Opinion
No. CV 08-5021176
December 31, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #115
On June 20, 2008, the plaintiff John Jarmie, filed a one-count negligence complaint against the defendants, Frank Troncale and the Gastroenterology Center of Connecticut, P.C. The plaintiff also attached a good faith certificate, which — under General Statutes § 52-190a — is a prerequisite to filing a medical malpractice action.
To show a "good faith belief that grounds exist for an action against each named defendant," the "claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a . . . health care provider" and "shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate." General Statutes § 52-190a; see also Bios v. CCMC Corp., 106 Conn.App. 810, 811, 943 A.2d 544 (2008) ("persons filing legal actions claiming medical negligence must annex to the complaint a written and signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence").
The plaintiff alleged the following facts. Troncale is a licensed Connecticut physician and specialist in gastroenterology and an agent or employee of Gastroenterology Center of Connecticut, P.C. On June 22, 2006, Troncale diagnosed and treated his patient, Mary Ann Ambrogio (the patient) for various liver and kidney ailments, including hepatic encephalopathy.
It is generally known in Troncale's medical specialty that those suffering from hepatic encephalopathy are unable to safely operate a motor vehicle due to their impaired mental state. While operating a motor vehicle after leaving Troncale's offices on June 22, 2006, the patient lost consciousness due to the hepatic encephalopathy and crashed into the plaintiff, causing him severe permanent injuries. The plaintiff's injuries were caused by Troncale and his agents in that they failed to properly treat, monitor and supervise the patient and/or to advise and warn the patient not to drive a vehicle.
On November 13, 2008, the plaintiff filed a second amended complaint, the operative complaint, in which he revised this claim by deleting the allegation that Troncale and his agents failed to properly treat, monitor, and supervisor the patient.
On July 24, 2008, the defendants filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff failed to "comply with General Statutes § 52-190a in that the written opinion supporting the good faith certificate [failed] to specie' the specialty of its author," and "there is no basis to conclude that the author" is a "'similar health care provider' to Dr. Troncale and, therefore, qualified to determine whether there is evidence of medical negligence."
On August 7, 2008, the plaintiff filed his first amended complaint, attaching a substitute copy of the good faith certificate. The plaintiff also filed an objection to the defendants' motion to dismiss in which he argued that the defendants' motion to dismiss should be denied because the plaintiff "over-redacted the specialty and board certification of the reviewer" in the initial good faith certificate. On August 13, 2008, the defendants filed a claim for apportionment under General Statutes § 52-102b against the patient, claiming that she "was the proximate cause of the plaintiff's alleged injuries and damages.
The defendants alleged that, on the date of the accident, the plaintiff did not have the motor vehicle under reasonable control; "failed to properly use and/or apply the steering wheel and/or brakes of" the motor vehicle; "was not maintaining a careful lookout"; "struck the plaintiff who was a pedestrian on the sidewalk, with her motor vehicle"; "failed to turn her motor vehicle or take any other evasive action in order to avoid striking the plaintiff"; "failed to heed her doctors' advice regarding her ability to operate a motor vehicle"; and violated various sections of the General Statutes by "traveling unreasonably fast," recklessly operating her motor vehicle, failing to "drive on the right side of the roadway," operating a motor vehicle with "defective steering and/or braking equipment," making an "unsafe turn," failing to "operate her vehicle in the proper lane," operating a motor vehicle on the sidewalk, failing to "exercise due care"; and failing to "sound her horn or provide any other warning to the plaintiff."
On September 2, 2008, the defendants withdrew their motion to dismiss. On November 21, 2008, the defendants filed a motion to strike the plaintiff's second amended complaint on the ground that the plaintiff's "medical malpractice" claim is legally insufficient. On December 10, 2008, the plaintiff filed an objection to the defendants' motion.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
"[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendants argue that the plaintiffs "medical malpractice" claim is legally insufficient because (1) the complaint fails to plead "the existence of a medical professional-patient relationship, which is a necessary component of a medical malpractice claim under Connecticut law"; (2) the complaint fails to plead "the required causal connection between the defendants' alleged deviation from the standard of care to the patient and the plaintiff's claimed injuries"; and (3) "the defendants, as a matter of law, did not owe a duty to the plaintiff." In his objection, the plaintiff argues that (1) the defendants did, in fact, owe a duty of care to the plaintiff; (2) "the plaintiff has properly alleged proximate cause"; and (3) "there is no statutory bar prohibiting third parties from bringing a claim against a physician."
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).
A. Physician-Patient Relationship Requirement in Medical Malpractice Actions
The defendant argues that plaintiff's claim is legally insufficient because it fails to plead "the existence of a medical professional-patient relationship, which is a necessary component of a medical malpractice claim under Connecticut law." The plaintiff argues that he brings a common-law negligence action and that the fact that he attached a good faith certificate to his complaint does not necessarily indicate that he brings a medical malpractice action, as he did so as a precautionary measure.
As explained above, under General Statutes § 52-190a, a good faith certificate must be attached to the complaint when filing a medical malpractice action.
"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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358-59, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). "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." Id., 360, 364.
The plaintiff's claim sounds in medical malpractice because Troncale is a "medical professional," his "alleged negligence is of a medical nature arising out of [his] medical treatment" of the patient, and "[t]he alleged negligence is substantially related to medical diagnosis and involved the exercise of medical judgment" (i.e., a medical decision regarding whether the patient should have been warned of the risks of driving). Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 255, 811 A.2d 1266 (2002) (holding claim constituted medical malpractice claim where plaintiff alleged injury due to patient's "treatment and discharge from the hospital when the [treating physician] knew or should have known that [the patient] was a danger to others"); see also Likier v. Sunrise Senior Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5008024 (October 12, 2007, Thompson, J.) (holding "the complaint sounds in medical malpractice" where plaintiff alleged healthcare facility's "negligent acts [were] directly related to its responsibility to monitor the decedent's medical condition").
