Opinion
No. CV 04 0411137
December 28, 2004
MEMORANDUM OF DECISION RE: (#107) DEFENDANT'S MOTION TO STRIKE
The plaintiff, Shirley Tutunjian (Tutunjian), commenced this, action against the defendant Bridgeport Hospital for negligence arising from a fall she allegedly sustained while at the hospital as a patient. In her complaint she alleged that she was left alone for a lengthy period of time and suddenly had make an urgent visit to the toilet. She further alleged that after repeated requests for assistance from hospital staff-persons, she attempted to make it by herself without assistance and fell and sustained various injuries.
The defendant has moved to strike the plaintiff's complaint arguing that her claim is, in fact, one of medical malpractice and that the plaintiff has failed to file a certificate of good faith, as required by Sec. 52-190a, C.G.S. in such cases.
The plaintiff argues that although her claim is one in negligence brought against a health care provider, it is not a claim alleging that her injuries were caused by negligence of a specialized medical nature, but rather one that was caused by simple neglect in that no one on the defendant's staff came to assist her in her efforts to get to a toilet.
"[A] motion to strike challenges the legal sufficiency of a pleading . . ." Sherwood v. Danbury Hospital, 252 Conn. 193, 212 (2000). The role of the court is to "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Pamela B. v. Ment, 244 Conn. 296, 308 (1998). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Doe v. Yale University, 252 Conn. 641, 667 (2000). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). "[I]t does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Id., 588.
In Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353 (2001), the Appellate Court ruled on a case very similar to the instant case. In Trimel, the plaintiff was injured when she attempted to make an unassisted transfer from her wheelchair to an exercise mat for a physical therapy session. She allegedly sustained injuries in the attempt and subsequently brought suit in which she alleged the defendant health care provider was "negligent" in not providing her with assistance. The defendant moved for summary judgment noting that the true nature of the cause of action was "medical malpractice" and that summary judgment should enter against the plaintiff for failing to file a certificate of good faith. The trial court granted the motion for summary judgment and the plaintiff appealed that ruling.
On appeal the Appellate Court noted 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 added).
The court in Trimel went on to note that in that case, "the question is whether allowing the patient to transfer unassisted on the day in question, after she had learned to perform transfers without assistance, involved the exercise of medical judgment. That question is a close one."
Based upon the facts in Trimel, the court determined that the transfer from the wheelchair to the exercise mat by the patient (who suffered from and was being treated for multiple sclerosis), was, in fact a maneuver that required training and practice through a course of therapy. The court also took into consideration evidence that a physical therapist employed by the health care provider routinely was present and would ask the patient if she would need assistance in making the transfer from her wheelchair. Based on the patient's answers, the physical therapist would make an assessment of the patient's physical capabilities in performing transfers. The court found that training the patient to perform transfers was a stated goal of her therapy and, for that reason, the plaintiff's claim was properly characterized as a medical malpractice claim. The trial court's decision granting the motion for summary judgment was affirmed.
In the instant case, all that is alleged by the plaintiff is that when she needed and sought assistance to make it to the toilet, no one came to her assistance and she slipped and fell when trying to make it by herself.
"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." Trimel, supra, p. 357.
There is a split of authority regarding whether the negligent failure to supervise a patient is related to medical diagnosis or treatment and involves the exercise of medical judgment. For example, in DeJesus v. Veteran's Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. 4498385 (October 19, 2000, Kocay, J.) ( 28 Conn. L. Rptr. 522, 523), the court found that "negligent supervision by health care providers constitutes ordinary negligence, not malpractice," where the defendant failed to secure the plaintiff to her bed to prevent her from falling.
"[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." (Emphasis in the original). Trimel, supra at p. 357-58, citing Santopietro v. New Haven, 239 Conn. 207, 226 (1996). "Furthermore, malpractice `presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . .'" (Emphasis in the original). Trimel, supra, p. 358, citing Camposano v. Claiborn, 2 Conn. Cir.Ct. 135, 136-37 (1963).
The court finds that the negligent acts of the defendant, as alleged by the plaintiff in her complaint, do not rise to the level of medical malpractice, as that term is defined in case law, and for that reason, the defendant's motion to strike is hereby denied.
By the Court,
Joseph W. Doherty, Judge