Opinion
HHDCV166067278S
06-28-2017
Lori Culvert v. University of Connecticut Health Center
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #114
M. Nawaz Wahla, Judge.
I
PROCEDURAL HISTORY
The plaintiff, Lori Calvert, now brings a third medical malpractice action against the defendant, the University of Connecticut Health Center, alleging that in January 2010, the hospital staff negligently " contaminated her 'medport, ' a device used for drawing blood, " which caused a staphylococcus infection. A brief review of the lengthy procedural posture is necessary to address the defendant's present motion to dismiss.
A
First Medical Malpractice Lawsuit
" On November 19, 2010, the plaintiff brought [her first medical malpractice action] in the Superior Court against the defendant for alleged medical injuries she suffered as a result of the negligent treatment she received while a patient at the defendant['s] hospital in January 2010 . . . [See Calvert v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-10-6017096-S] [T]he court granted the defendant's motion to dismiss the complaint on the ground of sovereign immunity]." Calvert v. University of Connecticut Health Center, 142 Conn.App. 738, 68 A.3d 107 (2013). The court explained that " [a]t oral argument, the plaintiff conceded that the notice to the claims commissioner was filed, not only after the Superior Court action was filed, but also more than one year after the action accrued." Calvert v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-10-6017096-S (January 31, 2012, Peck, J.). The court found " the Plaintiff's revised complaint, dated February 24, 2011, contain[ed] no allegations as to whether a claim was ever filed with the claims commissioner or whether the claims commissioner authorized suit pursuant to General Statutes § 4-160. As a result, the court [found] that the Plaintiff failed to exhaust her administrative remedies." Id.
B
Claims Commissioner
" On March 8, 2012, the parties appeared before the claims commissioner. According to her representations before [the Appellate Court] during oral argument, when the plaintiff appeared before the claims commissioner, she ostensibly argued that the one-year statute of limitations had been tolled by the continuous course of conduct doctrine. Nonetheless, the claims commissioner dismissed the claim because it had not been presented in a timely fashion as required by [General Statutes] § 4-148(a)." Calvert v. University of Connecticut Health Center, supra, 142 Conn.App. 741.
C
House Resolution of General Assembly
" On March 13, 2012, the plaintiff requested that the General Assembly review the Claims Commissioner's decision as permitted under [General Statutes] § 4-158(b). A hearing before the appropriate committee of the General Assembly was held on March 4, 2013, and a [house] resolution vacating the dismissal of the action by the Claims Commissioner was approved on May 21, 2013." (Footnote omitted.) Calvert v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-13-6046661-S (October 10, 2014, Peck, J.) [59 Conn.L.Rptr. 110, ]. On March 22, 2012, the plaintiff appealed the court's judgment of dismissal. Approximately one year later on March 23, 2013, the Appellate Court affirmed the court's dismissal of the plaintiff's first medical malpractice lawsuit. See Calvert v. University of Connecticut Health Center, supra, 142 Conn.App. 738.
D
Second Medical Malpractice Lawsuit
On October 29, 2013, the plaintiff commenced her second medical malpractice action against the defendant for the January 2010 injuries. See Calvert v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-13-6046661-S. The court again granted the defendant's motion to dismiss on the ground of sovereign immunity. Calvert v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV-13-6046661-S, . In particular, the court referenced the plaintiff's allegations that " [o]n January 11, 18, and 25th, 2010 [the defendant's] staff accessed the [plaintiff's] medport without allowing the sterilization drugs, medications, and preparations to dry and without following procedures[, ]" and, thereafter, the plaintiff received treatment " for coagulated-negative staphylococcus" on January 28, 2010. Id. Based upon these allegations, the court concluded that the plaintiff's claim was untimely under § 4-148(a) as " the plaintiff did not file a notice of claim with the Claims Commissioner seeking permission to sue the state until December 30, 2011, nearly two years after the dates referenced in the complaint and well beyond the one-year statute of limitations set forth in § 4-148(a)." Id. The court held that neither the continuing course of conduct doctrine nor the continuing treatment doctrine tolled the statute of limitations. Id. In addition, the court found that the house resolution did not fulfill the requirements of § 4-148(b) for the plaintiff's suit against the state and did not serve a public purpose. Id. Accordingly, the court held that the house resolution violated Article first, § 1 of the Connecticut Constitution and dismissed the action. Id. The plaintiff did not appeal this judgment of dismissal.
