Opinion
CV156026978
06-21-2016
Helen Feingold v. Watermark/Alsa II, LLC dba the Watermark at East Hill Woods
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
Barbara Brazzel-Massaro, J.
INTRODUCTION
The plaintiff, Helen Feingold, filed a complaint dated March 14, 2015 against four defendants for injuries she received while a resident at a convalescent facility. The complaint contains four separate counts against the defendants with each count alleging a cause of action in negligence. The defendants filed a motion to dismiss for failure to provide a certificate of good faith and expert opinion letter. The plaintiff objected and has argued the cause of action is negligence and not medical malpractice and thus there is no requirement for the filing of a certificate of good faith pursuant to C.G.S. § 52-190a.
FACTS
On April 21, 2015, the plaintiff, Helen Feingold, filed a writ, summon and complaint alleging negligence against four defendants; (1) Watermark/ALSA II, LLC dba The Watermark at East Hill Woods, an assisted living facility; (2) Watermark Retirement Communities of Connecticut, LLC dba The Watermark at East Hill Woods, a chronic and convalescent nursing home facility, (3) Watermark East Hill Woods, L.L.C. dba The Watermark at East Hill Woods, the company that owns, controls and maintains the convalescent nursing home facility, and (4) Kathleen A. Stabile, the manager of the Watermark at East Hill Woods. Specifically, the plaintiff alleges the following relevant facts. The plaintiff, a resident at the convalescent nursing home facility on the premises, was under the care and supervision of the employees, agents or servants of the defendants when she fell and sustained injuries on March 17, 2013. The plaintiff contends that her injuries were caused by the negligence and carelessness of the defendants and their agents, servants or employees in failing: (1) to have a slip resistant floor surface, (2) to properly train and supervise their staff to care for residents, (3) to properly safeguard residents, (4) to properly hire staff members to care for residents, (5) to use reasonable care in rendering assistance pursuant to the residents' individual needs, (6) to properly instruct staff as to the proper manner of care for residents, (7) to properly conduct and/or adhere to the plaintiff's pre-admission fall assessment policy, (8) to properly conduct and/or adhere to the plaintiff's initial admission assessment, (9) to properly implement a reasonable fall assessment policy to safeguard residents, and (10) to have adequate lighting.
Watermark/ALSA II, LLC, Watermark Retirement Communities of Connecticut, LLC, Watermark East Hill Woods, L.L.C. and Kathleen A. Stabile are referred to collectively as defendants.
On May 28, 2015, the defendants moved to dismiss the action on the ground that it sounds in medical malpractice and the plaintiff failed to attach to her complaint a certificate of good faith and an expert opinion letter of a similar healthcare provider as required by § 52-190a. The plaintiff filed an objection to the motion to dismiss dated April 9, 2016. On April 11, 2016, the parties appeared and argued the motion at the short calendar. On April 21, 2016, the defendants filed a reply to the plaintiff's objection to the motion.
Because the plaintiff did not provide the defendants with an opportunity to review the objection to the motion until the morning of the oral argument, the court granted the defendants a two-week time period to file a reply to the objection.
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether on the fact of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . ln this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 718, 104 A.3d 671 (2014).
General Statutes § 52-190a provides in relevant part: " (a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in 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 that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
Our Supreme Court has concluded that " [t]he failure to provide [a good faith certificate and] a written opinion letter . . . constitutes insufficient process and, thus service of that insufficient process does not subject the defendants to the jurisdiction of the court . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Citation omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401-02, 21 A.3d 451 (2011). " Accordingly, a motion to dismiss is the proper procedural vehicle for challenging the legal sufficiency of a complaint on the ground that a good faith certificate and a written opinion letter should have been attached to the complaint." Lefkimiatis v. Luchini Orthopedic Surgeons, P.C., Superior Court, judicial district of New Haven, Docket No. CV 11-6023249-S (April 17, 2012, Wilson, J.) (53 Conn.L.Rptr. 829, 831, ).
