Daniel Henderson v. Medi Quik Hospital et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

FACTS

On May 10, 2010, the plaintiff, Daniel Henderson, filed a complaint dated April 1, 2010, alleging that the defendants, MidState Medical Center, Medi Quik and John Doe Corporation,¹ negligently supplied and administered a tainted tetanus injection, which caused his pain and injury.   In his complaint, the plaintiff alleges the following facts.   The plaintiff was admitted to Medi Quik to obtain medical treatment for a nail in his foot “on or about July 2008.”   He was treated by a doctor on duty, and his treatment included an administration of a tetanus injection on his upper left arm.   Several days after the tetanus injection, the plaintiff became very ill and was admitted to Middlesex Hospital for medical treatment.   After a week of treatment, a specialist determined that the cause of his illness was the tetanus shot.

In the complaint, the plaintiff brings a negligence claim against MidState Medical Center pursuant to General Statutes § 52-572h, alleging that it knew or should have known that the tetanus shot was compromised and/or unsafe, and it distributed and/or caused Medi Quik to administer such to the plaintiff, causing his injuries.   The plaintiff also brings a claim of negligence pursuant to § 52-572h against Medi Quik, alleging that it knew or should have known that the shot was unsafe.   Lastly, the plaintiff alleges that Medi Quik, through its doctor on duty, acted negligently in administering “a toxic substance” on the plaintiff.

On August, 31, 2010, the defendants ² filed a motion to dismiss on the grounds that the plaintiff failed to comply with General Statutes § 52-190a, that his recognizance is inadequate pursuant to the Practice Book § 8-4 and General Statutes § 52-185, and that the plaintiff brought suit against the defendants under incorrect names.³  The motion is supported by a memorandum of law.   On October 28, 2010, the plaintiff filed his opposition to the motion, supported by a memorandum of law.   The matter was heard at short calendar on December 20, 2010.

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).   The Supreme Court concluded that “the good faith certificate requirement was not subject matter jurisdictional in nature because traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action, and there was no indication in the language or legislative history of § 52-190a that the certificate was intended to be a subject matter jurisdictional barrier.”  (Internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011).   Nevertheless, “the legislature has provided that such a failure [to comply with § 52-190a] does render [the] complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy ․” (Internal quotation marks omitted.)  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).

In the present case, the defendants argue that the plaintiff has failed to obtain and file either a certificate of reasonable inquiry and good faith belief or a written opinion of a similar health care provider, as required by General Statutes § 52-190a.   They argue, therefore, that because the plaintiff's claim sounds in medical malpractice, his failure to obtain and file the written opinion should be grounds for a dismissal.   On the other hand, the plaintiff counters that he is filing a certificate of reasonable inquiry along with his opposition to the motion, and that a motion to strike is the proper vehicle to address the lack of such certificate.

“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.  [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.”  (Internal quotation marks omitted.)  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 576.

In the present case, the plaintiff has brought claims against the defendants in their capacities as health care providers, the alleged negligence is of a specialized medical nature that arose out of the medical professional-patient relationship when he sought medical treatment for a nail in his foot, and the alleged negligence in the administration of the tetanus injection is substantially related to the medical treatment, which involved a medical judgment.   As a result, the plaintiff's allegations sound in medical malpractice.   Therefore, he was required under General Statutes § 52-190a(a) to file 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 including a detailed basis for the formation of such opinion.

The plaintiff's complaint, however, does not contain a certificate of reasonable inquiry that gave rise to a good faith belief that grounds exist for an action against each named defendant or a written opinion from a similar health care provider.   Additionally, the plaintiff's certificate of reasonable inquiry, filed subsequently on November 15, 2010, fails to comply with the requirements of § 52-190a(a) for he did not obtain a written and signed opinion of a similar health care provider.   Therefore, the plaintiff's medical malpractice claim against the defendants is dismissed pursuant to § 52-190a(c).

CONCLUSION

For the foregoing reasons, the court grants the defendants' motion to dismiss the plaintiff's complaint.

Brian T. Fischer, Judge

FOOTNOTES

FN1. The plaintiff brings a claim against John Doe Corporation pursuant to General Statutes § 52-572n, product liability claims, alleging that John Doe Corporation knew or should have known, that it manufactured and/or distributed unsafe tetanus shots which caused the plaintiff's injury.   The plaintiff alleges that John Doe Corporation is located at an unknown address at the time but will be disclosed in discovery.   As a result, service was made only on Medi Quik and MidState Medical Center..  FN1. The plaintiff brings a claim against John Doe Corporation pursuant to General Statutes § 52-572n, product liability claims, alleging that John Doe Corporation knew or should have known, that it manufactured and/or distributed unsafe tetanus shots which caused the plaintiff's injury.   The plaintiff alleges that John Doe Corporation is located at an unknown address at the time but will be disclosed in discovery.   As a result, service was made only on Medi Quik and MidState Medical Center.

FN2. As Medi Quik and MidState Medical Center are represented by the same attorney, they will be collectively referred to as “the defendants.”.  FN2. As Medi Quik and MidState Medical Center are represented by the same attorney, they will be collectively referred to as “the defendants.”

FN3. Because the court is granting the motion based on the plaintiff's failure in complying with General Statutes § 52-190a, other grounds will not be discussed in this memorandum..  FN3. Because the court is granting the motion based on the plaintiff's failure in complying with General Statutes § 52-190a, other grounds will not be discussed in this memorandum.

Fischer, Brian T., J.