the complaint, or by directing a verdict, or perhaps more properly by issuing a dismissal under Conn. Practice Book § 15-8, any of which would be dispositive as discussed below. For the reasons stated in this memorandum, the court overrules the objection to the request to amend, thus accepting the amended complaint of the plaintiff but grants the defendant's motion to dismiss, so that judgment shall enter in the defendant's favor.
THE FACTS
On January 6, 1999, Peter Haskos saw his regular physician Dr. Lee Jung at the offices of Community Health Care Physicians, P.C. ("CHCP"), for evaluation of a cough and fever. Dr. Jung, suspecting pneumonia, ordered a chest x-ray. Meanwhile Dr. Jung prescribed treatment for Haskos and noted in the chart that he had told Haskos to return for another examination in "1 month." Haskos did not make a follow-up appointment with Dr. Jung. In the interim, the chest x-ray was read as showing a "nodular infiltrate, right upper lobe" which was consistent with a diagnosis of pneumonia.
In October 1999, Haskos experienced respiratory symptoms including hemoptysis, a bloody cough. A comprehensive examination revealed that Haskos had lung cancer in such an advanced stage that it was untreatable. Haskos died on April 12, 2000, of complications from the disease.
The plaintiff brought this action by writ, summons and complaint against these defendants for medical malpractice in February 2001. The claim was that Dr. Jung should have explained in greater detail to Haskos why a follow-up appointment was necessary. In failing to explain to Haskos that the x-ray had shown a nodular infiltrate that might also be evidence not only of pneumonia but also of a more serious condition, the defendant alleged that Dr. Jung breached the standard of care owed to the patient. The injury that was claimed was the decedent's "loss of chance" for successful treatment; that is, had the defendant properly involved the patient in the decisions about his follow-up care, the diagnosis of lung cancer could have been made at an earlier stage when the likelihood of successful treatment was greater. Instead, the diagnosis was not made until the cancer was already inoperable and essentially untreatable.
Initially the plaintiff also sued two radiologists and the radiology group responsible for reading certain x-rays of the decedent. Those counts were withdrawn leaving only Jung and CHCP as defendants.
PROCEDURAL POSTURE OF THIS CASE
The plaintiff commenced this action on February 12, 2001. The defendant answered the complaint with a denial of the allegations of malpractice. By way of special defenses, Dr. Jung pleaded that the action was barred by the Statute of Limitations and that the plaintiff's injury was proximately caused by his own failure to follow medical advice. The pleadings were closed and the case was claimed for a jury trial.
Initially, the plaintiff disclosed Dr. Joseph Treat as an expert witness in the field of oncology who would offer the opinion that it was likely that if the lung cancer had been diagnosed in February or March of 1999, instead of October 1999, it would have resulted in successful treatment of the disease, thus increasing Haskos's chance of survival. At the deposition of Dr. Treat, it became clear that Dr. Treat could not render such an optimistic opinion to a reasonable degree of medical certainty. In fact Dr. Treat testified that it was simply not possible to know whether an earlier diagnosis in 1999 would have afforded Haskos a likelihood over 50% of survival, given the virulence of the illness.
This fact posed a problem for the plaintiff's original claim for damages. Case law-in this state has previously considered whether a cause of action exists for the loss or decreased chance of survival in medical malpractice cases, LaBieniec v. Baker, 11 Conn.App. 199, 526 A.2d 1341 (1987), and what the appropriate quantum of proof is for such a claim. Borkowski v. Sacheti, 43 Conn.App. 294 (1996). The cases hold that (1) the cause of action for "loss of chance" is recognized in Connecticut, Borkowski, supra, 309; (2) the "traditional approach" regarding proof and proximate cause is required, Id., 311; and (3) the traditional approach requires that the plaintiff prove that prior to the defendant's alleged negligence, the victim had a chance of survival of over 50%. Id., 301 and 310-11. The plaintiff concedes here that he cannot meet that burden.
Accordingly the plaintiff filed a request for leave to amend the complaint on May 16, 2006, virtually on the eve of trial. The proposed amended complaint removes any claim that Haskos lost the chance for successful treatment of his cancer. Rather, alleging the same operative facts as the earlier complaint, the plaintiff claimed that the malpractice of the defendant "caused an unreasonable risk of emotional distress to the decedent," Amended Complaint, ¶ 14, transforming the claim into one of negligent infliction of emotional distress.
In the interests of judicial economy and because trial was imminent, the parties agreed to the following procedure: the jury claim was withdrawn and the parties stipulated to a court trial; they allowed the court to take the defendant's Objection to Request to Amend Complaint under advisement, while allowing the plaintiff's direct case to go forward; and they agreed to interrupt the evidence at the conclusion of the plaintiff's direct case to allow the court the time necessary to rule on the propriety of the amended complaint and on the defendant's assertions, through the Motion for Directed Verdict, that the facts as alleged or as presented in the plaintiff's direct case cannot support the new cause of action alleged by the plaintiff.
