Opinion
FSTCV185018954S
12-04-2018
Myrna FUMEGA-SERRANO v. Jason FISCHEL, M.D.
UNPUBLISHED OPINION
POVODATOR, JTR
Nature of the Proceeding
This is an action brought by three self-represented parties against Norwalk Hospital and two individuals associated/affiliated with the hospital. The plaintiffs are siblings, and the central events underlying this action relate to their mother and her involvement with/treatment at Norwalk Hospital. The three defendants are a physician at the hospital who treated or otherwise interacted with the plaintiffs’ mother in the Emergency Room/Department, a licensed social worker who also interacted with their mother during her stay, and the hospital. (The conduct at issue is that of the physician and the social worker.)
Currently before the court is a motion for summary judgment filed by the defendants. The plaintiffs have filed a cross motion for summary judgment, which at argument on the defendants’ motion was characterized as also serving as their objection to the defendants’ motion, no separate objection having been filed.
The plaintiffs recently filed another motion for summary judgment, discussed below.
In their motion, the defendants assert three separate bases for claiming they are entitled to judgment. First, they claim that the plaintiffs lack standing to advance claims relating to tortious conduct directed to their late mother. Next, they claim that the complaint, sounding in medical malpractice, fails to comply with the requirements of General Statutes § 52-190a pertaining to a required opinion letter from a similar healthcare provider (no such letter having been served/filed with their complaint). Finally, they claim that the statute of limitations applicable to medical malpractice actions had expired prior to the commencement of this action.
Neither side has submitted any affidavits. The defendants rely upon the record itself-the absence of allegations sufficient to establish standing, the absence of an attached opinion letter, and the calendar differential between the dates on which the tortious conduct allegedly occurred and the commencement of this litigation. The plaintiffs appear to rely upon the attachments to their complaint (a copy of the power of attorney authorizing Myrna Fumega-Serrano to act on behalf of the plaintiffs’ mother, and copies of correspondence between the plaintiffs and Norwalk Hospital relating to complaints about events at the hospital), and attached to their initial cross motion for summary judgment is a copy of a probate certificate naming Robert Fumega as executor of the estate of Elvira Fumega (the plaintiffs’ late mother).
The plaintiffs initially believed that because the defendants had not filed any responsive pleading to the complaint, they were deemed to have admitted all of the allegations of the complaint, such that there was no need for them to do anything further-in turn, the basis on which they filed their cross-motion for summary judgment. During the course of the extended argument on the defendants’ motion, the court explained that under Connecticut practice, a default for failure to plead was not self-effectuating but rather required the filing of a motion by the adverse parties, such that the defendants were not deemed to have admitted the allegations of the complaint.
Near or at the outset of the hearing, the court inquired as to whether the plaintiffs were seeking counsel or wished to proceed on a self-represented basis. The plaintiffs indicated that they were intending to proceed on their own on a self-represented basis, but that they had consulted with an attorney who was assisting them. The court indicated that it would try to explain certain aspects of the proceedings to them, but that the court’s efforts could not be construed as giving advice.
Applicable Legal Principles
The general principles guiding the court in deciding a motion for summary judgment are sufficiently well-established as not to require any lengthy recitation. See, e.g., Martinez v. Premier Maintenance, Inc., 185 Conn.App. 425, 434-35 (2018). In simplistic terms, the issue is whether a moving party has established the absence of the existence of any material issue of fact, and that based on undisputed material facts, it is entitled to judgment in its favor.
In this case, there are numerous other legal principles that are or may be applicable, and therefore the court is articulating many of these principles at the outset.
[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ... The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience ... This rule of construction has limits, however. Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law ... In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension. (Internal quotation marks and citations, omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712, 735 (2006).
[C]onstruction of a self-represented party’s pleading should not focus on technical defects, but should afford the [appellant] a broad, realistic construction of the pleading under review. Macellaio v. Newington Police Department, 145 Conn.App. 426, 431 (2013) (internal quotation marks and citation, omitted).
It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ... Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728 (2013); see, also, One Country, LLC v. Johnson, 314 Conn. 288, 298 (2014).
Standing is the legal right to set judicial machinery in motion ... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury ... Padawer v. Yur, 142 Conn.App. 812, 817 (2013) (internal quotation marks and citation, omitted).
[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case." Honan v. Dimyan, 85 Conn.App. 66, 69 (2004); Sousa v. Sousa, 157 Conn.App. 587, 599-600 (2015).
