Summary
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
Summary of this case from Cotton v. Benchmark Assisted LivingOpinion
No. CV 07-5007981
August 10, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #106
I PROCEDURAL HISTORY
On December 22, 2006, the plaintiffs, Jane Doe and Mary Doe, filed a three-count complaint against the defendant mental health facility, Institute of Living. The complaint alleges three causes of action: (1) negligent supervision, (2) breach of mental health patients' bill of rights, and (3) negligent infliction of emotion distress. Counts one and two are brought by Jane Doe, the minor plaintiff under the care of the defendant. Count three is brought by Mary Doe, the mother of the minor plaintiff. The complaint alleges the following facts.
On or about January 21, 2006, the defendant assumed care and responsibility for Jane Doe. On or about January 23, 2006, Jane Doe was coerced into engaging in sexual acts with another minor patient, who was also under the care and supervision of the defendant. The coercion to engage in sexual activity was directly caused by the defendant's negligent supervision of its employees and patients. Count one alleges that the defendant failed to supervise its employees and that this negligence caused Jane Doe to suffer damages. Count two alleges that the defendant failed to protect Jane Doe's dignity and to provide humane treatment of her conditions causing Jane Doe to suffer physical harm and mental anguish. Count three alleges that the defendant knew or should have known that its failure to supervise and to abide by the mental health patient's bill of rights created an unreasonable risk of causing illness and harm, and that Mary Doe suffered such harm.
On February 5, 2007, the defendant filed a motion to dismiss counts one and three on the grounds that the court lacks subject matter jurisdiction because the plaintiffs failed to comply with General Statutes § 52-190a(a). The defendant submitted a memorandum of law in support of the motion to dismiss. On May 29, 2007, the plaintiffs filed a memorandum in opposition to the motion to dismiss arguing that the court does not lack subject matter jurisdiction because § 52-190a(a) is not applicable to the case. This matter was heard at short calendar on May 29, 2007.
II 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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). A motion to dismiss is the proper procedural vehicle in this case, under § 52-190a(c), which provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
In the pending action, the defendant seeks to dismiss counts one and three of the complaint because each claim, although entitled negligent supervision and negligent infliction of emotional distress, are actions based on medical malpractice. The defendant argues that the counts must be dismissed for failing to attach to the complaint a certificate of good faith by a similar health care facility, as required under § 52-190a. In response, the plaintiffs argue that counts one and three sound in ordinary negligence, and not medical malpractice. Consequently, they assert that a certificate of good faith is not required and counts one and three must not be dismissed.
Section 52-190a provides in relevant part: "(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a healthcare 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 . . . shall contain a certificate 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 . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar healthcare provider . . . that there appears to be evidence of medical negligence . . ."
To decide whether counts one and three should be dismissed the court must determine whether the allegations, when viewed in the light most favorable to the pleader, sound in ordinary negligence or in professional negligence by way of medical malpractice. See Cox v. Aiken, supra, 278 Conn. 211. "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. Professional 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 . . . [T]he 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 . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Emphasis in original; citations omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002), quoting 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).
In the present case, reading the complaint in the light most favorable to the plaintiffs, the defendant is being sued in its capacity as a medical professional. Further, the alleged negligence arose out of the medical professional-patient relationship because at the time of the incident Jane Doe was being treated at the mental health facility. The issue before the court is whether failing to monitor mental health patients, as alleged, involved the exercise of medical judgment.
"The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360. In Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360-63, the Appellate Court reviewed two cases, Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70 (1969) and Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386, 505 A.2d 741 (1986), to illustrate how the court distinguishes medical malpractice from ordinary negligence. In Levett, a medical patient was in her physician's dressing room for a scheduled visit and fell while she was trying to disrobe. Levett v. Etkind, supra, 570-71. The Trimel court articulated that the patient's claim sounded in medical malpractice because the physician had made a medical judgment to allow the patient to disrobe by herself and that such a decision was substantially related to the medical treatment which the patient was receiving. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 363. In Badrigian, a psychiatric outpatient was killed on his lunch break when he attempted to cross a state highway to eat at the inpatient facility. Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 385. The Trimel court reasoned that the patient's claim sounded in ordinary negligence because although the psychiatric facility encouraged the patient to eat across the street, meals were not part of the treatment, so the alleged negligence was not substantially related to the medical services provided. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 363. Ultimately, the Trimel court concluded that "[t]he distinction between the negligence claim in Levett and the negligence claim in Badrigian is predicated on the relation of the alleged negligent act or omission to the treatment." Id., 362.
In the instant action, the complaint alleges, in paragraph five, that the defendant "assumed care and responsibility for [Jane Doe]" and, in paragraph six, that "due to the negligent supervision and carelessness of the [d]efendant, [Jane Doe] was coerced into engaging in sexual acts with another minor patient who was also under the care and supervision of [the] [d]efendant . . ." Similarly, paragraph nine alleges that the "[d]efendant knew or should have known that its conduct with regard to [Jane Doe,] in failing to supervise and in failing to abide by the [m]ental [h]ealth [p]atient's [b]ill of [r]ights created an unreasonable risk of causing emotional distress [to Mary Doe] . . ." The plaintiffs' intent to plead ordinary negligence is clarified by the fact that the complaint does not set forth a relationship between negligent supervision and medical treatment. Moreover, the duty alleged, to provide a safe facility, is the same duty that would be owed to anyone entering the health care facility. See Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 363 ("[t]he facility in Badrigian owed a duty to any customer to provide a safe facility, not just to patients, and in failing to do so the plaintiff properly asserted a claim of ordinary negligence"). Merely because the alleged event occurred in a medical facility does not mean that medical malpractice is the proper cause of action. Thus, as there is "no esoteric or uniquely medical issue to be determined under the allegations of this case . . .," there is no need for a medical expert to testify to the standard of care. See Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn.App. 38. Accordingly, it was not necessary for the plaintiffs to attach a certificate of good faith to the complaint.
The vast majority of courts facing similar circumstances have decided 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; 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) (finding that the failure to strap a patient into her hospital bed, to raise the safety bar, and to monitor her are allegations of ordinary negligence because they did not occur during a procedure or specialized medical care); 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 an action by one patient against a hospital, as a result of an assault by another patient, is an allegation of ordinary negligence because the protection of patients from custodial dangers are not an integral part of the medical treatment being provided); Dorvilus v. Donovan, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 97 0157928 (May 26, 1999, D'Andrea, J.) (24 Conn. L. Rptr. 631) (holding that allegations of an assisted living facility's failure to supervise a patient who struck an employee sounds in negligent supervision); Delaney v. Newington Children's Hospital, Superior Court, judicial district of Hartford, Docket No. 030524063 (May 9, 1994, Wagner, J.) (9 C.S.C.R. 692) (deciding that allegations against a hospital where a minor plaintiff was sexually assaulted by his roommate sound in ordinary negligence because there were no medical issue to be determined).
Reading the allegations in the light most favorable to sustaining the complaint, the court finds that the plaintiffs have alleged claims of ordinary negligence and not medical malpractice. Therefore, the filing of the plaintiffs' complaint without attaching a certificate of good faith was proper.
III CONCLUSION
The court denies the defendant's motion to dismiss counts one and three of the plaintiffs' complaint for the reasons stated.