Opinion
No. CV04 400 02 65S
September 1, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff, Aimee Baynard, a/k/a Aimee Montanaro, brings this action against three defendants, in four counts.
The defendant, Derma Clinic, Inc., is a corporation which operates a European Day Spa. Patricia O'Regan Brown is president of the corporation.
The defendant, Joseph B. O'Connell, M.D., is a physician, licensed to practice in the State of Connecticut, who served as a consultant and/or supervisor for Derma Clinic, Inc.
On July 26, 2002, the plaintiff was a client at the DermaClinic Spa. She agreed to have a procedure known as a "Brazilian Bikini Wax" performed.
This procedure involves the removal of hair from the pubic area through the application of hot wax.
As a result of the application of hot wax, the plaintiff claims to have suffered serious and painful personal injuries, including a laceration of the labia majora, requiring surgical intervention, inflamation, bruising, discomfort, scarring and both mental and emotional pain and suffering.
She claims that the injuries and damages suffered were due to the negligence and carelessness of DermaClinic, Inc., acting through its agents and employees, and resulted from the negligence of Dr. O'Connell.
In Count One, the plaintiff claims that Derma Clinic, Inc. was negligent, while Count Two is addressed to Patricia O'Regan Brown.
Count Two was withdrawn following the return of process to court, leaving only Derma Clinic, Inc. and Dr. O'Connell as named defendants.
In Count Three, the plaintiff claims that Dr. O'Connell was negligent, in that he failed to protect clients at Derma Clinic from injury, failed to safeguard the clients' safety and failed to properly instruct the employees in the application of the Brazilian Bikini Wax treatment.
Count Four alleges a contract between Derma Clinic, Inc. and Dr. O'Connell. The plaintiff, Aimee Baynard, claims, to be a third-party beneficiary pursuant to the contract.
The defendant, Dr. Joseph B. O'Connell, moves to strike both Counts Three and Four.
He claims that Count Three is a claim sounding in medical negligence or malpractice, and must therefore be accompanied by a certificate of good faith, pursuant to § 52-190a of the General Statutes.
Section 52-190a, C.G.S. — "(a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death . . . whether in tort or contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine whether there are grounds for a good faith belief that there has been negligence in the care and treatment of the claimant. The complaint or initial pleading shall contain a certificate . . . of the attorney filing the action that such reasonable inquiry gave rise to a good faith belief that there has been negligence in the care or treatment of the claimant . . ."
Concerning Count Four, it is claimed that the plaintiff has failed to allege facts sufficient to find that a third-party beneficiary relationship was created, in a contract between Derma Clinic, Inc. and Dr. O'Connell.
STANDARD OF REVIEW
A motion to strike tests the legal sufficiency of a pleading. Ferryman v. Groton, 212 Conn. 138, 142 (1989). It admits all well pleaded facts, and the court must construe facts alleged in a pleading in the manner most favorable to the non-moving party. Rowe v. Godou, 209 Conn. 273, 278 (1988).
If facts provable in a complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 825-26 (1996).
COUNT THREE SOUNDS IN ORDINARY NEGLIGENCE, NOT MEDICAL MALPRACTICE
Dr. O'Connell, as a licensed physician, is clearly a health care provider as defined in the applicable statute.
Section 52-84b, C.G.S. — "Health care provider means any person . . . licensed by this state to provide health care or professional services . . ."
The question concerning the need for a good faith certificate, therefore, involves whether the cause of action is one alleging ordinary negligence, or medical malpractice.
Medical negligence or malpractice is the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all of the circumstances, in the community, by the average reasonably prudent health care provider. Barnes v. Schlein, 192 Conn. 732, 735 (1984).
There must be a relationship of physician and patient, and a breach of a duty arising out of that relationship.
In Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353 (2001), the Appellate Court announced the criteria to be applied when determining whether a given situation involves ordinary negligence, or professional malpractice.
