Opinion
No. CV08 5004011S
June 24, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
FACTS
On or about August 30, 2006, the plaintiff, Carol Tenerow (Tenerow), underwent a physical and drug test at the facility of the defendant, Concentra Health Services, Inc. (Concentra) as directed by her employer, Masonicare, Inc. On September 2, 2008, Tenerow filed a complaint against Concentra for injuries she sustained when a therapist at Concentra allegedly required Tenerow to perform an unnecessary rigorous physical agility test in addition to the physical examination and drug test. Tenerow allegedly informed the therapist that she was not required to perform an agility test, but reluctantly performed the test, and thereby sustained injuries, because the therapist stated she would notate a refusal in Tenerow's permanent file if she did not complete the test.
Concentra filed a motion to dismiss, pursuant to Practice Book § 10-31(1), in accordance with Connecticut General Statutes § 52-190a on October 23, 2008. Concentra claims Tenerow has asserted claims for medical negligence, rather than ordinary negligence, as the injuries arise out of a physical agility test performed by Concentra in their capacity as a medical provider. Claims for medical negligence are subject to the requirements of C.G.S. § 52-190a, including a certificate of good faith by the attorney filing the complaint asserting that a prior reasonable inquiry was conducted, as well as a written report from a similar health care provider detailing the evidence of medical negligence. On December 31, 2008, Tenerow filed a memorandum of law in opposition to Concentra's motion to dismiss, asserting her claims arise out of ordinary negligence, not medical negligence. The parties were heard on the motion at short calendar on June 15, 2009.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8 (2005). "When a . . . court decides a jurisdictional question raised by a pre-trial 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." Id.
Pursuant to Practice Book § 10-31, a motion to dismiss is the appropriate motion for raising lack of subject matter jurisdiction. "Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter what form it is presented . . . and the court must fully resolve it before proceeding further with the case." D'Eramo v. Smith, 273 Conn. 610, 616 (2005). "Where the decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space Commission, 211 Conn. 416, 425 (2005).
The question in this case is where the line is drawn between ordinary negligence claims, which do not require additional information, and medical negligence claims which do require a certificate of good faith and written opinion of a similar health care provider pursuant to C.G.S. § 52-190a. "The term `malpractice' . . . presupposes some improper conduct in the treatment or operative skill . . . It is defined as any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties . . . Malpractice is predicated upon the failure to exercise requisite medical skill." Camposano v. Claiborn, 2 Conn. Cir.Ct. 135, 136-37 (6th Circuit, 1963). "A good faith certificate is not, however, required in all cases simply because a health care provider is named as a defendant. Where a health care provider is accused of ordinary negligence, compliance with § 52-190a is unnecessary." Williams v. National Railroad Passenger Corporation, 16 F.Sup.2d 178 (D.Conn. 1998) (citing Smith v. Mediplex of Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV97 0159274S (March 25, 1998, D'Andrea, J.) [21 Conn. L. Rptr. 495].
"[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacity 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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358 (2001). Each of these considerations is addressed below.
First, in considering whether Concentra is sued in its capacity as medical professionals in this case, it is important to note that while health care facilities similar to Concentra often furnish medical care and treatment to patients, "not every act of negligence toward a patient would be medical malpractice . . . [W]hen `the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [facility's] failure in fulfilling a different duty,' the claim sounds in [ordinary] negligence." Weiner v. Lenox Hill Hospital, 88 N.Y.2d 784, 788 (1996) (quoting Bleiler v. Bodnar, 65 N.Y.2d 65, 73 (1985)). Here, Tenerow alleges Concentra improperly administered an agility test when Concentra knew or should have known the test was unnecessary. The defendant was informed by both the plaintiff's employer and Tenerow herself that the agility test was unnecessary for her position with Masonicare. Tenerow is correct in asserting that these allegations are based on Concentra's capacity as an administrator, rather than as a medical professional, as the incident could have been avoided with appropriate record-keeping and informing and training employees on the required tests for certain jobs. These questions do not involve questions of medical competence or judgment, and accordingly, the allegations do not implicate Concentra in its capacity as medical professionals.
Secondly, in considering whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, "[a] claim for medical malpractice does not exist in the absence of a physician/patient relationship." Williams v. National Railroad Passenger Corporation, supra (citing Iurato v. Doyle, Superior Court, judicial district of Bridgeport, Docket No. CV96 0334804S, (April 16, 1997, Hartmere, J.) [19 Conn. L. Rptr. 342]. "The physician/patient relationship is consensual . . . It arises where an individual seeks and obtains medical treatment or advice from a health care professional." (Emphasis added.) Id. (citing Pokorny v. Shafer, Superior Court, judicial district of Hartford at New Britain, Docket No. CV93 0528375 (February 24, 1994, Wagner, J.) [11 Conn. L. Rptr. 151]). Generally "[t]he physician-patient relationship does not exist if the physician is retained solely to examine an employee on behalf of an employer . . . An exception applies, however, when the physician affirmatively treats or affirmatively advises the employee as to treatment." Dugan et al. v. Mobile Medical Testing Services, Inc. et al., 265 Conn. 791, 812 (2003) (quoting Lee v. New York, supra, 162 A.D.2d 34, 36 (N.Y.App.Div., 1990)). See also Pokorny, supra (finding that plaintiff's referral to an independent medical examiner did not give rise to a physician/patient relationship).
This consensual professional/patient relationship is absent in this case because Masonicare instructed Tenerow to undergo the physical and a drug screening at the defendant's facility. These screenings were performed solely for Masonicare's benefit, and the therapist did not provide any affirmative treatment or medical advice during the screening. Additionally, administering an agility test is not medical in nature. It appears that the agility test in question is only comprised of rudimentary tasks which the patient either completes or fails. While the test may have been administered by a licensed physical therapist, it appears no degree of skill or medical knowledge is required to administer such a test.
Finally, in considering whether the alleged negligence is substantially related to medical diagnosis and treatment, involving the exercise of medical judgment, the distinction between an ordinary negligence claim and a medical negligence claim is often "predicated on the relation of the alleged negligent act or omission to the injured person's treatment." (Emphasis added.) Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 362 (2001). See also Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386 (1986). Administering a pre-employment agility test does not constitute medical diagnosis or treatment. Although the agility test in this case was administered by a licensed physical therapist, Tenerow did not undergo the agility test in order for the therapist to diagnose or prescribe treatment for any medical condition, but in the pursuit of employment. Moreover, the administering of such a test did not require the exercise of medical judgment by the physical therapist in this case.
Since Concentra is not being sued in their capacity as medical professionals, the alleged negligence is not of a specialized medical nature that arises out of the medical professional-patient relationship, and the alleged negligence is not substantially related to medical diagnosis and treatment that requires the exercise of medical judgment, the plaintiff's claim sounds in ordinary negligence rather than medical negligence. As such, the requirements of C.G.S. § 52-190a are inapplicable, and the defendant's motion to dismiss because the plaintiff failed to comply with such requirements is denied.