Opinion
UWYCV146024601S
06-16-2016
Domenic Kenneson v. Johnson & Johnson, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#105)
Robert B. Shapiro, J.
The court heard oral argument on April 25, 2016 concerning the defendant St. Mary's Hospital, Inc.'s (St. Mary's) motion to dismiss the ninth count of the plaintiff's amended complaint, dated December 1, 2014 (#103.30) (complaint). Citing General Statutes § 52-190a, St. Mary's seeks dismissal due to lack of personal jurisdiction, insufficient process, and insufficient service of process. It asserts that, since the ninth count concerns allegations that St. Mary's breached the standard of care with regard to implantable medical devices used in patient surgeries, it states a claim for professional negligence, and should be dismissed since the plaintiff did not attach to his complaint a certificate of good faith and an opinion letter of a similar health care provider.
Section 52-190a(a) provides, in relevant part, " (a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care 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 [or] initial pleading . . . 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 signed 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 and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate."
The plaintiff contends that his allegations against St. Mary's sound in ordinary and corporate negligence rather than professional negligence, and therefore do not trigger the requirements of § 52-190a. He argues that his claims against St. Mary's do not pertain to the care he received, but rather relate to hospital policies and procedures for the safe selection, acquisition, inspection, retention, tracking and maintenance of medical equipment.
After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
In the complaint, the plaintiff alleges that on May 19, 2011, he underwent a hernia repair at St. Mary's, and, on or before that time, his surgeons chose Prolene Mesh for use in the surgery. He alleges that St. Mary's " had a responsibility to supply, maintain and use suitable equipment and products for use in the surgical procedures performed at its facility." See complaint, ninth count, ¶ 15. He also alleges that " St. Mary's had a non-delegable responsibility to make provision for, by rules and regulations or otherwise, the inspection, tracking, discovery, disposal and discontinuation of defective, faulty and harmful medical products used in its surgical procedures." See complaint, ninth count, ¶ 16.
In addition, the plaintiff alleges that, as a result of persistent pain and swelling at the location where the Prolene Mesh was implanted, he underwent a left groin exploration surgery at Waterbury Hospital on March 1, 2013, where the Prolene Mesh was found to have eroded into the illoinguidal nerve, was explanted, and a revision of the prior surgery was performed. He claims that he suffered severe, painful, and permanent injuries as a result of St. Mary's corporate negligence. See complaint, ninth count, ¶ 24.
In particular, in paragraph 27, he alleges that his damages were caused by St. Mary's negligence, in that it failed to have adequate specific rules in place: regarding the appropriate selection of medical products for use during surgical procedures; regarding the tracking of adverse medical device reporting, which would have alerted its executive committee and/or board of trustees to the dangers associated with the use of Prolene Mesh; regarding the discontinuation of medical products that were known, or should have been known, to have a higher than average complication rate compared to other similar products; and regarding the dissemination of information to visiting physicians regarding the discontinuation of medical products that are potentially more harmful for its patients. He also alleges that St. Mary's impermissibly allowed visiting physicians to have unilateral authority regarding which medical products would be used at the time of surgery.
In addition, he alleges that St. Mary's failed to develop and implement reasonable policies for the effective and efficient discontinuation of medical products that are known, or should have been known to have a higher than average complication rate and failed to establish a system by which patients who may have been affected by a product known to have a higher than average complication rate are identified and the patient and the patient's primary care physician are notified. Also, he alleges that St. Mary's failed to establish a system to monitor the efficacy of the various medical products that are used by its visiting physicians to determine whether or not specific products have a higher than average complication rate compared to other similar products. See complaint, ninth count, ¶ 27. Additional references to the allegations are set forth below.
In his objection, page 6, the plaintiff refers to an alleged " duty to select, retain, credential and supervise competent hospital personnel." No allegations as to selection, retention, and credentials are set forth in the ninth count. As discussed above, the allegations include references to patients' primary care physicians and visiting physicians.
II
Standard of Review
" The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . .; other types of undisputed evidence; . . . and/or public records of which judicial notice may be taken; . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein . . . Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts . . ." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
Practice Book Section 10-30(a)(2) provides that " A motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." " [A] challenge to the jurisdiction of the court presents a question of law . . ." Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007). " As a general matter, the burden is placed on the defendant to disprove personal jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
The motion is addressed to the allegations in the ninth count. An evidentiary hearing was neither requested nor required.
III
Discussion
General Statutes § 52-190a(a) requires that a medical malpractice complaint " shall contain a certificate of the attorney or party filing the action . . . that . . . reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . ." Section 52-190a(a) also " requires a plaintiff in a medical malpractice action to attach to the complaint a written 'opinion of a similar health care provider' attesting to a good faith basis for the action . . ." Morgan v. Hartford Hospital, 301 Conn. 388, 392, 21 A.3d 451 (2011). The good faith certificate and written opinion letter " must be attached to the complaint in order to commence properly the action." Id., 398.