The considerations to be analyzed are 1) whether the defendant is sued in his capacity as a medical professional, 2) whether the claimed negligence is of a specialized nature arising out of a medical professional/patient relationship, and 3) whether the alleged negligence is substantially related to medical diagnosis or treatment, and involved the exercise of medical judgment. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 358.
Although a medical malpractice case requires that the applicable standard of care, the breach of that standard, and damages caused by the breach be proved by expert testimony, the characterization of a claim as ordinary negligence or medical malpractice does not turn on whether expert testimony is required. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 360.
The allegations of negligence alleged against Dr. O'Connell in this case involve a failure to provide adequate safeguards and protections, a failure to properly instruct Derma Clinic personnel, and a failure to adequately consult with or supervise the actions of Derma Clinic employees. (Paragraph 8, Count 3).
Applying the Trimel test, it appears that the negligence alleged is ordinary negligence, not medical malpractice.
There was no doctor/patient relationship between Dr. O'Connell and the plaintiff, nor would it be possible to prove such a relationship, a necessity in a medical negligence case.
Derma Clinic, Inc. is not in the business of rendering medical or health care services. It is a European Day Spa. Furthermore, the service at issue at issue, a Brazilian Bikini Wax procedure, is a cosmetic service, which does not require diagnosis or treatment by a physician.
Dr. O'Connell did not perform any diagnostic services concerning the plaintiff, and did not participate in any of the hands on treatment.
The allegations of negligence involve an allegedly supervisory and advisory role, and there is no allegation that Dr. O'Connell was required to diagnose medical conditions, or to suggest a course of treatment in light of that diagnosis.
The fact that an action is against a health care provider or a health care facility, in and of itself, is insufficient to transform a case involving ordinary negligence, into a claim of malpractice. Badrigan v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386 (1986).
In addition, the defendant argues, concerning Count Four, that there is no intent demonstrated to create a direct duty, by contract, with the plaintiff. It seems clear that a direct obligation of the most intimate nature is present in a doctor/patient relationship.
The motion to strike, as to Count Three, must therefore be denied.
PLAINTIFF HAS ALLEGED EXISTENCE OF A THIRD-PARTY BENEFICIARY CONTRACT
In Count Four, the plaintiff alleges, "upon information and belief," that Derma Clinic, Inc. and Dr. O'Connell entered into a contract, with respect to consultation and supervision services.
The plaintiff further alleges that Dr. O'Connell breached that contract, and that the plaintiff was, as a third-party beneficiary, harmed by the breach of contract.
In order for a third-party beneficiary relationship to exist, the contracting parties must intend to create a direct obligation between themselves and a third party. Grigerik v. Sharpe, 247 Conn. 293, 312 (1992); Knapp v. New Haven Road Construction Co., 150 Conn. 321, 326 (1963).
Although the question of contractual intent presents a question of fact, where contract language is clear and unambiguous, it becomes a question of law for the court. CNB v. Douglas, 221 Conn. 530, 545 (1991).
In this case, the plaintiff has alleged the existence of a contract, but has not produced the contract, not quoted from any of the language allegedly contained in the document. She has, however, alleged that a third-party beneficiary relationship has been created by the acts of Derma Clinic, Inc., and Dr. O'Connell.
The court is therefore unable to determine, from the language used, whether the parties to the agreement intended to create a third-party beneficiary.
Notwithstanding the lack of an allegation in Count Four that the parties intended to create a direct contractual obligation to the plaintiff, the plaintiff has alleged the existence of a third-party beneficiary contract.
Furthermore, because the persons included within the alleged contract involve the class of persons who are clients of Derma Clinic, the category of persons covered is not, as a matter of law, unlimited, and therefore not within the contemplation of the contracting parties. Gazo v. City of Stamford, 255 Conn. 245, 265 (2001).
Therefore, although the plaintiff's claim, without more, may not survive a motion for summary judgment, construing all facts pled most favorable to the plaintiff, the motion to strike as to Count Four is denied.
CONCLUSION
The Motion to Strike of the defendant, Dr. Joseph B. O'Connell, M.D. is DENIED.
RADCLIFFE, J.