Lisabeth Billingsley v. Lawrence & Memorial Corporation (2009)

MEMORANDUM OF DECISION

The defendant has moved to dismiss counts one, two and three of the plaintiff's complaint which profess to assert claims of false imprisonment, common-law negligence and negligent supervision, respectively, on the grounds that those counts actually assert claims of medical malpractice and the plaintiff has failed to file a good faith certificate required for such claims by General Statutes § 52-190a.   The plaintiff counters that her complaint asserts claims of common-law negligence which do not require the filing of a good faith certificate.   For the following reasons, I agree with the defendant.

The plaintiff's complaint contains the following allegations.   The plaintiff had fractured her pelvis and was still under treatment for that injury when, on August 8, 2007, she re-injured herself.   The plaintiff was transported by ambulance to the defendant hospital.   Upon arriving at the hospital, she was ignored and left unattended despite being in severe pain and crying uncontrollably.   The plaintiff further alleges that she was subject to ridicule and embarrassment when she was forced to relieve herself in a bathroom which was left open to public view while two aids leaned against the open door.   She was also forced to relieve herself in bed when no one responded to her repeated calls for help.   The plaintiff alleges that she was provided with “little or no food or water” and denied her medications for fibromyalgia, anxiety and depression.   She was subsequently admitted to the defendant's inpatient psychiatric ward and allegedly verbally assaulted by a psychiatrist there.

In count one of her complaint, the plaintiff asserts that she was falsely imprisoned by the defendant in that she was wrongfully and unlawfully detained for ten days at the defendant's inpatient psychiatric facility.   In count two, the plaintiff asserts a claim of common-law negligence in that the defendant breached its duty of due care to the plaintiff.   In count three, the plaintiff asserts a claim of negligent supervision in that the defendant failed “to provide proper training and outline proper procedures in dealing with emergency room situations and inpatient psychiatric situations.”

Section 52-190a(a) requires that a plaintiff, who files a personal injury claim for damages in which it is alleged that the injury resulted from the negligence of a health care provider, attach a certificate affirming a good faith belief that grounds exist for an action against the named defendant and a written signed opinion of a similar health care provider that there appears to be evidence of medical negligence including a detailed basis for the formation of such opinion.¹  Section 52-190a(c) provides that “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.”

The crux of the issue before the court is whether the claims asserted by the plaintiff in counts one, two and three of the complaint are claims of ordinary negligence or claims of medical malpractice.²  If the former, no good faith certificate and written opinion are required.   If the latter, both are statutorily mandated and the action subject to dismissal because those documents have not been provided.   The Appellate Court's opinion in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353 (2001), appeal dismissed, 258 Conn. 711 (2001), provides the rubric for determining this issue.   See also Gold v. Greenwich Hospital Association, 262 Conn. 248, 254 (2002) (in which the Supreme Court adopted the court's analysis in Trimel ).

“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.   Professional 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 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.”  (Emphasis in original.   Internal quotation marks and citations omitted.)  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357-58.

With respect to each of the three counts at issue, the defendant is being sued in its capacity as a hospital providing medical services.   The issues in dispute are whether the negligence alleged in each count is (1) of a specialized medical nature that arises out of the medical professional-patient relationship and (2) is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.

In count one, the plaintiff alleges that the defendant wrongfully and unlawfully detained and restrained her for ten days at the defendant's inpatient psychiatric facility.   Specifically, the plaintiff alleges that she was detained without any diagnosis that she was a danger to herself or others and without any diagnosis that she needed inpatient psychiatric care.   The plaintiff further alleges that a psychiatrist accused her of being a drug addict and contacted her husband without the appropriate release to do so.   The decision to admit the plaintiff into the defendant's psychiatric facility and the nature of her care there clearly involve conduct of a specialized medical nature that arises out of the medical professional-patient relationship.   The alleged lack of a proper diagnosis justifying detention is also substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.   Whether the plaintiff was appropriately admitted into the psychiatric unit and the appropriateness of her treatment while in the unit are issues of medical malpractice for which a good faith certificate and written opinion of a health care provider were required.

