Costa Lefkimiatis v. Luchini Orthopedic Surgeons, P.C. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

FACTS

The plaintiff, Costa Lefkimiatis, commenced this negligence action against the defendant, Luchini Orthopedic Surgeons, P.C., for injuries he allegedly sustained while seeking medical treatment from the defendant.   On September 1, 2011, the plaintiff filed a one-count complaint in which he alleges the following.   On January 14, 2010, the plaintiff was at the defendant's office for the purpose of obtaining physical therapy treatment for his left arm.   As the plaintiff was in the process of commencing his physical therapy regimen, he began lowering himself onto a stool that was placed adjacent to a physical therapy apparatus.   The stool subsequently slipped from underneath the plaintiff and caused him to fall to the floor.   Two specifications of negligence are articulated in the complaint.   First, it is alleged that the defendant “failed to supervise the plaintiff in the conduct of his physical therapy.”   Second, it is alleged that the defendant “failed to warn [the plaintiff] of the harm that could occur from the use of the stool [that the] defendant provided for [the] plaintiff's therapy regimen.”

On October 13, 2011,¹ the defendant filed a motion to dismiss and a memorandum in support.   In its memorandum in support, the defendant asserts that the plaintiff's complaint sounds in medical malpractice and must be dismissed because of the plaintiff's failure to include a certificate of good faith and a written and signed opinion of a similar health care provider along with his complaint, pursuant to General Statutes § 52–190a.   On December 12, 2011, the plaintiff filed an objection to the motion to dismiss and a memorandum in opposition.   In his memorandum in opposition, the plaintiff argues that the complaint sounds in ordinary negligence and is not subject to the requirements of § 52–190a.   On December 22, 2011, the defendant filed a reply memorandum.   This matter was heard at short calendar on February 14, 2012.

DISCUSSION

LEGAL STANDARD OF REVIEW

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court.”   (Internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

Section 52–190a(a) requires a party bringing a medical malpractice action to “make 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.”   To show good faith, the complaint is required to “contain a certificate of the attorney or party filing the action ․ that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ․” Id. Moreover, the complaint must contain “a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]52–184c ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”  Id. Section 52–190a(c) provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.”

The Supreme Court reasoned in Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011):  “Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction.  ‘[J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court ․ Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.’  (Internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).   See also Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991) (A writ of summons is a statutory prerequisite to the commencement of a civil action.   It is an essential element to the validity of the jurisdiction of the court.  ‘Because the plaintiff in this case failed to comply in any fashion with these basic requirements [attaching the writ of summons to the complaint], we conclude that the trial court should have granted the defendant's motion to dismiss the complaint ․ for lack of personal jurisdiction over the defendant.’).  ‘The defendant's claims concerning service of the summons and complaint implicate personal, rather than subject matter jurisdiction.’  Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415, 885 A.2d 768 (2005).   Likewise, the attachment of the good faith certificate and the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice.   The failure to provide a certificate of good faith, 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.   As [the Supreme Court] held in Connor v. Statewide Grievance Committee, supra, 260 Conn. 442, ‘[u]nless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter ․’

“[The court] conclude[d] that, because the [certificate of good faith and] 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 ․ implicates personal jurisdiction.”  Id., 401–03.

Accordingly, a motion to dismiss is the proper procedural vehicle for challenging the legal sufficiency of a complaint on the ground that a good faith certificate and a written opinion letter should have been attached to the complaint.

ANALYSIS

The defendant has filed a motion to dismiss on the ground that the plaintiff has failed to comply with the requirements of § 52–190a.   Specifically, the defendant asserts that this is a medical malpractice action and, as a result, the plaintiff's failure to file a certificate of good faith and written opinion letter subjects the complaint to a motion to dismiss.   In response, the plaintiff asserts that the defendant is improperly characterizing his claim as a medical malpractice claim, rather than an ordinary negligence claim.   Accordingly, the issue presented is whether the plaintiff's claim sounds in medical malpractice, which is within the purview of § 52–190a, or an ordinary negligence, which falls outside the statute.

The relevant considerations for distinguishing an ordinary negligence cause of action from a claim sounding in medical malpractice were first articulated in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203 (2001), appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).  “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.   Professional 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 ․ 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.)  Id., 357–58.