To the extent that a plaintiff’s claim properly is characterized as sounding in medical malpractice, General Statutes § 52-190a requires the filing of an opinion letter from a similar healthcare provider, and any defects in such filing must be corrected within the applicable statute of limitations. Peters v. United Community & Family Services, Inc., 182 Conn.App. 688, 191 A.3d 195 (2018). However, the failure to file a timely motion to dismiss, based on such a defective filing (or absence of any such filing), constitutes a waiver of the defect. Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011).
There is no appellate authority, and trial courts are split, as to whether a "generic" motion for extension of time to plead can extend the 30-day period in which to file a motion to dismiss. See, e.g., Arnold v. FYC Entm’t, LLC, No. HHDCV156062624, 2016 WL 6499147, at *3 (Conn.Super.Ct. Oct. 4, 2016) , concluding that the directive in Practice Book § 1-8 that rules be interpreted liberally, warrants allowance of such an extension; cf. Lake v. Catarious, No. CV136006455S, 2014 WL 1567997, at *2 (Conn.Super.Ct. Mar. 25, 2014) , concluding that a motion for extension of time that does not specifically refer to jurisdictional issues does not extend the 30-day period in which to file a motion to dismiss raising waivable defects.
A claim of lack of informed consent-and necessarily, a claim of lack of consent-does not implicate medical malpractice and therefore is not within the scope of General Statutes § 52-190a. Lucisano v. Bisson, 132 Conn.App. 459, 469 (2011). ("The plaintiff next argues that § 52-190a does not apply to her failure to obtain informed consent claim because the claim does not sound in medical malpractice. We agree."), citing, in turn, Shortell v. Cavanaugh, 300 Conn. 383 (2011).
The proper suit, upon a cause of action arising in favor of ... the decedent during [his or her] lifetime, is in the name of the fiduciary [of the estate] rather than of the heirs or other beneficiaries of the estate. (Internal quotation marks and citation, omitted.) Freese v. Department of Social Services, 176 Conn.App. 64, 79, 169 A.3d 237, 248 (2017).
The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity. Ellis v. Cohen, 118 Conn.App. 211, 215, 982 A.2d 1130, 1133 (2009).
Facts
In moving for summary judgment, the defendants take something of a minimalistic approach both to their arguments and the facts upon which they rely. As already noted, they have filed no evidentiary support for their motion, but instead rely upon the current state of the record.
There is no dispute that no opinion letter, as would be required by § 52-190a if the statute were applicable, has been filed. There is no dispute that the action was commenced more than two years after the events described in the complaint. There is a dispute as to whether, if § 52-190a is applicable, the action was commenced within the extended period of time allowed under that statute-the plaintiffs filed an application for an automatic 90-day extension of time, and while the legal process for this action was signed by a clerk of the court a few days outside that 90-day extension, an application for fee waiver had been signed within the 90-day extension of time.
With respect to the claim of standing, there is no dispute that there is nothing in the record indicating that a legally-appointed representative of the estate of the plaintiffs’ mother is a party to this action, advancing any claims that are/were personal to the plaintiffs’ late mother. See General Statutes § 52-599. The plaintiffs contend that the executor is one of the self-represented plaintiffs, although there is no indication that he is acting in a representative capacity. There is nothing in the complaint alleging the appointment of an executor, and there is no claim that he is seeking compensation for ante-mortem injuries sustained by the plaintiffs’ late mother. Conversely, while the plaintiffs claim that they suffered emotional distress, lost time from work, etc., those claims seem to be predicated on (derivative of) the allegedly tortious action directed to their mother-they were required to take care of their mother (inferentially, more than previously) because of what was done to her at Norwalk Hospital. There also is, or may be, an implicit claim that they were injured in some fashion by the efforts to persuade a representative of the Connecticut Department of Social Services (DSS, apparently had been involved with the family prior to this incident) to seek a probate court order appointing a conservator for their mother (conservator of the person and estate), which eventually resulted in such an order from the probate court.
The plaintiffs appealed to the Superior Court which dismissed the claims of the siblings of the named plaintiff. On the merits of the appeal, the court ruled against the named plaintiff. There currently is before the Appellate Court an appeal from the Superior Court judgment.
Discussion
What is the Nature of This Case?
The parties are not in agreement as to the nature of the claims being asserted in the complaint. The defendants have treated the complaint as sounding solely in medical malpractice, a contention that was rejected by the plaintiffs during argument. (They denied that it was their intention to assert such a claim.) Therefore, it is necessary to attempt to identify the pending claims, a necessary threshold to any determination as to whether the defendants have established entitlement to judgment.
