Opinion
UWYCV176035876S
01-22-2018
Nicholas ZAPPONE, Sr. v. CONNECTICUT HANDIVAN, INC. et al.
UNPUBLISHED OPINION
OPINION
Brazzel-Massaro, J.
The plaintiff filed a three-count complaint naming as defendants Connecticut Handivan, Inc., (Handivan) Athena Health Care Associates and Southington SNF, LLC d/b/a The Summit at Plantsville as well as two individuals, Russell Mills and Kimberly Torres. The plaintiff alleges causes of action in negligence against the defendants for injuries he sustained during his transportation from medical treatment to the nursing facility where he was receiving care. The defendant filed this motion to dismiss arguing that the plaintiff did not file a medical opinion pursuant to C.G.S. § 52-190a. The plaintiff has filed a memorandum arguing that the facts in this case properly support a cause for negligence and this is not a cause of action in medical malpractice requiring an opinion letter.
The plaintiff is not pursuing a claim as to the individual defendant, Kimberly Torres.
II. FACTUAL BACKGROUND
On July 10, 2015, the plaintiff, Nicholas Zappone, Sr. required the use of a wheelchair and on this date he was being transported by Handivan from the VA Hospital to Summit, a residential nursing care and rehabilitation center. Summit is operated by the defendant Athena Health Care Associates. Kimberly Torres, a patient aid employed by Summit, was assigned " the job responsibility to care for and supervise" the plaintiff while he was being transported. The plaintiff alleges that he was " under the care and supervision" of Torres before, during and after said transportation, and that prior to and during the transport, Torres failed to " watch, care for, supervise, and ensure the handivan was equipped with the proper safety instruments/functional seatbelt necessary to keep the plaintiff properly secured, strapped and seat belted to his wheelchair." The plaintiff further alleges that during the transport, Torres was not watching and/or attending to him, causing him to be thrown out of his wheelchair onto the floor. The plaintiff asserts that Athena and Summit were negligent and/or careless as a result of Torres’ failure to keep a proper lookout of the plaintiff during transportation; supervise and care for the plaintiff in a manner that would ensure his safety during transportation, ensure the plaintiff was secured in a safe position when the handivan began transporting him from the VA hospital; adequately supervise the plaintiff prior to, during, and after the transportation; inspect and ensure that the handivan was equipped with the proper safety instruments necessary to secure the plaintiff to his wheelchair during transportation; and use due care and her senses and faculties as would a reasonable and prudent person under the circumstances.
On September 19, 2017, Athena and Summit filed the present motion to dismiss on the ground that the plaintiff’s claims sound in medical malpractice but the plaintiff did not attach the requisite good faith certificate and medical opinion letter to the complaint, as reported by General Statutes § 52-190a. The plaintiff filed an objection on November 30, 2017. This matter came before the court at the December 4, 2017 short calendar.
III. 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.) Santoroso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " [T]he court in deciding a motion to dismiss must consider the allegations of the complaint in their most favorable light." Savage v. Aronson, 214 Conn. 256, 63, 571 A.2d 696 (1990). " The grounds which may be asserted in [a motion to dismiss] are 1) lack of jurisdiction over the subject matter; 2) lack of jurisdiction over the person; 3) improper venue; 4) insufficiency of process; and 5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book (1978-97) § 143 (now § 10-30[a]]. " The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court. The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401-02, 21 A.3d 451 (2011).
" [General Statutes] § 52-190(a) ... required the plaintiff in any medical malpractice action to conduct ‘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 [plaintiff]’ and to file a certificate ‘that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant’ ... The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence ... The ... purpose of the original version of § 52-190a was to prevent frivolous medical malpractice action." (Citation omitted; internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 17-18, 12 A.3d 865 (2011).
" In order for General Statutes § 52-190a to apply, two requirements must be met. First, the defendant must be a health care provider as defined by General Statues § 52-184b, and the claim must be one of medical malpractice and not negligence. General Statues § 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." Casey v. Hospital of Central Connecticut, Superior Court, judicial district of New Britain, Docket No. CV-11-6009158 S (July 19, 2011, Swienton, J.). In the present case, the defendant is a care giver who was accompanying the plaintiff from treatment to his residential facility.
The next issue for the court to determine is whether the claim sounds in medical malpractice or ordinary negligence. " 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, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are (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 omitted; internal quotation marks omitted.) Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2009); see Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002) (adopting the three-part Trimel test).
