Opinion
No. CV 10 6014978
July 20, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Preliminary Statement
This personal injury action arises from the plaintiff's fall during her stay at the Honey Hill Rehabilitation facility where she was being treated as a post-operative patient. The defendant filed a motion to dismiss on the grounds that the allegations sound in professional negligence (medical malpractice) and the failure of the plaintiff to attach a certificate of good faith or opinion letter by a medical professional indicating that the applicable standard of care had not been met by the defendant, renders the case subject to dismissal pursuant to CGS § 52-190a. The plaintiff argues that no certificate or letter is necessary as this is not a case of medical malpractice, but of ordinary negligence. For the reasons set forth below, the motion is denied.
Factual Allegations
In her complaint, the plaintiff alleges as follows: (1) she was a patient at the Honey Hill Rehabilitation facility recuperating from surgery; (2) on or about December 28, 2009, she got out of bed for a period of time and upon her return noted that her bed had been made; (3) as she attempted to get back into the bed, which was on wheels, the bed rolled away from her causing her to "twist and partially fall." (Complaint, ¶ 4.) Thereafter, the complaint alleges negligence on the part of the defendant as follows:
The Defendant, Norwalk Hospital breached the duties owed to the Plaintiff and was negligent in the following particulars, to wit:
a. Failure to inspect and maintain the wheel locks on the Plaintiff's bed;
CT Page 16020
b. Failure of their housekeeping employee to relock the wheels on the bed after performing normal housekeeping functions;
c. Failure to give adequate and comprehensible warnings to the Plaintiff of the likelihood that her assigned bed could roll out from under her upon her entering the bed, if the bed wheels were not in the locked position;
d. Failure to give adequate and comprehensible warnings to the Plaintiff, when the bed wheels were unlocked. (Complaint, ¶ 5.)
Discussion
"In ruling upon whether a complaint survives a motion to dismiss, 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." (Internal quotation marks omitted.) Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 183 (1999).
Conn. Gen. Stat. § 52-190a(a) requires a party bring a medical malpractice action to file both a certificate of good faith and a written opinion from a similar health care provider stating "that there appears to be evidence of medical negligence." General Statutes § 52-190a(a). "A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim . . . However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy . . ." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, cert. denied, 292 Conn. 911 (2009).
On this issue, there is no dispute. However, the plaintiff argues that the allegations here sound in ordinary negligence and not medical malpractice and therefore, no certificate of good faith nor opinion letter is required.
Whether a complaint sounds in medical malpractice or ordinary negligence requires a "careful review of the circumstances under which the alleged negligence occurred." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357 (2001). "`[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.' (Emphasis added; internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 226 (1996)." Id. at 357-58. "Medical malpractice `presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . .' (Citations omitted; emphasis added.) Camposano v. Claiborn, 2 Conn. Cir. Ct. 135, 136-37 (1963)." Id.
From these definitions, the Appellate Court held in Trimel, that the relevant considerations for distinguishing between medical malpractice and ordinary negligence 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." Id. at 358, citing, Spatafora v. St. John's Episcopal Hospital, 209 App.Div.2d 608, 609, 619 N.Y.S.2d 118 (1994). These prongs have since been reiterated by our appellate courts and are firmly established. See, Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63 (2003); Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, cert. denied, 292 Conn. 911 (2009).
The first prong of the test is whether the defendant is being sued in its capacity as a "medical professional." Here, the court finds that as the operator of the Honey Hill Rehabilitation facility, Norwalk Hospital is being sued in its capacity as a medical professional. See, Kelly v. Bridgeport Health Care Center, Inc., 50 Conn. L. Rptr. 582 (September 2, 2010, Tobin, J.) (allegation that the defendant owned the nursing home at which the decedent was receiving care was held sufficient); Cotton v. Benchmark Assisted Living LLC, judicial district of Danbury, Dkt. No. CV 10 6002180, (July 2, 2010, Marano, J.) (First prong satisfied in case of allegations against an assisted living facility arising out of the conduct of its employees while the plaintiff was residing at the facility.).