Working from the premise that the complaint sounds in medical malpractice, as already mentioned, the defendants have asserted three bases for claimed entitlement to judgment, two of which are dependent upon the characterization of the action as based on medical malpractice. The defendants contend that the plaintiffs lack standing to pursue the claims set forth in the complaint (which does not inherently rely on the medical malpractice characterization), but explicitly invoke the failure to comply with the opinion letter requirement of General Statutes § 52-190a which is a threshold requirement for filing a medical malpractice action, and also rely upon the expiration of the two-year statute of limitations applicable to medical malpractice actions as set forth in General Statutes § 52-584.
The plaintiffs contend that this is not a medical malpractice action such that § 52-190a is inapplicable, and the two-year statute of limitations invoked by the defendants (§ 52-584) is not the proper standard for timeliness of commencement of this action. With respect to standing, the plaintiffs contend that they sustained personal injury/harm as a result of the conduct of the defendants, and further that one of the plaintiffs, Robert Fumega, has been appointed executor of the estate of their late mother, such that he has standing to pursue an action on behalf of their late mother (as demonstrated by the probate certificate attached to their initial cross motion for summary judgment).
The court heard extensive argument on this motion on August 13, 2018 (in excess of one hour). The court has reviewed the complaint, the defendants’ motion and supporting memoranda, and the plaintiffs’ cross motion for summary judgment with supporting memorandum and attachments.
The prelude events are described in the first paragraph of the complaint:
On November 30, 2015 the Undersigned Plaintiffs’ mother, Elvira Fumega, an elderly and frail Spanish speaking woman, was taken to the Norwalk Hospital Emergency Room at the suggestion of Norwalk Police Department personnel. Said personnel had been called to the domicile of the Plaintiffs and their mother after their mother had suffered a minor fall at their domicile as a direct consequence of the dementia she suffered from.
The complaint goes on to recite events at the hospital, including numerous references to what is characterized as improper treatment-related conduct.
It is not difficult to understand why the defendants believed that the primary if not sole focus of the complaint is on medical malpractice. On November 30, 2017, some two years after the events described in the complaint, the plaintiffs sought a statutory ninety-day extension of time in which to file their complaint, explicitly invoking the provisions of § 52-190a(b), stating that the purpose was "to allow reasonable inquiry to determine that there are grounds for a good faith belief that there has been misconduct and negligence in the care and treatment of the plaintiff Elvira Fumega ..." (where Elvira Fumega was their late mother).
The complaint includes substantial malpractice-suggestive language such as a claim that the defendant doctor "inappropriately [drugged] [the plaintiffs’ mother] with the contra-indicated for her condition, anti-psychotic medication, Haldol, while she was under his ‘care’ in the Emergency Room of Norwalk Hospital ..." There also is a claim that the E.R. doctor was unqualified to provide any gynecological care to their late mother, but provided such care anyway. Exhibit B to the complaint is a letter to the hospital, about two weeks after the underlying events, containing a narrative of the events in some detail, including recitations of the medications that were discontinued by the hospital as well as new medications administered while their late mother was a patient-all claimed to have been improper. (Follow-up correspondence also is attached.)
On the other hand, there is substantial language in the complaint suggestive of claims of harm that were not in the nature of medical malpractice. The complaint has repeated references to a "gender-based assault" having taken place. There also is a theme of perceived efforts by hospital personnel to isolate the plaintiffs’ mother "from the Plaintiffs in general and from her Healthcare Representative/Agent (‘HCRA’) cum Power of Attorney (‘POA’), Plaintiff Myrna Fumega-Serrano, in particular." Related, there are references to efforts to prevent Plaintiff Myrna Fumega-Serrano from exercising her power/authority to make healthcare decisions for her mother while in the hospital.
There also are claims that something almost conspiratorial in nature was attempted, claiming that the doctor and social worker acted "with the express intention of facilitating Plaintiff Myrna Fumega-Serrano’s removal as [HCRA] through the mechanism of bringing a maliciously defamatory case against the Plaintiffs utilizing a fraudulent and maliciously defamatory Physician’s Evaluation concocted by [the defendant doctor] against the Plaintiffs with the express intention of bringing a case to the Norwalk-Wilton Probate Court for the appointment of a non-familial, independent, involuntary conservator for the estate and person of the Plaintiffs’ mother, Elvira Fumega, thereby, legally neutralizing the Plaintiffs, in general, and Plaintiff Myrna Fumega-Serrano ... in particular."
