Jackeline Cortes v. Visiting Nurse Assn. of Central Conn., Inc. et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The plaintiff, Jackeline Cortes, brings this action against the defendants, the Visiting Nurse Assn. of Central Connecticut, Inc. (VNA) and Vanelle Velez, seeking damages for personal injuries suffered when she fell out of the crib-like bed to which she is confined.¹  Ms. Cortes alleges that on July 8, 2008 VNA assigned Ms. Velez, one of VNA's home health aides, to provide nursing services to her at her home.   Although VNA had provided regular home nursing services to Ms. Cortes for a long time, Ms. Velez had never been assigned to her home and was allegedly not instructed as to how to operate the locking mechanism which secured Ms. Cortes in her bed.   After providing care to the plaintiff with the bed rail up, Ms. Velez allegedly failed to ensure that the rail was securely in place and left Ms. Cortes lying in an unlocked bed.   As a result of Ms. Velez's failure to secure the locking mechanism, Ms. Cortes alleges that she fell out of the bed and sustained injuries due to the defendants' negligence.

Count one alleges that Ms. Cortes' injuries were caused by VNA's negligence in one or more of the following ways:  a) VNA did not advise Ms. Velez that Ms. Cortes was in a crib-like bed requiring the release of a locking mechanism in order to secure complete access to her;  b) VNA never advised Ms. Velez to speak to staff or anyone else to determine how to unlock the locking mechanism;  c) VNA, despite being aware that different home health aides may be assigned to treat Ms. Cortes, failed to make any notations in its file to advise them of the existence of the bed locking mechanism and how to release it.

Count two alleges that Ms. Velez was acting as an agent of VNA when she treated Ms. Cortes and that, although Ms. Velez did not know how to unlock the mechanism, she failed to ask Ms. Cortes' mother, who was on the premises, how to safely unlock it.   Additionally, count two alleges that Ms. Velez failed to call VNA to ask how to unlock the mechanism safely prior to rendering aid.   Instead, the complaint alleges, during Ms. Velez's search for the mechanism, she negligently unlocked the device but was unaware that she had done so.   Then, Ms. Velez allegedly failed to make sure that the rail was securely in place and left Ms. Cortes lying in an unlocked bed, resulting in Ms. Cortes' subsequent fall and alleged injuries.

On October 13, 2010, the defendants filed a motion to dismiss along with a memorandum of law supporting their motion, arguing that Ms. Cortes' complaint sounds in medical malpractice and is subject to dismissal for failure to comply with the filing requirements of § 52–190a.²

I

A party who files a medical malpractice action is required to file with the complaint (1) a certificate stating that a “reasonable inquiry gave rise to a good faith belief” that grounds exist for a medical malpractice action against each defendant and (2) 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 failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401–02, 29 A.3d 451 (2011).

The defendants argue that Ms. Cortes' claims in the complaint sound in medical malpractice and not ordinary negligence, thereby requiring compliance with § 52–190a.   Consequently, they argue, her failure to comply should result in the dismissal of the action.   In response, Ms. Cortes argues that simply forgetting to relock, or accidentally unlocking, a crib-like bed does not involve the exercise of medical judgment and is not substantially related to medical diagnosis or treatment for purposes of § 52–190a.   Accordingly, she contends that her complaint sounds in ordinary negligence, and that she is not required to comply with 52–190a.

“Our Appellate Court ․ [has] applied a three-part test to determine whether a claim sounds in medical malpractice or ordinary negligence.   Under this test, the relevant considerations ․ 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.   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.”   Grace v. Morgan, Superior Court, judicial district of Hartford, Docket No. CV 11 6016891 (August 4, 2011) [52 Conn. L. Rptr. 408], citing, e.g., 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).

In determining whether Ms. Cortes' claim is one sounding in medical malpractice or one of ordinary negligence the court must consult the allegations of the complaint, and, as this is a motion to dismiss, the court must view the pleadings in a light most favorable to the pleader.   See Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432–33, 829 A.2d 801 (2003).

II

As to the first prong of the test, it is undisputed that Ms. Cortes is suing both VNA and Ms. Velez in their capacities as medical professionals.   The second prong requires the court to determine whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship.   The alleged negligence clearly arises out of a medical professional-patient relationship between Ms. Cortes and her home health aide, Ms. Velez, and her home health care service provider, VNA. Is it of a “specialized medical nature?”

