Ellen Cotto, Administratrix of the Estate of Allen Tart, Deceased v. State of Connecticut (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 109)

The defendant, State of Connecticut, has moved to dismiss “a portion of the amended complaint.” ¹  The defendant argues that sovereign immunity protects the state from suit on the plaintiff's amended complaint, as the amendment exceeds the permission granted under General Statutes § 4-160(b) and it violates the statute of limitations under § 4-160(d).  The plaintiff argues that the amendment is permissible under the rules of practice and is in accord with the permission granted by the claims commissioner.   The court denies the motion for the reasons contained herein.

By way of a letter dated April 21, 2008, the plaintiff notified the office of the claims commissioner that she intended to commence an action against the state of Connecticut.   The “statement/basis of the claim” indicated that, as a result of medical malpractice at a correctional institution, the plaintiff's decedent died.   This same section indicated both the date of the death, as well as the date the plaintiff's decedent was “in the infirmary.”   On September 10, 2008, the claims commissioner gave permission to the plaintiff to sue, limited to the claim of malpractice by the state or state employee.   The plaintiff's complaint was filed on June 30, 2009;  on that date, the plaintiff sought, and was granted, an extension of the statute of limitations for ninety days.   On September 9, 2009, the plaintiff moved for permission to amend the complaint, which was granted by the court, Alander, J.

The amended complaint sets forth one count of medical malpractice.   While the allegations of the original complaint had been contained in thirty-eight paragraphs, there are now forty-two paragraphs of allegations.

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”   Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 134.   “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”   Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007);  Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006);  Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

The court first addresses the defendant's argument that the plaintiff has violated the statute of limitations.   The court disagrees.   The plaintiff was granted an extension of the time limits, which extension brought the last permissible date for suit to September 10, 2009.   See General Statutes § 52-190a(b).  The plaintiff filed her amended complaint on September 9, 2009.   Both the plaintiff's original complaint and amended complaint were filed within the applicable time period.

The defendant next argues that the plaintiff's amended complaint, alleging medical malpractice, goes beyond the permission to sue granted by the claims commissioner.   The state argues the well-established principle that when a law is in derogation of the state's sovereign immunity, that law must be strictly construed.   The state claims that the permission to sue in the present case is strictly limited to the “claim” presented by the plaintiff in the letter seeking permission to sue pursuant to General Statutes § 4-160(b).  In reviewing the letter of notice of intention to sue the original complaint and the amended complaint, whether the plaintiff called the allegation “negligence” or “medical malpractice” seems of little import-the plaintiff sought, and was granted, permission to sue under General Statutes § 4-160(b).  That section specifically authorizes a claim alleging malpractice against the state.   That is what the plaintiff sought, and was granted.   The amended petition did not, under the court's reading, change the nature of the allegation or go beyond the permission granted by the claims commissioner.   The defendant also alleges that the amended complaint sets forth dates other than those originally referenced in the notice of intention to commence action, and that therefore, the amended complaint goes beyond the grounds permitted by the claims commissioner.   The court finds this argument unavailing.   The defendant's interpretation of the purpose of the intent to sue is very narrow, and does not comport with the intent behind General Statutes § 4-160(b).  In D'Eramo v. Smith, 273 Conn. 610, 622 (2005), the court stated “ § 4-160(b) requires the claims commissioner to authorize suit in all such cases [where the claimant has brought a medical malpractice claim and filed a certificate of good faith].”  (Emphasis in original.)   Amendments to the complaint which set forth the allegations with greater specificity are proper.   See Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 798 (2008).   Under the defendant's theory, a claimant would have to obtain the permission of the claims commissioner for every amendment to the complaint.   Under both the broad grant of permission to sue, and the liberal amendments that relate back to the original complaint, the defendant's argument fails.   The motion to dismiss is denied.

MAUREEN M. KEEGAN, J.

FOOTNOTES

FN1. The court notes that the defendant has not provided any authority for a dismissal of a portion of the complaint..  FN1. The court notes that the defendant has not provided any authority for a dismissal of a portion of the complaint.

Keegan, Maureen M., J.