Jamie Ruth v. The Bristol Hospital, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 106

I

PROCEDURAL HISTORY

The plaintiff, Jamie Ruth, filed a four-count amended complaint for negligence, breach of contract, negligent misrepresentation and intentional misrepresentation against the defendant, the Bristol Hospital, Inc., on February 2, 2012.   In the amended complaint, the plaintiff alleges the following facts.   On November 7, 2008, the plaintiff arrived at the defendant's emergency room for treatment of injuries sustained in a motor vehicle accident.   The plaintiff complained of neck and lower back pain.   The defendant's emergency room “agents and employs” immobilized the plaintiff's neck with a cervical collar.   The plaintiff “was medically examined by the Defendant's agents and employs,” who took two x-rays and diagnosed the plaintiff with a cervical spine sprain and a lower back sprain.   Prior to discharging the plaintiff, the defendant's “agents and employs”:  prescribed medication for the plaintiff, issued after care instructions as well as a medical recommendation for no work until November 10 and removed the cervical collar from the plaintiff's neck.   The defendant breached its duty owed to the plaintiff when its “employs and agents” issued after care instructions that erroneously stated that the plaintiff did not have any x-rays done.   This duty was also breached by the removal of the cervical collar.   The removal of the cervical collar was not ordered by any physician and was erroneously removed by the “agents and employs” of the defendant.   The defective after care instructions and the removal of the cervical collar by the defendant's “agents and employs” were negligent acts that caused the plaintiff to experience “greater and prolonged injury.”

The defendant filed a motion to dismiss the amended complaint on February 14, 2012.   The defendant contends that the plaintiff has alleged a medical malpractice action and failed to file the written opinion of a similar health care provider as required by General Statute § 52–190a(a).   The plaintiff objects to the motion and has filed with the court a written objection dated March 26, 2012.   The court heard oral argument on April 9, 2012.

II

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.”   “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 (2097).

Our Supreme Court has “conclude[d] that, because 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 and, therefore, Practice Book § 10–32 and its corresponding time and waiver rule applies by its very terms.   Because [our Supreme Court] conclude[d] that the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction.   It is in the nature of a pleading that must be attached to the complaint.   Thus, [our Supreme Court has] construe[d] the term ‘process' to include both the summons, the complaint and any requisite attachments thereto.”  Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011).  Section 52–190a dictates that dismissal is the proper remedy for any party who does not comply with the statute.  Id., 398.

The defendant argues that the plaintiff has alleged a medical malpractice action because the defendant is sued in its capacity as a medical professional, the incident arose out of the medical professional-patient relationship and the allegations are substantially related to medical treatment involving the exercise of medical judgment.   The defendant maintains that the plaintiff failed to file the written opinion of a similar health care provider as required by § 52–190a(a) and, thus, its motion to dismiss should be granted pursuant to § 52–190a(c).

The plaintiff counters that he did not need to submit a good faith certificate and a supporting written opinion authored by a similar healthcare provider as required by § 52–190a because this action does not sound in medical malpractice.

Section 52–190a(a) provides in relevant part that, in any medical malpractice action, “[n]o civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death ․ whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant ․ [T]he claimant or the claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

“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 ․ [Thus] 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;  internal quotation marks omitted.)  Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254, 811 A.2d 1266 (2002), quoting 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).

At oral argument, the parties agreed to the following:  that the defendant is a health care provider, that the plaintiff went to the defendant hospital to receive and did receive medical care, that § 52–190a applies to both tort and contract claims, that the motion to dismiss was filed timely and that the narrow legal issue is whether the Trimel factors have been met.

At the heart of the plaintiff's complaint against the defendant are the allegations of defective after-care instructions and the negligent removal of the cervical collar from the plaintiff's neck.   Indeed, every count of the amended complaint, whether labeled negligence or breach of contract or negligent misrepresentation or intentional misrepresentation, alleges that “the defective After Care Instructions and removal of the cervical collar from the Plaintiff by the Defendant's agents and employs were negligent acts and caused the Plaintiff to suffer greater and prolonged injury.”   Amended Complaint ¶ 13.

As to the first prong, it is undisputed that the plaintiff is suing the defendant in its capacity as a health care provider/medical professional.

The second prong requires that “the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship.”   In his memorandum, the plaintiff concedes that a medical professional-patient relationship existed.   Objection to Motion to Dismiss p. 5. On the issue of whether the alleged negligence is of a specialized medical nature, “[c]ourts 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) ․” (Internal quotation marks omitted.)   Cortes v. Visiting Nurse Ass'n. of Central Connecticut, Inc., Superior Court, judicial district of New Britain, Docket No. CV 10 6006066 (November 10, 2011, Shortall, J.T.R.).

On the other hand, “[c]ourts 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) ․” Id.

In this case, the alleged actions of the defendant's “agents and employs” were of a specialized medical nature because the health care provider neglected to take precautions that are necessary to address the plaintiff's particular medical condition.   That is, the alleged negligence concerns the appropriate procedures and conduct required for the removal of the cervical collar that stabilized the plaintiff's neck.   Accordingly, the second prong has been satisfied.

The third prong of the Trimel 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.   The alleged negligence in this case is substantially related to the plaintiff's medical treatment because the amended complaint alleges that the negligent acts occurred immediately after the plaintiff was medically examined.

The alleged negligence also involved the defendant's medical judgment.   The issue of whether the cervical collar's removal was negligent is not within the common knowledge of laypersons.   In other words, whether the cervical collar should have been removed could not be determined by a fact finder without expert testimony because it requires proof of the applicable standard of care, specifically, that of an emergency room physician, nurse or other emergency room health care provider.   See Gold v. Greenwich Hospital Ass'n., supra, 262 Conn. 255 (“Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.”).   Moreover, the plaintiff raises this issue when he alleges that the removal of the cervical collar was not ordered by any physician and was erroneously removed by the “agents and employs” of the defendant.   Amended Complaint ¶ 11.   An expert opinion would be needed to prove that the removal of the cervical collar was a deviation from the applicable standard of care.   Therefore, the third prong has been met.

In summary, the court finds that the defendant is (1) being 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, and (3) the alleged negligence is related to the plaintiff's treatment and involved the exercise of medical judgment.   Thus, the court finds that the plaintiff's amended complaint sounds in medical malpractice.   The plaintiff, therefore, was required to attach a written opinion by a similar health care provider and a good faith certificate pursuant to General Statutes § 52–190a.   The plaintiff has failed to attach a written opinion and a good faith certificate.   Consequently, the court lacks personal jurisdiction over the defendant.

III

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is granted.

SO ORDERED.

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.