In the memorandum of law in support of the motion, the defendants claim that because there are allegations in the complaint that sound in medical malpractice and the plaintiff failed to comply with the requirements of § 52-190a, the court should grant the motion to dismiss. In opposition to the motion, the plaintiff alleges that the defendants filed their motion to dismiss untimely. The plaintiff further alleges that all the allegations against the defendants sound in ordinary negligence and, therefore, § 52-190a does not apply to the plaintiff's complaint. Finally, the plaintiff maintains that the defendant must assert their claims of lack of personal jurisdiction as to each individual defendant and cannot assert those claims collectively against all four defendants. In the reply, the defendants contend that the plaintiff incorrectly characterizes the motion to dismiss as untimely and argue that rather the plaintiff filed her objection to the motion not only untimely under Practice Book § 10-30(a) but also did not make that objection available to the defendants until the morning of the oral argument, which was prejudicial to the defendants. The defendants further reassert that the complaint contains allegations that constitute a medical malpractice claim and, therefore, § 52-190a applies and their motion to dismiss the complaint should be granted.
" Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30(b). In the present case, the defendants filed their appearance on April 30, 2015 and, accordingly, the deadline to file a motion to dismiss was on May 30, 2015. Because the defendants submitted this motion on May 28, 2015, it was timely pursuant to Practice Book § 10-30(b).
The plaintiff's four-count complaint contains one count against each of the four defendants. The allegations in all counts are essentially identical. This court will address the claims of lack of personal jurisdiction as to each defendant.
" [M]ost courts have exercised discretion to address the merits of a motion to dismiss . . . when an opposing memorandum was untimely." Prenderville v. Sinclair, Superior Court, judicial district of Middlesex, Docket No. CV 13-6010439S, n.1, (May 16, 2014, Marcus, J.). Accord Bosco v. Eyelet Tech Nucap Corp., Superior Court, judicial district of Waterbury, Docket No. CV 14-6023433S, n.1, (October 10, 2014, Roraback, J.); Trimmer v. Simple, Superior Court, judicial district of Hartford, Docket No. CV 11-5035826-S, (April 5, 2012, Woods, J.); Southern New England/SBC v. Balf Co., Superior Court, judicial district of New Haven, Docket No. CV 03-0482272S, n.6, (August 2, 2004, Skolnick, J.). Additionally, Practice Book § 1-8 provides: " The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." This court granted and the defendants accepted a two-week period after the short calendar to file a reply to the plaintiff's objection to the motion. Thus, this court will exercise its discretion and address the merits of the motion to dismiss.
As a preliminary matter, this court notes that the plaintiff's complaint alleges not only direct negligence but also vicarious liability against the defendants. Paragraphs 7 and 8 of each count of the complaint allege that " the [p]laintiff was under the care and supervision of the employees, agents or servants" of the defendants at the time of the incident and her " injuries were caused by the negligence and carelessness" of all the defendants " and their agents, servants or employees."
Our Supreme Court held that when a plaintiff alleges vicarious liability for medical malpractice, " under [§ 52-190a], the relevant health care provider . . . [can be] either the defendant, as the corporate entity providing health care services to the plaintiff, or . . . the individual caregiver[as] an employee of the defendant" depending on whose alleged negligence the plaintiff focuses her claims." Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 152-53, 801 A.2d 775 (2002). " Thus in order to support a claim of malpractice against [an institutional defendant] the plaintiff must . . . attach[] to [her] complaint opinion letters as to its agents or employees the plaintiff is seeking to have [the institutional defendant] held vicariously liable for, or an opinion regarding the [institutional defendant's] actions as an institution." Jansone v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV 12-6030589 S (October 25, 2012, Scholl, J.) (54 Conn.L.Rptr. 881, 883, ) . Accord Recinos v. McCarthy, Superior Court, judicial district of Waterbury, Docket No. CV-15-6028101-S (January 6, 2016, Zemetis, J.) [61 Conn.L.Rptr. 567, ] (" [section] 52-190a requires an opinion letter for the agent health care provider on whose negligence the vicariously liable medical malpractice action against an institutional defendant is based"); Doyle v. Danbury Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-15-5007545-S, (June 30, 2015, Danaher, J.) (where counts sought to be dismissed contain allegations of the principal being vicariously liable for its agent physician, opinion letter is required as to agent physician to satisfy § 52-190a as to principal non-individual defendants.) Therefore, if the plaintiff alleges medical malpractice, she had to attach to the complaint either an opinion letter as to the defendants' actions or an opinion regarding the actions of the defendants' agents, servants or employees, for which she is seeking to have the defendants held vicariously liable.