THE REQUEST TO AMEND THE COMPLAINT CT Page 13490
The plaintiff alleges that the defendant failed to provide follow-up care to Haskos after the January 1999 visit, that this failure was a breach of the standard of care, and that had the standard of care been adhered to, the cancer would have been detected in March of 1999. Instead of alleging that the defendant deprived Haskos of the chance of a cure, the plaintiff alleges that the defendant negligently inflicted emotional distress on Haskos.The defendant objects that he is prejudiced by this late amendment because he did not conduct discovery on the source of any emotional distress experienced by Haskos. The defendant assumed that Haskos would naturally suffer emotional distress as a result of his fatal illness, and so the defendant did not conduct discovery on the narrow issue of whether some part of the distress was the result of Haskos's belief that there had been a misdiagnosis, the gravamen of the plaintiff's new claim.
Trial in this matter commenced on May 25, 2006. It was understood by the parties and counsel when trial commenced that there would be a break of a number of weeks in the progress of the case due to scheduling issues and also because of the unusual posture of the case. If counsel had wished to conduct additional discovery to mitigate any prejudice, he could certainly have requested the opportunity to do that, and the court would have acceded to that request. Moreover given the testimony of Angie Haskos, the widow of the deceased, it does not appear that any such additional discovery would have provided information that was significantly different from that which the defendant already had about the decedent's state of mind.
Peter Haskos died before any legal action was commenced and before any statements or discovery in anticipation of litigation were gathered by the defendant.
It is rare that this court is asked to allow amendments which change the theory of a claim or defense in a case on trial. On the other hand, this proposed amendment rests on the same operative facts as the former pleading. The allowance of the amendment will cause no delay in the progress of the case. See Connecticut National Bank v. Voog, 233 Conn. 352, 363-65 (1995). Despite the defendant's claims of prejudice, the court finds no unfairness or prejudice to the defendant in permitting the amendment. In fact, the court has allowed defendant to address the amendment, and he has done so (successfully, as it turns out), in whatever fashion he deems appropriate. The court therefore exercises its discretion to allow the amendment and so overrules the defendant's Objection to Request to Amend Complaint. The court will now proceed to address the legal sufficiency of the amendment.
THE CAUSE OF ACTION FOR "EMOTIONAL DISTRESS" INJURIES
For purposes of deciding the defendant's motion for judgment in his favor, the court must determine whether the plaintiff has completely transformed his claim into one sounding in negligent infliction of emotional distress or whether, as plaintiff's counsel has asserted at oral argument and in legal memoranda, this is still a medical malpractice case with emotional distress as the sole injury. Either way, the defendant argues that the evidence produced by the plaintiff, either on its own or in combination with the undisputed facts regarding the requirements of the statute of limitations, fails so that the defendant is entitled to judgment as a matter of law.
Negligent Infliction of Emotional Distress
If this is a claim that is categorized as the tort of negligent infliction of emotional distress, the plaintiff must establish all of the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress. Carrol v. Allstate Insurance Co., 262 Conn. 433, 444 (2003); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). The defendant argues that the plaintiff has failed to produce the evidence necessary to make out a case under this theory.
In challenging the plaintiff's proof at this stage of the case, the defendant has filed a Motion for Directed Verdict. Because this is a trial to the court, the motion should more properly be styled a Motion for Judgment of Dismissal for Failure to Make Out a Prima Facie Case, under P.B. § 15-8. In determining whether to grant such a motion at the conclusion of the plaintiff's direct case, the court must decide "whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it." Gambardella v. Apple Health Care, Inc., 86 Conn. 842, 846, 863 A.2d 735 (2004) (emphasis in original). At this stage, as long as there is some evidence to support every element of the alleged tort, the court must deny the motion.
It is likely that the patient's mistaken fear that he was the subject of a fatal medical error is insufficient, as a matter of law, to support the elements of negligent infliction of emotional distress because of the requirement that the distress of the victim be reasonable in light of the defendant's conduct. Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995). Because reasonableness is a mixed question of law and fact, often based on the weight of the evidence, the court is unable to make such a finding due to the limited inquiry permitted by Conn. P.B. Sec. 15-8.
But if the amended complaint of May 16, 2006, alleged the tort of negligent infliction of emotional distress, can the plaintiff's claim survive in the face of the defendant's Special Defense regarding the Statute of Limitations?
