Robert M. Davenport as Administrator of the Estate of Charles R. Bradley v. State of Connecticut et al. (2010)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS TO DISMISS DATED AUGUST 3, 2009

FACTS AND PROCEDURE:

The plaintiff Robert Davenport as administrator of the estate of Charles Bradley claims that on or about May 30, 2007, the decedent, Charles Bradley, committed suicide while an in-patient at the University of Connecticut Health Center/John Dempsey Hospital, (hereinafter also “UCONN”).   The suit was brought in 28 counts alleging medical malpractice on the part of the various doctors and nurses and UCONN and the State of Connecticut and for violations of the Patients' Bill of Rights.   The plaintiff obtained permission from the State Claims Commissioner to bring suit for medical malpractice only.   The plaintiff and the defendants, in their briefs, agree that doctors Huey, Sehgal, Ayeni and nurse Bernier have been sued in their official capacities as employees of the State.

Defendants have brought these motions to dismiss based upon their claims of sovereign immunity and failure to obtain permission to sue regarding some counts from the State Claims Commissioner.   A hearing was held before this Court on the motions to dismiss on short calendar.   In one motion to dismiss the defendants want the Court to dismiss Counts Six, Seven, Nine, Ten, Eleven, Twelve, Fourteen, Fifteen, Sixteen, Seventeen, Nineteen, Twenty, Twenty-One, Twenty-Two, Twenty-Four, Twenty-Five and Twenty-Eight.   In the second motion to dismiss the defendants move to dismiss Counts Two, Four, Five and Twenty-Eight also on the grounds of sovereign immunity was never waived and that permission from the Claims Commissioner was never granted as to those claims.   Finally, the third motion to dismiss is in reference to Count Twenty-Seven on the basis that the University of Connecticut Health Care Finance Corporation is immune because the plaintiff failed to obtain permission from the State Claims Commissioner.   As to this count, the plaintiff has agreed to either withdraw that count or not oppose the motion to dismiss.   Accordingly, the motion to dismiss Count Twenty-Seven is granted.   As to the other counts subject to the motions to dismiss, the Court will take those up in the section on issues and findings.

STANDARD OF REVIEW:

“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 test, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Filippi v. Sullivan, 273 Conn. 1, 8 (2005).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in the 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.”   Cox v. Aiken, 278 Conn. 204, 211 (2006).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, n.12 (2003).   “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443 (2002).

ISSUES AND FINDINGS:

1. Counts Six, Eleven, Sixteen, Twenty-One and Twenty-Eight allege medical malpractice which claims were authorized by the State Claims Commissioner.   Accordingly the motion to dismiss those counts is denied.   As for Count Twenty-Eight, not only is it alleged that the defendants committed medical malpractice, but also that they were reckless, wanton and indifferent as to the patient which removes sovereign immunity under C.G.S. § 4-165.

2. Counts Two, Four and Five subject of the second motion to dismiss and Counts Seven, Nine, Ten, Twelve, Fourteen, Fifteen, Seventeen, Nineteen, Twenty, Twenty-Two, Twenty-Four and Twenty-Five in the first motion to dismiss are all based upon allegations of sovereign immunity from the Patients' Bill of Rights which are C.G.S. §§ 17a-540 to 17a-550.

Therefore, the issue is whether the States' sovereign immunity was waived as to the Patients' Bill of Rights, C.G.S. §§ 17a-540 to 17a-550.

Connecticut General Statutes § 17a-550 provides:  “Any person aggrieved by a violation of § 17a-540 to 17a-549, inclusive, may petition the Superior Court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunctions, or may bring a civil action for damages.”  (Emphasis added.)

The leading case on this issue is Mahoney v. Lensink, 213 Conn. 548.   The State Supreme Court stated in pertinent part “[a]ny person aggrieved ․ may bring a civil action for damages does not expressly waive sovereign immunity.   A statute must be considered, however, as a whole, with a view toward reconciling its separate parts in order to render an overall reasonable interpretation ․ The determinative question, therefore, is whether a contrary implication necessarily flows from the juxtaposition of this section with the remaining provisions of the Patients' Bill of Rights ․ several provisions of the Patients' Bill of Rights illuminate the breath of the legislative concern for the fair treatment of mental patients.   Because the Patients' Bill of Rights is remedial in nature, its provisions should be liberally construed in favor of the class sought to be benefitted.”  Id., 556 ․ “[W]e conclude that it is a necessary implication of the purposes sought to be served by the enactment of the Patients' Bill of Rights that the legislature intended to provide a direct cause of action against the state and thus to waive its sovereign immunity.”  (Emphasis added in the original.)  Id., 558.   The defendants claim that Mahoney supra has since been overruled by Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, (2009).   The defendants misinterpret Envirotest supra.   In that very case our Supreme Court confirmed the holding of Mahoney supra using its very reasoning to set the standard for determining whether a statute waives sovereign immunity ․ “To the extent that the court already had concluded that the text of the statute at issue contained a waiver by necessary implication, the resort to legislative history was unnecessary to the ultimate decision in the case, thus representing dictum.”   Id., 390 n.5.

The defendants also argue that Mahoney is not controlling because it fails to address the distinction between immunity from liability and immunity from suit.  Connecticut General Statutes § 17a-541 provides that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal property or civil rights ․” Importantly, the statute makes no distinction between public and private facilities.  Connecticut General Statutes § 17a-550 provides in relevant part:  “Any person aggrieved ․ may bring a civil action for damages.”  (Emphasis added.)

Accordingly, the Patients' Bill of Rights, in particular C.G.S. § 17a-550, waives the state's sovereign immunity from suit, and the plaintiff did not need to obtain permission from the State Claims Commissioner to sue the state for violations of the Patients' Bill of Rights.

Accordingly, the motion to dismiss Counts Two, Four, Five, Seven, Nine, Ten, Twelve, Fourteen, Fifteen, Seventeen, Nineteen, Twenty, Twenty-Two, Twenty-Four and Twenty-Five is denied.

Rittenband, JTR

Rittenband, Richard M., J.T.R.