As another threshold issue, this court does not have the authority to dismiss only part of an action pursuant to § 52-190a. The Appellate Court held that " [i]t is not the label that the plaintiff placed on each count of her complaint that is pivotal but the nature of the legal inquiry." Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813 (2009). " Because factual allegations of each count of the complaint require[d] proof of medical negligence . . . the [entire] complaint Iack[s] the requisite written and signed opinion of a similar health care provider, " for which " [d]ismissal pursuant to [§ 52-190a(c)] is a statutory remedy." Id., 571, 583-84. See also DeJesus v. Connecticut Children's Medical Center, Superior Court, judicial district of Hartford Docket No. CV 06-5003390-S (May 17, 2007, Hale, J.T.R.) (43 Conn.L.Rptr. 420, 422, ) (" [§ 52-190a] authorizes only dismissal of 'the action' not sections of it"); Recinos v. McCarthy, supra, Superior Court, Docket No. CV 15-6028101-S, (" the court does not have the authority to dismiss only part of an action pursuant to § 52-190a"); Hall v. New Milford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 13-6009330-S, (July 21, 2014, Danaher, J.) (§ 52-190a does not provide for partial dismissal of action); Andrade v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV-11-6024108-S (July 27, 2012, Tyma, J.) (54 Conn.L.Rptr. 359, 360, ) (" the plain language of § 52-190a does not countenance the piecemeal dismissal").
Notably, in Jansone v. Hartford Hospital, supra, 54 Conn.L.Rptr. 884,, the court concluded to dismiss a vicarious liability count against a hospital " to the extent it raises claims of medical negligence against healthcare providers who practice in specialties other than general surgery, orthopedic surgery and/or anesthesiology" where " [n]one of the parties have argued that procedurally such an order is inappropriate." In the present case, however, in the reply to the objection the defendants contend that " because [the] plaintiff alleges claims of medical malpractice within her [c]omplaint, the entire action should be dismissed pursuant to unequivocal language of [s]ection 52-190a(c) notwithstanding any other allegations sounding in ordinary negligence." Therefore, if there are allegations in the complaint that sound in medical malpractice, this court will have to dismiss the entire action " pursuant to the specific authorization of [§ 52-190a(c)] due to the plaintiff's failure to file [a good faith certificate and] a written opinion of a similar health care provider [with the complaint]." Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 581.
With these rules in mind, this court turns to the main issue in the present case: whether there are allegations in the plaintiff's complaint that sound in medical malpractice. " The interpretation of pleadings is always a question of law for the court." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012). " The classification of a negligence claim as either medical malpractice or ordinary negligence occurred. [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Citations omitted, emphasis omitted; internal quotation marks omitted.) Gold v. Greenwich Hosp. Ass'n, 262 Conn. 248, 254, 811 A.2d 1266 (2002); see also Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63, 864 A.2d 1 (2005); Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, 764 A.2d 203, appeal dismissed, 255 Conn. 948, 769 A.2d 64, 258 Conn. 711, 784 A.2d 889 (2001).
In the present case, the plaintiff contests all three prongs of the Gold test. With respect to the first prong, whether " the defendants are sued in their capacities as medical professionals, " each count of the complaint alleges that " The Watermark at East Hill Woods is . . . authorized to conduct business in the State of Connecticut as an assisted living facility for the elderly . . . chronic and convalescent nursing home facility for the elderly . . . and owns and operates and manages the convalescent nursing home facility . . . and the continuing care retirement community." Paragraph 5 of all four counts of the complaint alleges that the plaintiff " was a resident of the [defendant's] convalescent nursing home facility, " which is " a long-term [health care] institution having facilities and all necessary personnel to provide skilled nursing care under medical supervision and direction to carry out simple, non-surgical treatment and dietary procedures for chronic diseases, or convalescent stages of acute diseases or injuries." Regs., Conn. State Agencies § 19-13-D1(b)(3)(C).
