Opinion
HHDCV175044707S
07-19-2018
Pasquale RAFFONE v. Dr. Charan K. SINGH
UNPUBLISHED OPINION
OPINION
Dubay, J.
Before the court is the defendants’ motion to dismiss. The defendants move to dismiss the instant action on the grounds that the court lacks both subject matter jurisdiction and personal jurisdiction. For the reasons set forth below, the court grants the defendants’ motion to dismiss.
FACTS
On April 24, 2017, the self-represented plaintiff, Pasquale Raffone, filed the complaint in this action against the defendants, UConn Health Center, and UConn Health Center physicians, Dr. Charan Singh and Dr. Carson Wright, as well as Technologist (M.J.C.). In the complaint, the plaintiff alleges the following facts. On February 4, 2016, the plaintiff was admitted to UConn Health Center in Farmington for a lumbar transforaminal steroid injection and suffered injury when the lidocaine local anesthesia was injected improperly, nicking a nerve and/or tissue/tendon. On February 5, 2016, the plaintiff notified the nursing staff of his concern of experiencing abnormal pain, but did not receive relief. The plaintiff requested that Dr. Wright perform a "new MRI" or to view his "permanent flouroscopic images," which were archived in the plaintiff’s chart. Dr. Wright, however, denied the plaintiff’s request. The plaintiff further claims that Dr. Singh "failed to remain present" when M.J.C. performed the injection.
The plaintiff claims that he does not know the identity of M.J.C. and identifies the defendant as "Technologist (M.J.C.)," solely by the initials found on the report that partially forms the basis for this action. The defendants claim that they do not know the identity of M.J.C. In his complaint, the plaintiff does not identify whether the defendants, Dr. Singh and Dr. Wright, and M.J.C., are being sued in their individual or official capacities.
On August 1, 2017, the defendants filed a motion to dismiss the plaintiff’s complaint on three grounds. First, the defendants claim that the court lacks subject matter jurisdiction over the plaintiff’s action because they are barred by sovereign immunity and the defendants are entitled to statutory immunity pursuant to General Statutes § 4-165. Second, the defendants argue that the court lacks personal jurisdiction over the defendants because the plaintiff has not complied with General Statutes § 52-190a in that the plaintiff has not attached a good faith certificate or a written opinion by a similar health care provider to his complaint. Third, if the plaintiff is filing suit against Dr. Singh, Dr. Wright, and M.J.C. in their individual capacities, the plaintiff did not properly serve them in their individual capacities pursuant to General Statutes § 52-57(a). On August 24, 2017, the plaintiff filed an objection to the motion. The court heard oral argument on the matter on May 14, 2018.
DISCUSSION
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). Pursuant to Practice Book § 10-30, a motion to dismiss is used to assert: "(1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." "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." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
I
SUBJECT MATTER JURISDICTION
The defendants move to dismiss this action on the grounds that it is barred by both sovereign immunity and statutory immunity and, as a result, the court lacks subject matter jurisdiction over this case. "It is a well-established rule of the common law that a state cannot be sued without its consent." Lyon v. Jones, 291 Conn. 384, 396, 968 A.2d 416 (2009). The Supreme Court "[n]ot only ... [has] recognized the state’s immunity as an ‘entity, but ... also [has] recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Internal quotation marks omitted.) Colombia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636.
"Common-law sovereign immunity is distinct from the statutory immunity provided by § 4-165 ... By its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities ..." (Citation omitted; emphasis added.) Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002). "[T]he defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities. Likewise, the defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities." Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006). Our courts have made clear, however, that "the [statutory] immunity provided by § 4-165 does not apply if the doctrine of sovereign immunity does apply." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).
In order to determine whether sovereign or statutory immunity apply to the facts alleged in this case, the court needs to first decide whether Dr. Singh and Dr. Wright, and M.J.C. are being sued in their individual or official capacities. If the defendants are being sued in their official capacities, then this action is a matter brought against the state to which sovereign immunity may apply. If the defendants are being sued in their personal capacities, then statutory immunity may apply but sovereign immunity will not. See Smith v. Rodriguez, Superior Court, judicial district of New Haven, Docket No. CV-12-5034086-S (November 5, 2012, Gold, J.). "To determine whether an action is against the state or against the [defendants] in [their] individual capacities we look to the four criteria [as set forth] in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975)." Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010).