Paragraph 11 of the complaint seems to set forth the only claimed injuries sustained by these plaintiffs:
11. The Plaintiffs allege that as a direct result of Dr. Fischel’s heinous and criminal gender-based assault on the person of the Plaintiffs’ mother, their mother has suffered an intense and horrific exacerbation of her war crimes trauma-based PTSD which has caused her children, the Plaintiffs who suffer from second generation war crimes trauma-based PTSD[, ] to lose time and income from their employment and has greatly impaired their earning capacity and caused both the Plaintiffs and their mother great mental and emotional anguish in an ongoing manner since their mother’s unconstitutional seizure in Norwalk Hospital’s Emergency Room by Dr. Fischel and Ms. Snyderman on November 30, 2015.
Finally, for the sake of completeness, the court notes an area of concern mentioned in the complaint, and addressed in the exchange of letters attached to the complaint, apparently taken personally by one or more of the plaintiffs. The hospital records reflected a diagnosis of the plaintiffs’ mother’s condition (or cause of her condition) as being "adult abuse/domestic." The claim that the diagnosis was inappropriate and unsubstantiated was of some personal importance, as it is set forth in the first paragraph of the 3+ page letter sent by Myrna Fumega-Serrano to the hospital on December 12, 2015, with the word "unsubstantiated" in all-caps, bold-face and underlined, and with the diagnosis of "Adult Abuse, Domestic" in bold-face.
What Causes of Action are Being Asserted in the Complaint?
Proper interpretation of pleadings is a legal function of the court, Peterson v. Ocean Radiology Assocs., P.C., 109 Conn.App. 275, 283, 951 A.2d 606, 612 (2008) and interpretation of pleadings must be done in a practical rather than technical manner, Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 629, 910 A.2d 209, 215 (2006). See, also, Hill v. Williams, 74 Conn.App. 654 (2003).
To the extent that the plaintiffs are challenging decisions made relating to administration of medications, both with respect to new medications and discontinuation of old ones, such challenges appear to constitute claims of medical malpractice. To the extent that the plaintiffs are challenging the decision of the ER doctor to perform a gynecological procedure rather than seeking consultation with an expert, and the manner in which that procedure was performed, again, that would seem to constitute medical malpractice.
While it is not clear whether the plaintiffs have asserted a legally-sufficient cause of action in this regard-and the legal sufficiency of allegations is not currently before the court at this time-the claimed efforts by the defendants to prevent the authorized medical decision-maker from making decisions relating to treatment to be rendered to the plaintiffs’ mother, at least arguably would seem to come within the scope of informed consent or the existence of any consent. This aspect of the complaint is not whether the care was appropriate but rather whether any care should have been provided, without the input of the authorized decision-maker. Lack of consent and/or informed consent do not come within the scope of medical malpractice; Lucisano, supra.
The claims of "gender-based assault" would appear to be encompassed by either or both of the foregoing theories. Medical treatment without informed consent, and especially if without any consent, sometimes is characterized as a form of assault/battery. To the extent that there is questioning of the propriety of the treatment actually provided, with "assault" perhaps being used as a hyperbolic characterization of the effect of the claimed-to-be-inappropriate treatment, that would come within the scope of medical malpractice.
At this point, the court’s obligation to be solicitous of self-represented parties, and obligation to attempt to discern, in a practical sense, the nature of claims being made (Hill, supra), come into conflict with the directive that the court is not to contort the pleadings. If the court is to attempt to interpret a complaint, to discern the causes of action set forth, the court cannot undertake the exercise if it results in what amounts to advocacy, creatively interpreting words and fragments of allegations so as to "find" alleged causes of action, especially ones that are precarious at best. Thus, while it has not been a "stretch" to interpret language suggestive of a lack of consent from the HCRA as implicitly raising claims of an assault/battery-type of tort (particularly given the vigorous denial of any intended claim of malpractice), the court cannot interpret the adjectival use of "defamatory" as effectively alleging actionable defamation.
The required elements for a defamation action are "(1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement." (Internal quotation marks and citation, omitted.) Gleason v. Smolinski, 319 Conn. 394, 430, 125 A.3d 920 (2015). Assuming that entering a diagnosis on a medical record for a patient constitutes publication (first element), there was no identification of any particular abuser (second element), there is at least a question as to whether an entry on a medical record subject to HIPAA constitutes a publication to a third person (third element), and there is no claim of reputational harm, only its intended use to institute probate proceedings (fourth element).