Where a third-party non-patient brings a medical malpractice claim against a physician, "there can be no actionable negligence on the part of a physician," as "there is no physician-patient relationship." Sackter v. St. Onge, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0504004 (April 16, 1993, Wagner, J.); see also Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358 (explaining "medical malpractice" involves negligence "that arises out of the medical professional-patient relationship"); Williams v. National Railroad Passenger Corp., 16 F.Sup.2d 178, 181 (D.Conn. 1998) (applying Connecticut law and concluding "[a] claim for medical malpractice does not exist in the absence of a physician/patient relationship"); Casner v. Fine, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0462895 (May 22, 1995, Handy, J.) ("it is necessary for the plaintiff to establish a physician-patient relationship").
Accordingly, the defendants' motion to strike must be granted on the ground that the plaintiff has failed to allege a physician-patient relationship. See Pokorny v. Shafer, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0528375 (February 28, 1994, Wagner, J.) (granting motion to strike medical malpractice claim and holding "a physician is liable for medical malpractice only where there is a physician-patient relationship"); Meehan v. Yale New Haven Hospital, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0320418 (March 12, 1996, Hartmere, J.) (granting defendants' motion to strike due to "absence of allegations of a physician-patient relationship").
Nevertheless, because duty and the physician-patient relationship requirement in medical malpractice actions are intertwined, the court will also examine the defendants' argument that they owed no duty to the plaintiff.
See Proctor v. Saint Francis Hospital, Superior Court, judicial district of Hartford, Docket No. CV 020815571 (February 27, 2006, Scholl, J.) ("In order to establish a duty of care there must be a physician-patient relationship."); Rumbin v. Baez, Superior Court, judicial district of New Haven, Docket No. CV 95 0378968 (December 11, 1997, O'Keefe, J.), aff'd, 52 Conn.App. 487, 727 A.2d 744 ("In Connecticut in order to establish a duty of care there must be a physician/patient relationship."); Casner v. Fine, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 94 04 62895 (May 22, 1995, Handy, J.) (holding, where "plaintiffs do not allege that the defendants had a physician-patient relationship with the plaintiff," "there is no duty owed to [the plaintiff], and the defendants' motion to strike . . . is granted").
B. Duty of Physicians to Protect Third Parties from Injuries Caused by Patients
The defendants argue that, "as a matter of law," they "did not owe a duty to the plaintiff." "The existence of a legal duty is a question of law." Pelletier v. Sordoni/Skanska Construction Company, 286 Conn. 563, 578, 945 A.2d 388 (2008).
Although the Connecticut appellate courts have never faced the precise issue in this case — whether a physician owes a duty to protect third parties from harm caused by a non-mental-health patient — the relevant authority indicates that the courts would decline to recognize such a duty. See Weigold v. Patel, 81 Conn.App. 347, 348, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004) (holding defendant psychologist and psychiatrist "had no duty to warn the patient not to operate her motor vehicle for the benefit of the decedent" "after ingesting prescribed medication"); Sackter v. St. Onge, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 910504004 (April 16, 1993, Wagner, J.) (granting defendants' motion to strike where administrator alleged that patient fell "asleep at the wheel" due to medical assistant's misprescription of drug and caused accident resulting in decedent's death); see also Zamstein v. Marvasti, 240 Conn. 549, 550-51, 692 A.2d 781 (1997) ("imposing upon mental health professionals a duty of care running to the benefit of the alleged sexual abuser would be contrary to the public policy of this state"); Jacoby v. Brinckerhoff, 250 Conn. 86, 87, 735 A.2d 347 (1999) (holding psychiatrist has no duty "to a person who is not his patient but the former spouse of his patient"); Valentin v. St. Francis Hospital Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 04 0832314 (November 7, 2005, Hale, J.T.R.) ("Connecticut precedent weighs against finding a duty to a third party"); cf. Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996) ("absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another"); Ryan Transportation, Inc. v. MG Associates, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 99 0589085 (November 13, 2000, Beach, J.), aff'd, 266 Conn. 520, 832 A.2d 1180 (2003) ("Fraser [indicates that] our Supreme Court is willing to draw fine distinctions regarding the existence of duty as a matter of law").
The defendants argue that the Weigold court did not hold in favor of the psychologist and psychiatrist "on the basis of a lack of duty," but rather, on the basis of "proximate cause." However, the Weigold court "indicate[d] that the difference between the existence of a duty of due care on the one hand, and proximate cause on the other hand, 'is practically indistinguishable.'" Grush v. Dadarria, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No, CV 020190420 (July 12, 2004, Lewis, J.) (quoting Weigold v. Patel, supra, 81 Conn.App. 355).
Therefore, even if the plaintiff's claim constitutes an ordinary negligence claim, the motion to strike should nevertheless be granted on the ground that the defendants owed no duty to the plaintiff.
The court need not address the defendants' argument that the complaint fails to plead "the required causal connection between the defendants' alleged deviation from the standard of care to the patient and the plaintiff's claimed injuries" because this case can be decided on other grounds.
The defendants' motion is hereby granted because the plaintiff has failed to allege a physician-patient relationship, a requirement of medical malpractice claims in Connecticut; and Connecticut authority indicates that physicians have no duty to protect third parties from injuries caused by patients.