Similarly, in the present case, in Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of New Haven, Docket No. CV-10-6002180-S (July 2, 2010, Marano, J.) (50 Conn.L.Rptr. 246, 248, ), the plaintiff alleged that " the defendant was doing business in the State of Connecticut and owned, operated and managed an assisted living facility" and that she was " injured by an employee . . . of the defendant." The Court in Cotton stated that, " [t]he 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." (Internal quotation marks omitted.) Id. Yet, the court determined that the plaintiff sued the assisted living facility, " which falls under the definition of a 'health care provider' pursuant to § 52-184b(a) . . . in its capacity as a medical professional" when the facility's employee used excessive force on her. Id. Accord. Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-10-6007389-S (September 2, 2010, Tobin, J.) (50 Conn.L.Rptr. 582, 583, ) (" the allegation that the defendant owned the nursing home at which the decedent was receiving care is sufficient to satisfy the first Gold element"); Doe v. Institute of Living, Superior Court, judicial of Hartford, Docket No. CV-07-500798-S, (August 10, 2007, Wiese, J.) (44 Conn.L.Rptr. 5) (mental health facility was sued in its capacity as medical professional where plaintiff alleged negligent supervision of employees and failure to prevent him from being coerced); Katz v. Harborside Healthcare-Arden House Rehabilitation & Nursing Center, Superior Court, judicial district of Waterbury, Docket NP. CV-06-5000597-S (April 16, 2007, Upson, J.) (35 Conn.L.Rptr. 543) (defendant was sued in its capacity as nursing home when plaintiff was injured while being transferred from her bed to wheelchair).
In the present case, the plaintiff alleges not only that the defendants owned, operated and managed the nursing home facility, in which she was a resident, but also that the defendants and their agents, servants or employees " Failed to properly conduct and/or adhere to the plaintiff's initial admission assessment, " which included completion of a " comprehensive medical history and medical examination." Regs., Conn. State Agencies § 19-13-D8t(n)(1). Chronic and convalescent nursing homes shall admit patients " only after a physician certifies . . . [t]hat a patient . . . has uncontrolled and/or chronic conditions requiring substantial assistance with personal care, on a daily basis." Regs., Conn. State Agencies § 19-13-D8t(d)(1)(A). Accordingly, the plaintiff alleges in all counts of the complaint that the defendants and their agents, servants or employees conducted her admission assessment, which statutorily required a medical examination, improperly. Viewing this allegation in light of the reasoning in Cotton, Katz, Kelly and Institute of Living, this court concludes that the plaintiff sues the defendants in their capacity as medical professionals. Thus, the first prong of the Gold test has been met.
The second prong of the test is whether " the alleged negligence is of specialized medical nature that arises out of the medical professional patient relationship." In paragraph 8 of all counts of the complaint, the plaintiff alleges numerous negligent acts and omissions of the defendants and their agents, servants, or employees. She alleges that she fell and sustained injuries because of a defective floor surface and inadequate lighting, which could happen to anyone in almost any setting and would not be necessarily be specialized medical nature. She further alleges that the defendants and their agents, servants or employees failed to properly train and supervise their staff to care for residents, properly safeguard residents, properly hire staff members; use reasonable care in rendering assistance pursuant to the individual needs of residents, properly instruct staff as to the proper manner of care; properly conduct and/or adhere to the [p]laintiff's initial admission assessment; and properly implement a reasonable fall assessment policy to properly safeguard residents. This court will analyze each of these allegations individually in order to determine whether any of them satisfy the requirements of the second prong of the Gold test. See Polastri v. Hearth Management, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6045622-S (September 30, 2014, Wilson, J.) (59 Conn.L.Rptr. 86, ) (allegations identical to present case).
With respect to the allegation that the defendants failed to properly train and supervise the staff, " [c]ourts have held that a health care provider's negligent failure to train or supervise its employees is administrative and not of a 'specialized medical nature.'" Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., Superior Court, judicial district of New Britain, Docket No. CV-10-6006066-S (November 10, 2011, Shortall, J.T.R.) (52 Conn.L.Rptr. 874, 876, ). See also Polastri v. Hearth Management, LLC, supra, 59 Conn.L.Rptr. 89, (" [t]he training and supervision of staff to provide baseline adequate care is not care of a specialized medical nature"); Cotton v. Benchmark Assisted Living, LLC, supra, 50 Conn.L.Rptr. 249, (" allegations of negligent supervision amount to ordinary negligence and not medical malpractice"). Therefore, this court concludes that the allegation of failure to properly train and supervise the staff sounds in ordinary negligence.
The allegation of a " failure to properly instruct" is " practically identical" to the allegation of negligent training and supervision; Polastri v. Hearth Management, LLC, supra, 59 Conn.L.Rptr. 91, ; and, accordingly, is also an allegation in ordinary negligence. Regarding the allegation of negligent hiring, similarly to the allegation of negligent training and supervision, it " does not entail specialized medical treatment and care, is administrative and custodial in nature, and, therefore, sounds in ordinary negligence." Id.
