Opinion
No. CV 11 5014148
July 26, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS, No. 103
FACTS
On January 26, 2011, the plaintiff, Jamie Wilson, filed a five-count complaint against the defendant, William W. Backus Hospital, alleging the following facts. On December 17, 2008, the plaintiff was a patient in active labor at the defendant hospital. During labor, the plaintiff was administered medicine for pain management too early and too often. During delivery, the defendant's nurse knocked the plaintiff's left foot out of the stirrup and failed to help the plaintiff reposition it to safely deliver her baby. In the process, the plaintiff struck the nurse with her foot. Further, during delivery, the nurse repeatedly told the plaintiff to "shut up" for "being too loud" and "scaring other patients." After delivery of a healthy baby boy, the nurse who had been struck abandoned the plaintiff and told the emergency room staff, security, social workers, her doctor and police department that the plaintiff assaulted her. The following day, while the plaintiff was in recovery at the defendant hospital, she was harassed and intimidated by social workers, security personnel and the doctor as they questioned her fitness to be a parent.
The plaintiff alleges that she was the victim of psychological abuse, professional misconduct, negligence, character defamation and intimidation by the staff of the defendant hospital. Each count re-alleges the same allegations. The complaint states the following claims: intentional infliction of emotional distress (count one), negligence (count two), negligent infliction of emotional distress (count three), breach of contract (count four) and defamation (count five).
On February 16, 2011, the defendant filed a motion to dismiss on the ground that the plaintiff has failed to comply with General Statutes § 52-190a. The motion is accompanied by a memorandum of law. The plaintiff filed an objection to the motion to dismiss on March 1, 2011 and a memorandum of law in support of her objection on March 18, 2011. The matter was heard at short calendar on July 5, 2011.
DISCUSSION
General Statutes § 52-190a(a) provides in relevant part: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . 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 . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . The claimant . . . shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate."
Section 52-190a(c) provides: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." According to the Supreme Court, "§ 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers." Bennett v. New Milford Hospital, 300 Conn. 1, 25, 12 A.3d 865 (2011).
In the present case, the defendant argues that this is an action sounding in medical malpractice and thus § 52-190a controls. Because the plaintiff has not attached a certificate of good faith inquiry or a written opinion of a similar healthcare provider as required by the statute, the defendant contends that this action must be dismissed. In response, the plaintiff argues that this case sounds in ordinary negligence, not medical negligence, and therefore a certificate of good faith and pre-suit opinion letter are not required.
The issue of whether a claim sounds in medical negligence or ordinary negligence has been addressed by the Appellate Court in Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001); Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) and Selimoglu v. Phimvongsa, 119 Conn.App. 645, 989 A.2d 121 (2010). "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." (Emphasis in original; internal quotation marks omitted.) Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 576.
The Appellate Court resolved this issue by applying a three-part test, whereby "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." Id. If all of the factors are met, the cause of action properly sounds in medical malpractice and a written opinion letter is required pursuant to § 52-190a. Id., 585.
Recently, the Supreme Court in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011) did not use that three-part test in holding that an informed consent claim did not require a written opinion under § 52-190a. Instead, the court relied on an earlier holding in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 293, 465 A.2d 294 (1983), which decided on public policy grounds that informed consent claims do not require expert testimony to establish the standard of care. Shortell does not require a complete rejection of the three-part test used by the Appellate Court, however, as the informed consent claim was a unique circumstance and the court had the benefit of a previous holding. Neither Shortell nor Logan offer any alternative to the three-part test that could be applied to other cases.
The Appellate Court in Votre upheld the dismissal of the plaintiff's complaint after concluding that it sounded in medical negligence even though the complaint stated claims in negligent, reckless and intentional infliction of emotional distress, breach of contract and negligent, reckless and intentional misrepresentation. Id., 574. The court noted that "[i]t is not the label that the plaintiff placed on each count of her complaint that is pivotal but the nature of the legal inquiry." Id., 580. Indeed, in CT Page 16463 Batista v. Jacobs, Superior Court, judicial district of Hartford, Docket No. CV 09 6006080 (June 23, 2010, Sheldon, J.) ( 50 Conn. L. Rptr. 193, 195), the court dismissed the plaintiff's complaint sounding in negligent and intentional infliction of emotional distress pursuant to § 52-190a, holding that "the plaintiff in the present case cannot escape the written opinion requirement of § 52-190a by alleging emotional distress if the factual allegations require proof of the defendant's deviation from the applicable standard of care."
In the present case, the complaint clearly alleges improper conduct in the treatment of the plaintiff in a medical setting and the failure of the defendant's staff in rendering professional services to the degree that is expected of an average prudent reputable member of the profession. As alleged in the complaint, the conduct of the defendant's employees closely matches the definition of medical malpractice. To reach this result, the court has analyzed each of the three prongs of the test promulgated by the Appellate Court.
With respect to the first prong, the defendant hospital has clearly been sued in its capacity as a medical facility, and thus this prong is satisfied. Regarding the second prong, whether the alleged negligence is of a specialized medical nature arising out of the medical professional-patient relationship, all of the allegations made by the plaintiff relate to and arise out of her stay as a patient at the defendant hospital. The plaintiff alleges that the defendant's staff violated their policies by failing to treat her with dignity and respect, resulting in the "denial of patient rights." Further, the alleged negligence on the part of the defendant's staff is of a specialized medical nature, as it concerns the appropriate procedures and conduct required for safely delivering a baby and caring for the mother in labor. The second prong has been met.
With respect to the third prong, the relevant inquiry is whether "the factual allegations underlying the claims require proof of the defendant['s] deviation from the applicable standard of care of a health care provider." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 580. Here, the allegations of wrongdoing on the part of the defendant's staff substantially relates to medical treatment involving the exercise of medical judgment because the allegedly poor treatment occurred during the delivery of a child. If the alleged conduct of the defendant's nurse — scolding the plaintiff to "shut up" and abandoning her after giving birth — had taken place outside of a hospital setting and not in a medical professional-patient relationship, there would be no cause of action. To determine whether the defendant's staff intentionally or negligently inflicted emotional distress on the plaintiff, proof of the defendant's deviation of the applicable standard of care of a health care provider would be necessary. Specifically, the plaintiff would have to show that yelling at the plaintiff to "shut up," abandoning her after giving birth and demanding to know why the plaintiff potentially assaulted a nurse would be below the appropriate level of care due to a patient giving birth at a hospital. Thus, the third prong is satisfied.
Because all three prongs have been met, the court holds that the plaintiff's claims sound in medical malpractice, not ordinary negligence. Accordingly, this action falls within the scope of § 52-190a, which requires a certificate of good faith inquiry and written opinion of a similar health care provider to be attached to the complaint when filed. By failing to comply with these requirements, the plaintiff's complaint must be dismissed pursuant to § 52-190a(c).
ORDER
Based on the foregoing, the court hereby grants the defendant's motion to dismiss.