Opinion
NNHCV146045534S
02-16-2016
Leonard Labonia, Executor of the Estate of Lena Labonia v. Whitney Manor Convalescent Center, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
Brian T. Fischer, Judge.
FACTS
On March 11, 2014, the plaintiff, Leonard LaBonia, who was appointed as the executor of the estate of Lena LaBonia (LaBonia), filed a two-count complaint against the defendant, Whitney Manor Convalescent Center, Inc., alleging negligence in count one and recklessness in count two. In the complaint, the plaintiff alleges the following facts. On February 28, 2012, LaBonia, who was ninety years old at the time, was admitted as a resident to the defendant's convalescent center to recover from surgery for a broken hip. The defendant knew, and it was readily apparent, that LaBonia suffered from dementia, impaired cognition, and could not be safely left alone without an alarm or a safety apparatus to ensure she did not attempt to get up from her bed or wheelchair. On March 21, 2012, LaBonia was brought into the defendant's day room in an unalarmed wheelchair by an employee of the defendant, where she was left unattended and unrestrained. LaBonia attempted to get out of her wheelchair and fell, causing her to fracture her right hip.
The plaintiff further alleges that the defendant's agents or employees, through their carelessness and negligence, proximately caused LaBonia's injuries, and ultimately her death, in that they: (1) failed to use readily available means to protect LaBonia from falling; (2) failed to alarm and restrain LaBonia's wheelchair; (3) failed to watch LaBonia when she was alone and unrestrained; and (4) allowed LaBonia to be left alone without any protection from falls. Additionally, the plaintiff alleges that the aforementioned actions of the defendant's agents or employees demonstrated a conscious disregard of the safety of LaBonia, were reckless, and exhibited highly unreasonable conduct, which was an extreme departure from ordinary care.
On April 14, 2014, the defendant filed the present motion to dismiss, along with a supporting memorandum of law. The defendant moves to dismiss this action on the ground that this court does not have personal jurisdiction over it because this action sounds in medical negligence and thus, pursuant to General Statutes § 52-190a, the plaintiff was required to attach the written opinion of a similar health care provider and a certificate of reasonable inquiry to his complaint, both of which the plaintiff has failed to do. The plaintiff filed an objection on May 14, 2014, along with a supporting memorandum of law, to which the defendant filed a reply on September 3, 2015. This matter was heard at the short calendar on November 9, 2015.
Section 52-190a provides in relevant part:
DISCUSSION
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo . . . 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 . . . In 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).
" Under § 52-190a(a), in any action in which it is alleged that . . . injury or death resulted from the negligence of a health care provider . . . The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that [the attorney or party's] 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 . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Internal quotation marks omitted.) Torres v. Dolan, Superior Court, judicial district of New Britain, Docket No. CV15-6028219-S (August 24, 2015, Gleeson, J.) (60 Conn. L. Rptr. 868, 869, *2-3).
" [T]he purpose of § 52-190a and its requirement of a good faith certificate [i]s to prevent the filing of frivolous medical malpractice actions." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.3d 451 (2011). " The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Id., 401-02. " [A]n action is subject to dismissal under [General Statutes § 52-190a(c)] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." (Footnote omitted.) Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011). " [A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and . . . dismissal of a letter that does not comply with § 52-190a(c) is mandatory . . ." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011).
In the defendant's memorandum of law in support of its motion to dismiss, and in its reply brief, it argues that while the plaintiff has brought this action as a general liability claim, it actually sounds in medical negligence because: (1) the defendant is being sued in its capacity as a medical professional; (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. The defendant asserts that because this matter sounds in medical negligence, § 52-190a requires the plaintiff to attach to the complaint the opinion of a similar healthcare provider, which the plaintiff has failed to do. The defendant argues that as a result, this court does not have personal jurisdiction over it and the complaint must be dismissed.
In the plaintiff's objection to the defendant's motion to dismiss, the plaintiff counters that this action sounds in ordinary negligence, not medical negligence. The plaintiff contends that: (1) while the defendant is a medical professional, it was not acting as such when it left LaBonia unattended, unmonitored and unrestrained; (2) at the time LaBonia fell, the defendant was not administering any specialized medical treatment; and (3) the defendant's failure to keep LaBonia safe was not related to any medical diagnosis or treatment, nor did it involve the failure to exercise medical judgment. Thus, the plaintiff argues that he was not required to comply with § 52-190a and the complaint should not be dismissed.
" The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 360, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). " The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged 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." (Emphasis in original; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63, 864 A.2d 1 (2005).
This court begins its analysis by addressing the first Boone element. In 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), the plaintiff, executor of the estate of the decedent, filed suit against the defendant, a nursing home where the decedent was a resident. The decedent died of injures sustained when his wheelchair fell down the front steps of the defendant's nursing home. Id. The court found that the first element of a medical malpractice claim was satisfied because the defendant owned the nursing home at which the decedent was receiving care. Id., 583. Additionally, in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 354-55, the plaintiff, a patient at the defendant's satellite rehabilitation center, sued the defendant when she fell during a transfer from her wheelchair to an exercise mat. The court held that the first element of a medical malpractice claim was satisfied because " the defendants are medical professionals and . . . the plaintiff was at their clinic for treatment, specifically her therapy session." Id., 358.
