Karen Multari v. Yale New Haven Hospital, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Preliminary Statement

This personal injury action arises out of the plaintiff's trip and fall at Yale New Haven Hospital on or about November 6, 2009.   The defendant filed a motion to dismiss on the grounds that the allegations sound in professional negligence (medical malpractice) and the failure of the plaintiff to attach a certificate of good faith or opinion letter by a medical professional indicating that the applicable standard of care had not been met by the defendant, renders the case subject to dismissal pursuant to CGS § 52–190a.¹  The plaintiff objects and argues that the case is a premises liability case sounding in ordinary negligence.   For the reasons set forth below, the motion to dismiss is GRANTED.

Factual Allegations

The plaintiff is the grandmother of a child who was treated at the defendant hospital.   Following the child's surgical procedure, the child was discharged.   The plaintiff, while carrying the child, tripped and fell as she exited the hospital, sustaining injuries.²  The complaint alleges the following:

5. After the procedure, the child was reported by hospital staff to be thrashing about in the recovery room as a result of the anesthesia.

6. During a period when her son had left the surgical area, [the plaintiff] was informed by hospital staff that she must take the baby and leave the hospital.   Despite the plaintiff's protests that she wanted to wait for her son's return, a nurse packed up the baby's belongings, put the baby's coat on her, called for the plaintiff's vehicle, and then ushered the plaintiff and the baby out the door, without the benefit of a wheelchair.

7. The baby was still groggy from the anesthesia as the plaintiff carried her, the diaper bag, and her own pocketbook, out the door to the valet parking area on Park Street ․

8.  Once outside, [the plaintiff] tripped on the sidewalk and fell to the ground with the baby in her arms, suffering personal injuries.

9. These injuries were caused by the negligence of the defendant, its agents, servants and/or employees or any one or more of the aforementioned in one or more of the following ways:

a.  In that they created a dangerous condition by causing, permitting or insisting the plaintiff and her granddaughter leave the hospital before the child was fully awake from surgery, and without the benefit of a wheelchair;

b. In that they created a dangerous condition by causing, permitting or insisting that the plaintiff and her granddaughter leave the hospital before the child was fully awake from surgery, and before the plaintiff's son could return to help her;

c. In that they knew, or should have known, the danger in the plaintiff carrying a groggy child and various belonging out to the parking area by herself, and should have assisted her;

d. In that they knew or should have known that is (sic) was unsafe to discharge a patient who was not fully recovered from anesthesia.

(Emphasis added.)

Discussion

In ruling upon a motion to dismiss, 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.”   Morgan v. Hartford Hospital, 301 Conn. 388, 395 (2011);  Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 183 (1999).

Conn. Gen.Stat. § 52–190a(a) requires a party bring a medical malpractice action 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.”  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 her complaint subject to dismissal pursuant to § 52–190a(c).”  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583–84, cert. denied, 292 Conn. 911 (2009).³  The failure to comply with section 190(a) implicates the court's personal jurisdiction as the certificate and opinion letter are part of the process which must accompany the complaint.  Morgan v. Hartford Hospital, 301 Conn. 388, 401 (2011).

It is not the requirements of section 190(a) that are at issue, but rather its application in the first instance.   The plaintiff argues that the allegations here sound in ordinary negligence and not medical malpractice and therefore, no certificate of good faith nor opinion letter is required.   At the outset, the court notes that the plaintiff conceded at oral argument that paragraph 9(d) as quoted above, is an allegation sounding in medical malpractice.   She argues however that the remaining allegations adequately set forth an ordinary negligence claim.⁴

Whether a complaint sounds in medical malpractice or ordinary negligence requires a “careful review of the circumstances under which the alleged negligence occurred.”  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357 (2001).  “ ‘[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.’  (Emphasis added;  internal quotation marks omitted.)   Santopietro v. New Haven, 239 Conn. 207, 226 (1996).”  Id. at 357–58.   “Medical malpractice ‘presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․’ (Citations omitted;  emphasis added.)  Camposano v. Claiborn, 2 Conn.Cir.Ct. 135, 136–37 (1963).”  Id.

From these definitions, the Appellate Court held in Trimel, that the relevant considerations for distinguishing between medical malpractice and ordinary negligence 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.”  Id. at 358, citing, Spatafora v. St. John's Episcopal Hospital, 209 App.Div.2d 608, 609, 619 N.Y.S.2d 118 (1994).   These prongs have since been reiterated by our appellate courts and are firmly established.   See, Boone v. William W. Backus Hospital, 272 Conn. 551, 562–63 (2003);  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583–84, cert. denied, 292 Conn. 911 (2009).

The first prong of the test is whether the defendant is being sued in its capacity as a “medical professional.” ⁵  Here, the court finds that Yale New Haven Hospital, Inc., as the location where the child received surgical care is being sued in its capacity as a medical professional.   See, Kelly v. Bridgeport Health Care Center, Inc., 50 Conn. L. Rptr. 582 (September 2, 2010, Tobin, J.) (allegation that the defendant owned the nursing home at which the decedent was receiving care was held sufficient);  Cotton v. Benchmark Assisted Living, LLC, judicial district of Danbury, Dkt. No. CV 10 6002180, (July 2, 2010, Marano, J.) [50 Conn. L. Rptr. 246] (first prong satisfied in case of allegations against an assisted living facility arising out of the conduct of its employees while the plaintiff was residing at the facility).

