Avery v. Maxim Healthcare Services Inc.
A plaintiff who amends a complaint and written opinion, in order to include the opinion writer's credentials and a brief discussion of the incident that allegedly led to the death of the plaintiff's decedent, may not be required to serve the amended complaint and written opinion. The plaintiff's decedent suffered from muscular dystrophy and quadriplegia. In June 2010, the defendant's employee allegedly removed the machine that the plaintiff's decedent required for assistance in breathing and failed to replace the machine promptly. The plaintiff's decedent passed away. The plaintiff sued the defendant, alleging negligence and wrongful death. The defendant moved to dismiss, arguing that the written opinion attached to the plaintiff's complaint did not reference the June 2010 event. The plaintiff, in response, filed a request to amend the complaint and the written opinion of a similar healthcare provider, which accompanied the complaint. The court granted the plaintiff's request to amend. C.G.S. §52-190a requires that the plaintiff obtain a written opinion from a similar healthcare provider that there appears to be evidence of medical negligence. Practice Book §§10-13 and 10-12(c) require service in the same manner as the original complaint for "[a]ny pleading asserting new or additional claims for relief against parties who have not appeared." The amended written opinion included the opinion writer's credentials and a brief description of the alleged June 2010 incident. The plaintiff's complaint did not include any new or additional claims for relief. Consequently, the plaintiff was not required to serve new process on the defendant, when the plaintiff amended the complaint and the written opinion and mailed copies to the defendant's attorney. Proper service of process promotes the policy of ensuring actual notice and provides the court power to issue a judgment that meets due-process concerns. The defendant received actual notice of the plaintiff's suit as a result of the initial service of process of the writ, summons and complaint. The amended complaint and written opinion, which added inadvertently omitted facts, met the requirements of C.G.S. §52-190a. The defendant was not deprived of its due-process rights, and the court denied the defendant's motion to dismiss.