Opinion
No. HHB CV07 5004904
December 11, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This case presents the issue of whether a good faith certificate and a medical opinion letter are required in a lawsuit brought against a medical clinic by a plaintiff who was not a patient of the clinic. For reasons stated below, this court finds that Conn. Gen. Stat. § 52-190a does not require such documents to be filed when the plaintiff who initiates the action is not the person to whom the clinic provided services.
The facts alleged are these. The defendant Wheeler Clinic, Inc., located in the Town of Plainville, provides behavioral health and mental health services to children and adults. On August 9, 2005, the plaintiff town received a call regarding an emergency at Wheeler. The town dispatched the police to the clinic location. Officer Matthew Labarre, the responding officer, discovered a ten-year-old boy attempting to hang himself. When the officer attempted to take the child into custody, the child began to run and Officer Labarre gave chase. Officer Labarre injured his ankle in the process, As a result, the town paid Workers' Compensation benefits to Officer Labarre and now the town brings this action seeking damages from the defendant clinic in an amount equal to that which it is required to pay out in benefits to Officer Labarre.
The theory of liability is that the defendant was negligent. Paragraph 10 of the Complaint, dated August 6, 2007, alleges that the defendant maintained inadequate staffing, inadequate procedures, and inadequate facilities for the services it offered at its clinic. The complaint also alleges that the clinic "failed to adequately diagnose, treat and medicate the child who brought about the call" that resulted in Officer Labarre's injury, and that the clinic allowed the child to have access to the materials that created the crisis to which the officer responded.
The defendant moves to dismiss this action on the grounds that this is a claim that sounds in medical malpractice, that is, a claim that there was a failure of the defendant to adhere to the standard of care with respect to the child who was the patient of the clinic. Notwithstanding that the injury occurred to one other than the child/patient, the defendant claims that Conn. Gen. Stat. § 52-190a bars the institution of this action if the plaintiff has not appended to the complaint a "good faith certificate" and a written opinion by a similar health care provider that there appears to be evidence of medical negligence. The plaintiff responds that Conn. Gen. Stat. § 52-190a applies only to those with whom the defendant had a physician-patient relationship and not to others who may be injured as a result of the negligence of a health care provider.
This appears to be an issue of first impression in Connecticut.
THE WORDING OF CONN. GEN. STAT. § 52-190a
The initial sentence of Conn. Gen. Stat. § 52-190a reads as follows:
(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. [Emphasis supplied.]
It is clear from the text of the statute that the statute applies when the "claimant" is the person to whom the health care professional provided care or treatment, that is, a patient of the health care provider. The statute cannot reasonably be read to apply to one other than a patient. The plain language of the statute supports the position that when the claimant is not a patient of the defendant health care provider, the prerequisites described in the statute for commencing an action against the health care provider do not apply. See Conn. Gen. Stat. § 1-2z.
THE LEGISLATIVE HISTORY OF THE GOOD FAITH INQUIRY REQUIREMENT
Even if the plain text of the statute were subject to a more ambiguous interpretation, the legislative history supports the position that the statute was intended to cover only suits against physicians by their patients. Enacted as part of a comprehensive tort reform package, P.A. 86-338 and its progeny, generated much debate about protecting physicians from frivolous claims and quelling the rise in doctors' insurance premiums. The focus in the legislative record was exclusively about lawsuits brought by patients and their representatives however. See, e.g., Senate Proceedings, May 5, 1986, colloquy between Sen. O'Leary and bill sponsor Sen. Richard Johnston. A review of the entire legislative history reveals not a single reference to lawsuits by non-patient third parties who might be injured as a result of negligent treatment provided to a patient.
Nor were such lawsuits unknown at the time of the legislative debate. The leading case regarding third-party lawsuits against doctors — Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976) — was decided in 1976. This high profile case involved the failure of Dr. Lawrence Moore, a psychiatrist, to alert Tatiana Tarasoff, who was the object of obsession by Moore's patient Prosenjit Poddar, that the patient was threatening to kill Tarasoff. The case garnered nationwide attention among the medical and legal profession when Poddar indeed killed Tarasoff, and Tarasoff's estate sued Dr. Moore and Moore's supervisors and employers at the University of California at Berkeley. The Supreme Court of California allowed the case to proceed, holding that, in certain circumstances, health care providers owe a duty to third parties who are not patients, when it is foreseeable that a patient may inflict harm on the third party.
In Connecticut, in crafting the relevant provisions of the statute as it did, and in focusing the debate on limiting frivolous malpractice cases by patients against doctors, the General Assembly appears to have intended to include only patients' lawsuits under the provisions of Conn. Gen. Stat. § 52-190a.
THE LAW IN OTHER JURISDICTIONS
Because this dispute turns on the interpretation of a state statute, the law in sister states might seem to be of limited value. However in several states that also require some type of pre-suit review or inquiry, or whose statutes provide different procedures or time limits for commencing medical negligence cases, appellate courts have determined that non-patient third party lawsuits against a health care provider are outside the purview of medical liability statutes.
For example, Alabama law defines "medical liability" as a finding that a "health care provider did not meet the applicable standard of care, and that such failure was the proximate cause of the injury complained of, resulting in damage to the patient." [Emphasis supplied.] Alabama Code (1975) § 6-5-481(9). In Thomasson v. Diethelm, 457 So.2d 397 (Ala. 1984), the Alabama Supreme Court held that the two-year statute of limitations in the Alabama Medical Liability Act did not apply when the claimant was not a patient of the defendant health care provider.
The plaintiff was a respiratory therapist who claimed that while treating a patient of the defendant doctor, she had been infected with hepatitis because the defendant doctor had failed to warn the therapist that the patient had the disease.
The same rationale was followed by that court in Taylor v. Smith, 892 So.2d 887 (Ala. 2004), in holding that a motorist's personal injury action against a doctor arising out of an accident with the doctor's methadone patient was not subject to the provisions of the Medical Liability Act.
Lawsuits against health care providers brought by non-patients have also been allowed to proceed outside the requirements of medical liability statutes in Florida, J.B. v. Sacred Heart Hospital of Pensacola, 635 So.2d 1945 (Fla. 1994); Louisiana, Huthinson v. Patel, 637 So. 2d 415 (La. 1994); and Indiana, Midtown Community Mental Health Center v. Estate of Gahl, 540 N.E.2d 12259 (Ind.App. 1989).
CONCLUSION
The prerequisites in Conn. Gen. Stat. § 52-190a for initiating a civil action against a health care provider do not apply to the situation presented by this plaintiff. Accordingly the defendant's Motion to Dismiss is denied.