Opinion
No. DBD CV 10 6002180S
July 2, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101
FACTS PROCEDURAL HISTORY
On January 11, 2010, the plaintiff, James D. Cotton individually and on behalf of the estate of Lillian M. Cotton, filed a two-count complaint against the defendant, Benchmark Assisted Living LLC. The first count of the complaint is a claim for negligence brought by James D. Cotton, as executor of the estate of Lillian M. Cotton, and the second count is a claim for negligence brought individually by Mr. Cotton. The plaintiff alleges the following. The decedent was a resident at Ridgefield Crossings, an assisted living facility operated by the defendant. She was injured, on two separate occasions, by an employee trainee of the defendant.
The first instance was on September 6, 2008, when the employee grabbed the decedent's right wrist causing her to bleed. After this incident the decedent notified staff at Ridgefield Crossings that she did not want that employee working with her.
Despite the notification, approximately one week later, the same employee came to the decedent's room to provide her with assistance, when the employee suddenly pushed the decedent's wheelchair into her right leg causing injury. The plaintiff alleges that the injuries occurred as a result of the defendant's negligence in hiring the trainee, failing to properly train and supervise the trainee, failing to remedy and warn of a dangerous condition, failing to take reasonable precautions and guard against these dangers and failure to heed the decedent's warning in allowing the trainee to continue to work with her.
The defendant filed this motion to dismiss (#101) on February 19, 2010, arguing that the plaintiff failed to attach a certificate of good faith and a written opinion by a similar medical provider pursuant to § 52-190(a). On April 12, 2010, the plaintiff filed an objection to the motion arguing that the current action sounds in ordinary negligence, not medical malpractice, and therefore a certificate of good faith and written opinion letter are not required. The defendant filed a reply on May 24, 2010 and the matter was heard at short calendar on June 7, 2010.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134,918 A.2d 880 (2007). "[T]he interpretation of pleadings is always a question of law for the court." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).
"[General Statutes § ]52-190a(a) provides in relevant part that, in any medical malpractice action, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]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 and includes a detailed basis for the formation of such opinion . . . Section 52-190a(a) does not define medical negligence and the phrase is susceptible to more than one reasonable interpretation. Specifically, the word `negligence' reasonably may be understood . . . as referring to the cause of action consisting of the elements of duty, breach of the standard of care, causation and damages . . . or it reasonably may be understood . . . as specifying an attribute of the defendant's conduct, namely, a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it." Dias v. Grady, 292 Conn. 350, 355-56, 972 A.2d 715 (2009).
"A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim . . . However, the legislature has provided that such a failure does render the complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
In the present case, the defendant argues that because the plaintiff failed to attach a certificate of good faith and a medical opinion letter the case should be dismissed. The defendant asserts that the plaintiff was required to comply with § 52-190a(a) because the allegations constitute claims that the defendant inadequately trained and supervised its medical staff. The defendant argues that, therefore, the claims sound in medical malpractice. The plaintiff, in opposing the motion, argues that the complaint alleges ordinary negligence and that the actions of the defendant's employee did not require specialized medical knowledge or the exercise of medical judgment. In response, the defendant argues that the complaint alleges that the defendant failed to exercise adequate medical judgment, specifically through its lack of supervision and appropriate training of the employee, and does not allege vicarious liability.
General States § 52-190a(a) provides in relevant part: "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. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant."
"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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254, 811 A.2d 1266 (2002). See also Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, 764 A.2d 203, cert. dismissed, 258 Conn. 711, 784 A.2d 889 (2001) (first articulating the relevant considerations in distinguishing an ordinary negligence cause of action from a negligence claim sounding in medical malpractice).
The plaintiff here argues that all of the relevant considerations originally outlined in Trimel are inapplicable. The court will address each consideration outlined in Trimel and subsequent cases. First, in addressing whether the defendant is being sued in its capacity as a medical professional, the defendant points out that Benchmark Assisted Living falls under the definition of a "health care provider" under General Statutes § 52-184b. "The fact that an action is against a health care provider or a health care facility, in and of itself, is insufficient to transform a case involving ordinary negligence, into a claim of malpractice." Baynard v. Derma Clinic, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 04 4000265 (September 1, 2005, Radcliffe, J.) ( 39 Conn. L. Rptr. 875). See also Badrigan v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386, 505 A.2d 741 (1986).
Section 52-184b(a) defines a health care provider as "any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment."
