Augustus E. Samuel v. Children's Advocacy Center et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 103

FACTS

The plaintiff, Augustus Samuel, Jr., filed this action against the defendants Lisa Murphy-Cipolla and Children's Advocacy Center (center), on June 21, 2010.¹  The plaintiff's revised complaint alleges the following.   The center offers services related to the evaluation and treatment of child abuse.   Murphy-Cipolla was employed by the center as a “clinical social worker specialist.”   On September 28, 2007, Murphy-Cipolla conducted a diagnostic interview of Jane Doe, the plaintiff's daughter.   During the interview, Jane Doe made allegations of physical and sexual abuse.   Murphy-Cipolla was negligent in conducting the interview.   Specifically, she committed malpractice because she failed to schedule a medical examination to verify the abuse and did not re-interview Jane Doe. Moreover, the center was negligent because it did not institute appropriate procedures and standards for interviewing children and did not require its employees to properly investigate child abuse allegations.   It was also negligent because it did not require “that investigatory findings be included in the reports” and did not provide a “system of reviews and approvals to insure that the procedures and controls [were] operating properly.”   As a result of the defendants' negligence, the plaintiff has suffered needless incarceration, along with pain and suffering.

The defendants filed a motion to dismiss on July 23, 2010, on the ground that the plaintiff failed to comply with General Statutes § 52-190a.²  That statute requires plaintiffs who allege medical malpractice to attach a good faith certificate to the complaint, accompanied by the opinion of a similar health care provider.   Specifically, the defendants argue that the action must be dismissed because the plaintiff did not attach either the certificate, nor the opinion, to the complaint.

The plaintiff filed an objection to the motion on August 6, 2010.   First, he argues that he is pro se, and, therefore, his complaint should not be held to a “stringent standard.”   Next he argues that the defendants' motion is barred by res judicata and/or collateral estoppel because the court, in a care and protection matter, had concluded that Jane Doe had not been abused or neglected.   The parties were heard at short calendar on August 23, 2010.³

DISCUSSION

Section 52-190a provides that the failure to obtain a written and signed opinion of a similar health care provider in any “civil action ․ in which it is alleged that ․ injury or death resulted from the negligence of a health care provider” shall be grounds for dismissal of the action.   See § 52-190a(a)(c).  Our appellate courts have established that the action must be dismissed if a plaintiff has not complied with these requirements.  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 543, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009).

The first issue is whether the plaintiff's complaint is governed by § 52-190a.   As a preliminary matter, a health care provider for purposes of § 52-190a “is any person, corporation, facility or institution licensed by this state to provide [the] health care or professional services” that it does offer.  (Internal quotation marks omitted.)  Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 9, 698 A.2d 795 (1997).   The defendants have attached an affidavit by Murphy-Cipolla asserting that she is licensed by the state to provide evaluation and treatment services.   In addition, she attests that the center is located within the ambulatory services at Saint Francis Hospital and Medical Center.   Presumably, the hospital is also licensed by the state.   The plaintiff does not contest these assertions.   Accordingly, the court finds that the defendants qualify as health care providers for purposes of § 52-190a.

In the complaint, and in his objection, the plaintiff repeatedly claims that the defendants deviated from the standard of care with regard to Jane Doe's diagnostic interview.   It is well settled that claims of deviation from the standard of care allege medical malpractice and are governed by § 52-190a.   Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) (claims of medical malpractice require compliance with § 52-190a).

Moreover, “[t]he 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.”  (Internal quotation marks omitted.)  Id., 576-77.   Under this standard, the plaintiff's claims, as outlined above, sound in medical malpractice, and consequently, he was required to attach a certificate of good faith along with the opinion of a healthcare provider to his complaint.

The next question is whether the court may overlook the plaintiff's failure to comply with § 52-190a because of his pro se status.  “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ․ Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.”  (Internal quotation marks omitted.)   Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 861, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005).

