Opinion
No. CV 06-5006077 S
March 20, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103); PLAINTIFF'S OBJECTION TO MOTION TO DISMISS (#107); AND DEFENDANT'S REPLY (#109)
On September 11, 2006 the plaintiff, Barbara Gordon-Cobb, filed a two-count complaint against the defendant, Hartford Hospital. Count one sounds in negligence, count two in gross negligence.
The complaint alleges the following relevant facts: on or about August 20, 2004, the plaintiff, Barbara Gordon-Cobb, was admitted to the defendant, Hartford Hospital, for bilateral total knee arthroplasty and underwent surgery on August 20th; plaintiff was unconscious through the whole procedure; on August 21st, while still at Hartford Hospital, the plaintiff discovered a burn on the right side of her lower back; a nurse at Hartford Hospital was notified of the injury, and applied ointment to the wound; and there is no mention of the back wound in the hospital discharge summary. The complaint alleges that the wound was caused by the negligence and carelessness of defendant Hartford Hospital. The complaint also specifically states that the alleged negligence of the defendant was not related to the medical diagnosis or treatment of the plaintiff's knee condition, and did not involve the exercise of medical judgment.
On November 8, 2006, the defendant filed a motion to dismiss on the ground that the plaintiff had failed to comply with the requirements of General Statutes § 52-190a. Specifically, defendant argues that the plaintiff's claim sounds in medical malpractice and therefore it must comply with the provisions of that statute which require that the plaintiff include a written and signed opinion of a similar health care provider with her complaint.
Plaintiff argues that her complaint sounds in ordinary negligence, not medical malpractice, and therefore General Statutes § 52-190a does not apply. The plaintiff claims it is clear she has no idea exactly where, when or how the wound or injury occurred.
"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. . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . [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." (Internal quotation marks and citations omitted.) Filippi v. Sullivan, 273 Conn. 1, 8 (2005).
In this case, the defendant's motion to dismiss asserts that the plaintiff's complaint, although purporting to present a claim based on ordinary negligence, sounds in medical malpractice. Because the complaint does not include an annexed opinion from a similar health care provider as required for medical malpractice cases by General Statutes § 52-190a, the defendant claims that the court must dismiss the action as a matter of law.
General Statutes § 52-190a provides: "(a) No civil action or apportionment complaint 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, 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." There is a split among Superior Court Judges as to effect of the failure to comply with this statute on the jurisdiction of the court. See, Santorso v. Bristol Hospital, Superior Court Judicial of New Britain at New Britain, Docket No. CV 06 5001663 (Prestley, J., Jan. 25, 2007) [42 Conn. L. Rptr. 724].
The issue in this case is whether the plaintiff's action sounds in medical malpractice or in ordinary negligence. In Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, appeal dismissed, 258 Conn. 711 (2001), the Court stated: "[T]he 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."
In this case, certain aspects of the Trimel test are satisfied. Hartford Hospital is clearly a medical provider being sued in its capacity as a medical provider. It is also clear that the plaintiff was at Hartford Hospital for medical treatment, specifically bilateral total knee arthroplasty, and that a medical professional-patient relationship existed between defendant Hartford Hospital and plaintiff Gordon-Cobb.
It is not clear from the complaint, however, whether the defendant Hartford Hospital, acting through its agents, servants or employees, was exercising medical judgment when Gordon-Cobb was injured or that the alleged injury was related to medical diagnosis or treatment. Some courts have found that certain actions performed by health care providers that lead to the injury of their patients are ordinary negligence, not medical malpractice. For example, in Culetsu v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV000378788 (October 16, 2001, Skolnick J.) [30 Conn. L. Rptr. 505], the court held that an injury to a patient's foot that occurred when two orderlies attempted to move the patient from a wheelchair was the result of ordinary negligence, not malpractice, because it did not require medical knowledge. See also, Sloan v. St. Francis Hospital Medical Center, Superior Court, judicial district of New London, Docket No. 536439 (November 27, 1996, Hendel, J.) (An orderly injured a patient while transporting a patient from the emergency room to the patient's room. The Court found that: "[t]he acts were committed at a hospital, but not in the course of medical care or treatment. . . this case presents no issue relating to the exercise of medical judgment in the care or supervision of a patient"); Ferrara v. St. Joseph's Living Center, Superior Court, judicial district of New London at Norwich, Docket No. 112858 (December 16, 1998, Hurley, J.) (the court concluded that failing to lock the wheels of a wheel chair is simple negligence). These incidents of negligence by a health care provider were not considered medical malpractice.
In this case, the complaint does not indicate the circumstances surrounding the plaintiff's injury and the plaintiff does not know how the injury occurred. The plaintiff was unconscious during much of her time at the hospital, and there is no mention of the plaintiff's injury in the hospital discharge summary. The plaintiff's injury may have occurred during the bilateral total knee arthroplasty, while she was being transported to a hospital room for recovery, or at any other time during her stay at Hartford Hospital while she was under the effects of the anesthesia. Based on the facts alleged in the complaint, construed in a manner most favorable to the plaintiff, the court cannot find that the plaintiff's injuries were substantially related to medical diagnosis and treatment and involved the exercise of medical judgment, which is necessary to satisfy the Trimel test.
Therefore, the defendant's Motion to Dismiss is denied.
The defendant claims that at a minimum the court should dismiss the Second Count which sounds in gross negligence since such a cause of action is not recognized. Such a claim is, however, more properly the subject of a motion to strike. See, Natale v. Caron, Superior Court, Judicial District of Norwich (May 21, 1997, Hendel, J.) [19 Conn. L. Rptr. 458].