With respect to the allegation that the defendants failed to safeguard residents living on the premises, " [c]ourts have held that negligence is not of a 'specialized medical nature' where a health care provider neglects to follow or implement an administrative or routine procedure not directly related to a patient's medical care." (Emphasis in original.) Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., supra, 52 Conn.L.Rptr. 876, . See also Bradley v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV-10-5033272-S, (November 28, 2011, Gold, J.) (holding transport attendant's negligent transfer of plaintiff from gurney to bed not medical malpractice); Simpson v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV-10-6014978-S (July 20, 2011, Dooley, J.) (52 Conn.L.Rptr. 245, ) (hospital employee's alleged failure to inspect, maintain and lock wheels on patient's bed constitutes ordinary negligence). Because generally safeguarding patients from harm is not, in and of itself, specialized medical care, this allegation sounds in ordinary negligence.
With respect to the allegation that the defendants failed to use reasonable, individualized care in assisting the plaintiff, the fact that the defendants in the present case may or may not have taken individualized precautions to ensure that the plaintiff did not fall does not make her claim one of a " specialized medical nature." Polastri v. Hearth Management, LLC, supra, 59 Conn.L.Rptr. 89, . See also Beshara v. Charlotte Hungerford Hospital Center for Behavioral Health, Superior Court, judicial district of Litchfield, Docket No. CV-13-6008907-S (January 21, 2014, Trombley, J.) [57 Conn.L.Rptr. 546, ] (" [A] plaintiff may have . . . claims arising out of health related services that do not focus on the performance of the treatment" but rather focus on the adequacy of the safety precautions taken). This is an allegation of improper safety issues assessment that is not medically related and, therefore, it is an allegation in ordinary negligence.
Regarding the defendants' alleged failure to implement, conduct, and/or adhere to a fall assessment policy for the plaintiff, there is no allegation in the complaint that the plaintiff " was subject to a fall assessment policy pursuant to any medial order or treatment. She simply alleges that no policy was in place but should have been, or in the alternative, that the defendant failed to follow a policy to prevent her injuries." Polastri v. Hearth Management, LLC, supra, 59 Conn.L.Rptr. 90, . This court agrees with Polastri and concludes that these allegations are in ordinary negligence.
The court in Polastri, however, overlooked the allegation that the defendants and their agents, servants or employees failed to properly conduct and/or adhere to the plaintiff's initial admission assessment. Notably, the defendant in Polastri was an " assisted living services agency" defined as " an agency that provides, among other things, nursing services and assistance with activities of daily living to a population that is chronic and stable." Gen. Stat. § 19a-490(l). " Although such a facility could provide nursing and related medical services, it does not have to in order to qualify under the definition." (Emphasis in original.) Polastri v. Hearth Management, LLC, supra, 59 Conn.L.Rptr. 90, .
In the present case, the plaintiff was a resident of the defendants' chronic and convalescent nursing home facility. In order to admit a patient in such a facility, a physician performs the initial admission assessment that includes a physical examination, a functional assessment, and a cognitive assessment, which is " an assessment of a patient's mental and emotional status to include the patient's ability to problem solve, decide, remember, and be aware of and respond to safety hazards." Regs., Conn. State Agencies § 19-13-D8t(n)(1)(B); see also Regs., Conn. State Agencies § 19-13-D8t(d)(1)(A). Accordingly, the alleged negligently conducted initial admission assessment of the plaintiff as a resident of a chronic and convalescent nursing facility included a statutorily required comprehensive medical examination conducted by a physician. " A physical examination is care or treatment that requires compliance with established medical standards of care and, thus, necessarily is of a specialized medical nature." Nichols v. Milford Pediatric Group, P.C. 141 Conn.App. 707, 714, 64 A.3d 770 (2013). Therefore, this court concludes that the allegation in each count of the complaint that the defendants and their agents, servants or employees failed to properly conduct and/or adhere to the plaintiff's initial admission assessment is an allegation of negligence of specialized medical nature arising out of the medical professional-patient relationship, which satisfies the second prong of the Gold test.
