Kathleen Conlin v. Mona Khan et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

This is a two-count complaint that alleges negligence and negligent infliction of emotional distress against the defendants, CVS Pharmacy, Inc. (CVS) and Mona Khan (Khan) for supplying a wrong prescription.   On or about January 29, 2010, Conlin's prescription for pain medication was filled at the New Britain CVS pharmacy by Khan. Khan mislabeled the medicine given to Conlin, and Conlin was given amoxicillin, an antibiotic, instead of Vicodin, a pain medication, which caused pain that day and night.   The next day, a CVS representative called Conlin and advised her that Khan had provided Conlin the incorrect medication.

Count One against CVS sounds in negligence because it allowed the pharmacist to err in providing incorrect prescription medication.   Count Two alleges that CVS negligently inflicted emotional distress on the plaintiff.   Count Three claims that Khan was negligent because she negligently provided Conlin with the incorrect medication.   Count Four sounds in negligent infliction against Khan.

On January 11, 2011, the defendants filed this motion to dismiss because a certificate of good faith and a written expert opinion were not attached to the complaint.

-I-

General Statutes § 52–190a(a) provides that before filing a personal injury action against a healthcare provider, a potential plaintiff must 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.   Effective October 1, 2005, the statute was amended by P.A. 05–275 to add the requirement that to demonstrate good faith ․ plaintiffs or their counsel, prior to filing suit, shall obtain a written and signed opinion of a similar healthcare provider stating that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion which written opinion should be attached to the complaint.   The failure to obtain and file the written opinion required by subsection (a) [of 52–190a] requires the dismissal of the action.  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 542–43, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011).   Our Appellate Court has held that the plain language of [§ 52–190a(c) ] ․ expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar healthcare provider to the complaint, as required by § 52–190a(a).  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).

-II-

A negligence claim must allege a duty, breach of that duty, causation and actual injury.   See Roach v. Ivan International Centers, Inc., 77 Conn.App. 93, 99, 822 A.2d 316 (2003).   A claim for professional malpractice requires an allegation that the professional departed from the requisite standard of care of others in that professional community.

[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 ․ [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.

Boone v. William W. Backus Hospital, 272 Conn. 551, 562–63 (2005).   Citing Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254 (2002).

The defendants argue that the present case sounds in medical malpractice and is governed by General Statutes § 52–190a because the claims center on Khan's improper filling and labeling of Conlin's prescription, which are acts within the practice of a pharmacy under General Statutes § 20–571(21) and defendant is a healthcare provider.

Plaintiff argues that the complaint alleges ordinary negligence, since Khan administered the wrong medication, which is not a medical issue.   Several cases cited by defendants are distinguishable from the present case.

In Simmons v. CVS Pharmacy, Inc., Superior Court, judicial district of Fairfield, Docket No., CV 08–05021084 (June 17, 2009, Hiller, J.), the complaint alleged that the defendants represented themselves to be “qualified to render proper and adequate pharmaceutical care to the plaintiff and undertook to provide her with such care in accordance with accepted standards and to use reasonable care, skill and judgment” and that the “defendants departed from accepted pharmaceutical practices in the care of the plaintiff and failed to follow good practice.”   The court noted that “[i]t is clearly alleged that the defendants were providing professional services, namely pharmaceutical care, in the course of a medical professional-patient relationship by providing prescription medication and consultation regarding that medication.   The negligent acts of providing the wrong prescription medication and assuring the plaintiff that she had received the appropriate medication were, at the very least, substantially related to the pharmaceutical care she received from the defendants.”   The court held that the pharmacy exercised “specialized medical judgment and skill by assuring the plaintiff that she had received the proper medication,” and, based on the allegations, the claims sounded in medical malpractice and granted the motion to dismiss for failure to comply with General Statutes § 52–190a.

The present case is distinguishable because Conlin does not allege:  that the defendants held themselves out in such a manner;  or that the defendants should be held to a higher standard of care of accepted pharmaceutical practices or that the pharmacy advised her that the medication was correct.

In Carafeno v. Gordon, Superior Court, judicial district of New Haven, Docket No., 343687 (May 5, 1993, Thompson, J.) (9 Conn. L. Rptr, 88), also cited by the defendants, the motion to strike concerned the allegation that the pharmacy had a duty to warn the plaintiff of possible side effects associated with the prescribed medication but had failed to attach a certificate of good faith.   The pharmacy argued that if such a duty exists, it would involve professional judgment, making it a healthcare provider and also governed by the requirements of General Statutes § 52–190.   The court granted the motion to strike and held that “[i]if the existence of the alleged duty is one which must be resolved through expert opinion, then the pharmacy would necessarily be exercising professional judgment and would be a healthcare provider,” and thus § 52–190a requires the good faith certificate.   Accordingly, the duty to warn of possible side effects is a legal claim that encompasses medical malpractice.

In the present case, however, the plaintiff has not alleged that the defendants had a duty to warn of possible side effects;  she has alleged that the defendants had a duty to correctly fill her prescription.

In Jolly v. Smudin, Superior Court, judicial district of Waterbury, Docket No., CV 06–500597 (September 20, 2007, Upson, J.) in which a claim of improper prescriptions was claimed, the court held that the allegations against the employer, Stop & Shop, sounded in ordinary negligence, rather than medical malpractice, because the employer breached a duty of ordinary care, not a professional standard of care, and that there were no medical issues to be determined.

In the present case, the first claim against CVS alleges that the harm inflicted on Conlin was “due to the negligence and carelessness of [CVS], its agents, servants or employees” because, inter alia, it allowed the pharmacist to err in improperly filling the medication and it failed to reasonably inspect the employees' prescription filling.   Reviewing the allegations in a light most favorable to the plaintiff, it is concluded that this claim sounding in respondeat superior against CVS is not governed by § 52–190a because it is based in ordinary negligence and not medical malpractice.

-III-

The third element in Boone v. William Backus Hospital supra namely, that the alleged negligence be substantially related to medical diagnosis or treatment is not satisfied in this case because the alleged negligent act of misreading the prescription or medication and providing the incorrect medication when filling the prescription is not substantially related to a medical diagnosis or treatment and does not involve the exercise of medical judgment.   The pharmacist in the present case did not exercise medical judgment because it is not alleged she discussed or consulted with Conlin about the medication.

In Burke v. CVS Pharmacy, Inc., Superior Court, judicial district of New Haven, Docket No., CV 08–5024739 (February 9, 2009, Licari, J.), the court held that the complaint, which alleged the “misfilling” of a prescription, sounded in ordinary negligence and not medical malpractice, because “the filling of [a] prescription [does] not require any exercise of medical discretion.”

-IV-

A claim for negligent infliction of emotional distress that is based upon malpractice or negligence in medical treatment would have to follow the requirements in General Statutes § 52–190a.   See Bruno v. Guelakis, Superior Court, judicial district of New Haven, Docket No., CV 06–5000424 (July 24, 2006, Wiese, J.) (41 Conn. L. Rptr. 695).   Since the complaint in this case alleges ordinary negligence and the pharmacist's acts were not substantially related to a medical diagnosis or treatment, the claim for negligent infliction of emotional distress is not governed by General Statutes § 52–190a and appears to allege all the required elements.

Motion to dismiss denied.

Wagner, J.

Wagner, Jerry, J.T.R.