Robert Casey v. The Hospital of Central Connecticut (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS, # 102

The defendant has filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff has failed to comply with the requirements of General Statutes § 52–190a in that he failed to file a detailed written opinion by a similar health care provider attached to a good faith certificate.

FACTS

The basis of the present action is the alleged fall of the plaintiff, Robert Casey, while he was a patient at The Hospital of Central Connecticut, the defendant in this action.  (Hospital).  The plaintiff's complaint, filed on February 22, 2011, consists of two counts, ordinary negligence and gross negligence.   The complaint alleges that the plaintiff was admitted as a patient to the Hospital on December 12, 2008, and underwent a colonoscopy on January 2, 2009.   He alleges that the he was connected to various apparatus in order to promote circulation and blood flow to his extremities, which apparatus were at the foot of his bed.   He also alleges that he “was encouraged by hospital staff to perform ambulatory functions.”   Complaint, ¶ 7.   On January 7, 2009, the plaintiff was getting out of bed, and he claims his foot became entangled by the apparatus, causing him to fall and suffer injuries.   The allegations of negligence are that the “wounds were caused by the negligence and carelessness of the defendant, Hospital.¹

The plaintiff's second count, in which he claims gross negligence, defines with more specificity his allegations of negligence.

¶ 14. The defendant was negligent in that its agents, servants or employees failed to warn the plaintiff of the dangerous condition of his hospital bed.

¶ 15. The defendant was negligent in that its agents, servants or employees caused, allowed or encouraged the plaintiff to:

a. attempt to get out of his hospital bed while in a confused or dizzy or medicated condition;

b. attempt to get out of bed while various (sic) apparati were dangerously attached in the plaintiff's extremities rendering the plaintiff's hospital bed to be in an unreasonable, unsafe and dangerous condition;

c. attempt to get out of his hospital bed without appropriate supervision and without appropriate reasonable assistance.2

On March 23, 2011, the defendant moved to dismiss the complaint on the ground that the plaintiff failed to attach a detailed written opinion by a similar health care provider in accordance with § 52–190a.   On May 13, 2011, the plaintiff filed an objection to the defendant's motion to dismiss, and the matter was heard at short calendar on May 16, 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 includes 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 ․ However, the legislature has provided that such a failure does render [the] 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).   Subsection (c) of § 52–190a provides:  “The failure to obtain and file the written opinion required by subsection (a) of [§ 52–190a] shall be grounds for the dismissal of the action.”   Therefore, “the grant of a motion to dismiss, rather than a motion to strike, is the proper remedy for deficiencies under § 52–190a ․” Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011).

The defendant asserts that neither a written opinion nor good faith certificate is attached to the plaintiff's complaint, and therefore the plaintiff's suit must be dismissed pursuant to subsection (c) of § 52–190a because the defendant is a health care provider as defined by General Statutes § 52–184b, is being sued in its capacity as a medical professional, and the claims that the plaintiff is asserting sound in medical malpractice and not negligence.   The plaintiff argues that since the defendant was not exercising medical judgment and the injury was not related to medical diagnosis or treatment, § 52–190a does not apply and a good faith certificate and medical opinion are not necessary.

In order for General Statutes § 52–190a to apply, two requirements must be met.   First, the defendant must be a health care provider as defined by General Statutes § 52–184b, and the claim must be one of medical malpractice and not negligence.  General Statutes § 52–184b(a) defines a “health care provider as any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.”  General Statutes § 19a–490(b) defines a hospital as ․ an establishment for the lodging, care and treatment of persons suffering from disease or other abnormal physical or mental conditions ․” The court finds that under the facts presented the Hospital is a “health care provider” for purposes of § 52–190a.

“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.”  (Emphasis omitted;  internal quotation marks omitted.)  Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254, 811 A.2d 1266 (2002);  Boone v. William W. Backus Hospital, 272 Conn. 551, 562–63, 864 A.2d (2005);  see also Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357–58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

In the complaint, the plaintiff alleges that the defendant, acting through “hospital staff encouraged the plaintiff to perform ambulatory functions after a medical procedure, and in attempting to perform those functions, tripped and fell on apparatus, resulting in injuries, and that these injuries were “caused by the negligence and carelessness” of the Hospital.   The plaintiff was at the Hospital for treatment, and the Hospital is being sued for actions taken by its staff in the rendering of that treatment.   The allegations are claims against medical professionals for their alleged lapses in medical judgment in determining that the plaintiff was strong enough to be ambulatory, connecting him to apparatus which were “dangerously attached to [his] extremities,” and then encouraging him to be out of bed while failing to warm the plaintiff of the dangers attendant to his situation.   The further claim is that the defendant through its employees then failed to supervise the plaintiff's actions or warn him while he was ambulatory.

The decisions by the hospital staff to encourage the plaintiff to perform ambulatory functions in which there was a potential risk due to his condition following a medical procedure and his treatment with connection to apparatus to promote circulation in his legs involved an assessment of the patient and involved the exercise of medical judgment.   These decisions clearly involve the medical judgment of the health care provider to allow the patient to proceed unsupervised.   See Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 353 and Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969) (where the courts in both cases held claims to be medical malpractice where the plaintiff was challenging the judgment of the medical provision that the patient did not require supervision.)

