Opinion
No. X01-CV-07-5008002-S
May 1, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION #147
BACKSTORY
This is a medical malpractice action in which the plaintiff, Janet M. Hayes, has sued the State of Connecticut/John Dempsey Hospital and Health Center (the "State") pursuant to permission granted by the claims commissioner as provided in General Statutes § 4-160.
The plaintiff filed a notice of claim with the claims commissioner pursuant to General Statutes § 4-147 on March 1, 2007. The plaintiff's notice of claim alleges that she suffered personal injuries as a result of medical malpractice that occurred on March 14 and 15 of 2005. The notice of claim further alleges that the plaintiff discovered her injury on February 28, 2007, when she received a medical opinion as provided by General Statutes § 52-190a(a). The plaintiff filed an amended notice of claim, dated March 22, 2007, which again repeated her allegation that she did not discover actionable harm until she received the medical opinion on February 28, 2007.
The defendant moved to dismiss the claim filed with the claims commissioner on the ground that the notice of claim had not been filed within one year from the date the claim accrued and thus was barred by the one-year statute of limitations set forth in General Statutes § 4-148(a). Pursuant to section 4-157-1 et seq. of the Regulations of Connecticut State Agencies, the claims commissioner ordered the parties to submit legal briefs regarding the statute of limitations issue raised by the defendant's motion to dismiss.
Subsequently, the claims commissioner held a hearing. The plaintiff offered in evidence the amended notice of claim together with the appended opinion of a "similar health care provider" pursuant to General Statutes §§ 52-190a and 4-160(b) and the plaintiff's affidavit. The plaintiff also offered into evidence the affidavit of her attorney, George E. Mendillo, attesting to the fact that actionable harm was not discovered until February 28, 2007, the date Mendillo received the medical opinion which was attached to the notices of claim.
Following the hearing, the claims commissioner issued a memorandum of decision dated June 7, 2007. With regard to the defendant's argument that the plaintiff did not file her claim until more than one year after it accrued, the commissioner found that the "claimant [plaintiff] did not know and should not have known that she suffered actionable harm until she received the subject medical opinion on February 28, 2007. Since her claim did not accrue until that date, the filing of her notice of claim on March 1, 2007 was timely. Respondent [State] has not presented any persuasive evidence that claimant should have known that she had suffered actionable harm prior to February 28, 2007." (Emphasis in original).
Both Hearing Officer Mitchell M. Berger and Commissioner James R. Smith signed the last page of the memorandum which states: "The foregoing proposed Finding and Order are hereby adopted and approved. Respondent's motion to dismiss is hereby DENIED and permission to sue is hereby GRANTED."
The State has moved to dismiss the operative complaint, the amended complaint dated November 8, 2007, in this action on several grounds: (1) the claims commissioner failed to determine, as a factual matter, whether the plaintiff's notice of claim complied with the jurisdictional time limitation set forth in § 4-148(a); (2) even if the claims commissioner had determined that the plaintiff's notice of claim complied with the jurisdictional time limit, this finding may be collaterally attacked by the defendant because the claims commissioner is a tribunal of limited jurisdiction; (3) this court is required to determine whether it has subject matter jurisdiction over an action and, to the extent this court believes a relevant factual dispute exists, a trial-like evidentiary hearing must be held in order for this court to determine whether it has subject matter jurisdiction; and/or (4) the plaintiff's notice of claim was untimely.
For the reasons set out below the motion to dismiss is denied.
DISCUSSION
General Statutes § 4-160(a) defines the role of the claims commissioner in granting permission to sue the State, providing: "When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable." See also Shay v. Rossi, 253 Conn. 134, 163 n. 19, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).
The State's sovereign immunity is waived upon the granting of permission to sue the State by the claims commissioner. Our Supreme Court in Caters v. Lee, 239 Conn. 265, 267-68 n. 3, 684 A.2d (1996), stated: "When the doctrine of sovereign immunity is applicable, the state must consent to be sued in order for a claimant to pursue any monetary claim against the state . . . The claims commissioner may waive that immunity pursuant to General Statutes § 4-160(a) and consent to suit, but until that occurs, the Superior Court has no jurisdiction to hear any such monetary claim. In keeping with that premise, the entire legislative scheme of chapter 53, which authorizes claims against the state, makes clear that it is the claims commissioner, pursuant to legislation, that can waive sovereign immunity . . . [W]hen the claims commissioner deems it just and equitable, he may authorize suit against the state . . ." (Citation omitted; internal quotation marks omitted.)
