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Pekera v. Purpora12/30/2003
In this case, the prolonged refusal of a hospital patient to consent to a medical procedure called endotrachial intubation resulted in her death. A malpractice complaint alleged that an attending pulmonologist negligently had performed and managed the patient's intubation. The principal issue is whether this complaint should be construed to encompass an allegation that the pulmonologist had failed to inform the patient of the risk of death if she was not immediately intubated. Concluding that such a construction was improper, the trial court granted the pulmonologist's motion for summary judgment. We agree and affirm its judgment.
The plaintiffs, Daniel R. Pekera, the administrator of the estate of the decedent, Charlene Walker, and the decedent's husband, Earl Walker, filed a sixteen count malpractice complaint naming five physicians, two professional corporations and Griffin Hospital as defendants. The complaint alleged that each of them negligently had engaged in conduct that had caused the decedent (patient) to suffer injury and to die at Griffin Hospital on April 6, 1996. Except for those counts alleging malpractice by the defendant Allan Rodrigues, a pulmonologist, the plaintiffs have now withdrawn their complaint against the defendants.
The malpractice allegations against the defendant were set out in five specifications in count nine of the plaintiffs' complaint. During pretrial proceedings, however, the plaintiffs withdrew each allegation except that stated in paragraph 5 (c) of count nine, namely, that the defendant "failed to timely intubate and properly manage the plaintiff's decedent's pulmonary condition ...."
The defendant filed a motion for summary judgment on two grounds. He asserted that (1) the plaintiffs' expert witness had not substantiated the plaintiffs' claim of malpractice as stated in paragraph 5 (c) of count nine, and (2) the plaintiffs were not entitled to amend their complaint to conform to the expert's opinion that the defendant improperly had failed to inform the patient of the consequences of her refusal to be intubated.
In their reply, the plaintiffs contested each of the defendant's claims. They argued that paragraph 5 (c) of count nine, as drafted, encompassed a claim of failure to inform because, like the alleged failure to intubate in a timely manner, it arose out of the same factual circumstances. If that argument was unpersuasive, the plaintiffs requested the court's permission "to amend [their] complaint to include specific language relating to that claim so that the relation back analysis can be applied with a specific allegation."
The trial court granted the defendant's motion. It concluded that paragraph 5 (c) of count nine neither expressly nor impliedly charged the defendant with failure to inform the patient of the risks of refusal to consent to intubation. It further concluded that it did not need to address the possibility of an amendment of the complaint because "there is no complaint left to amend."
In their appeal from the judgment in favor of the defendant, the plaintiffs claim that the court (1) construed their complaint too narrowly and (2) should have permitted them to amend their complaint to include an allegation of failure to inform. We disagree.
I.
Our review of a trial court's grant of a motion for summary judgment proceeds along a well charted path. We undertake such review to ascertain whether the moving party, on undisputed facts, is entitled to judgment as a matter of law. See, e.g., Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003).
The undisputed facts establish that, on Apri
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