Maryanne G. Bradley v. Yale New Haven Hospital, Inc. (2011)

MOTION TO DISMISS # 102;  REQUEST TO AMEND COMPLAINT # 108

FACTS

On April 26, 2010, the plaintiff, Maryanne Bradley, commenced this action for injuries she allegedly received while she was a patient of the defendant, Yale New Haven Hospital.   In her complaint, the plaintiff alleges that at the time of the injury, she was at the hospital recuperating from open heart surgery and was receiving regular doses of pain medication.   The complaint further alleges that she fell “while returning from x-ray” and “under the supervision of servants, agents, and/or employees of the defendant.”   The complaint otherwise is bereft of detail regarding the circumstances of the incident.

The complaint alleges eight reasons why the defendant was responsible.   It “failed to adequately and properly care for, monitor and supervise the plaintiff”;  “failed to create and follow an appropriate care plan for the plaintiff”;  “failed to create and/or modify the plaintiff's care plan to ensure her safety in light of her documented limited activity level, her significant lack of control over her extremities, her regular dosing of pain medication, and her pain”;  “failed to provide the regulatory care that the defendant's nursing staff had outlined and planned”;  “failed to ensure that more than one staff member was assigned to the plaintiff which she stood for care”;  “failed to ensure adequate and safe care for the plaintiff under all the circumstances extant”;  “failed to provide an acceptable level of descriptive nursing documentation of the plaintiff's fall”;  and “failed to promulgate or reinforce rules, regulations, standards, protocols and bylaws for care of patients such as the plaintiff.”

On August 12, 2010, the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff alleged a medical malpractice action and failed to attach a good faith certificate and a written opinion of a similar health care provider as required by General Statutes § 52-190a.   On October 21, 2010, the plaintiff filed both a request for leave to file an amended complaint and a memorandum of law in opposition to the defendant's motion to dismiss.   The memorandum of law in opposition included an affidavit from the plaintiff, accompanied by a page allegedly from the plaintiff's hospital record.   On November 3, 2010, the defendant filed an objection to the plaintiff's request for leave to file an amended complaint and a memorandum in opposition to the motion to dismiss.   On November 12, 2010, the plaintiff filed a reply memorandum.

DISCUSSION

A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating “that there appears to be evidence of medical negligence and includ[ing] a detailed basis for the formation of such opinion.”  General Statutes § 52-190a(a).  “A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim ․” (Internal quotation marks omitted.)  Plante v. Charlotte Hungerford Hospital, 299 Conn. 33 (2011) (slip op. at 12).  “However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy ․” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009);  see also Bennett v. New Milford Hospital, Inc., 299 Conn. 1 (2011) (slip op. at 23-24).

As threshold issues, this court must determine whether the plaintiff's affidavit and request to amend her complaint impact the adjudication of the motion to dismiss.   The plaintiff concedes that her original complaint contains allegations of medical malpractice, but only accidentally.   She claims that her amended complaint and affidavit remedy this mistake, and her cause of action is solely ordinary negligence.   The defendant counters that the plaintiff's complaint sounds in medical malpractice and must be dismissed without considering the amended complaint.

In determining whether the complaint alleges negligence or medical malpractice, the court cannot consider the affidavit.   The plaintiff argues that pursuant to Practice Book § 10-31,¹ parties may file affidavits to assert “facts not apparent on the record” and that courts may rely on such affidavits to determine jurisdictional issues.   There are two problems with the plaintiff's argument.   First, motions to dismiss pursuant to § 52-190a are not equivalent to motions to dismiss pursuant to Practice Book § 10-31.   The Appellate Court has held explicitly that motions to dismiss under § 52-190a are statutory remedies and not jurisdictional motions, and the Connecticut Supreme Court recently has agreed.  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 583-84;  Plante v. Charlotte Hungerford Hospital, supra, 299 Conn. 33 (slip op. at 12);  Bennett v. New Milford Hospital, Inc., supra, 299 Conn. 1 (slip op. at 23-24).   Second, the plaintiff is not offering the affidavit merely to assert facts outside the record for the narrow purpose of this motion to dismiss.   She is attempting to use the affidavit to make those facts part of the record, in this case, the complaint, so that the court will characterize the complaint for the remainder of this lawsuit as negligence as opposed to medical malpractice.   Affidavits cannot be used for such purposes even in the context of jurisdictional motions to dismiss.   The proper procedure for adding allegations to a complaint is to file a request for leave to amend, which the plaintiff has filed and to which the court now turns.