The court recognizes that ¶ 4 of the complaint does use the phrase "maliciously defamatory" on two occasions. There is no claim of direct injury from those statements claimed to have a defamatory quality, but rather that they were targeted at having her removed or replaced as a representative of her mother, through a Probate Court proceeding. Again, the plaintiffs have not articulated any cognizable tort injury from a proceeding that might result in Probate Court appointment of a conservator intended to replace the functions previously performed by plaintiff Myrna Fumega-Serrano. Although plaintiff Myrna Fumega-Serrano may have had standing in the Probate Court proceeding, based on her status as designated healthcare representative and possessor of a power of attorney, that is not the same as a cognizable injury for purposes of tort liability, separate from any claim that might be capable of being asserted by (or on behalf of) the principal whose rights were directly impacted (allegedly). (The court notes that her siblings were dismissed as parties in the Probate Court appeal, based on their lack of aggrievement.)
The plaintiffs assert that there is nothing of relevance to this proceeding arising from the Probate Court proceeding in which resulted in the appointment of a non-family-member as guardian of the person and estate of the plaintiffs’ mother. The Probate Court proceeding indicates that at least in that tribunal, there was a finding of cause to appoint a guardian, notwithstanding the plaintiff’s status as Healthcare Representative/Agent as well as possessor of a power of attorney. The court notes that an initial appeal to the Superior Court was unsuccessful, and that the matter now is pending before the Appellate Court; Fumega v. Norwalk-Wilton Probate Court, AC 41655.
Thus, the court does not perceive there to be a cause of action, separate and apart from the two causes of action cited above, arising from claimed interference with the ability of an authorized medical decision-maker such as Myrna Fumega-Serrano, to make decisions on behalf her mother, which claims are personal to Ms. Fumega-Serrano. The court can contemplate the notion of consent/informed consent being sufficiently expansive as to encompass such interference, but the court cannot readily discern an independent cause of action in that regard, especially if the focus is on harm to the designated decision-maker rather than the patient. Similarly, any complaint about claimed abuse, to the extent that there is an implied assertion that such was made, already is adequately treated in Chapter 319dd of the General Statutes, and the court cannot act as a proxy for the plaintiffs in suggesting creation of a new cause of action.
The court recognizes that the claimed misdiagnosis of "adult abuse/domestic" appears to be perceived as somewhat "personal" to one or more of the plaintiffs, but there does not appear to be any attempt to claim some form of actionable defamation; see footnote 4, above. The court notes that the plaintiffs have downplayed the fact, set forth in ¶ 7 of their complaint, that as a result of communications from hospital personnel (as required by General Statutes § 17b-451?), an employee of DSS (Department of Social Services) submitted an application to the probate court for the appointment of a conservator for the plaintiffs’ mother (pursuant to General Statutes § 17b-456?), which subsequently resulted in the appointment of a conservator of the person and estate of Elvira Fumega. The statutory scheme, and § 17b-451 in particular, recognizes immunity for reporters, absent fraudulent or malicious reporting, and the court cannot fairly read the complaint or attachments as rising to that level, especially since it appears that there was DSS involvement prior to this incident (and the statute provides for criminal, not civil, consequences). See, e.g., Manifold v. Ragaglia, 272 Conn. 410, 429, 862 A.2d 292, 303 (2004), undertaking such an analysis in the closely-analogous situation of child abuse.
Returning to paragraph 11 of the complaint, which the court quoted above:
11. The Plaintiffs allege that as a direct result of Dr. Fischel’s heinous and criminal gender-based assault on the person of the Plaintiffs’ mother, their mother has suffered an intense and horrific exacerbation of her war crimes trauma-based PTSD which has caused her children, the Plaintiffs who suffer from second generation war crimes trauma-based PTSD[, ] to lose time and income from their employment and has greatly impaired their earning capacity and caused both the Plaintiffs and their mother great mental and emotional anguish in an ongoing manner since their mother’s unconstitutional seizure in Norwalk Hospital’s Emergency Room by Dr. Fischel and Ms. Snyderman on November 30, 2015.
Attempting to parse this paragraph, the first assertion is that the plaintiffs’ mother suffered an exacerbation of her PTSD, based on her experience with war crimes. The plaintiffs then assert that they suffer from something characterized as second generation war crimes PTSD, which appears to be a derivative claim from their mothers’ PTSD. The plaintiffs then go on to say that they suffered economic damages in the nature of lost time from work, lost earnings and lost earning capacity, all based on a claimed unconstitutional seizure of the plaintiffs’ mother in the hospital.