The plaintiff argues that a failure to supervise is not a medical procedure and cites Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383 (1986).  Badrigian involved a patient at a psychiatric institute who discharged himself as a permanent resident against medical advice, was accepted as a day patient that same day, and subsequently died after being struck by a car while crossing the street on the way to eat lunch.   The plaintiff claimed that the defendant breached its duty to supervise the plaintiff as he crossed the road, and characterized it as a negligence claim as opposed to a medical malpractice.   Because the alleged negligence was not substantially related to medical services provided by the facilities, the court classified the plaintiff's claim as involving ordinary negligence.  Id.

The present case is distinguishable from Badrigian, in that the plaintiff was a patient at the hospital, having recently undergone a medical procedure.   The decisions made by the defendant through its employees were decisions directly related to the care and treatment of the plaintiff, both by connecting him to medical equipment to aid in his recovery and by encouraging him to become ambulatory.   The staff at the Hospital was required to determine whether the plaintiff could become ambulatory, what level of supervision he would require, and insure that any medical equipment was either disconnected or safely secured to prevent any injury.   Although ambulating may be considered a routine activity, the determination after a medical procedure involves the exercise of medical judgment.  “The decision by a medical professional to allow a patient to engage in a routine activity, dressing and undressing, in which there is a potential risk of injury, i.e., losing balance and falling, and involving some assessment of the patient's condition at the time involves the exercise of a medical judgment ․ The mere characterization of an activity as routine does not exclude that activity from the realm of medical judgment.”   Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 361.³

CONCLUSION

The court finds that the plaintiff's complaint sounds in medical malpractice as defined in Gold v. Greenwich Hospital Ass'n., supra.   The defendant is (1) sued in its capacity as a medical professional;  (2) the alleged negligence arises out of the medical professional-patient relationship and is of a specialized medical nature, i.e., the direction to become ambulatory was a part of his prescribed recuperation from a surgical procedure, and is related to his treatment and involved the exercise of medical judgment.   The plaintiff, therefore, was required to attach a written opinion by a similar health care provider to a good faith certificate pursuant to General Statutes § 52–190a.   The defendant's motion to dismiss is granted as to both counts.⁴

Swienton, J.

FOOTNOTES

FN1. The complaint also claims that “[t]he negligence of the defendant was not related to the medical diagnosis or treatment of the plaintiff's colon condition, and did not involve the exercise of medical judgment.”   Complaint, ¶ 11.   The plaintiff attempts to avoid any requirements under General Statutes § 52–190a by making this characterization of the complaint..  FN1. The complaint also claims that “[t]he negligence of the defendant was not related to the medical diagnosis or treatment of the plaintiff's colon condition, and did not involve the exercise of medical judgment.”   Complaint, ¶ 11.   The plaintiff attempts to avoid any requirements under General Statutes § 52–190a by making this characterization of the complaint.

FN2. The plaintiff has characterized this count as “gross negligence.”   The Supreme Court has defined “gross negligence” as “very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care of slight diligence ․” (Internal quotation marks omitted.)  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 338, 885 A.2d 734 (2005);  57A Am.Jur.2d 296–97, Negligence § 227 (2004) ( “ ‘Gross negligence’ means more than momentary thoughtlessness, inadvertence or error of judgment;  hence, it requires proof of something more than the lack of ordinary care.   It implies an extreme departure from the ordinary standard of care, aggravated disregard for the rights and safety of others, or negligence substantially and appreciably greater than ordinary negligence.”)..  FN2. The plaintiff has characterized this count as “gross negligence.”   The Supreme Court has defined “gross negligence” as “very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care of slight diligence ․” (Internal quotation marks omitted.)  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 338, 885 A.2d 734 (2005);  57A Am.Jur.2d 296–97, Negligence § 227 (2004) ( “ ‘Gross negligence’ means more than momentary thoughtlessness, inadvertence or error of judgment;  hence, it requires proof of something more than the lack of ordinary care.   It implies an extreme departure from the ordinary standard of care, aggravated disregard for the rights and safety of others, or negligence substantially and appreciably greater than ordinary negligence.”).

FN3. The plaintiff also argues that a good faith certificate and opinion letter are not required because the trier of fact could determine the facts without the need of expert testimony.  “Medical malpractice claims do not necessarily require expert testimony.   Although a court requires expert testimony to establish the relevant standard of care in most cases, [s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge and, thus, do not require expert testimony.   The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required.”  (Citations omitted;  internal quotation marks omitted.)   Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360..  FN3. The plaintiff also argues that a good faith certificate and opinion letter are not required because the trier of fact could determine the facts without the need of expert testimony.  “Medical malpractice claims do not necessarily require expert testimony.   Although a court requires expert testimony to establish the relevant standard of care in most cases, [s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge and, thus, do not require expert testimony.   The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required.”  (Citations omitted;  internal quotation marks omitted.)   Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360.

FN4. Although the count one is labeled ordinary negligence and count two is labeled gross negligence, the allegations of both counts are nearly identical, and the court's analysis is as to both counts.   Both sound in medical malpractice..  FN4. Although the count one is labeled ordinary negligence and count two is labeled gross negligence, the allegations of both counts are nearly identical, and the court's analysis is as to both counts.   Both sound in medical malpractice.

Swienton, Cynthia K., J.