" [T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Id., 401. The court " conclude[d] that the absence of a proper written opinion letter is a matter of form, [which] implicates personal jurisdiction." Id., 402.
" [T]he grant[ing] of a motion to dismiss . . . is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " [D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 28, 12 A.3d 865 (2011).
A good faith certificate and a written opinion of a similar health care provider are not required in cases against health care providers which sound in ordinary negligence. See Multari v. Yale New Haven Hospital, 145 Conn.App. 253, 256-57, 259-61, 75 A.3d 733 (2013) (since complaint sounded in ordinary negligence as opposed to medical malpractice, plaintiff was not obligated to file a good faith certificate or a written opinion from a similar health care provider pursuant to § 52-190a); in contrast, see Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 364, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001) (plaintiff's claim against medical professionals with whom she had a medical professional-patient relationship involved negligent act or omission during an activity that was substantially related to her treatment; as such, certificate of good faith pursuant to § 52-190a was required).
" As [the Supreme Court] explained in Gold v. Greenwich Hospital Assn., 262 Conn. 248, [254-55, ] 811 A.2d 1266 (2002), '[t]he 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. [P]rofessional 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 [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the 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 . . ." (Emphasis in original; internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 587-88, 50 A.3d 802 (2012), citing Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357-58.
The Supreme Court has " conclud[ed] that the phrase medical negligence, as used in § 52-190a(a) means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence . . . Thus, if an expert is needed to establish the standard of care, a fortiori, an opinion letter is required from a similar health care provider. It is likewise both consistent and logical to hold that if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52-190a." (Internal quotation marks omitted.) Shortell v. Cavanagh, 300 Conn. 383, 393, 15 A.3d 1042 (2011).
The plaintiff concedes that had he sued his surgeon for medical malpractice for improperly implanting Prolene Mesh in his body, and sued St. Mary's under a theory of vicarious liability, an opinion letter from a similar health care provider would be required. He contends that an opinion letter is not required here, where he is suing St. Mary's for corporate negligence for failing to promulgate appropriate policies and procedures that would have alerted it to the problems associated with Prolene Mesh and resulted in Prolene Mesh being taken off of St. Mary's inventory of approved hernia repair products. See plaintiff's objection (#107), p. 11.
The plaintiff cites Tocchetti v. Cyril and Julia C. Johnson Memorial Hospital, 130 Conn. 623, 626-27, 36 A.2d 381 (1944), where the court discussed corporate administrative negligence, in failing to supply, maintain, and use suitable equipment. The facts at issue there markedly contrast with the allegations here. In Tocchetti, the facts involved an issue of ordinary negligence, concerning a hot-water bag, from which water leaked, and severely burned a baby, causing her death. Two weeks before, the same hot-water bag had been found in defective condition, beyond repair and unfit for normal use, and thrown into a trash can. See id., 130 Conn. 624-25. There, the Supreme Court did not address whether expert testimony was required.
Also, Tocchetti was decided long before the requirement of an opinion letter of a similar health care provider was enacted in 2005 in P.A. 05-275's amendment of § 52-190a. The plaintiff also cites Edwards v. Grace Hospital Society, 6 Conn.Supp. 272 (1938). That matter also did not discuss expert testimony and was decided long before the amendment of § 52-190a in 2005.
More recently, in Wilkins v. Connecticut Childbirth and Women's Center, 314 Conn. 709, 723 n.4, 104 A.3d 671 (2014), the Supreme Court noted that, since the plaintiff had not claimed that her allegations of institutional negligence did not sound in medical malpractice, and, therefore, were not subject to § 52-190a's opinion letter requirement, it need not consider whether, even if the opinion letter was insufficient as to her allegations of vicarious liability, the plaintiff would be entitled to proceed on her allegations of institutional negligence.
In considering the three-part test as to whether the plaintiff's allegations sound in medical malpractice, see Jarmie v. Troncale, supra, 306 Conn. 587-88, the first consideration, as to whether St. Mary's is being sued in its capacity as a medical professional, is clearly met. The plaintiff alleges that his injuries arose from surgical treatment he received at St. Mary's.
Concerning the second consideration, whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, it is clear that the alleged injuries arose from the medical professional-patient relationship since the plaintiff alleges that the hospital's negligence concerning products used in surgery when he was a patient at St. Mary's resulted in his injuries.
As to whether the alleged negligence is of a specialized medical nature that arose out of the medical-professional relationship, the court is persuaded by the recent analyses of other courts in similar contexts. " The fact that the alleged treatment directly involved Plaintiff's medical condition is sufficient to satisfy the second prong." Gallinari v. Kloth, United States District Court, (D.Conn. 2015), 148 F.Supp.3d 202, 2015 WL 7758835 *4 (applying § 52-190a where plaintiff alleged that defendants injected her with a contaminated medication, and breached their duty to suspend sale thereof when they discovered it to be dangerous; citing Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 577, 966 A.2d 813 (2009). See Simoneau v. Stryker Corp., United States District Court, Civil Action No. 3:13-CV-1200 (JCH) (D.Conn., March 31, 2014), 2014 WL 1289419 *4 (applying § 52-190a where plaintiff alleged hospital negligently failed to warn her of recalled hip implant components; " the fact that [the hospital's] alleged failure to warn directly involved treatment and diagnosis of [plaintiff's] medical condition is sufficient to establish the second prong . . ." (Citation omitted.)).