"If all four criteria [set forth in Spring ] are satisfied, the action is deemed to be against the state and, therefore, is barred ... The criteria are: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Id. Applying these criteria to the present case, the court concludes that the defendants are being sued here in their official capacities. The first Spring criterion is satisfied because the complaint identifies the defendants as UConn Health, and employees of UConn Health Center, and specifically provides addresses for the defendants at UConn Health Center in the summons. See Sims v. Woods, Superior Court, judicial district of Hartford, Docket No. CV-16-5042662-S (May 26, 2017, Peck, J.). The second criterion is met because the present action arises out of conduct that occurred during the course of the Dr. Singh, Dr. Wright, and M.J.C.’s official duties as UConn Health Center employees. See Alston v. Chapelelaine, Superior Court, judicial district of Tolland, Docket No. CV-16-5006803-S (April 11, 2018, Farley, J.). The plaintiff’s claims are based solely on acts that Dr. Singh, Dr. Wright, and M.J.C. performed in their official capacities as medical professionals, including the medical treatment the plaintiff received while a patient at UConn Health. "The third criterion may be satisfied when damages sought by the plaintiff are premised entirely on injuries alleged to have been caused by the defendants in performing acts that were part of their official duties." Id. "Most importantly, assuming the defendants carried out their duties improperly, they were ‘nevertheless performing their official duties when engaged in the acts the plaintiff’s complaint describes." Id. Therefore, the state is the real party against whom relief is sought, and the third criterion is also satisfied. The fourth criterion is satisfied because any judgment against the defendants would operate to control the activities of the state. See Hultman v. Blumenthal, supra, 67 Conn.App. 621. ("[A]ny judgment against the defendant would operate to control the activities of the state, specifically the role of the attorney general’s office in informing the public.") Because all four criteria are satisfied, the plaintiff’s claim of medical malpractice is a claim against the state- one to which sovereign immunity, as opposed to statutory immunity, may properly apply.
Although the four Spring criteria are satisfied, the plaintiff may still avoid the bar of sovereign immunity by showing that a recognized exception applies. "[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on is the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." (Citations omitted; internal quotation marks omitted.) Colombia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349. The second and third exceptions to sovereign immunity do not apply to claims against the state for monetary damages. See Cox v. Aiken, 278 Conn. 204, 212, 897 A.2d 71 (2006). "In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Colombia Air Services, Inc. v. Dept. of Transportation, 350.
The plaintiff’s prayer for relief in this case contains only a request for monetary damages from the defendants, including compensatory, punitive, and special damages, as well as costs and fees. Such an action may only proceed through statutory authorization. Doe v. Heintz, 204 Conn. 17, 31-32, 526 A.2d 1318 (1987). The plaintiff has not received permission from the claims commissioner to bring the action, nor has he pleaded a valid exception to the doctrine of sovereign immunity. See Schub v. Dept. of Social Services, 86 Conn.App. 748, 751, 862 A.2d 382, cert. denied, 273 Conn. 920, 871 A.2d 1029 (2005). "[I]n order to overcome sovereign immunity, the plaintiff ... must do more than allege that the defendants’ conduct was in excess of their statutory authority; they must also allege or otherwise establish facts that reasonably support those allegations." Shay v. Rossi, 253 Conn. 134, 174-75, 749 A.2d 1147 (2000). In the absence of such allegations, the doctrine of sovereign immunity applies. Antinerella v. Rioux, 229 Conn. 479, 489, 642 A.2d 699 (1994). The court, therefore, does not have subject matter jurisdiction to entertain the plaintiff’s action against UConn Health Center, and Dr. Singh, Dr. Wright, and M.J.C. in their official capacities.
II
PERSONAL JURISDICTION
The defendants move to dismiss this action on the ground that the court lacks personal jurisdiction. Section 52-190a requires that in a medical malpractice action the plaintiff must attach to his complaint "a certificate of the attorney or party filing the action ... that [a] reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant" and "[t]o show the existence of such good faith, the claimant or the claimant’s attorney ... shall obtain a written and signed opinion of a similar health care provider ... that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." The opinion of a similar health care provider must be attached to the complaint in order to commence the action. Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.2d 451 (2011). "[B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies to its very terms." (Footnote added.) Id., 402.
Practice Book 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30."
In the present case, it is clear that the complaint sounds in medical malpractice. A necessary component of a medical malpractice claim is a good faith certificate and an opinion letter of a similar health care provider. Id., 396. The plaintiff did not attach a good faith certificate or an opinion letter of a similar health care provider to his complaint. The failure to comply with § 52-190a deprives the court of personal jurisdiction over the defendants. See Santorso v. Bristol Hospital, supra, 308 Conn. 351. The plaintiff, in his objection to the motion to dismiss, admits that he failed to attach the necessary opinion letter. He argues, however, that the defendants waived their right to file a motion to dismiss under Morgan by failing to file the motion to dismiss within thirty days of filing their appearance as required by Practice Book § § 10-32 and 10-30. The defendants’ counsel filed an appearance on July 26, 2017, which triggered the start of the thirty-day time frame. The defendants subsequently filed a motion to dismiss on August 1, 2017. Contrary to the plaintiff’s argument, the defendants did not waive their right to file a motion to dismiss under Morgan because they filed the motion to dismiss within thirty days of their appearance. See Wightman v. Sposato, 132 Conn.App. 102, 109-10, 30 A.3d 18 (2011). Therefore, the plaintiff’s failure to attach the good faith certificate and an opinion letter of a similar healthcare provider constitutes insufficient service of process and does not subject the defendants to the personal jurisdiction of the court.
Practice Book § 10-30 provides, in relevant part: "Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance."
CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion to dismiss for lack of subject matter jurisdiction and personal jurisdiction.