The second and third prongs are closely related and both are met in this instance.   Again, the second prong is whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship.   The third prong is whether the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment Here, the “dangerous condition” alleged to have resulted in the plaintiff's injuries is the defendant's alleged premature discharge of the still “groggy” child and the determination to not provide a wheelchair in that process.   Each allegation of negligence and the factual allegations leading up to the specifications of negligence focuses on the child's treatment;  her post-operative status and the decisions by the medical staff as to when and how the child should be discharged.   These are allegations which arise within the patient-physician relationship and which require medical judgment relating to the treatment provided.   In short, the plaintiff blames the hospital for her injuries which she claims resulted from the determination to discharge the child, allegedly while she was still suffering the effects of the anesthesia.   See, Gold v. Greenwich Hospital Association, 262 Conn. 248 (2002) (Plaintiff alleged medical malpractice in the treatment and premature discharge of a patient who subsequently caused injury to the plaintiff);  Semerad v. Scavette, 16 Conn. L. Rptr. 268 (March 1, 1996, Karazin, J.) (Complaint alleged medical malpractice in that, among other things, the defendants prematurely discharged a patient who later committed suicide);  Plante v. Charlotte Hungerford Hosp., 300 Conn. 33 (2011) (Plaintiffs claimed that the various defendants had committed malpractice by prematurely discharging the decedent from the hospital's emergency room).

In sum, after a review of the allegations in the complaint within the parameters set forth in Trimel and its progeny, it is the conclusion of this court that the complaint sounds in professional negligence.   As no certificate of good faith nor opinion letter from a similar health care provider was filed, the complaint must be dismissed.  Morgan v. Hartford Hospital, 301 Conn. 388 (2011).

K. Dooley, J.

FOOTNOTES

FN1. The motion was filed within 30 days of the filing of an appearance and was therefore timely.  Morgan v. Hartford Hospital, 301 Conn. 388 (2011)..  FN1. The motion was filed within 30 days of the filing of an appearance and was therefore timely.  Morgan v. Hartford Hospital, 301 Conn. 388 (2011).

FN2. There are no allegations that the sidewalk was defective, either by design or condition, in a fashion which contributed to the fall..  FN2. There are no allegations that the sidewalk was defective, either by design or condition, in a fashion which contributed to the fall.

FN3. The defendant incorrectly argues that the failure to file a certificate of good faith or opinion letter renders this court without subject matter jurisdiction..  FN3. The defendant incorrectly argues that the failure to file a certificate of good faith or opinion letter renders this court without subject matter jurisdiction.

FN4. This concession may well be disppsitive.   Section 190(a) does not provide for piecemeal application or the deletion of a portion of the factual allegations.   It does however provide that “[n]o civil action shall be filed ․ in which it is alleged that ․ injury ․ resulted from the negligence of a health care provider” unless the certificate of good faith and an opinion letter are also filed and served with the complaint.   Given the plaintiff's concession regarding paragraph 9(d), dismissal appears warranted regardless the characterization of the remaining allegations of negligence.   See, Morgan v. Hartford Hospital 301 Conn. 388 (2011) (Where complaint alleges medical malpractice, failure to attach the certificate and opinion letter renders the court without personal jurisdiction over the defendant).   It is further noted that since the filing of the motion to dismiss, the plaintiff has made no effort to amend the complaint..  FN4. This concession may well be disppsitive.   Section 190(a) does not provide for piecemeal application or the deletion of a portion of the factual allegations.   It does however provide that “[n]o civil action shall be filed ․ in which it is alleged that ․ injury ․ resulted from the negligence of a health care provider” unless the certificate of good faith and an opinion letter are also filed and served with the complaint.   Given the plaintiff's concession regarding paragraph 9(d), dismissal appears warranted regardless the characterization of the remaining allegations of negligence.   See, Morgan v. Hartford Hospital 301 Conn. 388 (2011) (Where complaint alleges medical malpractice, failure to attach the certificate and opinion letter renders the court without personal jurisdiction over the defendant).   It is further noted that since the filing of the motion to dismiss, the plaintiff has made no effort to amend the complaint.

FN5. In her analysis of these prongs, the plaintiff argues that because she was not even a patient of the defendant, none of the prongs can be satisfied.   The court's focus however must be on the allegations of negligence and whether these alleged acts of negligence relate to medical treatment.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 362 (2001).   It is not the status of the plaintiff that controls the analysis..  FN5. In her analysis of these prongs, the plaintiff argues that because she was not even a patient of the defendant, none of the prongs can be satisfied.   The court's focus however must be on the allegations of negligence and whether these alleged acts of negligence relate to medical treatment.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 362 (2001).   It is not the status of the plaintiff that controls the analysis.

Dooley, Kari A., J.