In Katz v. Harborside Healthcare-Arden House Rehabilitation Nursing Center, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000597 (April 16, 2007, Upson, J.) ( 35 Conn. L. Rptr. 543), a case cited by the defendant, the court held that the defendant was being sued in its capacity as a nursing home as the defendant was injured while being transferred from her bed to a wheelchair, characterized in the complaint as an aspect of "safe medical treatment and palliative care." Likewise, in Doe v. The Institute of Living, Superior Court, judicial district of Hartford, Docket No. CV 07 500798 (August 10, 2007, Wiese, J.) ( 44 Conn. L. Rptr. 5), the court held that the mental health facility was being sued in its capacity as a medical professional where the plaintiff alleged the facility was negligent in supervising its employee and preventing a patient from being coerced. The allegations in this complaint are similar to both cases with respect to the allegations that the defendant here was "doing business in the State of Connecticut and owned, operated and managed an assisted living facility" and was "injured by an employee trainee of the defendant." The defendant is being sued in its capacity as an assisted living facility, which falls under the definition of a `health care provider' pursuant to § 52-184b(a). As a result, similar to Katz and The Institute of Living, it can be determined that the defendant is being sued in its capacity as a medical professional.
The court must next consider whether the alleged negligence is of a specialized medical nature arising out of a professional-patient relationship. As this is a motion to dismiss, the court must view the pleadings in a light most favorable to the pleader. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). In this case, the allegations in the complaint do not support that the employee or the employer-defendant had a professional-patient relationship with the decedent. Nor is there any allegation that the decedent was receiving any treatment from the defendant or the defendant's employees. In Katz, the court held there was a professional-patient relationship because the complaint alleged that the plaintiff "`was admitted to the facility' and received `care and treatment' therein." Katz v. Harborside Healthcare-Arden House Rehabilitation Nursing Center, supra, 35 Conn. L. Rptr. 543. The complaint in the current case does not reference the decedent being admitted to a facility nor is there any allegation that the decedent was receiving care or treatment from the defendant. Instead, the allegations are similar to those in the case of Oats v. United Community Family Services, Superior Court, judicial district of New London, Docket No. CV 06 5000450 (August 6, 2007, Hurley, J.T.R.) ( 44 Conn. L. Rptr. 26). In Oats the plaintiff alleged that the plaintiff's decedent was injured when falling out of a wheelchair, while being transported by the defendant in a van. Id. Despite finding that the defendant was being sued in its capacity as a medical professional the court held that any precautions to prevent the plaintiff from falling out of the wheelchair and being injured did not require specialized medical knowledge arising out of a professional-patient relationship. Id.
The defendant argues that the routine daily activities that the defendant assisted the decedent with, including bathing, walking and transferring her in and out of bed, are medical acts that are of a specialized medical nature. The defendant cites to Rivera v. Simonetti, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 4000920 (August 5, 2005, Lager, J.) ( 39 Conn. L. Rptr. 757), however, in that case the complaint alleged that there was a "failure to `properly care for and attend to' [the decedent], [a] failure to call for a medical doctor or ambulance, [a] failure `to reasonably care for and treat' [the decedent], [a] failure to properly train and supervise their employees and to warn [the decedent] of that failure and, most tellingly, [a] failure to provide [the decedent] `with the appropriate standard of care.'" In the present case, the only allegations similar are that the defendant "failed to properly train," "supervise," "warn" and "remedy this dangerous situation." The allegations in the present matter do not require a specialized medical nature nor do they explicitly involve a professional-patient relationship. The complaint does not make any reference to an appropriate standard of care nor does it allege any type of treatment was improperly carried out or not carried out at all.
Lastly, the court must look to whether the alleged negligence is substantially related to a medical diagnosis or treatment involving the exercise of medical judgment. The court in Trimel held that the distinguishing factor between ordinary negligence and malpractice is whether the negligent act causing the plaintiff's injury was "substantially related to treatment." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360. Consistently, courts have held that allegations of negligent supervision amount to ordinary negligence and not medical malpractice. See Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn.App. 383; Doe v. The Institute of Living, supra, 44 Conn. L. Rptr. 5 (finding that the allegations that the plaintiff was coerced into sexual acts with another patient due to the defendant's negligent supervision amounted to a claim of ordinary negligence); Reiss v. Stamford Hospital, Superior Court judicial district of New Haven, Docket No. CV 0110276557 (August 2, 2005, Weise, J.) ( 39 Conn. L. Rptr. 611) (holding that the "allegations in the complaint do not allege that the [h]ospital staff was administering medical treatment in the exercise of medical judgment" where it was alleged that the postoperative patient fell to the floor while making an unsupervised trip to the bathroom); Culetsu v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0378788 (October 22, 2001, Skolnick, J.) ( 30 Conn. L. Rptr. 505); DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. 99 0498395 (October 19, 2000, Kocay, J.) ( 28 Conn. L. Rptr. 522); Beauvais v. Connecticut Subaccute Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. 99 0270390 (September 29, 2000, Levine, J.) (concluding that the action by a patient against a hospital, as a result of an assault by another patient, is an allegation sounding in ordinary negligence because the protection of patients from a custodial danger is not an integral part of the medical treatment being provided).