In the present case, several components of the Trimel test have been satisfied.   First, the plaintiff does not dispute that the defendant is being sued in its capacity as a medical professional.   Moreover, it is clear from the complaint that, at the time of the alleged injury, a medical professional-patient relationship existed between the plaintiff and the defendant and that the plaintiff was at the defendant's facility for the purpose of receiving medical treatment.   Nevertheless, viewing the allegations in the complaint in a light most favorable to the nonmoving party, the second and third prongs of Trimel have not been met.   Specifically, the alleged negligence is not of a specialized medical nature.   Further, the plaintiff has not alleged that the defendant was exercising medical judgment when the plaintiff was injured or that the alleged injury was related to medical diagnosis or treatment.

Superior Courts have addressed the issue of whether a claim should be dismissed on the ground that the plaintiff failed to comply with § 52–190a with some regularity.   As for the second prong of Trimel, when medical personnel commit tortious acts that do not require medical knowledge and occur during the ordinary care of an individual, the alleged acts are typically not of a specialized medical nature.   For example, in Bradley v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 105033272 (November 28, 2011, Gold, J.), the plaintiff sought to recover for injuries that occurred when she allegedly fell after being negligently placed in her hospital bed.   The court determined that “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 to safely do so herself.   These allegations, in the court's view, simply do not involve acts and omissions of a ‘specialized medical nature.’  “ Id. Similarly, in Wood v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 99 0588557 (May 28, 2002, Beach, J.) (32 Conn. L. Rptr. 278), the court held that the defendant's alleged failure to adequately secure the plaintiff to a gurney stretcher, which caused him to be thrown around the interior of an ambulance as it was driven over rough terrain, sounded in ordinary negligence.   More recently, in Oats v. United Community & Family Services, Superior Court, judicial district of New London, Docket No. 5000450 (August 6, 2007, Hurley, J.T.R.) (44 Conn. L. Rptr. 26), the court held that “[t]aking precautions to prevent a patient from falling out of a wheelchair while loading the patient into a van does not require specialized medical knowledge ․”

Similarly, in the present case, the alleged negligence is not of a specialized medical nature.   Taking precautions to ensure that a stool is safe to use does not require specialized medical knowledge.   The plaintiff has not alleged, for example, that the stool is part of a larger medical device or that use of the stool is a prerequisite to completing his physical therapy treatment.   Rather, the allegations stem from an injury that occurred when the plaintiff fell to the floor as he was attempting to sit.   Accordingly, viewing the complaint in a light most favorable to the nonmoving party, the second prong of Trimel has not been met.

In this regard, the present case is distinguishable from cases like Casey v. The Hospital of Central Connecticut, Superior Court, judicial district of New Britain, Docket No. CV 11 6009158 (July 19, 2011, Swienton, J.).   In Casey, the plaintiff sought to recover for injuries he sustained when he tripped over several medical devices, which were connected to his body and were placed at the foot of his bed.  Id. The plaintiff further alleged that he was encouraged by hospital staff to leave his bed periodically and perform ambulatory functions.  Id. The court held that the alleged negligence was of a specialized medical nature, explaining that the defendant's decision to encourage the plaintiff to become ambulatory “was a part of his prescribed recuperation from a surgical procedure ․” Id. In contrast, in the present case, the allegations in the complaint provide that the plaintiff was injured because of defective seating, which is an injury that could happen to anyone in almost any setting and is not necessarily related to medical treatment.

For similar reasons, the third prong of Trimel, which requires that the alleged negligence be substantially related to medical diagnosis or treatment and involve the exercise of medical judgment, has not been satisfied.   Where the alleged acts of a medical professional do not require the exercise of medical judgment, the Superior Court has held that the incidents of negligence by the medical professional constitute ordinary negligence and not medical malpractice.   See, e.g., 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) (holding that the use of excessive force by an employee of an assisted living facility when moving the plaintiff constitutes ordinary negligence);  Tutunjian v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 0411137 (December 28, 2004, Doherty, J.) (38 Conn. L. Rptr. 429) (holding that the failure to assist the plaintiff to the toilet constitutes ordinary negligence);  compare Brawley v. Norwalk Hospital Ass'n, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 5002205 (March 22, 2007, Tobin, J.) (43 Conn. L. Rptr. 126) (holding that where a patient was following a doctor's instructions during an examination and turned to his right and left and fell off of an examination table, the action sounded in medical malpractice).