The court recognizes that no one likes to see a family member suffer, and particularly a frail, elderly parent who is unable to care for herself (substantially), due to dementia. But there is no identified cause of action based on characterization of the events at Norwalk Hospital as being an "unconstitutional seizure," since there is no suggestion that the hospital was acting under color of state law.
The court concludes that the complaint contains assertions cognizable as medical malpractice and lack of consent/lack of informed consent. Medical malpractice is governed by § 52-190a and by the two year limitations set forth in § 52-584 as extended by § 52-190a. Lack of consent/informed consent seemingly would be governed by General Statutes § 52-577, providing a three-year period in which to commence action.
Merits of Pending Motion
The court must start with standing; Sousa, supra.
The court can only conclude that the plaintiffs lack standing to assert claims that are personal to their late mother. The presence of Robert Fumega as a plaintiff, in his individual/personal capacity, is not a substitute for a claim of status as executor acting on behalf of the estate, and as identified in the legal authorities above, he would not be allowed to pursue an action in such a representative capacity on a self-represented basis. In the multi-tiered approach to jurisdictional challenges as set forth in Conboy v. State, 292 Conn. 642, 650-54 (2009), and more recently in Cuozzo v. Town of Orange, 315 Conn. 606, 615-17 (2015), in the absence of any evidentiary conflict requiring a hearing, and assuming that the attachment of the copy of the probate order authorizing Robert Fumega to act as executor is to be treated as a competent evidentiary submission, the court determines the existence of subject matter jurisdiction based on the record, chiefly the allegations of the complaint, drawing all reasonable inferences leading towards the existence of jurisdiction, as supplemented by the evidentiary submission. These plaintiffs have not identified a basis in their complaint for standing to pursue claims on behalf of their late mother, and have taken no steps to remedy the situation. The assertion during argument, that Robert has been appointed as executor (as documented by the certificate attached to their cross motion for summary judgment), does not make such an assertion a part of the pleadings-it does not change the status of Robert Fumega from an individual pursuing a personal claim to a legal representative of the estate of his late mother pursuing her ante-mortem claims. Even if the court were to disregard that technical-but critical-omission, there also is the problem that he cannot simultaneously be asserting claims as an individual and as a representative of the estate of his mother without a single allegation of representative status, and as noted earlier, he cannot appear in a self-representative capacity if he is pursuing a claim based on status as a representative of the estate rather than acting to further his own interests; Freese, supra; Ellis, supra.
During the course of the hearing on the motion, the court attempted to explain concepts such as standing to the plaintiffs. In so doing, the court mentioned and briefly discussed in general terms Kortner v. Martise, 312 Conn. 1, 9-14 (2014), mentioning that the problem in that case had been cured by substitution. Notwithstanding that reference to substitution, notwithstanding the plaintiffs’ assurances that they understood the issues being adjudicated, and in the context of an inquiry as to whether they were seeking counsel, notwithstanding their statement that while counsel would not be representing them, they have been consulting with an attorney who had been helping them, no attempt at substitution has been made. The court is aware of the recent trend in appellate-level cases, indicating a strong preference for substitution rather than dismissal, Kortner, supra; Fairfield Merrittview Limited Partnership v. Norwalk, 320 Conn. 535, 554 (2016) (addition rather than substitution, a major issue for the dissent); and Youngman v. Schiavone, 157 Conn.App. 55, 64-65 (2015) (indicating that the preferred course of action, when faced with both a motion to dismiss and corrective motion to substitute is to consider substitution prior to dismissal), all of the cases involve efforts at corrective action taken by the parties on their own initiative. Absent a motion to substitute or add a party, or something reasonably construed to seek that effect, the court must address and rule upon the motion to dismiss on its merits.
The court cannot discern any cognizable cause of action asserted by the plaintiffs, whereby they are claiming injuries personal to them, in a minimally-specific/sufficient manner. Again, the court should not be put in the position of guessing at claimed causes of action, even if there are two instances of use of the term "defamatory," absent any other factual assertion that might be part of a cause of action and defamation. In this regard, the court must note that the focus of attention was on the claimed use of the allegations of abuse in connection with probate proceedings, rather than causing injury to reputation or causing some financial harm. The claimed intention to interfere with status as HCRA (or holder of a power of attorney) do not seem to implicate harm to the plaintiff Myrna Fumega-Serrano in a personal sense, given the representative status associated with such authority. Accordingly, the court must conclude, based on the current record, that the plaintiffs lacked standing to pursue the claims set forth in their complaint, and on that basis, the entire complaint should be dismissed.