In the similar case of Culetsu v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 000378788 (October 22, 2001, Skolnick, J.) ( 30 Conn. L. Rptr. 505), the plaintiff alleged that at the defendant's hospital, where she was a patient, in attempting to remove the plaintiff from a wheelchair, two employees of the defendant injured the plaintiff's ankle. Id. The court there compared the case to Trimel stating that "[b]oth cases involve a wheel chair, a health care provider, and health care employees. In the present case, however, the health care employees were not exercising medical judgment. The workers were simply transporting the plaintiff in a wheel chair, a task that does not require medical knowledge." Unlike in Culetsu, in Trimel the plaintiff was injured maneuvering herself out of a wheelchair, during a physical therapy session, without assistance. Trimel v. Lawrence, supra, 61 Conn.App. 354. The Appellate Court held that because "the plaintiff's treatment had included unassisted transfers with supervision, and the plaintiff's injury resulted from a mishap during a transfer without supervision" the claims sounded in medical malpractice. Id. The current case is similar to Culetsu, rather than Trimel. Despite the employee trainee working for an assisted living facility, as in Culetsu, the allegations are based on the employee completing tasks that do not require any medical knowledge or training. Unlike Trimel, in the present case there are no allegations that this occurred during any type of treatment or medical procedure, only that the employee grabbed the decedent and, separately, pushed a wheelchair into her.
The defendant argues that the allegations are not based on a theory of vicarious liability, but rather based on negligent supervision, hiring and training, therefore sounding in medical malpractice. The proper oversight of employees, however, does not necessarily make this negligence action one of medical malpractice. The court must still consider whether the alleged negligent supervision pertains to treatment and the omission or failure of its employees to perform a treatment or other medical procedure. Here, that is not the case. The negligent supervision is based on an employee who was alleged to have been negligent in grabbing the decedent and pushing a wheelchair into her leg. Similarly, in DeJesus v. Veterans Memorial Medical Center, supra, 28 Conn. L. Rptr. 522, the plaintiff alleged that she was injured when the defendant's employees failed to strap her into her bed. Although she was at the facility for treatment for lupus the court stated that "[t]he alleged negligence did not occur during a medical procedure or from any specialized medical care or treatment the defendant may have provided." Id. See also Oats v. United Community Family Services, supra, 44 Conn. L. Rptr. 26 (holding that allegations of the defendant's failure to take precautions to prevent a patient from falling out of a wheelchair do not require medical knowledge or the exercise of medical judgment). The court, in DeJesus, held "[n]egligent supervision by health care providers constitutes ordinary negligence, not malpractice," and therefore compliance with § 52-190a was unnecessary. DeJesus v. Veterans Memorial Medical Center, supra, 28 Conn. L. Rptr. 522.
This case is distinguishable from a case cited by the defendant, Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. 06 5001967 (March 24, 2009, Lager, J.) ( 47 Conn. L. Rptr. 387). There the plaintiff alleged he was injured because "the defendant's agents, servants or employees `caused, allowed or permitted' [the plaintiff]: (a) `to walk around and outside the hospital while in a confused or dizzy or medicated condition;' (b) `to venture into unsafe areas, inside or outside said hospital when the same was unreasonable and dangerous given his medical and psychiatric condition;' (c) `to walk around and outside the hospital without appropriate supervision'; and (d) `to walk around and outside the hospital without appropriate and reasonable assistance.'" Id. The court held that what would amount to appropriate supervision "necessarily would rest on a determination as to what [the plaintiff], as a patient who was suffering from gastrointestinal bleeding and abdominal pain, had recently sustained a head injury and was in a confused and medicated state, would have required based on his underlying medical conditions and the treatment the hospital was providing him." Id. In the present matter, the plaintiff has not alleged that the decedent was in a confused or medicated condition nor that the decedent was undergoing any type of medical treatment from the defendant or its employees. Instead the claim is based on the force used by the defendant's employee at the assisted living facility, a claim that is not of a specialized medical nature nor bearing a substantial relationship to a medical diagnosis or treatment involving the exercise of medical judgment.
As a result, the claim is one of ordinary negligence and does not sound in medical malpractice. Therefore, the requirements of § 52-190a do not apply and the defendant's motion to dismiss is denied.