Opinion
No. CV 02-0099876
January 26, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action arises out of a claim by the plaintiff, Jeannie Pasacreta, for injuries and losses allegedly sustained while undergoing medical treatment by Kathryn Paternoster. Beginning March of 2001 until the commencement of this action, the plaintiff, who suffers from dissociative identity disorders, was a patient of Paternoster, a licensed clinical social worker employed by Hiebel Roeder Family and Child Associates ("Defendant"). In September of 2001, the plaintiff filed a six-count complaint against Paternoster for medical malpractice and submitted a certificate of good faith, pursuant to General Statutes § 52-190a.
Pasacreta v. Paternoster, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0099665.
The plaintiff subsequently filed this seven-count revised complaint against Hiebel Roeder Family and Child Associates. In count one of her complaint, she alleges that the defendant is vicariously liable for the acts of its employee, Paternoster. In count two, the plaintiff alleges a claim of intentional emotional distress against the defendant. In count three, she claims that the defendant engaged in reckless or wanton misconduct in disregarding the plaintiff's safety while under Paternoster's treatment. In count four, the plaintiff alleges that the defendant owed a fiduciary duty to the plaintiff and that defendant breached this duty. In count five, she claims fraudulent misrepresentation by the defendant. In count six, the plaintiff alleges that the defendant engaged in unfair or deceptive acts in violation of the Connecticut Unfair Trade Practices Act, under General Statutes § 42-110a, and in count seven, she claims that the defendant was negligent in failing to properly supervise Paternoster.
On February 18, 2003, the court, Aurigemma, J., granted the defendant Hiebel Roeder Family and Child Associates' motion to consolidate Pasacreta v. Paternoster, supra, Superior Court, Docket No. CV 02 0099665, with this action.
The defendant filed a motion for summary judgment as to all seven counts, along with a supporting memorandum. The defendant contended that the plaintiff's entire complaint sounds in medical malpractice and therefore requires a certificate of good faith, which the plaintiff indisputably did not file. The plaintiff opposes the motion, arguing that a certificate of good faith is not required because the plaintiff's complaint is based on ordinary negligence, not medical malpractice. In a reply to the plaintiff's memorandum in opposition, the defendant withdrew its motion for summary judgment as to counts one, five and six. As to the remaining counts, however, the defendant renewed its argument that the plaintiff's allegations sound in medical malpractice.
"Summary judgment procedure, generally speaking, is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial." Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574, 534 A.2d 1171 (1987). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
The defendant moves for summary judgment on the ground that counts two, three, four and seven of the plaintiff's complaint are substantially related to medical treatment, and, therefore, amount to a claim of medical malpractice that required the plaintiff to submit a certificate of good faith, pursuant to § 52-190a. Thus, according to the defendant, the court should grant the defendant's motion for summary judgment because it is entitled to judgment as a mater of law due to the plaintiff's failure to file the requisite certificate of good faith with her complaint. The plaintiff argues that a certificate of good faith is not required because the allegations of negligence against the defendant arise neither from medical treatment nor from the defendant's role as a health care provider, but rather from the defendant's role as an employer and business entity.
General Statutes § 52-190a(a) provides in relevant part:
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 or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, 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. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, 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. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.
"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 . . ." (Citation omitted; emphasis in original; internal quotation marks omitted.) Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). Thus, in determining whether a claim sounds in medical malpractice, the relevant considerations a court must look to 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." Id., 358.
Based on the three considerations set out in Trimel, the court finds that count two (intentional infliction of emotional distress), count three (reckless and wanton misconduct) and count four (breach of fiduciary duty) of the plaintiff's complaint can be properly characterized as claims for medical malpractice, rather than ordinary negligence. First, the defendants are being sued in their capacity as medical professionals, notwithstanding the plaintiff's contention that she is suing the defendant in its capacity as an employer of Paternoster, and, not as a health care provider within the meaning of § 52-190a. General Statutes § 52-184b(a) defines health care provider as "any person, corporation, facility or institution licensed by this state to provide health care or professional service, or an officer, employee or agent thereof acting in the course and scope of his employment." See also Bruttomesso v. Northeastern Conn. Sexual Assault Crisis Services, Inc., 242 Conn. 1, 8-9, 698 A.2d 795 (1997) (holding that the definition of a health care provider provided in § 52-184b is applicable to § 52-190a).
By her own allegations, the plaintiff admits that the defendant is an entity that is licensed to practice psychotherapy and to employ individuals to render mental health services. Additionally, all of the alleged acts of negligence by the defendant occurred while the plaintiff was a patient of Paternoster at the defendant's facility and because of Paternoster's alleged failure to render appropriate medical treatment. Moreover, the plaintiff does not provide any evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether the defendant is being sued as a health care provider. Based on the foregoing, the court concludes that the plaintiff has sued the defendant in its capacity as a provider of medical services. Thus, the first consideration of Trimel is satisfied.