In addition to the dubious and missing quality of required elements of a claim of defamation, query whether a court would recognize defamation predicated on a medical diagnosis of a third party. The public policy implications of a theory of liability whereby healthcare providers must be concerned that a diagnosis involving elderly abuse, child abuse, or other analogous situations, might offend some third party resulting in potential liability for defamation, are not insignificant and cannot lightly be ignored. Jarmie v. Troncale, 306 Conn. 578 (2012). (This also is in addition to the statutory protections afforded to reports of suspected elderly (and child) abuse.)
Having addressed the issue of standing, there is an additional jurisdictional issue that should be addressed. There is something of a procedural thicket that must be traversed, to get to the ultimate answer.
The defendants have identified the failure of the plaintiffs to attach an opinion letter, as required by General Statutes § 52-190a, to their complaint. As set forth in the statute itself, the failure to comply with that statutory requirement is a basis for dismissal. Defendants did not move to dismiss the complaint, but rather moved for summary judgment. The court Is permitted to re-characterizes a motion, not allowing the form (caption of the pleading) to override the substance. Parnoff v. Yuille, 163 Conn.App. 273, 281 (2016). Therefore, alone, the defendants’ including this issue in a motion for summary judgment, rather than filing a separate motion to dismiss, can be overlooked.
The motion for summary judgment, however, was not filed within 30 days of the return date, and the jurisdictional quality to the failure to comply with § 52-190a is subject to waiver. Practice Book § 10-33 provides that the failure to timely raise any jurisdictional issue (other than a subject matter jurisdictional issue) constitute a waiver. See, also, Morgan, supra.
The defendants did file a motion for extension of time to plead to the complaint. A motion for summary judgment, however, does not come within the scope of such a motion. Assuming that the court treats the portion of the motion for summary judgment raising this issue as a motion to dismiss, there remains the issue of whether the motion for extension of time to plead, not mentioning an extension of the time to challenges personal jurisdiction, extends that 30-day period on which to file such a motion. As discussed in the discussion of applicable law, above, there is no consensus among trial judges on this point. However, as the defendants have not raised the issue of untimeliness of raising this issue, and for reasons to be discussed below, the court will treat the challenge as timely.
To the extent that the plaintiffs are disclaiming any intention of pursuing medical malpractice as a theory of recovery, the issue is largely academic. However, to the extent that interpretation of pleadings is a function for the court, the court cannot ignore the repeated references to the claimed improper medical treatment afforded to the plaintiffs’ mother, while at Norwalk Hospital, with resulting claimed injuries. Therefore, to the extent that the court is obliged to treat at least portions of the plaintiffs’ complaint as alleging medical malpractice, the court must also-if redundantly-dismiss that aspect of the complaint, based on a failure to comply with the statutory requirement relating to filing of an appropriate opinion letter.
Finally, the court has yet to address the claimed expiration of the relevant statute of limitations, on the merits. The court declines to do so. Having determined that it lacks jurisdiction, any further ruling would seem to be advisory in nature. The court must note, however, as mentioned above, that to the extent that the plaintiffs continue to disclaim any intention of pursuing medical malpractice, the issue of whether the statute of limitations for such a claim is expired, also is academic.
The court recognizes that there is at least a question as to whether this analysis would also be applicable to the § 52-190a requirement of an opinion letter-once the court concluded that the plaintiffs lacked standing, can the court also consider a jurisdictional challenge that does not implicate subject matter jurisdiction?
The defendants have not addressed the significance, if any, of the filing of the fee-waiver application with respect to the calculation of the limitations period, such that there appears to be an open issue in that regard. The defendants have not addressed whether the statute of limitations has expired as to non-malpractice claims (non-negligence) claims, and therefore the court would not be able to undertake any review of possible applicability of § 52-577. The court must also note, however, that this action was commenced within three years of November 2015, when the underlying events occurred, making it "unlikely" that a claim that non-negligence claims are barred by the applicable statute of limitations would be perceived as meritorious.
Conclusion
The court has cited cases indicating the need to be solicitous of self-represented parties. That guidance is tempered by the need not to disadvantage or prejudice other parties:
Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; the purpose of which is to provide a just determination of every proceeding. (Internal quotation marks and citation, omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 539 (2012).
It is one thing to observe that there is a claim of breach of contract in a complaint that explicitly asserts that there is an intended claim of breach of contract and contains allegations consistent with such a theory, notwithstanding the primary focus of the complaint on legal malpractice, Hill, supra. It is another to require the court to contemplate what causes of action might be asserted based on facts alleged, when there is no specific identification of such claimed theories of recovery and no recitations of at least some essential elements of the possible cause of action. In Hill, the court distinguished Shuster v. Buckley, 5 Conn.App. 473, 500 A.2d 240 (1985), because in the latter case, "the complaint made no averment that the claim was brought as a breach of contract." 74 Conn.App. 661-62. In other words, there needs to be some facially-apparent invocation of a theory, or some clarity of intent, not merely a passing mention of a term that could suggest another cause of action.
