Jul 20 2017

Morrison Mahoney Connecticut Law Update July 2017

Medical Malpractice: Relation Back Doctrine

Briere v. Greater Hartford Orthopedic Group, P.C. 325 Conn. 198 (2017).
The Connecticut Supreme Court clarified the relation back doctrine, particularly as it is applied to claims for medical malpractice. Plaintiff alleged malpractice during a spinal surgery. After the expiration of the applicable statute of limitations, Plaintiff sought to amend his Complaint. Both the original and the amended Complaints alleged that the doctor failed to properly perform the surgery through the use of a surgical instrument. The original Complaint identified the instrument as a skull clamp, the proposed amended Complaint identified it as a retractor blade.

The trial court denied the proposed amendments and granted Defendants’ subsequent summary judgment motion. The Appellate Court reversed the trial court, broadly construing the original Complaint. The Supreme Court affirmed the Appellate Court.

The Supreme Court noted that there is a well-settled body of law holding that a party may properly amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same. In order to provide fair notice to the opposing party, the proposed new or changed allegation of negligence must fall within the scope of the original cause of action, which is the transaction or occurrence underpinning the Plaintiff’s legal claim against the Defendant. A court must investigate whether the new allegations support and/or amplify the original cause of action, or whether they state a new case entirely. The Court held that the original Complaint generally alleged that the defendant failed to properly perform the surgery; even though the original Complaint did not mention a retractor blade, it did sufficiently put Defendants’ on notice that the claim would relate to conduct during the surgery; namely, his use of surgical instruments. The single transaction or occurrence which constituted the cause of action was the negligent use of medical instruments, not the use of a single instrument.

Kaelah Smith (ksmith@morrisonmahoney.com)

Asbestos: Trigger of Coverage

The Connecticut Appellate Court recently adopted the continuous trigger theory as a matter of law for all asbestos related disease claims in R.T. Vanderbilt Co., Inc. v. Hartford Accident and Indemnity Co., 171 Conn. 61 (2017). The case arose from thousands of underlying lawsuits alleging injuries from exposure to asbestos contained in industrial talc mined and sold by R.T. Vanderbilt Company, Inc. (“RT”). RT brought the action against several insurance companies that issued insurance policies alleging that each breached its contractual obligations to pay the proper share of defense and indemnity costs and sought a declaratory judgement as to the parties’ respective rights and responsibilities under the policies at issue.

The trial court assumed a victim of asbestos related disease suffers continuous injuries commencing at the time of initial exposure to asbestos and extending until disease manifests, and, therefore, that defense and indemnity costs must be allocated across all of the insurance policies on the risk during that period. The court further assumed that the policyholder is responsible for a pro rata share of costs for any period during which it is uninsured or underinsured, but that Connecticut has embraced an unavailability of insurance exception pursuant to which there is no proration to the insured for periods during which insurance is not available. Id at 79-80.

The insurance company defendants that issued comprehensive general liability insurance policies to RT sought a declaratory judgment determining their respective obligations with regard to the underlying actions.

The trial court concluded Connecticut’s precedent compelled it to adopt a continuous trigger theory under which every policy in effect from the date a claimant is first exposed to asbestos until the date when the claimant manifests an asbestos related disease is on the risk for defense and liability costs. The Appellate Court agreed. Though the Connecticut Supreme Court has not yet adopted continuous trigger as the law of Connecticut, the Appellate Court adopted the theory of coverage as a matter of law for all asbestos related disease claims. The Appellate Court specifically left open consideration of the issue with respect to other long-tail injury cases. The Court ultimately concluded that RT should not have been allocated defense costs during the period when defense cost coverage was unavailable.

Eva Kolstad (ekolstad@morrisonmahoney.com)

Collateral Source: Non-Economic Damages

Lachapelle v. Safeco Ins. Co., April 6, 2016 (2017 WL 1655913)
Plaintiff sued his insurer after collecting a tortfeasor’s entire $50,000 policy. At trial, the jury returned a verdict in favor of the plaintiff and awarded $15,500 of non-economic damages. After trial, Safeco Ins. filed a motion to reduce the verdict under General Statutes § 52-225a, the collateral source rule. Safeco argued that the plaintiff’s entire verdict should be offset by the $50,000 received from the tortfeasor’s policy. Plaintiff countered that because the award of the jury was entirely non-economic damages, the collateral source statute did not apply. The court held that General Statutes § 52-225a applies only to economic damages and declined to reduce the verdict. In so doing, the court relied upon the language of the statute as well as Supreme Court decisions interpreting the collateral source statute. Specifically, the court quoted the Supreme Court case Marciano v. Jiminez, 324 Conn. 70 (2016), which held that courts are required to construe the language of the collateral source statute strictly. The court also cited Supreme Court decision in James v. Kramer, 267 Conn. 336 (2004), which analyzed the purpose of the collateral source statute – “prevent[ing] plaintiffs from obtaining double recoveries, i.e. collecting economic damages from a defendant and also receiving [the benefit of] collateral source payments.”

Emily Holland (eholland@morrisonmahoney.com)

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