The plaintiff does not dispute that the allegations in his complaint satisfy the first Trimel prong. With regard to the second and third prongs, Athena and Summit argue that, in general, residential nursing care is of a specialized nature and requires the exercise of medical judgment. Such a categorical approach to determining the nature of the plaintiff’s claims, however, is improper. See Simpson v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 10-6014978-S (July 20, 2011, Dooley, J.) (52 Conn.L.Rptr. 245) (rejecting categorical argument that nature of rehabilitation facility alone militates in favor of finding medical malpractice). They further argue that, with regard to the care Torres provided to the plaintiff, she was required to exercise medical judgment in determining how to properly secure the plaintiff’s wheelchair and that such a determination is of a specialized medical nature.
Summit and Athena also assert that the plaintiff’s claims are for medical malpractice because expert medical testimony will be necessary. This argument can be disposed of quickly. " The characterization of a claim as ordinary negligence or medical malpractice ... does not turn on whether expert testimony is required." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360.
A
Second Prong: Negligence of a Specialized Medical Nature
The second prong of the test to determine whether a claim sounds in medical malpractice is whether " the alleged negligence is of a specialized medical nature that arises out of the medical professional patient relationship ..." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358. " [A] claim is of specialized medical nature [if] it directly involves the plaintiff’s medical condition ... For example, [a] physical examination is care or treatment that requires compliance with established medical standards of care and, thus, necessarily is of a specialized medical nature ... In addition, a task is inherently of a specialized medical nature [if] only licensed health care professionals may perform the task, such as the prescription of medication to a patient ... By contrast, [c]ourts have held that negligence is not of a specialized medical nature where a health care provider neglects to follow or implement an administrative or routine procedure not directly related to a patient’s medical care ... [Thus], conduct which is primarily administrative and not medical is not of a specialized medical nature ... Examples of negligence that are administrative and not medical in nature include failure to lock bed wheels, use of excessive force in handling patient, losing prescription pills, failure to supervise billing practices, and failure to hire and train qualified employees." (Citations omitted; internal quotation marks omitted.) Gewirtz v. Abilis, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021483-S (July 29, 2014, Karazin, J.T.R.).
Here, the plaintiff’s alleged injuries did not arise out of a medical professional-patient relationship with Athena and Summit. The plaintiff’s allegations regarding his relationship to Summit and Athena are that he was " under the care and supervision" of Torres before, during, and after transportation from the VA Hospital to Summit. The plaintiff does not allege that he was cared for by a medical professional, or that Torres’ care and supervision were provided pursuant to medical treatment. See Polastri v. Hearth Management, LLC, Superior Court, judicial of New Haven, Docket No. CV-14-6045622-S (September 30, 2014, Wilson, J.) (allegations that plaintiff was under the care and supervision of employees at assisted living facility insufficient to allege medical professional-patient relationship).
Moreover, the plaintiff’s allegations do not indicate that Torres’ negligence was of a specialized medical nature. The plaintiff alleges that his injuries were the result of numerous negligent acts and omissions that revolve around Torres’ failure to conduct a proper safety assessment of the handivan prior to transport and her failure to supervise the plaintiff during transport. These acts and omissions, intended to safeguard the plaintiff from harm, were not specialized medical acts. See Feingold v. Watermark/ALSA II, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-15-6026978-S (June 21, 2016, Brazzel-Massaro, J.) (62 Conn.L.Rptr. 586, 590) (" [g]enerally safeguarding patients from harm is not, in and of itself, specialized medical care" ). " In cases where a patient who is under the supervision of medical personnel alleges that he or she was injured during a routine transport, judges of the Superior Court have regularly held that the action sounds in ordinary negligence, not medical malpractice." Marinara v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-13-6017978-S (September 20, 2013, Zemetis, J.). Likewise, " [i]n cases where patient injuries have occurred due to the alleged failure to secure safety devices, courts have held the allegations to be ordinary negligence when the patients’ falls were unrelated to treatment and did not involve medical judgment." Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., Superior Court, judicial district of New Britain, Docket No. CV-10-6006066-S (November 10, 2011, Shortall, J.) (52 Conn.L.Rptr. 874, 877); see. e.g., Bradley v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV-10-5033272-S (November 28, 2011, Gold, J.) (Transport attendant’s negligent transfer of patient from gurney onto bed not medical malpractice); Simpson v. Norwalk Hospital, supra, 52 Conn.L.Rptr. 246 (hospital employee’s failure to inspect, maintain and lock wheels on patient’s bed not medical malpractice); Oats v. United Community & Family Services, Superior Court, judicial district of New London, docket no. CV-5000450-S (August 6, 2007, Hurley, J.T.R.) (44 Conn.L.Rptr. 26) (failure to use the proper wheelchair restraints or other fall prevention devices characterized as ordinary negligence); Wood v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV-99-0588557-S (May 28, 2002, Beach, J.) (32 Conn.L.Rptr. 278) (ambulance company’s failure to adequately strap plaintiff to gurney stretcher during an ambulance ride over rough roads held to be ordinary negligence). Further, to the extent the plaintiff’s allegations can be read to assert that Torres failed to take reasonable, individualized precautions to ensure the plaintiff’s safety during transportation, these are also not acts of a specialized medical nature. See e.g., Feingold v. Watermark/ALSA II, LLC, supra, 62 Conn.L.Rptr. 590 (allegation that defendant failed to use reasonable, individualized care in assisting the plaintiff to ensure she did not fall did not make the claim one of a specialized medical nature). The routine safety procedures relative to the plaintiff’s safe transport are not transformed into ones of a specialized medical nature based on any heightened safety concerns arising from his physical condition. See e.g., Gewirtz v. Abilis, Inc., supra, Superior Court, Docket No. CV-14-6021483-S (plaintiff’s mental health conditions heightened safety concerns but his conditions did not alter the routine safety procedures into tasks of a specialized medical nature).
