D'Amato v. Northeast Radiology P.C.
The prior pending action may not bar a complaint alleging a doctor's employer is vicariously responsible for alleged medical malpractice, even if the plaintiff filed a prior complaint against another employer that arose out of the same nucleus of facts. On April 26, 2010, Dr. Michael Waldman allegedly performed a thoracentesis procedure that injured the spleen of the plaintiff's decedent, Thomas D'Amato. Soon after, D'Amato suffered from chest pain and went to New Milford Hospital. On April 29, D'Amato passed away. The plaintiff, Diane D'Amato, filed two suits, as the executrix of Thomas D'Amato's estate. In the present suit, she alleged that the defendant, Northeast Radiology, is vicariously responsible for Dr. Michael Waldman's negligence. In an earlier suit, D'Amato I, she alleged that another defendant, Radiological Associates, was vicariously responsible for Dr. Michael Waldman's negligence. The present defendant, Northeast Radiology, moved to dismiss and argued that the current suit is barred by the prior pending action doctrine, because the allegations in both Superior Court suits are identical, they arise from the same facts, and the plaintiff seeks the same relief. The prior pending action doctrine "does not apply . . . when the two actions are for different purposes or ends or involve different issues . . . or where there is not a strict identity of the parties," pursuant to Conti v. Murphy, a 1990 decision of the Connecticut Appellate Court. The court found that the plaintiff failed to prove that a strict identity of the parties existed and that the issues in the current suit and D'Amato I were identical. "[A]lthough the two complaints arise out of the same facts, i.e., the negligence of Dr. Waldman in his care of the decedent," wrote the court, "the issues the court must address in each action are different." The prior pending action did not bar the current suit, and the court denied the defendant's motion to dismiss.