Opinion
No. 477016
September 23, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 101)
The motion to strike now before the court presents the issue whether the allegation in the single-count complaint is one of injury resulting "from the negligence of a health care provider" within the meaning of Conn. Gen. Stat. § 52-190a (a). If the answer to this question is in the affirmative, the complaint must be stricken because the complaint contains no certificate of good faith. For the reasons set forth below, the motion to strike must be granted.
The plaintiff, Michael Katz ("Administrator"), is the Administrator of the Estate of Anna Katz ("Katz"). (Although Katz is now deceased, it is not alleged that the injuries complained of here caused her death.) On June 9, 2001, Katz, who was terminally ill with cancer, was an admitted patient of the defendant, Harborside Healthcare-Arden House Rehabilitation and Nursing Center ("Harborside"). While being moved from her wheelchair to her bed, she suffered some type of fracture in her left arm. (The complaint alleges that "she suffered a fracture of the humerus in her left forearm," an anatomically impossible injury.) Her specific allegations are the focal point of the motion and will be quoted extensively in a moment.
The Administrator commenced his action by service of process on April 28, 2003. His complaint consists of a single count alleging negligence. On July 10, 2003, Harborside filed the motion to strike now before the court. The motion was heard on September 22, 2003.
The motion to strike relies on Conn. Gen. Stat. § 52-190a (a). That section provides that:
No civil action shall be filed to recover damages resulting from personal injury . . . whether in tort or contract, in which it is alleged that such injury . . . resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a CT Page 10880-cb 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 or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, 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. For purposes of this section, such faith may be shown to exist if the claimant or his attorney has received a written opinion . . . of a similar health care provider as defined in section 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 . . .
The Administrator's complaint contains no certificate of this description. The Administrator does not contest the proposition that Harborside was "a health care provider." The question is whether the Administrator's claim is one of medical malpractice, which requires a certificate of good faith, or ordinary negligence, which does not. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 356, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). That question requires a careful examination of the allegations in the complaint concerning the circumstances under which the alleged negligence occurred. Gold v. Greenwich Hospital Association, 262 Conn. 248, 254, 811 A.2d 1266 (2002).
The complaint alleges that Harborside "is a duly licensed and registered health-care facility." Katz "was admitted to the facility on May 21, 2001." The complaint further alleges that:
5. As part of her care and treatment, she was receiving injections of Prednisone and radiation therapy. Both courses of treatment resulted in foreseeable weakening of her bones and skeletal structure.
6. Ms. Katz was unable to move from wheelchair to bed without assistance.
7. The defendant's staff was required to move Ms. Katz periodically, both to prevent bed sores and to assure that her circulatory system was not unduly compromised.
8. Because of the treatment she was undergoing, special precautions were required to move Ms. Katz so as not to fracture to [sic] bones.
9. The defendant was aware of these special precautions and informed staff members that Ms. Katz was not to be moved from wheelchair to bed or CT Page 10880-cc bed to wheelchair without the assistance of a sling known as a Hoyer lift transfer.
10. On the evening of June 9, 2001, a Saturday evening, the defendant's facility was short-staffed, and employees of the defendant acting within the scope of and furtherance of their duties were required to move her from her wheelchair to her bed.
11. Despite the requirement that Mrs. Katz be moved only by means of the Hoyer device, two of the defendant's employees lifted her by her arms and attempted to move her to her bed.
12. As Mrs. Katz was being moved, she suffered a fracture of the humerus in her left forearm.
. . .
14. The defendant had a legal duty to provide safe medical treatment and palliative care for Mrs. Katz, including movement of her from her wheelchair to her bed.