The second prong, whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, is not met. The allegations of negligence stem entirely from the failure of an unknown employee to lock the plaintiff's bed wheels and the failure of the defendant to warn of the hazards of a bed whose wheels are not locked. Similarly, the third prong, whether the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment, is not met. The allegations are that the plaintiff was not receiving treatment at the time of the injury; was not returning from treatment; was not even in the presence of any treatment provider.
The defendant argues however that the nature of a rehabilitation facility is such that every aspect of its employees conduct vis-a-vis the patients is the product of the specialized medical care which the patient is at the facility to receive. The defendant argues that every component of a patient's stay at the facility involves the exercise of medical judgment and is related to the rehabilitative treatment being provided. Such a categorical approach is not supported by case law. See, Fedorka v. Genesis Health Ventures of Naugatuck, Inc., 51 Conn. L. Rptr. 167 (December 10, 2010, Radcliffe, J.) (The negligent transfer by a staff member of a patient at a nursing home to the dining area sounded in ordinary negligence); Kelly v. Bridgeport Health Care Center, Inc., 50 Conn. L. Rptr. 582 (September 2, 2010, Tobin, J.) (Claim of failure to supervise dementia patient who left the facility in his wheelchair and fell down a flight of stairs sounded in ordinary negligence.); Cotton v. Benchmark Assisted Living, LLC, judicial district of Danbury, Dkt. No. CV 10 6002180, (July 2, 2010, Marano, J.) (Although residing at the assisted living facility, the allegation of negligence did not involve any specialized medical care or treatment and so were ordinary negligent supervision claims.); Oats v. United Community and Family Services, judicial district of New London, Dkt. No. CV 06 5000450 (August 6, 2007, Hurley, J.T.R.) ( 44 Conn. L. Rptr. 26) (precautions to prevent the plaintiff from falling out of a wheelchair during transport did not require specialized medical knowledge). See also, Dzialo v. Hospital of St. Raphael, judicial district of New Haven, Dkt. No. CV 10 6014703 (June 21, 2011, Burke, J.) (Allegations of failure to train and supervise hospital employees deemed administrative rather than related to medical treatment and therefore sounded in ordinary negligence); Chalk v. Yale Primary Care, judicial district of New Haven, Dkt. No. CV 11 5033688, (June 21, 2011, Burke, J.) (allegations that the pharmacy lost the plaintiff's medication was a claim of ordinary negligence).
The defendant relies heavily on both Trimel and Levett v. Etkind, 158 Conn. 567 (1969). Trimel involved the transfer of a patient from a wheelchair, to an exercise mat, in order to begin a physical therapy session. The physical therapist allowed the plaintiff to transfer without assistance. The plaintiff fell and was injured. It is noted that the Appellate Court found the circumstances presented to be a close question. Trimel, supra, 61 Conn.App. at 358. However, because the injury occurred during the course of treatment and the court determined that medical care and judgment was involved in the decision to allow the patient to transfer without assistance, the court found that the allegations sounded in medical malpractice. Here, the injury did not occur during the course of treatment and there is no allegation that any treatment provider exercised any medical judgment. Indeed, no treatment provider is alleged to have even been present at the time of the fall.
Similarly, Levett is distinguishable. There, the patient fell while disrobing at the doctor's office. In that case, the doctor had suggested to a nurse that the patient be assisted, though no assistance was provided. Thus, as in Trimel, the treatment providers were present; the plaintiff's injury occurred at the time of her treatment; and ultimately, the court determined that whether to assist the plaintiff or permit her to change without assistance involved the exercise of medical judgment. The bases upon which the Trimel and Levett decisions were made, are simply not present in this case.
For all of the foregoing reasons, the motion to dismiss is DENIED.
SO ORDERED.