The plaintiff’s complaint alleges that defendant Handivan negligently performed the duty to properly secure, strap and seatbelt the plaintiff to his wheelchair located inside the handivan.
B
Third Prong: Negligence Substantially relating to Medical Diagnosis or Treatment and Involving Exercise of Medical Care
The third prong of the test to determine whether a complaint constitutes medical malpractice is whether " the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358. " The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment." Id., 360. " When medical personnel commit tortious acts that do not requires medical knowledge, do not exercise medical judgment and are not related to medical diagnosis or treatment, such acts constitute ordinary negligence, not medical malpractice." Oats v. United Community & Family Services, supra, 44 Conn.L.Rptr. 27. Indeed, " a plaintiff may have ... claims arising out of health-related services that do not focus on the performance of the treatment but on the adequacy of the safety precautions taken." (Internal quotation marks omitted.) Feingold v. Watermark/ALSA II, LLC, supra, 62 Conn.L.Rptr. 590.
Here, Torres’ alleged failure to take the proper safety precautions was not substantially related to medical diagnosis or treatment involving the exercise of medical judgment. See, e.g., Oats v. United Community & Family Services, supra, 44 Conn.L.Rptr. 26 (allegations of defendant’s failure to take precautions to prevent patient from falling out of wheelchair did not require medical knowledge or exercise of medical judgment). Courts have found claims of failure to take proper safety precautions to sound in ordinary negligence where the safety precaution is incidental to, and not an integral part of, medical treatment. See, e.g., Simpson v. Norwalk Hospital, supra, 52 Conn.L.Rptr. 246 (failure to lock plaintiff’s bed wheels was not related to rehabilitation treatment being provided); Agosto v. Midstate Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-99-0266516-S (December 14, 1999) (26 Conn.L.Rptr. 145) (maintenance of crib incidental to, and not an integral part of, medical treatment provided to child); see also Souza v. Maxim Healthcare Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV-12-6027871-S (July 27, 2012, Young, J.) (54 Conn.L.Rptr. 450, 451-52) (collecting cases regarding conduct involving the exercise of medical judgment).
Likewise, the allegation that Torres negligently supervised the plaintiff amounts to ordinary negligence, not medical malpractice. " [T]o sound in negligence, the plaintiff’s complaint truly must not challenge the medical judgment as to whether the patient should be supervised. A complaint alleging that a medical judgment for supervision had been made, but negligently followed does not sound in malpractice ... On the other hand, where a complaint alleges that a medical judgment requiring supervision should have been made but was not, the action sounds in medical malpractice." (Citation omitted.) Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-10-6007389-S (September 2, 2010, Tobin, J.) (50 Conn.L.Rptr. 582, 585); see Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV-10-6002180-S (July 2, 2010, Martin, J.) (50 Conn.L.Rptr. 246, 249) (" [c]onsistently, courts have held that allegations of negligent supervision amount to ordinary negligence and not medical malpractice" ); DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. CV-99-0498385-S (October 19, 200, Kocay, J.) (28 Conn.L.Rptr. 522) (" [n]egligent supervision by health care providers constitutes ordinary negligence, not malpractice" ). Here, the plaintiff is not asserting any failure to properly assess his medical condition or to order assistance and supervision.
IV. CONCLUSION
For the foregoing reasons, this court concludes that the plaintiff’s claims against Athena and Summit sound in ordinary negligence. Accordingly, the plaintiff was not required to comply with General Statutes § 52-190a. The motion to dismiss is denied.