In the present case, the claims commissioner concluded that the claim accrued only when the harm was discovered by way of an expert opinion. This finding of fact satisfied the timeliness provisions of § 4-148(a). Therefore, the issue is whether the commissioner's finding of fact that the claim was timely filed under § 4-148(a) is subject to review by the court.
The commissioner, under § 4-148(a), has statutory authority to permit a claim within one year after it accrues, but not more than three years after the date of the act. What is at issue is the commissioner's decision as to the date on which the claim accrued, not his statutory authority to make that decision. Therefore, the present case is not one of statutory interpretation.
The State relies on Kinney v. State, 285 Conn. 700, 941 A.2d 907 (2008), to argue that that an interpretation of the claims act that does not permit judicial review of the claims commissioner's decision would violate the constitution. However, in Kinney, the General Assembly permitted an eight-year-old claim to be filed under a special act authorized by § 4-148(b). The Kinney case was one in which the court reviewed the special act of the General Assembly for violations of the constitution of Connecticut. The present case does not involve such a special act, which is reviewable on constitutional grounds. The present case involves a decision by the claims commissioner as to the claim accrual date. There has been no constitutional challenge with regard to the commissioner's decision as to the accrual date.
The State offers Merly v. State, 211 Conn. 199, 558 A.2d 977 (1989), as support for the proposition that the court may inquire into conclusions of law and fact determined previously by the claims commissioner. In Merly the court noted that "[b]ecause the principal issue presented . . . [was] whether the special act . . . should be declared invalid as an exclusive emolument or privilege . . . we must explore whether there is any conceivable justification for this challenged legislation from the public viewpoint . . . If the initial determination of the commissioner concerning noncompliance with 4-148(a) was mistaken . . . it could not be said that the plaintiff had been given any special privilege in being allowed to pursue a claim that had in fact been presented within the time allowed. Accordingly, we must address the issues the plaintiff has raised concerning the applicability of 4-148(a) as a bar to his claim." (Internal quotation marks omitted.) Merly v. State, supra, 205.
The language in Merly notes that inquiry into the commissioner's determination regarding compliance with § 4-148(a) was necessary as the constitutionality of a special act of the General Assembly was attacked. This is clearly not an issue in the present case as the General Assembly did not pass a special act allowing the plaintiff in the present case to sue the state.
Lagassey v. State, 268 Conn. 723, 846 A.2d 831 (2004), involved legal issues essentially identical to Merly. In Lagassey, the commissioner found the claims to be untimely filed. The General Assembly passed a special act authorizing the claims. In court, the defendant moved to dismiss the complaint on the ground that the special act was unconstitutional in granting a special privilege to the plaintiff. The plaintiff responded that since the commissioner's decision that the claim was untimely was incorrect, the special act did not confer any special privilege on the plaintiff.
In determining the constitutionality of the special act, the court looked into whether the commissioner's initial findings regarding the timeliness of the claim were correct. Concluding that "because the plaintiff's claim was not untimely as a matter of law"; Lagassey v. State, supra, 268 Conn. 752; the Supreme Court held that that the trial court improperly dismissed the complaint on the ground that the special act was unconstitutional as the special act did not grant any special privilege to the plaintiff.
The Lagassey court noted that General Statutes § 4-148(b) permits the General Assembly to authorize an untimely claim if it finds "compelling equitable circumstances" and "public purpose." Lagassey v. State, supra, 268 Conn. 733, quoting General Statutes § 4-148(b). "Although § 4-148(b) provides that `[s]uch finding shall not be subject to review by the Superior Court,' special acts passed in this manner are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution." Lagassey v. State, supra, 733.