The third prong considers whether " the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." The Appellate court held that " the alleged failure to provide a supervisor to monitor [a mentally ill patient] in safely crossing the highway was not a medical procedure . . . the negligence charged against the hospital [involved] no 'materia medica, nor any complex issue requiring specialized knowledge.'" (Citations omitted; internal quotation marks omitted.) Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386-87, 505 A.2d 741 (1986). Thus, taking precautions to ensure that a patient is safe walking ordinarily does not require specialized medical knowledge and has nothing to do with a medical diagnosis or treatment. See Reiss v. Stamford Hospital, Superior Court, judicial district of New Haven, Docket No. CV-01-0276557-S (August 2, 2005, Weise, J.) (39 Conn.L.Rptr. 611, ) (holding that " the allegations in the complaint do not allege that the [h]ospital staff was administering medical treatment in the exercise of medical judgment" where it was alleged that postoperative plaintiff fell while making unsupervised trip to bathroom); Tutunjian v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV-04-0411137-S (December 28, 2004, Doherty, J.) (38 Conn.L.Rptr. 429, ) (holding that failure to assist plaintiff to bathroom constitutes ordinary negligence).
Judges of the Superior Court have held that allegations that a medical judgment for supervision had been made but was negligently followed are not substantially related to medical diagnosis or treatment and do not involve the exercise of medical judgment. See Fallo v. McLean Ass'n, Inc., Superior Court, judicial district of New Britain, Docket No. CV-99-0499101-S (July 17, 2001, Shapiro, J.) (30 Conn.L.Rptr. 217, ) (rejected defendant's argument that patient who required supervision, by virtue of being full-time resident of assisted living facility, was receiving medical treatment at all times.) See also Kelly v. Bridgeport Health Care Center, Inc. supra, 50 Conn.L.Rptr. 585, (where plaintiff required supervision, " the failure to monitor the front door, the failure to secure the front door, the failure to prevent [the plaintiff] form leaving his room, and the failure to stop [the plaintiff] in the hallway . . . do not require any specialized medical knowledge or involve medical judgment").
On the other hand, where a complaint alleges that a medical judgment requiring supervision should have been made but was not, our Supreme Court held that the action sounds in medical malpractice. Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969). In Levett, the plaintiff, who was elderly and infirm, fell and sustained injuries while she was trying to disrobe by herself during a scheduled visit with her physician, Id., 570-71. The issue in Levett was whether the determination if the plaintiff needed assistance called for a medical judgment on the part of the medical professional and whether such a decision was substantially related to the plaintiff's diagnosis or treatment, Id., 573. Based on the prior physician's assessment of the plaintiff's physical and mental condition, the court in Levett held that the physician's failure to order nurse's assistance to the plaintiff in disrobing made the case sound in medical malpractice, not ordinary negligence. Id. " The Trimel court later explained that the determination of whether the [plaintiff] in Levett needed assistance in disrobing called for a medical judgment on the part of the physician and that such a decision was substantially related to the [plaintiff's] treatment." Lefkimiatis v. Luchini Orthopedic Surgeons, P.C., supra, 53 Conn.L.Rptr. 829, 833, . See Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 361.
In some respect, the present case is distinguishable from Levett in that the accident here did not occur in a physician's office during a scheduled visit, which would identify the exact time the plaintiff was receiving " specialized medical treatment" arising out of the doctor-patient relationship. Rather, the plaintiff fell while walking in a nursing facility where she was admitted as a long-term resident as a consequence of her medical condition. Yet, the crucial similarity between the present case and Levett is that a physician examined the plaintiff's physical and mental condition prior to the accident during the initial admission assessment, which was allegedly conducted improperly and caused the plaintiff's fall. " A physical examination is related to medical diagnosis and treatment of a patient; therefore, any alleged negligence in the conducting of such an examination is 'substantially related' to medical diagnosis or treatment." Nichols v. Milford Pediatric Group, P.C., supra, 141 Conn.App. 715. Thus, the court concludes that the allegation in each count of the complaint that the defendants and their agents, servants or employees improperly conducted the plaintiff's initial admission assessment is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment, which satisfies the third, final prong of the Gold test.
CONCLUSION
After construing the allegations in the complaint in a light most favorable to the non-moving party, the court finds that each count of the complaint against each of the defendants contains a claim of professional medical negligence. Because the plaintiff failed to file with her complaint a certificate of good faith and a written opinion from a similar health care provider as mandated pursuant to § 52-190a(c), the defendants' motion to dismiss the plaintiff's complaint is granted.