Maryann Bradley v. Yale–New Haven Hospital, Inc. (2011)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS

The defendant has filed a motion to dismiss the plaintiff's amended complaint ¹ on the ground that the plaintiff failed to attach to her complaint a written opinion by a similar health care provider, as required pursuant to General Statutes § 52–190a.   In response, the plaintiff argues that the nature of the claim asserted in her amended complaint is outside the purview of § 52–190a and that a written opinion is therefore not required by law.   For the following reasons, the court agrees with the plaintiff and, accordingly, denies the defendant's motion to dismiss.

FACTS

The basis of the present action is the alleged fall of the plaintiff while she was a patient at Yale–New Haven Hospital, Inc., the named defendant.   The plaintiff's complaint, as amended, alleges that she was admitted to the hospital on May 5, 2008 for “a composite graft replacement of the ascending aorta and aortic valve, together with her post-operative care.”   Amended Complaint, ¶ II. The amended complaint further alleges as follows:

IV.  On May 12, 2008 ․ while under the supervision of a servant or agent and/or employee of the defendant, to wit[:] a transport attendant, the plaintiff was returning from x-ray, when said attendant brought the transport gurney to the hall outside her hospital room, sat her up, turned her abruptly toward and guided her to the end of her hospital bed and then left her there and quickly exited her hospital room, whereupon the plaintiff attempting to move to get into her bed became weak and fell violently to the floor, causing her to sustain ․ injuries ․

V. Said injuries ․ were caused by the failure of the defendant, its agents, servants and[/]or employee [sic] to exercise reasonable care ․ in ․ the following respects:

a.  In that they failed to assist the plaintiff to the side or a place at her hospital bed where she get [sic] on it;

b. In that they failed to notice or take heed of the ruby colored sox [sic] or fall risk sign on plaintiff's feet and the hospital room door;

c. In that they failed to help the plaintiff get onto her hospital bed;

d. In that they failed to call or obtain any other person to assist the plaintiff get onto her bed;

e.  In that they failed to remain with the plaintiff until she was safely onto her bed;

f. In that they exited plaintiff's hospital room before she was safely and securely in he [sic] bed;

g. In that they were not watchful of plaintiff's physical safety and did not return into the room until she fell and screamed out;

h. In that they failed to use reasonable care to protect the plaintiff in transporting her back to her bed under the circumstances extant.

By motion and accompanying memorandum of law dated June 6, 2011, the defendant moved to dismiss the amended complaint because of the plaintiff's noncompliance with General Statutes § 52–190a, as earlier described.   On August 25, 2011, the plaintiff filed a written objection to the motion to dismiss, and a memorandum of law in support of that objection.   The defendant thereafter filed a reply memorandum of law on September 22, 2011.   The matter was heard by the court on September 26, 2011.

DISCUSSION

Practice Book § 10–31(a) provides in relevant part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “[B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52–190a constitutes insufficient service of process ․ Because ․ the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction.”  Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 452 (2011).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

Section 52–190a requires a party bringing a medical malpractice action to file a written opinion from a similar health care provider stating “that there appears to be evidence of medical negligence” and providing “a detailed basis for the formation of such opinion.”  General Statutes § 52–190a(a).   Moreover, subsection (c) of § 52–190a provides that the failure to comply with these requirements “shall be grounds for the dismissal of the action.”

The issue presented by the motion to dismiss here is not what § 52–190a(a) requires, but whether the statute applies at all to the claims raised in the amended complaint.   Our Supreme Court has held 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, 359, 972 A.2d 715 (2009).   Therefore, the applicability of this statute turns on the nature of the present action:  whether it sounds in “medical malpractice,” and is therefore within the purview of § 52–190a(a), or sounds instead in ordinary negligence, and is outside the statute's scope.   See Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002010 (November 16, 2010, Danaher, J.) (“[t]he plaintiff's claim sounds in ordinary negligence, and as a result, the requirements of § 52–190a do not apply”);  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, 585) (“because the plaintiffs' complaint sounds in ordinary negligence and recklessness as opposed to medical malpractice, the plaintiffs were not obligated to file with their complaint a good faith certificate or a written opinion from a similar health care provider pursuant to § 52–190a”);  Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV 10 6002180 (July 2, 2010, Marano, J.) (50 Conn. L. Rptr. 246, 250) (“the claim is one of ordinary negligence and does not sound in medical malpractice ․ Therefore, the requirements of § 52–190a do not apply”).