Similarly, in the present case, the plaintiff alleges that LaBonia was admitted as a resident to the defendant's convalescent center to recover from surgery for a broken hip. In addition, the defendant, being that it is a convalescent center, is a medical professional. Thus, the defendant is being sued in its capacity as a medical professional and the first Boone element is satisfied.
With respect to the second Boone element " [c]ourts have found that negligence is of a specialized medical nature where a health care provider neglects to take precautions that are necessary to address a patient's medical condition . . . 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) 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, *8).
In Levett v. Etkind, 158 Conn. 567, 569, 265 A.2d 70 (1969), the plaintiff received outpatient care from the defendant upon being discharged from Gaylord Sanitarium with a diagnosis of chronic brain syndrome. In Trimel, supra, 61 Conn.App. 354-55, the plaintiff, who suffered from multiple sclerosis, received outpatient care in the form of physical therapy at the defendant's satellite rehabilitation center. In both of these cases, the courts held that the second Boone element was satisfied because the patients received outpatient care at the defendants' facilities, which the courts characterized as " specialized medical treatment" directly related to the patient's medical care and arising out of the doctor-patient relationship. See Levett v. Etkind, supra, 573-74; Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 363-64. In contrast, the court in Kelly, supra, 50 Conn. L. Rptr. 583-84, found that the second element was not satisfied because the decedent, who died of injuries when his wheelchair fell down the stairs at the defendant's nursing home, was not receiving any specialized medical treatment. Instead, the decedent was a long-term resident of the defendant's nursing home, which functioned mainly as a living facility rather than a treatment center. Id., 584.
First, similarly to the plaintiffs in Trimel and Levett, LaBonia was admitted as a resident into the defendant's convalescent center in order to receive outpatient care to recover from surgery for her broken hip. Unlike the decedent in Kelly, who was a long-term resident of the defendant's nursing home which was functioning mainly as a living facility rather than a treatment center, here, the plaintiff specifically alleges that LaBonia was admitted into the defendant's convalescent center in order to receive treatment. Additionally, the defendant's convalescent center is not a senior living facility, but rather, it functions as a short-term treatment center for individuals to receive rehabilitation and outpatient care. Second, the outpatient care LaBonia was receiving required the defendant's employees to determine whether she was at a risk for falls, whether to alarm and restrain her wheelchair, and whether to permit her to be left unattended. These are specialized medical precautions that the defendant's employees were required to take in order to address LaBonia's medical condition. Based on the court's analysis of the second Boone element in Cortes, the alleged negligence in the present case is of a specialized medical nature because the defendant's employees neglected to take the precautions necessary to address LaBonia's broken hip. The failure to take these necessary precautions occurred while LaBonia was receiving outpatient care at the defendant's convalescent center, meaning it arose out of the professional-patient relationship that existed between LaBonia and the defendant. Thus, the second Boone element is satisfied.
Finally, this court addresses the third Boone element, which has been broadly interpreted by numerous courts. In Levett, supra, 158 Conn. 569, the unsupervised plaintiff fell while disrobing during an examination where the physician only suggested to a nurse that the plaintiff might need assistance to undress. The court determined that the claim involved medical negligence, concluding that the plaintiff's claim resulted from a fall while disrobing in the defendant's office, after the defendant made a medical judgment that she could disrobe safely, and thus, was substantially related to her medical treatment. Id., 575-76. Further, in Trimel, supra, 61 Conn.App. 355, the plaintiff, as part of a physical therapy session, was injured while transferring herself from a wheelchair to a mat without the assistance of the physical therapist. In determining that the third element was satisfied, the court held that, " [t]he plaintiff was in the defendant's facility for treatment, the plaintiff's treatment had included unassisted transfers with supervision, and the plaintiff's injury resulted from a mishap during a transfer without supervision. It was a medical professional's judgment that allowed the transfer to proceed unassisted." Id., 363-64.
Here, LaBonia was at the defendant's convalescent center for treatment, LaBonia's treatment required the defendant's employees to determine whether safety precautions were necessary to prevent LaBonia from falling, and LaBonia's injury resulted from the defendant's employees' failure to alarm and restrain LaBonia's wheelchair. The defendant's employees' judgment that LaBonia could remain unalarmed, unrestrained and unsupervised in her wheelchair was substantially related to her medical treatment. Thus, the alleged negligence is substantially related to LaBonia's treatment and involved the exercise of medical judgment. As a result, the third Boone element is satisfied.
Accordingly, the defendant is being sued in its capacity as a medical professional, the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. Therefore, this case sounds in medical negligence, not ordinary negligence. As a result, the plaintiff is required to comply with § 52-190a, which mandates the plaintiff to attach to the complaint the written opinion of a similar healthcare provider and a certificate of reasonable inquiry. Since the plaintiff has failed to comply with the requirements of § 52-190a, this court does not have personal jurisdiction over the defendant and the plaintiff's complaint is dismissed.
CONCLUSION
Based on the above considerations, the defendant's motion to dismiss the complaint is granted.
(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion . . . to such certificate. (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.