Opinion
No. CV 02-0518293
September 28, 2004
MEMORANDUM OF DECISION
Motion to Strike #108
On November 20, 2002, the plaintiff, Patricia Tavalozzi, filed a two-count complaint against the defendants, Tandem Healthcare of Southington and American Medical Response of Connecticut, Inc. This action arises out of injuries the plaintiff allegedly sustained as a result of a fall during her transfer from a gurney to a hospital bed on November 17, 2000, at Tandem Healthcare.
Count one of the complaint is brought against Tandem Healthcare of Southington and count two is brought against American Medical Response. The motion to strike at issue is brought only by American Medical Response on count two of the complaint. All references herein to the defendant pertain to American Medical Response.
In count two, the plaintiff alleges negligence on the part of the defendant and its employees in that: "(a) [i]t failed to test the steel support apparatus to insure that it was intact; i.e., connected to the bed; (b) [i]t failed to enlist additional personnel to assist in the transfer of the plaintiff from the gurney to her bed; (c) [i]t failed to safely transfer the plaintiff from the gurney to the bed; (d) [i]t failed to respond to the plaintiff's screams for help; and [e] [i]t knew or should have known that the steel support had become dislodged from the plaintiff's bed but did nothing to prevent her froth falling."
On July 21, 2004, the defendant filed a motion to strike count two on the ground that the complaint is legally insufficient for failing to attach a certificate of good faith as required by General Statutes § 52-190a. The defendant submitted a memorandum of law in support. On July 30, 2004, the plaintiff filed a memorandum in opposition to the motion to strike, arguing that the cause of action sounds in ordinary negligence and not medical malpractice, thereby, not requiring a certificate of good faith.
General Statutes § 52-190a provides in pertinent 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, 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 good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c . . .
DISCUSSION CT Page 15054
It is well established that "[t]he 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). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
"A motion to strike is the proper method of challenging a party's failure to include . . . a good faith certificate." King v. Sultar, 253 Conn. 429, 449 n. 9, 754 A.2d 782 (2000). "[T]he failure to attach a certificate of good faith pursuant to § 52-190a subjects the case to a motion to strike the complaint . . . for failure to state a claim upon which relief can be granted, but that . . . defect is curable by a timely amendment filed pursuant to Practice Book § [10-44] or Practice Book § [10-59]." Gabrielle v. Hospital of St Raphael, 33 Conn.App. 378, 384, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994).
Practice Book § 10-44 provides:
Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen-day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof. Nothing in this section shall dispense with the requirements of Sections 61-3 or 61-4 of the appellate rules.
Practice Book § 10-59 provides:
The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.
The defendant argues that, as a healthcare provider as defined in General Statutes § 52-184b, the plaintiff must provide a certificate of good faith with the complaint in a negligence claim. Furthermore, the defendant argues that the plaintiff's cause of action will require medical expert testimony. In response, the plaintiff argues that a certificate of good faith is not required because the action against the defendant alleges ordinary negligence and not medical malpractice.
General Statutes § 52-184b(a) defines a "health care provider" as "any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment."
"There are two requirements that must be met in order for General Statutes § 52-190a to be applicable. First, the defendant must be a health care provider as defined by General Statutes § 52-184b . . . Second, the claim must be one of medical malpractice and not negligence." (Citation omitted.) Lauria v. West Rock Health, Inc., Superior Court, judicial district of Ansonia-Milford at Milford (January 13, 2004, Cremins, J.) ( 36 Conn. L. Rptr. 369). "The Superior Court has determined that a good faith certificate is not required in cases against health care providers sounding in ordinary negligence rather than medical malpractice." DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. CV 99 0498385 (October 19, 2000, Kocay, J.) (28 Conn. L. Rptr. 522, 523).
"The test applied by [the] courts in determining whether the defendant's misconduct was medical malpractice or simple negligence was first formulated in Badrigian v. Elmcrest Psychiatric Institute, [Inc.], supra, 6 Conn.App. [383, 387, 505 A.2d 741 (1986)]. That case held that there is no medical malpractice where the jury need not be guided by medical experts in determining whether the defendant breached its duty of care to the patient and there are no esoteric or uniquely medical issue[s] to be determined . . . nor any complex issue requiring specialized knowledge." (Citations omitted; emphasis added; internal quotation marks omitted.) Berglass v. Somatic Therapies, LLC, Superior Court, judicial district of New Haven, Docket No. CV 02 047001 (July 9, 2003, Arnold, J.).
"The 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, [the court] conclude[s] 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." (Citations omitted; emphasis added; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002), quoting Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, 764 A.2d 203, cert. dismissed, 258 Conn. 711, 784 A.2d 889 (2001). "Where an alleged injury occurred during treatment because of a negligent act or omission that was substantially related to treatment, the case must be characterized as sounding in medical malpractice." (Emphasis added.) Stobierski v. Walnut Hill, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0518847 (January 28, 2004, Robinson, J.). "In determining whether a plaintiff's claim sounds in medical malpractice, and not merely in ordinary negligence, the Superior Court has looked to whether the case presents uniquely medical issues requiring expert testimony to establish the standard of care." (Internal quotation marks omitted.) Torres v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0802360 (September 6, 2001, Peck, J.).
In Wood v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 99 0588557 (May 28, 2002, Beach, J.) ( 32 Conn. L. Rptr. 278), a case similar to the present one, the court found ordinary negligence where the defendant failed to properly secure the gurney while in transit, causing the plaintiff to be thrown about in the ambulance and, as a result, sustained injuries. The defendant argued that expert testimony would be required for the plaintiff to prove and consider "arcane means of medical treatment." Id., 279. The plaintiff argued that strapping down a gurney is a "more mundane subject that a jury can understand without expert guidance and does not involve issues of medical diagnosis or treatment or the exercise of medical judgment." Id. In its analysis, the court compared other decisions and determined that "[t]he dispositive issue in such cases [where the plaintiff alleges ordinary negligence and expert testimony is not necessary] seems to be whether there are esoteric or uniquely medical issues, or any complex issue requiring medical knowledge," and concluded that there does "not appear to be any esoteric issues presented by a strapping of a patient during transport." Id.
In the present case, the defendant does not satisfy all three prongs of the analysis established in Trimel. While the first and second prongs can be established by the defendant, it fails to satisfy the third prong. The defendant properly states that it is a health care provider as defined by § 52-184b(a) and that the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship. The defendant does not show, however, that the alleged negligence is substantially related to a medical diagnosis or treatment and involved the exercise of medical judgment.
Transferring the plaintiff from a gurney to the hospital bed can be considered neither an esoteric or uniquely medical issue which is not substantially related to treatment, nor an exercise of specialized medical judgment. The present case, therefore, sounds in ordinary negligence and not medical malpractice and negates the need for the plaintiff to comply with filing a good faith certificate along with the complaint. For the foregoing reasons, the court denies the motion to strike of the defendant as to count two.
Burke, J.