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 ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, [our Supreme Court has] conclude[d] 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.”  (Citations omitted;  emphases in original;  internal quotation marks omitted.)  Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002), quoting Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, cert. dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

Examining each of these considerations in turn within the context of the present case, the court concludes that the first prong of the so-called Trimel test is met.   The amended complaint alleges that the defendant undertook the plaintiff's “care, treatment, monitoring and supervision,” and that the plaintiff, while under that supervision, suffered injuries caused by “the defendant, its agents, servants or employees.”   The court concludes that these allegations demonstrate that the defendant is being sued in its capacity as a medical professional.

The second Trimel prong—whether the alleged negligence is of a specialized medical nature arising out of a medical professional-patient relationship—is, in the court's opinion, not met.   In this regard, the court rejects the defendant's contention that “[t]here can be no argument that the second prong of the Trimel test is ․ satisfied since plaintiff was an admitted patient at [the defendant hospital].”   Defendant's Memorandum of Law in Support of Motion to Dismiss, p.4. This second prong involves far more than a determination as to whether the plaintiff was a patient of the hospital.   It turns most critically on whether the alleged negligence was “of a specialized medical nature.”   Here, the allegations of negligence stem entirely from the claim that an unnamed employee of the defendant, a so-called “transport attendant,” after transporting the plaintiff by gurney from the x-ray unit of the hospital back to her room, failed to assist the plaintiff in getting into her hospital bed, or to take such other steps as were necessary to ensure that the plaintiff was able safely to do so by herself.   These allegations, in the court's view, simply do not involve acts and omissions of a “specialized medical nature.”   Rather, they relate to what the plaintiff aptly describes as “the ordinary care, acts and omissions of a single unskilled individual during a function that is non-medical and unspecialized in nature.”   Plaintiff's Memorandum of Law in Opposition and Objection to Defendant's Second Motion to Dismiss, p. 4. As such, these claims are outside the parameters of this second prong.

For similar reasons, the third prong of Trimel, whether the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment, is also not satisfied in this case.   The plaintiff was not receiving treatment from or being diagnosed by any professionals at the time of the injury, and, indeed, was not even in the presence of any treatment providers at the time of her fall.   Nor can it be said that the transport attendant was required to exercise medical judgment in transporting the plaintiff to her room and onto her bed.

The defendant's effort to equate the actions of the transport attendant here with the actions of the pharmacist found to sound in malpractice in Simmons v. CVS Pharmacy, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5021084 (June 17, 2009, Hiller, J.) is simply unavailing.   In Simmons, the pharmacist was “providing professional services, namely pharmaceutical care ․ by providing prescription medication and consultation regarding that medication ․ and exercised specialized skill by assuring the plaintiff that she had received the proper medication.”  Id. The transport attendant in the present action was not providing any specialized services or exercising any specialized skills.   Simmons, therefore, does not control the resolution of this case.

The court finds equally unpersuasive the two other cases that the defendant relies upon in its brief.   Conley v. Yale–New Haven Hospital, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 08 5004726 (November 25, 2009, Bear, J.) (48 Conn. L. Rptr. 859) is clearly distinguishable because, unlike the present case, the injuries there were sustained during an activity that was substantially related to ․ treatment.”  Id., 864.   In fact, the injuries suffered by the plaintiff in Conley, which were caused while she was lodged within and then extricated from an MRI tube, were not only related to treatment, they occurred during treatment.²  Id. The same cannot be said, however, of the injuries allegedly suffered by the plaintiff here.

Although the facts of the final case, Wilson v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 00 0444687 (March 26, 2001, Munro, J.), may at first blush seem to bear a similarity to the facts alleged here, Wilson, like Simmons and Conley, is factually distinguishable.   It is true, of course, that Wilson and the case here both involve the fall of an unsupervised patient.   But the crux of the plaintiff's claim in Wilson was that the defendant-hospital exercised flawed medical judgment in its diagnosis of the plaintiff's medical condition and physical abilities, and by doing so failed to monitor and supervise the plaintiff in a manner sufficient to prevent her from falling.  Id. The plaintiff in the present action, however, raises a wholly different claim.   Not only does the plaintiff here make no allegation that the defendant-hospital made any error in its medical treatment, diagnosis or exercise of medical judgment, she affirmatively alleges that the defendant, in fact, did take such steps as were necessary to monitor the plaintiff in a manner consistent with her fall risk.   For example, the plaintiff alleges that the defendant acted appropriately in providing the plaintiff with ruby colored socks for her feet and in placing a fall risk sign on her hospital room door.   Thus, contrary to the claim in Wilson, the negligence alleged here is directed not toward the defendant itself, but to one of the defendant's employees who was negligent in the performance of a non-specialized task, which did not involve any medical diagnosis, treatment or judgment.

