Karen Parzych v. Woodbury Realty Co. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, NO. 108

The action by the plaintiff, Karen Parzych, arises out of a slip and fall incident that occurred on the premises owned by the defendants, Woodbury Realty Company and Carabetta Management Company.   On June 17, 2011, the plaintiff filed a two-count complaint against the defendants that alleges common-law negligence against each defendant.   On October 17, 2011, the defendants filed an apportionment complaint against St. Francis Hospital and Medical Center (St.Francis).

The present motion before the court is the plaintiff's motion to dismiss the defendants' apportionment complaint against St. Francis.   The plaintiff argues that the apportionment complaint alleges medical malpractice, and thus should be dismissed because the defendants/apportionment plaintiffs did not attach a certificate of good faith as required by General Statutes § 52–190a.   In response, the defendants/apportionment plaintiffs argue that the apportionment complaint alleges ordinary negligence against St. Francis, and thus the motion to dismiss should be denied because a certificate of good faith is not required.

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.”   “[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).

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 apportionment 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;  emphasis 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).

Each prong of the so-called Trimel test will be discussed in turn within the context of the present case.   The first prong, whether the defendants are sued in their capacities as medical professionals, is not met.   The apportionment complaint alleges that St. Francis caused the plaintiff's injuries because it:  (a) “[d]ropped the [p]laintiff;  (b) “[f]ailed to prevent ․ the [p]laintiff from ambulating from the wheelchair to the hospital entrance”;  (c) “[f]ailed to adequately monitor or supervise the [p]laintiff's movement”;  (d) “[f]ailed to provide physical assistance to the [p]laintiff;  (e) “[a]llowed the [p]laintiff to attempt to transition out of ․ her wheelchair”;  (f) “[f]ailed to adequately warn ․ the [p]laintiff about her restrictions”;  and (g) “[f]ailed to use reasonable care and caution for the safety and protection from harm of the [p]laintiff.  (Apportionment Complaint, ¶ 6.)   These allegations do not demonstrate that St. Francis is being sued in its capacity as a medical professional.   No where in these allegations do the defendants/apportionment plaintiffs allege that St. Francis was in any way responsible for the care or treatment of the plaintiff.   Rather, the defendants/apportionment plaintiffs simply allege that St. Francis, through its employees, allowed the plaintiff to suffer injuries while she was being transported from the hospital.   Therefore, the first prong of the Trimel test is not satisfied.

Next, the second Trimel prong, whether the alleged negligence is of a specialized medical nature arising out of a medical professional-patient relationship, is also not met.   This prong turns on whether the alleged negligence was “of a specialized medical nature.”   Here, the allegations of negligence stem entirely from the claim that employees of St. Francis failed to assist the plaintiff in getting out of her wheelchair, or to take such other steps as were necessary to ensure that the plaintiff was safely able to do so by herself.   These allegations do not involve acts and omissions of a “specialized medical nature.”   Rather, they relate to the ordinary care of the individuals transporting the plaintiff.   Consequently, these claims are outside the parameters of the 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 met 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.”   Bradley v. Yale–New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. 10 5033272 (November 28, 2011, Gold, J.).   In addition, St. Francis was not required to exercise medical judgment in transitioning the plaintiff out of her wheelchair.   The plaintiff's argument that the nurse who helped transition the plaintiff out of her wheelchair exercised medical judgment when he allowed her to stand up unassisted is unavailing.   The nurse merely helped in the transport process;  the nurse was not treating the plaintiff at the time of her fall.   In fact, the plaintiff was no longer being treated by St. Francis at all because she was already discharged from the hospital at the time of her injury.  (Original Complaint, ¶ 12.)   Thus, the allegations in the apportionment complaint do not satisfy the third prong of the Trimel test.

CONCLUSION

For the foregoing reasons, the plaintiff's motion to dismiss the defendants' apportionment complaint should be denied because the claims in the apportionment complaint sound in ordinary negligence as opposed to medical malpractice.   Consequently, the defendants 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.

SO ORDERED.

ROBERT L. HOLZBERG, JUDGE

Holzberg, Robert L., J.