Courts have found that negligence is of a “specialized medical nature” where a health care provider neglects to take precautions that are necessary to address a patient's particular medical condition.   See, e.g., Wilson v. William W. Backus Hospital, Superior Court, judicial district of New London, Docket No. CV 11 5014148 (July 26, 2011) [52 Conn. L. Rptr. 367] (hospital's alleged failure to properly administer medicine and reposition plaintiff's loose foot in stirrup was of a specialized medical nature because “it concerns the appropriate procedures and conduct required for safely delivering a baby and caring for the mother in labor”);  Casey v. Hospital of Central Connecticut, Superior Court, judicial district of New Britain, Docket No. CV 11 6009158 (July 19, 2011) (failure to assist, supervise or warn of risk of entanglement in circulation apparatus at foot of colonoscopy patient's bed was of a specialized medical nature where hospital's “direction to become ambulatory was a part of [patient's] prescribed recuperation ․ and [was] related to his treatment”);  Katz v. Harbor-side Healthcare–Arden House Rehabilitation & Nursing Center, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000597 (April 16, 2007) (35 Conn. L. Rptr. 543) (allegations were of a specialized medical nature where “special precautions” were required to move patient to avoid fracturing her bones, which had been weakened by her cancer treatment).

Courts have held that negligence is not of a “specialized medical nature” where a health care provider neglects to follow or implement an administrative or routine procedure not directly related to a patient's medical care.   See, e.g., Simpson v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 10 6014978 (July 20, 2011) (52 Conn. L. Rptr. 245) (employee's alleged failure to lock plaintiff's bed wheels and defendant facility's alleged failure to warn of the hazards of a bed whose wheels are not locked were not of a specialized medical nature);  Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV 10 6002180 (July 2, 2010) (50 Conn. L. Rptr. 246) (claim that assisted living facility's employee used excessive force in handling plaintiff was not of a specialized medical nature);  Chalk v. Yale Primary Care, supra, Superior Court, Docket No. CV 11 5033688 (allegations that clinic's pharmacy lost patient's pills were not of a specialized medical nature because “[t]he loss of pills merely infers that a hospital administrative procedure for storing pills either had not been followed or should have been in place”);  Ferrara v. St. Joseph's Living Center, Superior Court, judicial district of New London at Norwich, Docket No. CV 97 0112858 (December 16, 1998) (23 Conn. L. Rptr. 567) (alleged failure to lock wheelchair wheels or apply wheelchair break locks was not a specialized medical issue).

Ms. Cortes' claims are allegations that the defendants neglected to follow or implement a non-medical procedure that was incidental to the medical treatment provided to her.   Specifically, the complaint alleges that, instead of seeking advice on how to safely unlock the device from Ms. Cortes' mother or VNA, Ms. Velez provided care to Ms. Cortes with the bed rail up and failed to ensure that the rail was secured before leaving her in an unlocked bed.   These claims are similar to those of the plaintiff in Simpson, supra, 52 Conn. L. Rptr. 245, whose allegations of negligence stemming from a rehabilitation facility's failure to lock her bed wheels and warn of the hazards of a bed with unlocked wheels were not of a specialized medical nature.

As to Ms. Cortes' claims against VNA, the allegations are administrative, not medical.   Courts have held that a health care provider's negligent failure to train or supervise its employees is administrative and not of a “specialized medical nature.”   See, e.g., Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011) (plaintiff's allegations that defendant hospital failed to train and supervise its emergency room employees properly were not of a specialized medical nature);  Cotton v. Benchmark Assisted Living, LLC, supra, 50 Conn. L. Rptr. 248–49 (plaintiff's allegations that assisted living facility failed to train and supervise, warn and remedy the dangerous situation of employee handling a patient too forcefully “do not require a specialized medical nature”);  DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. CV 99 0498385 (October 19, 2000) (28 Conn. L. Rptr. 522) (“[n]egligent supervision by health care providers constitutes ordinary negligence, not malpractice” because issues are not uniquely medical in nature).