The plaintiffs request for leave to amend was filed pursuant to Practice Book § 10-60, which ordinarily gives the court discretion to allow the amendment.²  The defendant contends that the court may not consider the request to amend because once a motion to dismiss is filed, it must be adjudicated prior to any other motion.   The defendant is correct that for issues of subject matter jurisdiction, requests to amend that are filed later in time may not be considered.   E.g., Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).   The defendant, though, like the plaintiff, has improperly equated motions to dismiss under § 52-190a with motions to dismiss involving jurisdiction.

The Appellate Court has suggested in dicta that trial courts have the discretion to allow an amended complaint if the amendment would not defeat the purpose of the statute.   In Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 585-86, the court held that the plaintiff could not amend a complaint to attach a written opinion that did not exist at the time the original complaint was filed.   To allow such an amendment, the court reasoned, would violate the clear statutory mandate that the written opinion must exist at the time the complaint was filed.   The Votre court, though, did surmise that plaintiffs could amend complaints to attach a written opinion that existed at the time the original complaint was filed but was omitted inadvertently.  Id. Such an amendment, the court reasoned, “would not be at variance with the purpose of § 52-190a, to prevent groundless lawsuits against health care providers.”  Id., 585.   See also Ward v. Ramsey, Superior Court, judicial district of New Haven, Docket No. CV 09 5028840 (April 12, 2010, Corradino, J.T.R.) (“the question is whether allowing the amendment ․ would be at variance with the purpose of § 52-190a”).³

Consequently, the court may consider the amended complaint because it would not thwart the purpose of § 52-190a.   The plaintiff is seeking to amend her complaint to redact any allegations that sound in medical malpractice.   The purpose of the amendment, therefore, is to bring the complaint entirely outside the orbit of § 52-190a, thereby eliminating any need to comply with it.   Such an amendment would not defeat the purpose of the statute, as the plaintiff purportedly did not intend to file a medical malpractice action in the first place.   Accordingly, the request to file an amended complaint is granted.

Regarding the motion to dismiss, the parties did not brief fully whether the amended complaint sounds in negligence or medical malpractice.   The arguments centered on the original complaint.   Accordingly, the court denies the pending motion to dismiss.   The defendant, of course, may move to dismiss the amended complaint if it chooses.

For the foregoing reasons, the plaintiffs request to file an amended complaint is granted, and the defendant's motion to dismiss is denied.

BY THE COURT

Richard E. Burke Judge

FOOTNOTES

FN1. Practice Book § 10-31(a) states:  “The motion to dismiss shall be used to assert (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.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”.  FN1. Practice Book § 10-31(a) states:  “The motion to dismiss shall be used to assert (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.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”

FN2. Practice Book § 10-60(a) provides in relevant part:  “[A] party may amend his or her pleadings ․ at any time subsequent to that stated in the proceeding section in the following manner ․ (3) By filing a request for leave to file such amendment ․”.  FN2. Practice Book § 10-60(a) provides in relevant part:  “[A] party may amend his or her pleadings ․ at any time subsequent to that stated in the proceeding section in the following manner ․ (3) By filing a request for leave to file such amendment ․”

FN3. The Supreme Court's recent decision in Bennett v. New Milford Hospital, Inc., 299 Conn. 1 (2011) does not address the availability of requests to amend in the context of § 52-190a. (slip op. at 24 n.17)..  FN3. The Supreme Court's recent decision in Bennett v. New Milford Hospital, Inc., 299 Conn. 1 (2011) does not address the availability of requests to amend in the context of § 52-190a. (slip op. at 24 n.17).

Burke, Richard E., J.