In count two, the plaintiff purports to assert a claim of common-law negligence.   As noted previously, the plaintiff alleges that she was ignored and left unattended while in the emergency room.   The plaintiff further alleges that she was forced to relieve herself in a bathroom with its door open and in her bed when no one responded to her calls for help.   The plaintiff alleges that she was provided with inadequate food and water and denied her medications for fibromyalgia, anxiety and depression.   All of the plaintiff's allegations in this count concern the care provided by the defendant to its patient while she awaited diagnosis and treatment in the emergency room.   As such, it is similar to the situation presented in Levett v. Etkind, 158 Conn. 567 (1969).  “In Levett, the plaintiff's decedent claimed negligence by a physician when the decedent fell in the physician's dressing room during a scheduled visit.   The decedent was elderly and infirm and, although the physician suggested that his nurse assist the decedent, he never ordered the nurse to do so.   The physician knew that the decedent tended to lose her balance when her eyes were closed, but he did not believe that the risk would be significant when she disrobed.   The decision by a medical professional to allow a patient to engage in a routine activity, dressing and undressing, in which there is a potential risk of injury, i.e., losing balance and falling, and involving some assessment of the patient's condition at the time involves the exercise of a medical judgment.  Levett v. Etkind, supra, 158 Conn. 573.”  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360-61.   The court in Levett concluded that the determination whether the decedent needed help in disrobing called for the physician's medical judgment based on his knowledge of her physical and mental condition on that day.  “The mere characterization of an activity as routine does not exclude that activity from the realm of medical judgment.”  Id., 361.   Similarly, the determination in this case as to whether the plaintiff should be left unattended in the emergency room, whether and how she should be allowed to go to the bathroom, how much food and medications, if any, she should be given, all involve the exercise of medical judgment based on the physical and mental condition of the plaintiff at the time.   As such, they involve claims of negligence substantially related to her diagnosis and treatment while she was a patient of the defendant and require the filing of a certificate of good faith pursuant to § 52-190a.

Finally, in count three, the plaintiff alleges that the “defendant negligently supervised its employees, agents and representatives by failing to provide proper training and outline proper procedures in dealing with emergency room situations and inpatient psychiatric situations.”   The plaintiff argues that she is asserting a negligent supervision claim rather than a medical malpractice claim.   While count three alleges that the defendant was negligent in its supervision and training of its employees, the issue remains whether that negligence claim involves one of ordinary negligence or one of medical malpractice.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360.  “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. Here, the plaintiff is asserting that the defendant was negligent in the training and procedures provided its employees “in dealing with emergency room situations and inpatient psychiatric situations.”   The plaintiff was at the emergency room so that her medical condition could be diagnosed and treated and she was admitted into the inpatient psychiatric facility for the same reasons.   Her claims are essentially that the defendant did not appropriately train and instruct its employees in the proper care of persons who were at the emergency room and psychiatric unit awaiting and subsequently receiving diagnosis and treatment.   That question is substantially related to the diagnosis and treatment of the plaintiff's medical condition.   Put another way, the question of whether the defendant was negligent in its training of and instructions to its staff depends on the plaintiff's medical condition at the time and whether the defendant provided services appropriate for that medical condition.   Accordingly, her claims of negligent supervision are substantially related to her diagnosis and treatment.

For the foregoing reasons, the plaintiff was required by § 52-190a to provide a good faith certificate and a written opinion in order to assert the claims of medical malpractice contained in counts one, two and three of her complaint.   Since she has failed to do so, those counts are hereby dismissed.

BY THE COURT

Judge Jon M. Alander

FOOTNOTES

FN1. 52-190a(a) provides in pertinent part that:  “No civil action or apportionment complaint 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”.  FN1. 52-190a(a) provides in pertinent part that:  “No civil action or apportionment complaint 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

FN2. The defendant also contends that the failure to attach a good faith certificate and a written opinion required by § 52-190a does not serve as a basis for dismissal of this action.   That argument has been expressly rejected by the Appellate Court.  Votre v. County Obstetrics & Gynecology Group, 113 Conn.App. 569 (2009)..  FN2. The defendant also contends that the failure to attach a good faith certificate and a written opinion required by § 52-190a does not serve as a basis for dismissal of this action.   That argument has been expressly rejected by the Appellate Court.  Votre v. County Obstetrics & Gynecology Group, 113 Conn.App. 569 (2009).

Alander, Jon M., J.