E
Public Act
On June 24, 2015, the General Assembly passed Public Act 2015, No. 85. Section 25 of P.A. 2015-85 provides: " (a) Notwithstanding the failure to file a proper notice of a claim against the state with the clerk of the Office of the Claims Commissioner, within the time limitations specified by subsection (a) of section 4-148 of the general statutes, Lori Calvert is authorized pursuant to the provisions of subsection (b) of section 4-148 of the general statutes to present her claim against the state to the Claims Commissioner. The General Assembly finds that there is a public purpose served by encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by the conduct of state actors. The General Assembly further finds it just and equitable that the time limitations provided for in subsection (a) of section 4-148 of the general statutes be tolled in a case such as this, involving a claimant who commenced a civil action in the superior court for the judicial district of Hartford in December 2010, thereby providing notice to the state of her claim within the statute of limitations for injuries to her person that are alleged to have occurred in January 2010. The General Assembly deems such authorization to be just and equitable and finds that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such claim shall be presented to the Claims Commissioner not later than one year after the effective date of this section. (b) The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes, from denying that notice of the claim was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes and from setting up the fact that the claim had once been considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding as defenses to such claim."
F
Claims Commissioner & Third Medical Malpractice Lawsuit
On January 11, 2016, the Claims Commissioner granted the plaintiff permission to sue the state, " finding that the requirements of Section 4-160(b) of the Connecticut General Statutes have been met." On June 21, 2016, the plaintiff commenced the present action, her third medical malpractice action, against the defendant for the June 2010 injuries, and referenced P.A. 2015-85 as authority for the action.
The defendant now moves to dismiss the plaintiff's third medical malpractice lawsuit on the ground it is immune from suit under the doctrine of sovereign immunity and, therefore, the court lacks subject matter jurisdiction over the defendant. Specifically, the defendant argues the third malpractice action is still untimely under § 4-148(a) and the General Assembly's authorization for the plaintiff's suit under P.A. 2015-85 is ineffective because it serves no public purpose and is unconstitutional as an exclusive public emolument, which is prohibited under Connecticut's Constitution.
The plaintiff counters that P.A. 2015-85 is effective in authorizing the third medical malpractice lawsuit against the defendant. The General Assembly drafted the public act " specifically addressing the defects" identified by the court in Calvert v. University of Connecticut Health Center, supra, Superior Court, Docket No. 13-6046661-S, . The plaintiff contends the legislature " emphasized [in the Public Act that] a public purpose was served [by the Public Act] by unambiguously stating so twice in paragraph (a)." Furthermore, the defendant has provided no evidence that P.A. 2015-85 does not serve a public purpose.
II
DISCUSSION
A
STANDARD
" In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponse, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fin. Consulting, LLC v. Comm'r of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2014).
" [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Housatonic R.R. Co. v. Comm'r of Revenue Servs., 301 Conn. 268, 274, 21 A.3d 759 (2011). The lack of a " waiver of [sovereign] immunity is a jurisdictional defect properly raised by a motion to dismiss." Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).
1
Timeliness of Claim
On the defendant's motion to dismiss, this court has a " twofold inquiry:" whether the plaintiff's causes of action are untimely under General Statutes § 4-148(a) and, if so, whether . . . the public act " did not serve a public purpose and therefore [is] unconstitutional." Morneau v. State, 150 Conn.App. 237, 256, 90 A.3d 1003 (2014).
General Statutes § 4-148(a) provides that: " Except as provided in subsection (b) of this section and section 4-165b, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of."