Similarly, concerning the third consideration, as to whether the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment, these recent decisions provide useful illustrations. In Gallinari v. Kloth, supra, United States District Court, Case No. 3:15-CV-00872 (VAB), the plaintiff alleged that the defendants owed her a duty to assess and warn her of the risks associated with the medication used to treat her, and to suspend its distribution and sale when they discovered it to be unreasonably dangerous. The court concluded that the third prong was satisfied as the alleged negligence " presupposed that conforming with duty would have altered plaintiff's treatment." Id.
Likewise, in Simoneau v. Stryker Corp., supra, United States District Court, Civil Action No. 3:13-CV-1200 (JCH), the court found that the third prong was established where the plaintiff alleged that the hospital knew or should have known of the recalled hip replacement components, failed to alert her to the possibility that such components were the source of her medical condition, and, as a result, caused her damages. The allegations presupposed that knowledge of the recall and action by the hospital would likely have altered her diagnosis and treatment. See id.
Here, the plaintiff's allegations, that St. Mary's was negligent in failing to promulgate appropriate policies and procedures that would have alerted it to the problems associated with Prolene Mesh and would have resulted in Prolene Mesh being taken off of St. Mary's inventory of approved hernia repair products, also presuppose that proper action by the hospital, in conformance with its alleged duties, would likely have altered the plaintiff's treatment, in that Prolene Mesh would not have been implanted. Thus, the alleged negligence is substantially related to medical treatment.
Also, the assessment of problems associated with Prolene Mesh involved the exercise of medical judgment. In the complaint, the plaintiff makes extensive reference to public health notifications issued by the United States Food and Drug Administration (FDA) concerning complications associated with Prolene Mesh, to complaints made to the FDA involving individual cases, and to journal articles reporting on complications of Prolene Mesh erosion. See ninth count, ¶ ¶ 17-21.
" Under Connecticut law, to sustain a corporate negligence claim against a hospital, a plaintiff is generally required to establish, through expert testimony, the standard of care to which [the] defendant [is] to be held and a violation of the standard . . . Specifically, the plaintiff is required to produce expert testimony of the standard of care applicable to similar hospitals similarly located . . . and expert testimony that the hospital's conduct did not measure up to that standard." (Internal quotation marks omitted.) Doe v. Saint Francis Hosp. & Med Ctr., 309 Conn. 146, 200 n.45, 72 A.3d 929, 965 (2013).
In his objection, page 11, the plaintiff asserts that, after engaging in discovery, expert testimony would be used here, not to establish medical negligence, but to aid the trier of fact in understanding why hospitals need to promulgate policies for selection, tracking, and maintenance of medical equipment and why Prolene Mesh should have been removed from St. Mary's approved list of hernia repair products based on information made available to the general public.
The fact that information was available to the general public does not mean that, without expert testimony, the trier of fact would be able to assess the extent of alleged hospital duties concerning the use of proper medical equipment in surgery. For example, assessments as to whether Prolene Mesh had higher than average complication rates; and as to whether St. Mary's had obligations to monitor implantable medical devices, and to make determinations as to whether they are dangerous, are beyond the knowledge of laypeople. In this context, " an understanding of the applicable standard of care and the behaviors that may constitute a violation of that standard are beyond the experience and ken of the ordinary fact finder." Neff v. Johnson Memorial Hospital, 93 Conn.App. 534, 546, 889 A.2d 921 (2006). A factfinder would need the assistance of expert testimony to assess the extent of St. Mary's duties concerning the use of the medical product at issue.
Under the circumstances here, the alleged negligence is substantially related to medical treatment and involved the exercise of medical judgment, which meets the third requirement of the test.
The plaintiff's allegations concerning violations of alleged duties by St. Mary's do not present an exception to the general requirement that expert testimony is required to establish a corporate negligence claim against a hospital. As discussed above, if an expert is needed to establish the standard of care, an opinion letter is required from a similar health care provider. See Shortell v. Cavanagh, supra, 300 Conn. 393.
Thus, since the three requirements of the test are met, the ninth count sounds in medical malpractice, not ordinary negligence. Accordingly, the plaintiff was required to comply with the statutory procedures set forth in § 52-190a.
Since the plaintiff did not comply with § 52-190a, the court lacks personal jurisdiction as to the claims against St. Mary's in the ninth count. See Morgan v. Hartford Hospital, supra, 301 Conn. 398, 401, 402. Dismissal is the mandatory remedy. See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 28.
CONCLUSION
Based on the foregoing reasons, St. Mary's motion to dismiss the ninth count is granted. It is so ordered.