In the present case, the complaint alleges that VNA failed to advise Ms. Velez that Ms. Cortes was in a crib-like bed that required the release of a locking mechanism, failed to advise Ms. Velez to speak to staff or Ms. Cortes' mother to determine how to unlock the mechanism and failed to make any notations in its file to advise future home health aides of the existence of the mechanism and how to release it.   These allegations are similar to those of the plaintiff in Cotton, supra, 50 Conn. L. Rptr. 246, because they focus on VNA's failure to train, instruct or warn Ms. Velez about the device.   Accordingly, VNA's alleged negligence is administrative and not of a “specialized medical nature.”   Therefore, the second prong of the three-part test of a medical malpractice claim is unsatisfied.

The third prong of the test requires the court to determine whether the alleged negligence was substantially related to medical diagnosis or treatment and whether it involved the exercise of medical judgment.

“When medical personnel commit tortious acts that do not require medical knowledge, do not exercise medical judgment and are not related to medical diagnosis or treatment, such acts constitute ordinary negligence, not medical malpractice.”   Oats v. United Community and Family Services, Inc., judicial district of New London, Docket No. CV 06 5000450 (August 6, 2007) (44 Conn. L. Rptr. 26).   In cases where patient injuries have occurred due to the alleged failure to secure safety devices, courts have held the allegations to be ordinary negligence when the patients' falls were unrelated to treatment and did not involve medical judgment.   See, e.g., Simpson v. Norwalk Hospital, supra, 52 Conn. L. Rptr. 246 (allegations of negligence stemming from rehabilitation facility employee's failure to lock plaintiff's bed wheels did not involve exercise of medical judgment);  Oats v. United Community and Family Services, Inc., supra, 44 Conn. L. Rptr. 28 (precautions to prevent patient from falling out of wheelchair during transport did not require specialized medical knowledge or the exercise of medical judgment);  Ferrara v. St. Joseph's Living Center, supra, 23 Conn. L. Rptr. 568 (alleged failure to lock wheelchair wheels or apply break locks did not require medical judgment).

In cases involving the failure to follow safety procedures in general, courts have found medical malpractice when the alleged negligence occurred in the course of medical treatment and when the allegations questioned a medical judgment that such safety procedures were necessary.   See, e.g., Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 363–64 (claim of plaintiff hurt while maneuvering herself out of a wheelchair without supervision during physical therapy session sounded in medical malpractice because “plaintiff's treatment had included unassisted transfers with supervision, and ․ [i]t was a medical professional's judgment that allowed the transfer to proceed unassisted”);  Casey v. Hospital of Central Connecticut, supra, Superior Court, Docket No. CV 11 6009158 (decision to encourage patient to perform unsupervised ambulatory functions in which there was a potential risk of falling due to his dizzy post-operative condition involved exercise of medical judgment);  Skoczylas v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152531 (October 8, 1999) [25 Conn. L. Rptr. 481] (hospital's decision regarding whether to leave unsupervised a patient hospitalized for suicidal tendencies and suffering from a preexisting balance disorder involved the exercise of medical judgment).

The allegations of the complaint here do not involve the exercise of medical judgment because Ms. Cortes is not questioning the medical decision that her condition required her to be secured in a locked bed, or alleging that a different medical decision regarding her needs should have been made.   Instead, the allegations against Ms. Velez challenge her failure to follow a routine procedure to secure the bed or to seek assistance in securing it, which are tasks similar to those in Simpson, Oats and Ferrara that do not require the exercise of medical judgment.

Ms. Velez's failure to ensure that the mechanism was locked is also not substantially related to the medical treatment that Ms. Velez provided to the plaintiff.   See Simpson v. Norwalk Hospital, supra, 52 Conn. L. Rptr. 246 (rehabilitation facility employee's failure to lock plaintiff's bed wheels was not related to rehabilitative treatment being provided);  Agosto v. Midstate Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0266516 (December 14, 1999) (26 Conn. L. Rptr. 145) (maintenance of a crib that patient fell out of was incidental to, and not an integral part of, the medical treatment defendant provided to child, and thus constituted ordinary negligence).   Ms. Velez's failure to secure the bed rail did not occur during the course of treatment, but after the treatment had taken place.   Consequently, Ms. Velez's alleged negligence is not substantially related to medical diagnosis or treatment and does not involve the exercise of medical judgment.