The issue of whether the plaintiff's claim was timely under § 4-148(a) was addressed previously by the court in Calvert v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV-10-6017096-S, . In its memorandum of decision, the court dismissed the first medical malpractice action on the ground of sovereign immunity because " [a]t oral argument, the plaintiff conceded that the notice to the claims commissioner was filed, not only after the Superior Court action was filed, but also more than one year after the action accrued." Id. The Appellate Court affirmed that judgment of dismissal. See Calvert v. University of Connecticut Health Center, supra, 142 Conn.App. 738.
Similarly, the issue whether the continuing course of conduct and continuing course of treatment doctrines tolled § 4-148(a) for the plaintiff's claim was also addressed previously by the court in Calvert v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV-13-6046661-S, . In that case, the defendant moved to dismiss the second medical malpractice action for lack of subject matter jurisdiction on the ground of sovereign immunity. The defendant argued in its memorandum of law that " the Appellate Court has twice ruled that neither the continuing course of treatment doctrine, nor the continuing course of conduct doctrine can toll a discovery statute of limitations." The plaintiff countered in its memorandum of law in opposition that Attorney Neil Johnson testified before the legislature that he believed the decision of the claims commissioner was incorrect, that the continuing course of treatment doctrine in the plaintiff's circumstance had tolled the statute of limitations, and suggested that in response to this testimony, the legislature passed the house resolution that purportedly authorized the plaintiff's second medical malpractice action.
In its memorandum of decision, the court, Peck, J., specifically addressed the parties' arguments regarding the timeliness of the plaintiff's claim under § 4-148(a). Calvert v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV-13-6046661-S, . The court found persuasive the decisions of Rosato v. Mascardo, 82 Conn.App. 396, 844 A.2d 893 (2004) (" the continuing course of conduct and continuing course of treatment apply only to the repose portion of the statute and not to the discovery portion"), Wojtkiewicz v. Middlesex Hosp., 141 Conn.App. 282, 60 A.3d 1028, cert. denied, 308 Conn. 949, 67 A.3d 291 (2013) (" the continuing course of conduct doctrine did not apply to the discovery portion of § 52-584"), and Lagassey v. State, 268 Conn. 723, 738, A.2d 831, 846 (2004) (" [a] plain reading of § § 4-148(a) and 52-584 reveals that the statutes are alike in most material respects. Both statutes provide that the limitation period begins to run when a plaintiff either sustains or discovers the injury or, in the exercise of reasonable care, should have discovered the injury"). Id. Based upon this authority, the court concluded that the continuing course of conduct and continuing course of treatment doctrines did not apply to toll the statute of limitations under § 4-148(a) for the plaintiff's claim. Id. Specifically, the court held that " the continuous course of conduct and/or the continuing treatment doctrines are not applicable to § 4-148(a), and the point at which the statute began based on the allegations of the plaintiff's complaint was January 28, 2010, at the very latest, when the plaintiff began her treatment for coagulated negative staphylococcus, as it is at this point that the plaintiff discovered her injury." Id. Accordingly, the court found the plaintiff's claim was untimely. Id. After finding the plaintiff's claim untimely, the court addressed the house resolution, which it found unconstitutional, and dismissed the plaintiff's second medical malpractice action. Id. The plaintiff did not appeal this judgment of dismissal.
This court concludes, therefore, that the issues of whether the plaintiff's claim was timely and was tolled by the continuing course of conduct and continuing course of treatment doctrines were issues fairly litigated before the court previously. The issues were necessary for the judgment of dismissal in the plaintiff's second medical malpractice action, Calvert v. University of Connecticut Health Center, supra, Superior Court, Docket No. CV-13-6046661-S, . In the second medical malpractice action, the court's conclusion that the plaintiff's claim was untimely under § 4-148(a) was necessary for the court's judgment of dismissal on constitutional grounds because the court may not address the constitutionality of the public act, special act, or a house resolution that purports to waive a plaintiff's failure to comply with § 4-148(a) and authorize the plaintiff's suit under § 4-148(b) without first concluding that the plaintiff's claim was untimely under § 4-148(a). See Morneau v. State, supra, 150 Conn.App. 256. Accordingly, this court declines to allow the plaintiff the opportunity to re-litigate the timeliness issues an additional time in response to the defendant's present motion to dismiss the third medical malpractice action. See Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 714, 627 A.2d 374 (1993) (discussing the legal standard for collateral estoppel).