This concern about claim identification is paramount with respect to the possible existence of standing on the part of the individual plaintiffs. The precise nature of claims that are being, or could be, asserted on behalf of the plaintiffs’ late mother are of lesser concern, since the lack of standing prohibits all such claims, regardless of the specific nature or number of such claims. In order to determine whether the plaintiffs have standing to pursue claims on their own behalf, however, it is essential to discern whether there are any such claims at all, and the court concludes that there are no such claims, based on a fair reading/interpretation of the plaintiffs’ operative complaint.
The court may well have invested more time and effort than required with respect to the issue of what the plaintiffs’ complaint seeks, given the summary of their claims as set forth in their memorandum in support of their recent motion for summary judgment, filed long after all the summary judgment submissions had been filed/served, and long after the argument on this motion. In that memorandum (# 115.00), filed about a month ago, the plaintiffs provided a summary of their action in their own words:
The Plaintiffs’ suit seeks monetary damages not only for injuries suffered by the Plaintiffs’ mother, Elvira Fumega, that were sustained by her as a result of the actions of the Defendants while she was a patient at Norwalk Hospital on November 30, 2015 but also for the injuries sustained by the Plaintiffs, as her children and her caretakers, one of whom, Myrna Fumega-Serrano, was further injured by the Defendants’ actions as a result of their violation of her right and duty to act as her mother, Elvira Fumega’s duly appointed Attorney-in-fact and Health Care Representative and Agent ("POAJHCRA").
The court has amply addressed the plaintiffs’ lack of standing to seek compensation "for injuries sustained by the Plaintiffs’ mother ... that were sustained by her as a result of the actions of the defendants while she was a patient at Nor Hospital." Any need for additional care, as a result of that incident, would be a claim potentially asserted by the injured party, not by caregivers-absent a claim of tortious conduct directed to them, the plaintiffs lack standing to seek compensation in that regard. Interference with the ability of a medical decision-maker or someone with power of attorney, to exercise her authority, does not appear to be a cognizable injury to the representative but rather to the principal on whose behalf she was acting. Absent these claims being asserted by the estate of the injured party, the court lacks jurisdiction. (While it is possible that substitution or addition of a proper party might have remedied the problem, no such motion has been filed, and the court cannot speculate as to the decision on a motion never filed (potentially eliciting an objection also never filed).)
Again, in discussing Kortner during argument, the court mentioned that a substitution had been a cure for someone without standing having commenced an action. Again, the plaintiffs indicated that they wanted to proceed on a self-represented basis, but that they were receiving assistance from an attorney.
Although it is not clear as to whether the court can or should address a second jurisdictional issue-the absence of an opinion letter from a similar healthcare provider, as required by § 52-190a-given the court’s determination that it lacks subject matter jurisdiction, the court has addressed the issue. To the extent that the complaint must be interpreted as including assertion of a claim of medical malpractice, notwithstanding the disclaimer in court by the plaintiffs, that aspect of the complaint must be dismissed on those additional/alternate grounds.
The court declines to reach the issue of the statute of limitations, as the court has concluded that it lacks jurisdiction over the claims being asserted on behalf of the late Elvira Fumega. The court notes, however, that the defendants have not addressed in their analysis the possible impact of the application for a fee waiver in further tolling the statute of limitations, and have not addressed the applicable statute of limitations for non-negligent torts such as seem to be alleged in addition to the medical malpractice-type claims.
The motion before the court was filed as a motion for summary judgment seeking a judgment on the merits, but as discussed above, two of the claimed bases for judgment actually go to jurisdiction-and those two jurisdictional issues are the grounds on which the court has found for the defendants. Therefore, the court hereby dismisses the complaint for lack of subject matter jurisdiction due to the absence of standing, and to the extent that there is a claim of medical malpractice incorporated into the complaint, the complaint also is dismissed to that extent, based on the failure to comply with § 52-190a.
The court also notes that in a separate proceeding, the plaintiffs have, with somewhat greater clarity/specificity, asserted defamation against the Department of Social Services as well as a number of employees and individuals related to that Department; see, Fumega-Serrano v. Koku, FST CV-18-5020171-S.