Joseph Puccino v. Town of North Haven et al. (2011)

MEMORANDUM OF DECISION

FACTS

The plaintiff, Joseph Puccino, commenced this action by service of process on the defendants, Town of North Haven, North Haven Fire Rescue, EMS, Michael Pomichter, Jason Cusack, and American Medical Response of Connecticut,¹ on June 14, 2009.   In his complaint, dated June 9, 2010, the plaintiff alleges the following facts.   On June 22, 2008 at approximately 7:20 p.m., the plaintiff was injured when he fell at the Athena Diner, located at 320 Washington Avenue in North Haven, Connecticut.   He required emergency medical assistance for a head injury.   North Haven Fire Rescue employees, Michael Pomichter and Jason Cusack, both licensed emergency medical technicians, responded to the scene.   At the time that the plaintiff fell, he suffered from “frozen shoulder” and was unable to move his left shoulder, arm and hand due to a stroke.   According to the plaintiff, he was suddenly and without warning lifted upwards by Pomichter and Cusack, forcing his left arm upwards and causing it to break.   He was later diagnosed with an acute fracture of his humerus.   The plaintiff sustained severe and painful injuries as a result of the incident.

Counts one through four of the plaintiff's complaint alleges medical malpractice against the Town of North Haven, North Haven Fire Rescue, EMS, Michael Pomichter, and Jason Cusack, respectively.   Count five alleges medical malpractice against American Medical Response of Connecticut, Inc.

On August 12, 2010, the defendants filed a motion to dismiss counts one through four of the plaintiff's complaint on the ground that the plaintiff failed to attach a certificate of good faith and a written opinion of a similar health provider to his complaint pursuant to General Statutes § 52-190a.²  The defendants filed a memorandum of law in support of the motion.   On October 25, 2010, the plaintiff filed a memorandum of law in opposition to the motion to dismiss.   The court heard oral argument on October 25, 2010.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).   A motion to dismiss is the proper vehicle under which a defendant may challenge a plaintiff's failure to file a written opinion in a medical malpractice case.  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).  “In ruling upon whether a complaint survives a motion to dismiss, 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.”   (Internal quotation marks omitted.)  Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 183, 734 A.2d 1031 (1999).

I. MEDICAL MALPRACTICE

The defendants move to dismiss counts one through four on the ground that the plaintiff failed to attach to his initial complaint a certificate of good faith and a written opinion letter from a similar health care provider as required by § 52-190a(a).   They argue that compliance with § 52-190a is required because all four counts of the plaintiff's complaint sound in medical malpractice.   The plaintiff does not contest the motion to dismiss as to counts two through four.

“Section 52-190a(a) requires a plaintiff bringing a personal injury claim sounding in negligence against a health care provider to make ‘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 plaintiff must attach to her initial pleading both ‘a certificate of the attorney or party filing the action ․ that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant’ and a ‘written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․’ General Statutes § 52-190a(a).   Subsection (c) provides that ‘[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.’   “ Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 569, 581, 966 A.2d 813 (2009).

In the present case, the plaintiff failed to attach a certificate of good faith and a written opinion from a similar health care provider pursuant to § 52-190a(a).   In fact, the plaintiff, in his objection to the motion to dismiss, “acknowledges the absence” of these documents.   As a result, the plaintiff's failure to attach the required documents to his complaint renders counts one through four of his complaint subject to dismissal pursuant to § 52-190a(a).

The plaintiff argues in his objection to the motion, however, that count one of his complaint, directed towards the Town of North Haven, should not be dismissed because § 52-190a does not apply.   He appears to argue that count one does not need to comply with § 52-190a because it is a claim based on ordinary negligence, not in medical malpractice.   A certificate of good faith and written opinion is not required for count one to survive a motion to dismiss if it sounds in ordinary negligence and not medical malpractice.   Simmons v. CVS Pharmacy, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 08 5021084 (June 17, 2009, Hiller, J.) (48 Conn. L. Rptr. 192).

“[T]he interpretation of pleadings is always a question of law for the court.”  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).  “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.”  Id., 562.  “[P]rofessional 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.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254, 811 A.2d 1266 (2002).  “The characterization of a claim as ordinary negligence or medical malpractice ․ does not turn on whether expert testimony is required ․ 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.”  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 360, 764 A.2d 203 (2001).

Count one of the plaintiff's complaint sounds in medical malpractice, not in ordinary negligence, as it meets the three factors set forth above.   The plaintiff alleges count one against the Town of North Haven in its capacity as a medical professional, as he asserts that it “[failed] to exercise the degree of care and skill ordinarily and customarily used under all of the circumstances ․ causing the plaintiff to suffer severe and painful injuries.”   He clearly alleges that the defendant failed “to exercise that degree of care and skill ordinarily and customarily used by similar healthcare providers ” and that the defendant failed to adequately care for, diagnose and treat the plaintiff in light of his symptoms.   See Jefferson v. Waveny Care Center, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007985 (December 21, 2010, Adams, J.) (no dispute that defendant described by plaintiff as “healthcare provider” has been sued in its capacity as medical professional).