Finally, although the cases cited by the defendant are distinguishable, the court in its own research has found other Superior Court cases that are factually similar to the present case and which concluded that the claims therein raised sounded in ordinary negligence.   See Fedorka v. Genesis Health Ventures of Naugatuck, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 10 6003591 (December 20, 2010, Radcliffe, J.) (51 Conn. L. Rptr. 167, 167) (plaintiff's decedent injured foot when employee of nursing home jammed foot into door jam while transporting her to dining room);  Oats v. United Community & Family Services, Superior Court, judicial district of New London, Docket No. 5000450 (August 6, 2007, Hurley, J.) (44 Conn. L. Rptr. 26, 26) (plaintiff's decedent injured when she fell out of wheelchair while being taken out of van via wheelchair lift);  Culetsu v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 00 0378788 (October 22, 2001, Skolnick, J.) [30 Conn. L. Rptr. 505] (plaintiff injured ankle when hospital employees attempted to remove her from wheelchair and her foot became caught in chair).   The court finds the reasoning of these cases, and, in particular, each court's analysis and application of the Trimel prongs, to be persuasive and to provide a sound basis upon which to draw the type of fair and reasoned distinction between ordinary negligence and medical malpractice which is necessary in order to adjudicate the present motion.

CONCLUSION

After a careful review of the “circumstances under which the alleged negligence occurred”;  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357;  and construing the allegations in the manner most favorable to the plaintiff, the court concludes that the negligence claimed here is not of a specialized medical nature and is not substantially related to medical diagnosis, treatment or the exercise of medical judgment.   On that basis and consistent with the analysis required by Trimel, the court concludes that the present action therefore sounds in ordinary negligence based upon principles of respondeat superior, and not in medical malpractice.   Therefore, the requirements of § 52–190a(a) do not apply and the plaintiff was not required to attach to her complaint a written opinion by a similar health care provider.   Accordingly, the defendant's motion to dismiss is hereby denied.

THE COURT

Gold, J.

FOOTNOTES

FN1. The plaintiff's amended complaint deletes a number of allegations of negligence that had been asserted in the original complaint.   The plaintiff filed her amended complaint after the defendant moved to dismiss the original complaint.   The court granted the plaintiff leave to file the amended complaint and denied the defendant's motion to dismiss, reserving to the defendant the right to file a new motion to dismiss directed to the amended complaint.   See Bradley v. Yale–New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. 10 5033272 (January 28, 2011, Burke, J.).   The matter now before this court is the defendant's motion to dismiss the amended complaint, and the plaintiff's objection thereto..  FN1. The plaintiff's amended complaint deletes a number of allegations of negligence that had been asserted in the original complaint.   The plaintiff filed her amended complaint after the defendant moved to dismiss the original complaint.   The court granted the plaintiff leave to file the amended complaint and denied the defendant's motion to dismiss, reserving to the defendant the right to file a new motion to dismiss directed to the amended complaint.   See Bradley v. Yale–New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. 10 5033272 (January 28, 2011, Burke, J.).   The matter now before this court is the defendant's motion to dismiss the amended complaint, and the plaintiff's objection thereto.

FN2. The facts in Conley are therefore similar to those in Trimel, where the plaintiff was injured while moving, without assistance, from her wheelchair to an exercise mat during a physical therapy session.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 354–55.   The Appellate Court in Trimel upheld the trial court's decision that the plaintiff's claims sounded in medical malpractice, noting that the injury occurred during the course of treatment and the therapist's decision to allow the patient to transfer to the exercise mat without assistance involved medical judgment.  Id., 363–64..  FN2. The facts in Conley are therefore similar to those in Trimel, where the plaintiff was injured while moving, without assistance, from her wheelchair to an exercise mat during a physical therapy session.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 354–55.   The Appellate Court in Trimel upheld the trial court's decision that the plaintiff's claims sounded in medical malpractice, noting that the injury occurred during the course of treatment and the therapist's decision to allow the patient to transfer to the exercise mat without assistance involved medical judgment.  Id., 363–64.

Gold, David P., J.