John S. Dzialo v. Hospital of Saint Raphael et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

FACTS

On September 23, 2010, the plaintiff filed an eight-count complaint sounding in negligence, negligent infliction of emotional distress, intentional infliction of emotional distress and violation of plaintiff's rights against the following defendants:  Hospital of Saint Raphael and Saint Raphael Healthcare System, Inc.¹ The plaintiff alleges that on or about November 6, 2008, he went to the defendants' medical facility to seek treatment for depression.   Upon entering the facility, the plaintiff informed an employee of the hospital that he suffered from depression and was directed to the waiting room.   Then, allegedly, while in the waiting room, the hospital employee placed her hands upon the plaintiff and began performing an exorcism type ceremony, claiming that the plaintiff was possessed by demons.   The plaintiff alleges that this ceremony caused him to suffer emotional injuries and that these injuries were a result of the defendants' negligence in a number of ways.

Specifically, the plaintiff claims that the defendants:  (a) failed to take reasonable precautions to avoid the probability of harm to individuals such as the plaintiff;  (b) failed to maintain an adequate staff on or about the immediate vicinity of the premises to detect unreasonable behavior from individuals on or about the premises, including the emergency room staff;  (c) failed to prevent individuals in the hospital from harming patients when they knew or in the exercise of reasonable care should have known that such individuals were likely to harm patrons, including the plaintiff;  (d) failed to properly train employees and security personnel to detect individuals who presented a danger to patients, including employees of the hospital;  (e) failed to maintain properly trained staff;  (f) failed to properly train its employees on appropriate methods of client interaction and communication;  (g) failed to properly care, oversee, supervise, train and/or maintain control over its employees;  (h) failed to exercise reasonable and ordinary care for the plaintiff's safety given his known condition of depression;  (i) failed to establish appropriate rules and regulations concerning the treatment of emergency room patients;  (j) failed to use reasonable care in determining the qualifications of its employees and agents who provided medical services in its emergency room facilities;  and (k) allowed its employee to perform “religious” and/or ritualistic activities and/or ceremonies upon patients and/or within close proximity to patients.

On November 9, 2010, the defendants filed a motion to dismiss along with a memorandum of law supporting their motion.   On January 6, 2011, the plaintiff filed an objection along with a memorandum in opposition.   This matter was heard at short calendar on April 18, 2011.

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, 300 Conn. 33, 47–48, 12 A.3d 885 (2011).  “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., 300 Conn. 1, 26–27, 12 A.3d 865 (2011).

The defendants argue that the plaintiff's claims in the complaint sound in medical malpractice and not ordinary negligence thereby requiring compliance with the filing requirements of § 52–190a.   Accordingly, the defendants argue that this failure to comply should result in dismissal of the action.   In response, the plaintiff argues that the conduct toward him in the waiting room does not constitute medical treatment for purposes of § 52–190a.

“[Section] 52–190a(a) provides in relevant part that, in any medical malpractice action, the claimant or the claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]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 ․ Section 52–190a(a) does not define medical negligence and the phrase is susceptible to more than one reasonable interpretation ․ [Nonetheless,] we conclude that the phrase ‘medical negligence,’ as used in § 52–190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.”  Dias v. Grady, 292 Conn. 350, 355–59, 972 A.2d 715 (2009).

The issue is whether the plaintiff has pleaded a claim of medical negligence that would trigger the application of § 52–190a, and thus, the requirement of a written opinion letter from a similar health care provider, as defined in General Statutes § 52–184c.   This determination is based on the Appellate Court's decisions in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001);  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 569;  and Selimoglu v. Phimvongsa, 119 Conn.App. 645, 989 A.2d 121 (2010);  as well as the Connecticut Supreme Court's recent decision in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011).

The Appellate Court in Trimel, Votre and Selimoglu resolved this issue by applying a three-part test to determine whether a claim sounds in medical malpractice or ordinary negligence.   Under this test, “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.”  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 576;  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358.   If all of the factors are met, the cause of action properly sounds in medical malpractice and a written opinion letter is required pursuant to § 52–190a.  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 585.

Recently, though, the Connecticut Supreme Court in Shortell did not use that three-part test in holding that an informed consent claim did not require a written opinion under § 52–190a.   Instead, the Shortell court relied on an earlier holding in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 293, 465 A.2d 294 (1983), which decided on grounds of public policy that informed consent claims do not require expert testimony to establish the standard of care.   The Shortell court stated generally that “if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52–190a.”  Shortell, supra, 300 Conn. 393.

Shortell does not require a complete rejection of the three-part test used by the Appellate Court.   The informed consent claim was a unique circumstance in which the court had the benefit of a previous holding.   Moreover, the holding in Logan was based on public policy grounds particular to informed consent, namely, a concern “about [t]he incongruity of making the medical profession the sole arbiter of what information was necessary for an informed decision to be made by a patient concerning his own physical well-being ․” (Internal quotation marks omitted.)  Id., 390–91.   Neither Logan nor Shortell offer any alternative to the three-part test that could be applied to other cases.