Turning to the second factor, a reading of count one shows that the alleged negligence is of a specialized medical nature arising out of the medical professional-patient relationship.   Count one contains several allegations of medical malpractice:  the plaintiff alleges that the Town of North Haven, its agents and servants “failed to adequately and properly care for, treat, diagnose, monitor and supervise the treatment of the plaintiff,” “failed to recognize the signs and symptoms of plaintiff's frozen shoulder,” “failed to properly act and treat plaintiff in light of his signs and symptoms consistent with a frozen shoulder due to a previous stroke” due to the defendant's “malpractice.”   See Rivera v. Simonetti, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 044000920 (August 5, 2005, Lager, J.) (39 Conn. L. Rptr. 757) (plaintiff's claim sounds in medical malpractice in part because of allegation that defendant failed to ‘properly care for and attend to’ plaintiff's medical condition).   These negligent acts, which took place in the context of the ongoing medical treatment of the plaintiff, are substantially related to the medical care that the plaintiff received.   See Jefferson v. Waveny Care Center, supra, Superior Court, Docket No. CV 08 5007985 (plaintiff's cause of action deemed of a ‘specialized medical nature’ where facts alleged directly involve plaintiff's medical condition).

Lastly, the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.   The plaintiff alleges that the Town of North Haven failed to diagnose and treat the plaintiff in light of his symptoms and negligently lifted him onto a stretcher when it should have been clear that he was suffering from “frozen shoulder.”   The relevant issues, including “the proper scope of the relationship between a physician and his patient, the appropriate standard of care, which is the measure of the defendants' duty to the plaintiff, and whether the defendants' actions breached that standard, are beyond the knowledge of the ordinary lay person.”  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 577-78;  see Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 255, 811 A.2d 1266 (2002) (expert testimony generally necessary in medical malpractice actions to establish relevant standard of care and breach of standard);  see Rivera v. Simonetti, supra, Superior Court, Docket No. CV 04 4000920 (emphasizing that plaintiff's allegation that defendant failed to provide plaintiff ‘with the appropriate standard of care’ is substantial factor in determining that plaintiff's claim sounds in medical malpractice).

The plaintiff presumably argues in his objection to the motion to dismiss that count one only alleges that the Town of North Haven was “negligent” and “careless” in its treatment of the plaintiff.   This must be considered, however, in light of the entire cause of action as a whole.   In the present case, the plaintiff alleges in paragraphs eight through eleven of count one that his injuries were caused by the Town of North Haven's “negligence” and “carelessness” in its treatment of the plaintiff.   Paragraphs eight and nine, however, also state that his injuries were caused by the Town of North Haven's “malpractice,” and other counts in the complaint repeatedly refer to the defendant as a “healthcare provider” and failing to exercise “that degree of care and skill ordinarily and customarily used by similar healthcare providers.”   See Rivera v. Simonetti, supra, Superior Court, Docket No. CV 044000920 (although complaint also contains allegations of ordinary negligence, ‘read in context these allegations pertain to the care and treatment rendered to [the plaintiff]’).

Furthermore, it is not possible to view count one of the complaint as setting forth a claim for ordinary negligence that is wholly distinct from an allegation of medical malpractice.   The facts in Simmons v. CVS Pharmacy, Inc., supra, 48 Conn. L. Rptr. 192, are similar to the present case.   There, the defendant moved to dismiss the plaintiff's complaint on the ground that she failed to comply with the medical malpractice requirements set forth in § 52-190a.   The plaintiff countered that her cause of action sounded in negligent supervision, not medical malpractice.   The court emphasized that any allegations that might be construed as sounding in negligent supervision “were interspersed amongst the other allegations of negligent and reckless conduct by both CVS and its pharmacists and they were repeated and realleged in every count of the complaint, including those which the plaintiff now contends sound in products liability, misrepresentation, and breach of warranty.   Therefore, it is impossible for the court to read these allegations as setting forth a claim for negligent supervision that is separate and distinct from, rather than founded upon or at least derived from, the underlying allegations of negligence in the pharmaceutical care of the plaintiff.”  Id.

Similarly, in the present case, count one of the plaintiff's complaint cannot be viewed as a claim for ordinary negligence separate and distinct from a claim for medical malpractice.   This is true regardless of how the plaintiff now attempts to characterize his claim, as any negligence cause of action is derived from the alleged negligence of the Town of North Haven in providing medical services to the plaintiff.   As a result, count one of the plaintiff's complaint sounds in medical malpractice, not in ordinary negligence, and it cannot survive a motion to dismiss pursuant to § 52-190a(a) for failure to attach a certificate of good faith and written opinion.

For the foregoing reasons, it is submitted that counts one through four of the plaintiff's complaint must be dismissed.