The court is cognizant that strict adherence to the mandates of § 52-190a may bar the meritorious claims of pro se plaintiffs that are not familiar with the statute.   However, the court does not have any discretion to disregard the statutory language.  “Although this result may be harsh to would-be plaintiffs, we cannot conclude that it is absurd or unworkable ․ [Section] 52-190a establishes objective criteria, not subject to the exercise of discretion ․ Where the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature․  We are, therefore, bound by the plain language of the statute.   To the extent that the plaintiff”s claims raise legitimate policy concerns that warrant a different outcome, it is the role of the legislature, not this court, to address those policy considerations.”   (Citation omitted;  internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 549.   See also Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 585-86 (“it is clear that no opinion [of a similar health care provider] existed at the time the action was commenced, and, therefore, there was no room for discretion to be employed ” [emphasis added] ).   Consequently, the court must dismiss the plaintiff's complaint for failure to adhere to § 52-190a.

Finally, there is no merit to the argument that the defendants' motion to dismiss is barred by res judicata or collateral estoppel.  “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made ․ [C]ollateral estoppel, or issue preclusion ․ prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim ․ An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ․ An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.”  (Citations omitted;  internal quotation marks omitted.)  Powell v. Infinity Ins. Co., 282 Conn. 594, 600-01, 922 A.2d 1073 (2007).

“The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.”  (Internal quotation marks omitted.)  Id., 601-02.

The plaintiff asserts that after Murphy-Cipolla testified at the care and protection hearing, the court concluded that Jane Doe's allegations were not credible.   Thus, he implies that the defendants should have, similarly, questioned his daughter's allegations and conducted further investigation.   Accordingly, he argues that the disposition of this juvenile matter supports his good faith belief that the defendants committed malpractice, and, therefore, he has fully complied with the requisite preliminary inquiry for his malpractice claim.

The plaintiff is correct that the underlying purpose of § 52-190a is to discourage the filing of baseless lawsuits against healthcare providers and ensure that a plaintiff has made a reasonable precomplaint inquiry, giving him a good faith belief in the defendants' negligence.   See Wilcox v. Schwartz, 119 Conn.App. 808, 813-14, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).   Nevertheless, the plaintiff ignores the plain language of § 52-190a.   Even if the testimony at the care and protection matter had plainly demonstrated that the defendants were, in fact, negligent because they did not conduct an adequate investigation of Jane Doe's allegations, the plaintiff was required to annex a good faith certificate, along with the opinion of a similar health care provider, to his malpractice complaint.   A judicial opinion may not replace this requirement.

Additionally, neither the doctrine of res judicata nor collateral estoppel are applicable here because the defendants were not parties in the juvenile matter, and therefore, did not have an opportunity to litigate the issue of malpractice.

CONCLUSION

The court finds that the plaintiff has not complied with § 52-190a because he did not attach a certificate of good faith and a health care provider's opinion letter to his complaint.   Accordingly, it grants the defendants' motion to dismiss the complaint.

Pellegrino, J.

FOOTNOTES

FN1. The plaintiff also filed this action against the city of Hartford and John LaPlant.   They are represented by separate counsel, and have not joined this motion to dismiss..  FN1. The plaintiff also filed this action against the city of Hartford and John LaPlant.   They are represented by separate counsel, and have not joined this motion to dismiss.

FN2. The defendants also assert that the action should be dismissed because the plaintiff has failed to provide a proper recognizance.   It is not necessary to address this argument because, as described below, the court agrees that the plaintiff did not comply with § 52-190a..  FN2. The defendants also assert that the action should be dismissed because the plaintiff has failed to provide a proper recognizance.   It is not necessary to address this argument because, as described below, the court agrees that the plaintiff did not comply with § 52-190a.

FN3. The plaintiff filed the revised complaint on August 13, 2010, after the motion to dismiss was filed but before the short calendar..  FN3. The plaintiff filed the revised complaint on August 13, 2010, after the motion to dismiss was filed but before the short calendar.

Pellegrino, Joseph H., J.T.R.