15. The defendant was negligent in that it:
a. Failed to provide for the proper care and treatment of Mrs. Katz insofar as her movement was concerned;
b. Failed properly to train staff on how to move patients suffering from the constellation of foreseeable maladies and symptoms from which Mrs. Katz suffered;
c. Failed properly to supervise staff on how to move patients suffering from the constellation of foreseeable maladies and symptoms from which Mrs. Katz suffered;
d. Failed to assure that staff were aware of the medical needs of Mrs. Katz;
e. Failed to assure that there were enough properly trained staff on duty to assure that staff members had sufficient time to provide appropriate care for residents;
f. Failed to provide proper notice to all employees on the manner and means by which Mrs. Katz could be moved from wheelchair to bed.
Our Supreme Court has recently explained that: CT Page 10880-cd
[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.
Gold v. Greenwich Hospital Association, supra, 262 Conn. at 254 (internal quotation marks and citation omitted). Application of the Gold factors to the Administrator's allegations here establishes that those allegations are claims of medical malpractice. (1) Harborside is clearly sued in its capacity as a "health-care facility." (2) The alleged negligence is of a specialized medical nature that arises out of the health-care provider-patient relationship. The complaint alleges that Katz "was admitted to the facility" and received "care and treatment" therein. The complaint repeatedly states that "special precautions" were needed to move her. (3) The alleged negligence is substantially related to medical diagnosis of treatment and involved the exercise of judgment of a healthcare provider. Paragraph 14 of the complaint expressly alleges that Harborside "had a duty to provide safe medical treatment and palliative care for Mrs. Katz." Harborside's alleged failure to take "special precautions" are claimed to have violated this duty.
The Administrator's allegations are strikingly similar to the allegations held to require a certificate of good faith by the Appellate Court in Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra. The plaintiff in Trimel, who was confined to a wheelchair, was provided with physical therapy by the defendant. During a scheduled therapy session, she fell while transferring from a wheelchair to an exercise mat and was injured. The Appellate Court held that "a medical professional's decision not to supervise a maneuver that was learned through the course of therapy, when the health care provider is familiar with the strengths and weaknesses of the individual patient" is "a medical judgment." 61 Conn. App. at 363. The same analysis applies to a decision by a health care provider as to how best to transfer one of its patients from a wheelchair to a bed.
The Administrator characterizes Trimel as "a near miss to the case at bar." Plaintiff's Supplemental Memorandum in Opposition to Motion to Strike at 1. In his estimation, this case is different because here, unlike Trimel, the line staff had been given a specific directive on how to move Katz from the wheelchair to the bed and disregarded that directive. He asserts that he is "not challenging" Harborside's CT Page 10880-ce "judgment." Rather, "[w]hat is challenged is the defendant's ability to follow the instructions of the medical professionals." Id.
The problem with the Administrator's characterization in his brief is that it is completely divorced from the allegations of his complaint. As mentioned, paragraph 14 of the complaint alleges that, "The defendant had a legal duty to provide safe medical treatment and palliative care for Mrs. Katz, including movement of her from her wheelchair to her bed." Thus, the complaint itself expressly characterizes "movement of her from her wheelchair to her bed" as an aspect of "safe medical treatment and palliative care." Moreover, the specifications of negligence are not specifications of the purely ministerial kind suggested in the Administrator's Brief. Rather, the specifications of negligence allege failure "to provide for the proper care and treatment of Mrs. Katz insofar as her movement was concerned"; failure "properly to train staff on how to move patients" with medical conditions like Katz's; failure "properly to supervise staff" on such movement; failure "to assure that staff were aware of the medical needs of Mrs. Katz"; failure "to assure that there were enough properly trained staff on duty to assure that staff members had sufficient time to provide appropriate care for residents;" and failure "to provide proper notice to all employees on the manner and means by which Mrs. Katz could be moved from wheelchair to bed." The "failures" so asserted are not "ministerial" in nature. Each of them involve the judgment of a health care professional.
Under these circumstances, Trimel requires that the complaint contain a certificate of good faith. Because the complaint here does not, the motion to strike must be granted.
Jon C. Blue Judge of the Superior Court
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