The defendants argue that the present case involves the exercise of medical judgment as in Skoczylas v. Waterbury Hospital, supra, Superior Court, Docket No. CV 99 0152531, but that case is factually distinguishable.   In Skoczylas, the plaintiff, who was hospitalized as a suspected suicide risk, alleged that she fell several times because hospital employees negligently left her unattended despite knowing that she was emotionally upset and had a pre-existing condition involving a loss of equilibrium.  Id. The plaintiff challenged the hospital's decision regarding whether to leave a patient with suicidal tendencies unsupervised, which the court held involved the exercise of medical judgment.  Id. In the present case, however, the medical judgment that Ms. Cortes' condition required her to be secured in a crib-like bed had already been made prior to Ms. Velez's alleged negligence, and the complaint does not question the medical judgment that such safety procedures were necessary or allege that different measures should have been taken.

Ms. Cortes' claims against VNA also fail to implicate the third prong.   “Consistently, courts have held that allegations of negligent supervision [by health care providers] amount to ordinary negligence and not medical malpractice.”  Cotton v. Benchmark Assisted Living, LLC, supra, 50 Conn. L. Rptr. 249.   As previously determined, the allegations against VNA are administrative rather than medical in nature.   The claims that VNA failed to notify, train, instruct or supervise Ms. Velez about the mechanism do not require the exercise of medical judgment.   See, e.g., id. (claims that assisted living facility failed to train or supervise employee regarding how to handle resident properly did not involve medical judgment);  Reiss v. Stamford Hospital, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 10276557 (August 2, 2005) (39 Conn. L. Rptr. 611) (allegations that defendant hospital negligently failed to supervise its employees to ensure post-operative patient was assisted to bathroom did not require the exercise of medical judgment).

VNA's alleged failure to advise Ms. Velez about the mechanism is also not substantially related to medical diagnosis or treatment under the third prong.   The claims against VNA are essentially derivative of those against Ms. Velez in that they allege that VNA neglected to instruct Ms. Velez of the need to perform a routine task that involved no medical judgment.   Accordingly, VNA's administrative failure to advise Ms. Velez to perform this standard procedure also involves no medical judgment.   See, e.g., Cotton v. Benchmark Assisted Living, LLC, supra, 50 Conn. L. Rptr. 249 (allegations that assisted living facility failed to train or supervise employee regarding how to handle resident properly were not substantially related to medical diagnosis or treatment).

III

For all of the reasons stated in this memorandum the court concludes that the complaint does not allege medical malpractice but ordinary negligence.   Accordingly, the motion to dismiss is DENIED.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. VNA and Velez will collectively be referred to as “the defendants.”   In the pleadings, the plaintiff spells Velez's name “Vanelle Velez” and the defendants spell it “Valenie Valez” or “Vanelle Valez.”   In this memorandum, her name will be spelled “Vanelle Velez,” as it appears in the summons filed by the plaintiff on July 22, 2010..  FN1. VNA and Velez will collectively be referred to as “the defendants.”   In the pleadings, the plaintiff spells Velez's name “Vanelle Velez” and the defendants spell it “Valenie Valez” or “Vanelle Valez.”   In this memorandum, her name will be spelled “Vanelle Velez,” as it appears in the summons filed by the plaintiff on July 22, 2010.

FN2. The defendants filed their motion more than thirty days after they appeared in the case;  thus it was untimely under a recent decision, Morgan v. Hartford Hospital, 301 Conn. 388 (2011).   Because the motion was filed long before Morgan was decided, and pursuant to a court order extending the time within which it had to be filed, the court holds that “a strict adherence to [Practice Book § 10–30] will work surprise or injustice”;  see Practice Book § 1–8;  and will consider the merits of the motion.   See Dorry v. New Milford Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 09 6004823 (April 29, 2011)..  FN2. The defendants filed their motion more than thirty days after they appeared in the case;  thus it was untimely under a recent decision, Morgan v. Hartford Hospital, 301 Conn. 388 (2011).   Because the motion was filed long before Morgan was decided, and pursuant to a court order extending the time within which it had to be filed, the court holds that “a strict adherence to [Practice Book § 10–30] will work surprise or injustice”;  see Practice Book § 1–8;  and will consider the merits of the motion.   See Dorry v. New Milford Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 09 6004823 (April 29, 2011).

Shortall, Joseph M., J.T.R.