First Revised Complaint, Count One, ¶¶ 3, 4.
Next, the alleged negligence by the defendant arises out of a specialized medical nature involving a professional-patient relationship. In her complaint, the plaintiff admits that the defendant's alleged acts of negligence occurred while the plaintiff was a patient of Paternoster. Additionally, the activities that took place at the defendant's office between the plaintiff and Paternoster were for medical treatment, i.e., psychotherapy sessions. Thus, the plaintiff cannot deny that the defendant's alleged negligence arises from tasks performed by Paternoster that were of a specialized medical nature.
First Revised Complaint, Count One, ¶ 5.
First Revised Complaint, Count One, ¶¶ 8, 9.
Finally, in nearly all respects, the defendant's alleged negligence is substantially related to the plaintiff's medical treatment and involved the exercise of medical judgment. In counts two, three and seven of her complaint, the plaintiff incorporates paragraphs one through nine of count one. Paragraphs one through nine are directly related to Paternoster's negligence in the course of providing medical treatment to the plaintiff. Specifically, the plaintiff alleges that Paternoster failed to properly administer diagnostic tools and evaluations, fostered regressive therapy, engaged in treatment techniques that were contrary to the plaintiff's diagnosis, used physical contact during therapy with the plaintiff, and failed to administer the proper standard of care in treating the plaintiff. These allegations, all related to Paternoster and incorporated in the counts against the defendant for negligence, clearly relate to the provision of medical treatment. Thus, by incorporating by reference the allegations of paragraphs one through nine from count one, the plaintiff has asserted a cause of action against the defendant for negligence based on medical malpractice, not ordinary negligence.
In count seven, the plaintiff alleges a cause of action for negligence based on the defendant's failure to properly supervise its employee, Paternoster. Some of the claims in count seven can be properly characterized as medical malpractice. In paragraph thirteen of count seven, the plaintiff alleges that the defendant was negligent in the following ways: (1) the defendant failed to supervise the training and qualifications of Paternoster; (2) failed to supervise the treatment provided to the plaintiff; (3) failed to provide clinical supervision to Paternoster; (4) failed to supervise the length and frequency of sessions with the plaintiff. In count seven, the plaintiff also incorporates paragraphs one through nine of count one. As previously discussed, these paragraphs relate to medical diagnosis or treatment involving medical judgment by Paternoster. These allegations of negligence against the defendant in count seven, when read together with count one, relate to acts of medical malpractice, not ordinary negligence.
The court notes, however, that in count seven the plaintiff has also alleged that the defendant failed to supervise the billing, barter and collection practices of Paternoster. This allegation of negligence, taken together with paragraph six and seven of count one, amounts to a claim in ordinary negligence, rather than medical malpractice. First, this allegation is based solely on the defendant's capacity as an administrator, rather than as a medical professional. Second, the defendant's alleged negligence is not one of a "specialized medical nature that arises out of the medical professional-patient relationship." Instead, the defendant's negligence arises out of administrative functions, i.e., failing to supervise the billing practices of its employee. Finally, the defendant's alleged negligence, i.e., failure to supervise Paternoster's billing practices, is neither "substantially related to the medical diagnosis or treatment" of the plaintiff nor does it involve the "exercise of medical judgment." Thus, while the plaintiff is entitled to pursue her claim that the defendant was negligent in failing to supervise Paternoster's billing practices, the remaining allegations of negligence in count seven sound in medical malpractice, not ordinary negligence, and the failure by the plaintiff to file a certificate of good faith with her complaint entitles the defendant to summary judgment as to those claims of negligence as a matter of law.
"Defendant breached its duty to supervise its employee, Katherine Paternoster, by . . . [f]ailing to supervise the billing, barter and collection practices of its employee Katherine Paternoster." (First Revised Complaint, Count Seven, ¶ 13(e)).
"During the period of the plaintiff's treatment by the defendant and its employee, the defendant billed the plaintiff's medical insurance carrier for services provided by Paternoster."
"During that same period, Katherine Paternoster also billed plaintiff directly for services."
For all of the reasons previously stated, the defendant's motion for summary judgment as to counts two, three and four is granted in its entirety, and in part as to count seven. In order to help maintain intelligibility of the pleadings, the plaintiff is directed to file a revised complaint, omitting counts two, three and four, and also omitting those allegations of count seven as to which summary judgment has been granted.
JONATHAN E. SILBERT, JUDGE.