II. PLAINTIFF DID NOT PROPERLY FILE A REQUEST FOR LEAVE TO AMEND

Despite the fact that count one sounds in medical malpractice and not in ordinary negligence, the plaintiff argues in his objection to the motion to dismiss that he should be allowed to amend his complaint to allege further counts of ordinary negligence against the Town of North Haven, its agents and servants.

Practice Book § 10-59 provides:  “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.”  Practice Book § 10-60 provides in relevant part:  “[A] party may amend his or her pleadings ․ at any time subsequent to that stated in the preceding section in the following manner:

“(1) By order of judicial authority;  or

“(2) By written consent of the adverse party;  or

“(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party ․ and with proof of service endorsed thereon ․”

In the present case, the plaintiff cannot be allowed to amend his complaint to include further counts of ordinary negligence, as he did not properly file a request for leave to amend the complaint with an amendment appended pursuant to Practice Book § 10-60(a)(3).   Rather, he merely mentioned in his objection to the motion to dismiss that he “should be allowed to amend his Complaint to allege further counts of ordinary negligence.”   As an amended complaint was not properly before the trial court pursuant to Practice Book § 10-60, the court must decline to consider the purported amendment.

In Pekera v. Purpora, 273 Conn. 348, 869 A.2d 1210 (2005), the trial court, in a medical malpractice case, granted the defendant physician's motion for summary judgment as to liability.   In that case, the plaintiffs alleged that the defendant failed to intubate the decedent in a timely manner and did not properly manage her pulmonary condition.   The plaintiffs' sole expert witness stated in a deposition that the defendant did not meet the standard of care as he failed to adequately inform the patient of the risk of declining intubation.   The defendant filed a motion for summary judgment on the ground that, inter alia, the plaintiffs could not amend their complaint to include an allegation that the defendant had failed to inform the plaintiffs' decedent of the consequences of refusing to be intubated.   The plaintiffs did not file a request for leave to amend, but argued in their reply to the motion for summary judgment that “the complaint, as drafted, encompassed a claim for failure to inform and that, ‘[s]hould the [trial] court find [that] it [was] not, [the] plaintiff[s] would request the court's permission to amend [their] complaint to include specific language relating to that claim ․” (Emphasis in original.)   Id., 355.   The trial court granted the defendant's motion for summary judgment.

The Supreme Court affirmed the trial court's ruling, emphasizing that “the plaintiffs did not satisfy the applicable rules of practice because they did not file and serve upon the defendant a written request to amend their complaint with the amendment appended thereto.”  (Internal quotation marks omitted.)  Id., 355.   Although the plaintiffs mentioned in their reply to the defendant's motion that they might seek to amend their complaint to include an additional allegation, they did not actually file a request for leave to amend.  “In the absence of a properly filed request to amend, the trial court was not called upon to exercise its discretion, and it correctly declined, as a matter of law, to consider the purported amendment.”  (Emphasis added.)   Id., 357.   There, an amended complaint was not properly before the trial court, as “the plaintiffs had not provided the court with the ‘specific language’ necessary for it ․ by properly filing a request to amend.”  Id., 356.

The court in Pekera v. Purpora stated that a purported amendment was not properly before the trial court as the plaintiffs did not provide “specific language” necessary to constitute a formal request to amend, and because the plaintiffs' reference to a purported amendment was hypothetical and contingent upon whether the court was going to grant summary judgment against them.   “Accordingly this is not a case in which the plaintiffs expressed a clear intention to amend their complaint but neglected to follow the proper procedure.   Rather, the record reveals that the plaintiffs did not wish to amend their complaint when the defendant's summary judgment motion was filed because an amendment might have weakened their position ․ The plaintiffs' reference to a possible future amendment in their reply memorandum thus cannot be considered a request to amend under the applicable rules of practice.”   Id., 356-57.   This distinction, however, is irrelevant in the present case, as the plaintiff merely writes in his objection to the motion that he “should be allowed to amend his complaint to allege further counts of ordinary negligence.”   This does not constitute “specific language” exhibiting an intention to amend his complaint.   As a result, the plaintiff cannot amend his complaint to include causes of action sounding in ordinary negligence.

CONCLUSION

For the foregoing reasons, the court should grant the defendants' motion to dismiss counts two through four of the plaintiff's complaint.   Further, the plaintiff should not be permitted to amend his complaint to include additional allegations of ordinary negligence.

Woods, J.

FOOTNOTES

FN1. American Medical Response of Connecticut is not a party to the motion to dismiss.   In this memorandum, the Town of North Haven, North Haven Fire Rescue, EMS, Michael Pomichter and Jason Cusack will be referred to as “the defendants.”.  FN1. American Medical Response of Connecticut is not a party to the motion to dismiss.   In this memorandum, the Town of North Haven, North Haven Fire Rescue, EMS, Michael Pomichter and Jason Cusack will be referred to as “the defendants.”

FN2. General Statutes § 52-190a provides in relevant part.(a) 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 ․(c) 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..  FN2. General Statutes § 52-190a provides in relevant part.(a) 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 ․(c) 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.

Woods, Glenn A., J.