Nevertheless, Shortell does require a reassessment of when to use the three-part test due to its broader holding that an opinion letter is unnecessary where no expert medical testimony is required for the standard of care.   Apart from informed consent, there is another circumstance where a cause of action would meet the three-part test for medical malpractice, but would not require medical expert testimony for the standard of care.   This circumstance is “where the professional negligence is so gross as to be clear even to a lay person.” ²  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005);  see, e.g., Slimak v. Foster, 106 Conn. 366, 371, 138 A. 153 (1927) (piece of surgical instrument left in patient after nasal surgery).   In such cases, one would not need to apply the three-part test.

Consequently, the requirements for § 52–190a will not apply when (1) the courts have decided for other reasons that expert medical testimony is not required for the standard of care, as in cases like informed consent;  and (2) in cases of gross negligence where the standard of care would be obvious to a layperson.   If either of those two circumstances apply, it is irrelevant whether the claim would be considered medical malpractice under the three-part test.

The first prong of the test is whether the defendant is being sued in its capacity as a “medical professional.”  “[An] allegation that the defendant owned the nursing home at which the decedent was receiving care is sufficient to satisfy the first ․ element.”   Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6007389 (September 2, 2010, Tobin, J.) (50 Conn. L. Rptr. 582).   Here, the plaintiff brought this action against the defendant, who operates as a licensed medical institution.   The plaintiff also alleges that he was on the defendant's property to seek medical attention.   Therefore, the plaintiff has filed this action against the defendant in its capacity as a medical professional.

The second prong requires this court to determine whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship.   In the present case, the defendants are claiming that the plaintiff's claim is of a specialized medical nature because it involves his medical condition, namely, depression.   Nevertheless, it is the allegations of negligence that must be of a specialized medical nature, and the plaintiff's allegations are mainly administrative, not medical.   The plaintiff alleges, for example, that the hospital failed to train and supervise its employees, failed to devise appropriate rules and regulations, and failed to hire qualified employees.  “The proper oversight of employees ․ does not necessarily make [a] negligence action one of medical malpractice.   The court must still consider whether the alleged negligent supervision pertains to treatment and the omission or failure of its employees to perform a treatment or other medical procedure.”   Cotton v. Benchmark Assisted Living, Superior Court, judicial district of Danbury, Docket No. CV 10 6002180 (July 2, 2010, Marano, J.) (50 Conn. L. Rptr. 246).   Here there are no medical procedures or treatments alleged, only a statement that the plaintiff was possessed by demons and the resulting exorcism, which even the plaintiff alleged to be a “religious” and “ritualistic” ceremony.³

Furthermore, the complaint does not allege facts indicating that a “professional-patient relationship” was established.   There are no allegations that the employee performing the exorcism was medically trained to diagnose and treat patients.   Specifically, the plaintiff alleges that she was a “hospital employee” in the waiting room, who upon hearing the plaintiff's reported depression, directed him to a waiting room and instructed him “to wait until a physician could examine him.”   Therefore, he had not been examined by a doctor at the time of the exorcism, and it cannot be inferred that the hospital employee had any qualifications apart from being a receptionist.   Such allegations are not sufficient to establish a professional-patient relationship.

The third prong, which asks whether the alleged negligence was substantially related to medical diagnosis or treatment and involved the exercise of medical judgment, is also not satisfied.   As this court already has determined, the allegations of negligence were mainly administrative and were not related to any medical procedure, treatment or judgment.   Consequently, the complaint does not allege a medical malpractice action and therefore sounds in ordinary negligence.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied.

Richard E. Burke, Judge

FOOTNOTES

FN1. Hospital of Saint Raphael and Saint Raphael Healthcare System, Inc. will collectively be referred to as “the defendants.”.  FN1. Hospital of Saint Raphael and Saint Raphael Healthcare System, Inc. will collectively be referred to as “the defendants.”

FN2. This is one of three exceptions to the need for a medical expert witness in medical malpractice actions.   The other two exceptions are “when the medical condition is obvious or common in everyday life” and when “the plaintiffs evidence creates a probability so strong that a lay jury can form a reasonable belief.”  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).   These two exceptions are irrelevant to § 52–190a because they apply to elements other than the standard of care, and § 52–190a is solely concerned with the standard of care..  FN2. This is one of three exceptions to the need for a medical expert witness in medical malpractice actions.   The other two exceptions are “when the medical condition is obvious or common in everyday life” and when “the plaintiffs evidence creates a probability so strong that a lay jury can form a reasonable belief.”  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).   These two exceptions are irrelevant to § 52–190a because they apply to elements other than the standard of care, and § 52–190a is solely concerned with the standard of care.

FN3. Even if the exorcism could be construed as being of a specialized medical nature due to the plaintiff's reported depression, § 52–190a still would be inapplicable because the allegations amount to gross negligence.  Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).   A fact-finder would not need expert medical evidence to decide that the performance of a religious ceremony on a patient without even a cursory medical examination was a breach of a medical standard of care..  FN3. Even if the exorcism could be construed as being of a specialized medical nature due to the plaintiff's reported depression, § 52–190a still would be inapplicable because the allegations amount to gross negligence.  Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).   A fact-finder would not need expert medical evidence to decide that the performance of a religious ceremony on a patient without even a cursory medical examination was a breach of a medical standard of care.

Burke, Richard E., J.