Taken together, Lagassey and Merly do not support the defendant's position that when the commissioner waives sovereign immunity under § 4-148(a), the court has jurisdiction to review those findings for error in a case such as the present one where there is no special act at issue.
In Reilly v. Smith, 84 Conn.App. 849, 855 A.2d 1000, cert. denied, 271 Conn. 938, 861 A.2d 513 (2004), the dispositive issue was whether the trial court lacked subject matter jurisdiction to review a decision the claims commissioner made pursuant to General Statutes § 4-148 dismissing a claim as untimely. In the Superior Court, the plaintiff sought a writ of mandamus, "requesting that the court order the commissioner to accept, hear, consider and decide his claim." Reilly v. Smith, supra, 852. The plaintiff argued that the commissioner improperly concluded that the plaintiff's claim was barred by the statute of limitations. "In response, the state claimed that decisions of the commissioner [were] not appropriate subjects for judicial review because they directly implicate the legislative waiver of sovereign immunity." Id. The court concluded that "[s]uch an order [for mandamus] required the court first to review the commissioner's conclusion that the plaintiff's claim was untimely and to determine that the commissioner's conclusion was improper. The [trial] court properly concluded that it lacked the jurisdiction to review the commissioner's decision." Id., 856.
In Castro v. Viera, 207 Conn. 420, 434 n. 7, 541 A.2d 1216 (1988), the court, in discussing the necessity to establish subject matter jurisdiction, stated that "[w]e require the assertion of facts in a pleading which will permit a court to find jurisdiction." In Castro, an employer-employee relationship was a prerequisite for jurisdiction; this relationship was contested. The court stated: "Given the circumstances, the commissioner had the duty to determine whether there was subject matter jurisdiction . . . The burden of adducing evidence to enable the commissioner to conclude that there was subject matter jurisdiction to bring this claim within the act was on the plaintiffs . . . It is the power and the duty of the commissioner, as the trier of fact, to determine the facts . . .
The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Citations omitted; internal quotation marks omitted.) Id., 434-35.
As stated by the court in Worhunsky v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 0822080 (Aug. 11, 2003, Wagner, J.) (35 Conn. L. Rptr. 363-64), a case that is factually directly on point with the facts in the present case: "Essentially, by its motion the State asks the court [to] review the decision of the Claims Commissioner allowing the plaintiffs to sue the State and to grant the defendant's motion to dismiss based on errors that were allegedly made in the process. It is clear from Connecticut statutes and case law that the court may not review the decision of the Claims Commissioner because it is the General Assembly which has been given authority of review by statute. General Statutes 4-164(b) expressly provides:
The action of the Claims Commissioner in approving or rejecting payment of any claim or part thereof shall be final and conclusive on all questions of law and fact and shall not be subject to review except by the General Assembly.
In Krozer v. New Haven, 212 Conn. 415, 424 n. 10, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed 2d 774 (1990), our Supreme Court stated:
In Circle Lanes of Fairfield, Inc., we concluded that the Superior Court lacked jurisdiction to hear appeals from the claims commissioner because General Statutes 4-164a expressly exempted the claims commissioner from the operation of General Statutes 4-183, the provision of the Uniform Administrative Procedure Act that permits an appeal to the Superior Court.
`The plaintiff argues that precedent exists for the court to review a Claims Commissioner's decision where a running of the statute of limitations to bring a claim is implicated under General Statutes § 4-148(a), citing Merly v. State, supra, 211 Conn. 199, and Lagassey v. State, Superior Court, Judicial District of Hartford, Docket No. CV 01 0807201 (January 15, 2003, Beach, J.) (33 Conn. L. Rptr. 715). Both cases cited by the defendant, however, involve the court's review of the Claims Commissioner's decision after there has been an appeal to and decision by the General Assembly. In the present case, there has been no appeal to the General Assembly, but the defendant seeks in its motion to dismiss to accomplish the same result. The court does not have that authority, since the commissioner of claims performs a legislative function directly reviewable only by the General Assembly. Circle Lanes of Fairfield, Inc. v. Fey, 195 Conn. 534, 541, 489 A.2d 363 (1985)."
The motion to dismiss is DENIED.