Opinion
CV196092905
10-07-2019
Louise TIERNEY v. The ELIM PARK BAPTIST HOME, INC. et al.
UNPUBLISHED OPINION
OPINION
Jon C. Blue, Judge Trial Referee.
The Motion To Dismiss now before the court contends that the plaintiff’s admitted "failure to attach to her Complaint a written similar health care provider opinion letter and certificate of good faith" renders the service of process insufficient pursuant to Conn. Gen. Stat. § 52-190a. The plaintiff objects on the ground that her complaint alleges "ordinary negligence incurred during treatment of a patient." Given the gross nature of the alleged negligence in this case, the plaintiff has the better argument.
The plaintiff, Louise Tierney, commenced this action by service of process on May 8, 2019. She is the sole plaintiff. The defendants are The Elim Park Baptist Home, Inc. and Elim Park Foundation, Inc. (collectively referred to as "Elim").
Tierney’s Complaint alleges that on May 16, 2017 she was admitted to Elim "for the purposes of rehabilitation following an injury to her knee." While "confined to a bed," she "began to develop a painful rash all over her body." The Complaint alleges that Tierney "informed Elim "of the rash and her extreme pain." According to the Complaint, Elim "ignored her pleas for assistance and care causing the rash to spread and worsen," resulting in various injuries. The Complaint alleges that these injuries were caused by Elim’s negligence in that:
a. It failed to respond to her calls for assistance;
b. It failed to treat the rash appropriately;
c. It failed to adequately train its staff; [and]
d. It failed to hire appropriate staff.
The Complaint admittedly contains no similar health care provider opinion letter or certificate of good faith.
On July 12, 2019, Elim filed the Motion To Dismiss now before the court. The Motion was argued on October 7, 2019.
Conn. Gen. Stat. § 52-190a(a) provides that, "No civil action ... shall be filed ... in which it is alleged that ... injury ... resulted from the negligence of a health care provider" without a certificate of good faith and "a written and signed opinion of a similar health care provider ... that there appears to be evidence of medical negligence." A failure to obtain and file such a written opinion is "grounds for the dismissal of the action." Sec. 52-190a(c).
In determining whether an opinion letter is required, it is well established that the court must closely review the factual allegations of the complaint to determine whether the claim in question should be classified as either medical malpractice or ordinary negligence. Boone v. William W. Backus Hospital, 272 Conn. 551, 562, 864 A.2d 1 (2005). The relevant considerations 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." Wood v. Rutherford, 187 Conn.App. 61, 67 n. 6, 201 A.3d 1025 (2019). (Internal quotation marks and citation omitted.)
Although Elim has submitted an affidavit describing its version of the underlying factual situation, it is well established that the court’s decision on this matter must be determined by the allegations contained in the complaint. Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 577, 966 A.2d 813, cert. denied, 292 Conn . 911, 973 A.2d 661 (2009).
Tierney does not dispute that she has sued Elim in its capacity as a medical professional. The remaining two prongs of the test are, however, in significant dispute: Tierney disputes both that the alleged negligence is of a "specialized medical nature" and that it involved the "exercise of medical judgment." Because Tierney is correct concerning the application of these factors to her first specification of negligence- that Elim "failed to respond to her calls for assistance"- the court has jurisdiction over her case, and the remaining specifications of negligence need not be considered at this juncture.
Boone explains that a similar health care provider opinion letter is not required in the case of a "summary denial of treatment for an obvious injury." 272 Conn., at 566. That, essentially, is the specific allegation that Tierney makes in this case. She alleges that she developed "a painful rash all over her body," that she informed Elim "of the rash and her extreme pain," and that Elim "failed to respond to her calls for assistance." Negligence of this description, assuming that it occurred, "is so gross as to be clear even to a layperson." Squeo v. Norwalk Hospital Association, 316 Conn. 558, 580, 113 A.3d 932 (2015). (Internal quotation marks, brackets, and citation omitted.) Any layperson can appreciate that a rehabilitation facility should respond in at least some way to a bed-ridden patient with a rash all over her body resulting in extreme pain. No medical degree or training is required to reach this common-sense conclusion.
The court, of course, makes no finding that Tierney’s factual allegations are correct. They are, however, sufficient to give the court jurisdiction over her case even in the absence of an opinion letter.
The Motion To Dismiss is denied.