On this issue, both parties rely on the facts of Trimel, and the cases cited therein, in support of their respective positions.   The plaintiff in Trimel was receiving physical therapy treatment from the defendant, which included assisted and unassisted transfers between a wheelchair and an exercise mat.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 354.   During one of the sessions, the plaintiff attempted an unassisted transfer from her wheelchair to the exercise mat when she fell and sustained injuries.  Id., 355.   The court held that the plaintiff's claim sounded in medical malpractice because the transfer between the wheelchair and the exercise mat was a maneuver that required training and practice.  Id., 358.   To further support its conclusion, the court referenced the fact that the plaintiff's trainer would assess the physical capabilities of the plaintiff at the outset of each session to determine whether the plaintiff would need assistance in performing the transfers.  Id., 359–60.   Finally, the court found that training the plaintiff to perform the transfers was the stated goal of the therapy.  Id., 360.

In the present case, the complaint simply does not allege that the plaintiff's injury was substantially related to his medical treatment or involved the exercise of medical judgment.   In Gordon–Cobb v. Hartford Hospital, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 06–5006077 (March 19, 2007, Schofield, J.) [43 Conn. L. Rptr. 100], the court denied the defendant's motion to dismiss where it was not clear from the complaint whether the defendant hospital acting through its agents, servants or employees was exercising medical judgment when the plaintiff was injured or that the alleged injury was related to medical diagnosis or treatment.   The court noted that “[b]ased on the facts alleged in the complaint, construed in a manner most favorable to the plaintiff the court [could] not find that plaintiff's injuries were substantially related to medical diagnosis and treatment and involved the exercise of medical judgment, which is necessary to satisfy the Trimel test.”   In the present case, the crux of the plaintiff's complaint is that he was injured when the stool slipped as he was attempting to sit down.   In contrast to Trimel, there are no allegations that the negligent act was intertwined with the plaintiff's physical therapy or that an employee of the defendant made an improper medical assessment that caused the plaintiff's injury.   Put differently, the plaintiff does not allege that his injury was caused by the defendant's failure to exercise the requisite medical skill.   Accordingly, the third prong of Trimel has not been satisfied.²

CONCLUSION

After construing the allegations in the complaint in a light most favorable to the nonmoving party, which the court is required to do, the court finds that the plaintiff's claim is one of ordinary negligence and does not sound in medical malpractice.   As a result, the requirements of § 52–190a do not apply and the defendant's motion to dismiss is denied.

Wilson, J.

FOOTNOTES

FN1. The defendant's motion to dismiss was filed within the 30–day time requirement as set forth in Practice Book §§ 10–30 and 10–32.   See Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011)..  FN1. The defendant's motion to dismiss was filed within the 30–day time requirement as set forth in Practice Book §§ 10–30 and 10–32.   See Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011).

FN2. The defendant's attempt to equate the present action to Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969) is equally unavailing.   In Levett, the plaintiff's decedent, who was elderly and infirm, fell while she was trying to disrobe by herself during a scheduled visit with her physician.  Id., 570–71.   The Trimel court later explained that the determination of whether the decedent in Levett needed assistance in disrobing called for a medical judgment on the part of the physician and that such a decision was substantially related to the decedent's treatment.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 361.   In the present case, examining the allegations in the complaint in a light most favorable to the plaintiff, it cannot be said that the defendant necessarily exercised medical judgment when it allegedly decided not to warn and supervise the plaintiff as he was using the stool.   Similarly, the allegations in the complaint indicate that the use of the stool was not necessarily connected to the plaintiff's medical treatment..  FN2. The defendant's attempt to equate the present action to Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969) is equally unavailing.   In Levett, the plaintiff's decedent, who was elderly and infirm, fell while she was trying to disrobe by herself during a scheduled visit with her physician.  Id., 570–71.   The Trimel court later explained that the determination of whether the decedent in Levett needed assistance in disrobing called for a medical judgment on the part of the physician and that such a decision was substantially related to the decedent's treatment.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 361.   In the present case, examining the allegations in the complaint in a light most favorable to the plaintiff, it cannot be said that the defendant necessarily exercised medical judgment when it allegedly decided not to warn and supervise the plaintiff as he was using the stool.   Similarly, the allegations in the complaint indicate that the use of the stool was not necessarily connected to the plaintiff's medical treatment.

Wilson, Robin L., J.