2
Constitutionality of Public Act
As this court has determined that the plaintiff's medical malpractice claim is untimely under § 4-148(a), the next issue for this court is whether Public Act 2015-85 is effective as a legislative waiver of the statute of limitations under § 4-148(a) and legislative authorization for the plaintiff's claim against the defendant. The defendant contends Public Act 2015-85 is ineffective for those purposes because the public act creates for the plaintiff an exclusive public emolument in violation of article first, § 1 of Connecticut's Constitution.
General Statutes § 4-148(b) provides in relevant part: " The General Assembly may, by special act, authorize a person to present a claim to the Office of the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose." " Although § 4-148(b) provides that such [legislative] finding [under § 4-148(b)] shall not be subject to review by the Superior Court, special acts [or public acts] passed in this manner are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution." (Citation omitted; internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. at 733. The Supreme Court explained that it is " mindful that legislative enactments carry with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt." (Citation omitted; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 257-58, 690 A.2d 368 (1997).
Article first, § 1, of the Connecticut constitution provides " All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." " To prevail under article first, § 1, of our constitution, the [plaintiff] must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual . . . If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1." (Citation omitted; internal quotation marks omitted.) Chotkowski v. State, supra, 240 Conn. 257.
" The scope of [the court's] review as to whether [a] [legislative] enactment serves a public purpose is limited. What constitutes a public purpose is primarily a question for the legislature . . . [The court is] bound to approach the question from upholding the legislation as a valid enactment unless there is no reasonable ground upon which it can be sustained . . . [I]f there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy and not of natural justice; and the determination of the legislature is conclusive . . . [I]f [the court] can discern any conceivable justification for [the] challenged legislation from the public viewpoint . . . [the court is] bound to uphold it against a constitutional challenge predicated on article first, § 1." (Citations omitted; internal quotation marks omitted.) Id., 259. The Supreme Court explained that the legislative determination as to whether an enactment " serves a public purpose" " should not be reversed by the court unless it is manifestly and palpably incorrect." (Citation omitted; internal quotation marks omitted.) Id.
Despite the foregoing statements, " the fact that the legislature declared there to be compelling equitable circumstances to support the authorization to the plaintiff to bring this action and bar the state from relying on the time provisions of § 4-148(a) is not controlling . . . The legislature cannot by mere fiat or finding, make a public a truly private purpose . . . Its findings and statements about what is or is not public cannot be binding upon the court . . . [Section] 4-148(b) would be constitutionally infirm to the extent that it were construed to shield from judicial review a legislative determination that its enactment meets the requirements of article first, § 1 of our state constitution . . . Therefore, the fact that the legislature served a public purpose does not change the pertinent inquiry for the court." (Citations omitted; internal quotation marks omitted.) Kinney v. State, 285 Conn. 700, 712, 941 A.2d 907 (2008).
In Lagassey v. State, supra, 268 Conn. at 733-34, the Supreme Court held " although a special act [or public act] passed under § 4-148(b) will undoubtedly confer a direct benefit upon a particular claimant, [the Supreme Court has] found a public purpose if it remedies an injustice done to that individual for which the state itself bears responsibility . . . In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state." (Citation omitted; internal quotation marks omitted.)
" By contrast, [the Supreme Court has] consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution. See, e.g., Merly v. State, [211 Conn. 199, 214, 558 A.2d 977 (1989)] . . . Thus, legislation cannot survive a constitutional challenge under article first, § 1, if it excuses a party's failure to comply with a statutory notice requirement simply because the noncompliance precludes consideration of the merits of the party's claim . . . Similarly, where a special act [or public act] has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, [the Supreme Court has] ordinarily been unable to discern any public purpose sufficient to sustain the enactment." (Citations omitted; internal quotation marks omitted). Lagassey v. State, supra, 268 Conn. at 734. See also Kelly v. University of Connecticut Health Center, 290 Conn. 245, 256, 963 A.2d 1 (2009) (no public purpose in statute that " singles out the plaintiff alone for preferential treatment").