In the defendant's amended answer and special defenses dated May 25, 2006, filed without prejudice to his Objection to Request to Amend, the defendant once again pleaded as a special defense that the plaintiff's claims were barred by the applicable statute of limitations.
The statute of limitations for the tort of negligent infliction of emotional distress is two years. Conn. Gen. Stat. § 52-584. See Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31 (1999). The amended complaint was filed on May 16, 2006, over seven years from the allegedly tortious conduct of the defendant in January 1999. Unless the amendment relates back to the earlier complaint filed in February 2001, the plaintiff's action for negligent infliction of emotional distress is barred by the statute of limitations.
A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995). However if the amendment to the complaint sets up a new and different cause of action, it speaks as of the date when it was filed. Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 667, 596 A.2d 14, cert. denied, 220 Conn. 922 (1991).
Infliction of emotional distress, whether intentional or negligent, is a distinct cause of action. The elements are different from the elements of a medical malpractice claim. But the plaintiff argues that since the allegations of fact are the same as the earlier malpractice claim, this is not a new cause of action, just a malpractice claim in which a different injury is alleged.
For purposes of determining whether a new cause of action has been alleged, the focus is not merely on the similarity of the underlying sets of facts; the focus is also on whether the elements that must be proved are different. See Felsted, supra, 668.
The Supreme Court has been circumspect in allowing additional theories of liability to be grafted onto medical malpractice claims under the guise of mere amplification of the cause of action. In Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974), the plaintiff sued his surgeon, alleging malpractice. The plaintiff later amended his complaint to allege that the surgeon, by performing the surgery without obtaining the plaintiff's informed consent, had committed the tort of assault. The trial court granted summary judgment to the defendant on the grounds that the amended claim was filed outside the statute of limitations. The Supreme Court affirmed the grant of summary judgment on statute of limitations grounds, holding that the claim that the surgery was performed without consent did not relate back to the earlier claim that the surgery was performed without due care.
The court finds that the amended complaint alleges a new cause of action which does not relate back to the filing of the earlier complaint. Accordingly it is barred by the statute of limitations and the defendant is entitled to judgment.
Medical Malpractice with a Claim for Emotional Distress Damages Based on a Missed Diagnosis
The other theory is that no new cause of action was alleged in the amended complaint. Since the plaintiff cannot prove that the defendant's conduct had the effect of inflicting an earlier death on the patient, the plaintiff now contends that the defendant's conduct had the effect of inflicting emotional distress on the patient because the patient believed that the doctor had inflicted an earlier death on him. The plaintiff argues that this is still a medical malpractice claim, albeit with a different allegation regarding the injury that was inflicted on the patient.
There are two problems with this theory of the amended complaint. The first is that the plaintiff has specifically pleaded the elements of a cause of action for negligent infliction of emotional distress, using terms applicable to such a cause of action such as "unreasonable risk" of the distress, forseeability that distress would occur, and severity of the distress, all obviously with an eye to fulfilling the requirements of the tort of negligent infliction of emotional distress rather than the elements of medical malpractice with a personal injury component.
But assuming arguendo that one is still dealing with the tort of medical malpractice and that only the injury is different, then the problem with the plaintiff's theory is that the patient's belief concerning survivability is both objectively and subjectively unreasonable, as a matter of law. If the plaintiff is merely changing the type of injury involved, or elaborating upon it, rather than changing the nature of the cause of action, then there was no real need to amend the complaint. Rather it seems clear that the source of the "new" injury is the patient's knowledge that the defendant failed to do something that would have resulted in the patient surviving the disease. There is an absence of evidence that such was the case, however, and that is why the plaintiff withdrew the earlier claim. A patient may not recover an award for his dashed hope of surviving cancer, unless there is some evidence — aside from the patient's own subjective and unrealistic belief — that the defendant's conduct was a proximate cause of the patient's failure to survive.
CONCLUSION
If the emotional pain and suffering is caused by a physical injury, then it is a proper element of damages in a personal injury case, see Bushnell v. Bushnell, 103 Conn. 583, 594, 131 A. 492 (1925). If the emotional distress is the result of only an emotional injury without a physical component, the claim cannot be brought in the context of a traditional personal injury case or a malpractice case under 52-184c, but rather the claim is one for negligent infliction of emotional distress. Accord, Fisher v. Yale University, (X10) NNH CV04-4003207 Superior Court, New Haven, February 8, 2006 (Munro, J.) ( 40 Conn. L. Rptr. 726).
Thus, whether the plaintiff's amended complaint alleges a new cause of action or only a new injury, the defendant is entitled to judgment as a matter of law, under the former theory because of the statute of limitations, and under the latter theory because there is a total lack of evidence to support the claim. The defendant's motion is granted.