Jeremy D. Boothy v. American Ambulance Services, Inc. et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 113)

FACTS

On January 20, 2012 the plaintiff, Jeremy D. Booty, conservator of the estate of John Bronejko, III, filed a two-count revised complaint alleging claims of negligence against the defendants, American Ambulance Service, Inc. (American Ambulance) and Hudson Home Health Care, Inc. (Hudson).  The revised complaint alleges the following facts.   On December 15, 2009, American Ambulance picked up Bronejko at his home to transport him to a medical appointment.   Bronejko was a paraplegic and required the use of a wheelchair.   While loading Bronejko into American Ambulance's vehicle, American Ambulance, through its agent, employee and servant, caused Bronejko to suffer injuries.   Specifically, the plaintiff alleges that American Ambulance failed to adequately secure the legs and feet of Bronejko.   As a result, Bronejko suffered serious injuries to various parts of his body.

In count one, the plaintiff alleges claims against American Ambulance for negligence in the care of Bronejko during transport from his home to his medical appointment.   In count two, the plaintiff alleges claims against Hudson for breach of warranty and failure to comply with the Connecticut Products Liability Act with regard to the wheelchair it provided to Bronejko.

On March 2, 2012, American Ambulance filed a motion to dismiss and a memorandum in support.   On March 22, 2012, the plaintiff filed a memorandum in opposition.   On March 27, 2012, the co-defendant, Hudson, filed a memorandum in opposition to the motion to dismiss.¹  American Ambulance filed replies to both the plaintiff's memorandum in opposition and Hudson's memorandum in opposition on March 28, 2012.   This matter was heard at short calendar on April 9, 2012.

DISCUSSION

“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).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

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).  “The plain language of [§ 52–190a(c) ] ․ expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52–190a(a).”  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008);  see also Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 543;  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

American Ambulance argues that § 52–190a(a) requires the plaintiff's complaint to contain a written opinion of a similar health care provider or a certificate of reasonable inquiry because the plaintiff's claims sound in medical malpractice, not ordinary negligence.   Specifically, American Ambulance argues that the alleged negligence of its employees is substantially related to the medical diagnosis or treatment of Bronejko and involved the exercise of medical judgment because the “proper care of a paraplegic certainly relates to the treatment of a medical condition and the exercise of medical judgment.”   (Memorandum in Support, p. 20.)   In response, the plaintiff argues that the allegations in the revised complaint, namely that American Ambulance failed to secure the legs and feet of Bronejko, do not require specialized medical knowledge;  nor do they involve the exercise of medical judgment, or relate in any way to medical diagnosis or treatment.  (Memorandum in Opposition, p. 5.)

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 Ass'n, 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).

In Parzych v. Woodbury Realty Co., Superior Court, judicial district of Middlesex, Docket No. 11 6005390 (March 21, 2012, Holzberg, J.), the court concluded on similar facts that the plaintiff's claims sounded in ordinary negligence, not medical malpractice.   In that case, it was alleged that the defendant allowed the plaintiff to suffer injuries while she was being transported from the hospital.  Id. Specifically, the plaintiff alleged that the defendant dropped the plaintiff and/or failed to prevent the plaintiff from injuring herself when she attempted to transition out of her wheelchair.   Id. The court held that so-called Trimel test was not met because:  (1) the allegations did not demonstrate that the defendant was being sued in its capacity as a medical care provider, as it was only responsible for the transport of the plaintiff, not the treatment of the plaintiff;  (2) assisting the plaintiff out her wheelchair did not require specialized medical knowledge;  and (3) the defendant was not required to exercise medical judgment in transitioning the plaintiff out of her wheelchair.  Id.

The Trimel test is not satisfied in the present case, either.   The first prong, whether the defendants are sued in their capacities as medical professionals, is not met.   The revised complaint alleges that American Ambulance caused Bronejko's injuries because it:  “(a) Failed to adequately secure the legs and feet of [Bronejko] prior to placing him in said vehicle;  (b) Failed to properly place [Bronejko] in said vehicle;  (c) Failed to keep a proper and reasonable lookout;  [and] (d) Failed to exercise reasonable care in protecting [Bronejko].”  (Revised Complaint, ¶ 6.)   These allegations do not demonstrate that American Ambulance is being sued in its capacity as a medical professional.   Nowhere in these allegations does the plaintiff allege that American Ambulance was in any way responsible for the care or treatment of Bronejko.   Rather, the plaintiff simply alleges that American Ambulance, through its employees, allowed Bronejko to suffer injuries while he was being transported from his home to his medical appointment.

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 American Ambulance failed to adequately secure Bronejko in the vehicle to transport him to his medical appointment, or to take such other steps as were necessary to ensure that Bronejko was safely transported.   These allegations do not involve acts and omissions of a “specialized medical nature.”   See Parzych v. Woodbury Realty Co., Superior Court, supra, Docket No. 11 6005390 (assisting the plaintiff out her wheelchair did not require specialized medical knowledge.)   Rather, the plaintiff's allegations relate to the ordinary care of the individuals transporting Bronejko.

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.   Here, Bronejko “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 [his injuries].”  Parzych v. Woodbury Realty Co., Superior Court, supra, Docket No. 11 6005390.   In addition, American Ambulance was not required to exercise medical judgment in securing Bronejko into his wheelchair for transport.   American Ambulance's argument that it exercised medical judgment simply because Bronejko was a paraplegic is unavailing.   American Ambulance was merely called upon to transport Bronejko;  not to treat Bronejko.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied because the claims in the revised complaint sound in ordinary negligence, not medical malpractice.   Consequently, the plaintiff was not obligated to file a good faith certificate or a written opinion from a similar health care provider pursuant to § 52–190a.

Cosgrove, J.

FOOTNOTES

FN1. There is some dispute over whether Hudson's objection to its co-defendant's motion to dismiss was proper.   Hudson's objection merely adopts and incorporates by reference the plaintiff's memorandum in opposition to American Ambulance's motion to dismiss.   To the extent it says anything different, the court will not consider Hudson's objection because it does not have standing to object to the motion to dismiss.   See Practice Book § 10–31..  FN1. There is some dispute over whether Hudson's objection to its co-defendant's motion to dismiss was proper.   Hudson's objection merely adopts and incorporates by reference the plaintiff's memorandum in opposition to American Ambulance's motion to dismiss.   To the extent it says anything different, the court will not consider Hudson's objection because it does not have standing to object to the motion to dismiss.   See Practice Book § 10–31.

Cosgrove, Emmet L., J.