The Supreme Court considered an analogous case to the present case in Kinney v. State, supra, 285 Conn. 700. In that case, the Supreme Court held " nothing in the record [in that] case distinguish[ed] its facts from the ordinary case in which a litigant fail[ed] to take timely action. Rather than filing a claim with the claims commissioner as her first course of action or concurrently with her pursuit of administrative and judicial remedies, the plaintiff chose to pursue her claim against the state only through administrative and judicial proceedings. [The special act] essentially would eliminate for her alone the consequences of her litigation choice and would provide no relief to anyone else who either made a similar erroneous litigation choice or who mistakenly believed that exhaustion of administrative and judicial remedies was required before filing a claim with the claims commissioner. Indeed, there is no allegation that any state official misinformed the plaintiff that she had to exhaust these remedies prior to filing a claim with the claims commissioner . . . [The special act] confer[ed] an exclusive public emolument on the plaintiff, and therefore violates article first, § 1, of the state constitution." (Footnote omitted.) Id., 715-16.
In the present case, Public Act 2015-85 provides that " [t]he General Assembly finds that there is a public purpose served by encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by the conduct of state actors." Like Kinney v. State, supra, 285 Conn. 715-16, " there is no allegation [in the complaint] that any state official misinformed the plaintiff that she had to exhaust [administrative and judicial remedies] prior to filing a claim with the claims commissioner." Unlike the plaintiff in Chotkowski v. State, supra, 240 Conn. 261, who testified before the legislature, which found that the plaintiff " was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damages he allegedly suffered, " there is no evidence in the present case that the plaintiff testified before the General Assembly as to any misinformation by a state official, which led to the plaintiff not filing a timely claim before the claims commissioner. Accordingly, the public purpose found in Chotkowski v. State, supra, to hold a state official accountable for misinforming the plaintiff is not present in the case before this court.
Section 25 of P.A. 2015-85, although claiming a public purpose is served, in fact " provide[s] no relief to anyone else [other than the plaintiff] who either made a similar erroneous litigation choice or who mistakenly believes that exhaustion of administrative and judicial remedies [was] required before filing a claim with the claims commissioner." See Kinney v. State, supra, 285 Conn. 715. " The legislature cannot by mere fiat or finding make a public a truly private purpose." Id. Accordingly, Section 25 of P.A. 2015-85 is unconstitutional under the Connecticut Constitution because it confers an exclusive public emolument on the plaintiff, a remedy for the plaintiff alone of a procedural default for which the state is not responsible, in violation of article first, § 1, of the Connecticut Constitution. See Kinney v. State, supra ; Merly v. State, supra, 211 Conn. at 214; Kelly v. University of Connecticut Health Center, supra, 290 Conn. 256.
As a final matter, the defendant contends if the court determines that Section 25 of P.A. 2015-85 is unconstitutional, this court must declare the entirety of P.A. 2015-85 unconstitutional. This court does not find this argument persuasive. By analogy to General Statutes § 1-3, the General Assembly specifically found that " [i]f any provision of any act passed by the General Assembly or its application to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of such act." See also, e.g., State v. Santiago, 318 Conn. 1, 217-18, 122 A.3d 1 (2015) (concluding that unconstitutional provisions of P.A. 12-5 could be severed from constitutional provisions of the public act). In the present case, Section 25 of P.A. 2015-85, the provision authorizing the plaintiff's suit against the defendant, is severable from the remainder of P.A. 2015-85, which addresses other amendments to the General Statutes. The fact that Section 25 of P.A. 2015-85 is unconstitutional does not affect the constitutionality of the remainder of P.A. 2015-85.
III
CONCLUSION
For all of these reasons, the court grants the defendant's motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction.