Michael Tanych v. The Milford Hospital et al. (2013)

MEMORANDUM OF DECISION

This is decision on a motion to dismiss filed by the defendants, The Milford Hospital, Incorporated, and John Scarfo, M.D. Specifically, the defendants argue that the plaintiff failed to comply with the requirerments of § 52–190a(a), by not having a written opinion signed by a similar health care provider to support a medical malpractice action, and as such, is grounds for dismissal.   The defendants filed their motion to dismiss on October 29, 2012.   On January 28, 2013, the plaintiff filed an objection and memorandum of law in opposition to the motion, and on February 7, 2013, the defendants filed a reply brief.   The matter was heard on the short calendar on March 11, 2013.

On August 21, 2012, the plaintiff, Michael Tanych, filed a two-count complaint against the defendants, The Milford Hospital, Inc. (the hospital) and John Scarfo, M.D. Count one of the complaint alleges the following relevant facts as to the hospital On August 19, 2010, the plaintiff was admitted to the hospital for treatment, and was placed under twenty-four-hour suicide watch.   Upon entering a single-patient locked room, the plaintiff was given fifty milligrams of Benadryl, and was placed on a hospital bed so that he could sleep.   After being placed on the bed, the plaintiff fell asleep and subsequently rolled off the bed, thereby falling on his head and left hand.

The plaintiff further asserts that the injuries he sustained from the fall were caused by the negligence and carelessness of the hospital through its doctors, employees, agents, and/or servants in one or more of the following respects:  (1) they failed to raise the rail of the bed, in order to prevent the plaintiff's fall;  (2) they failed to monitor the plaintiff while he was in the single person room;  (3) they left the patient unattended for an unreasonable amount of time;  and (4) they failed to use the care and skill ordinarily used by medical facilities in Connecticut.   As a result of the defendant's negligence, the plaintiff has suffered serious and permanent injuries to the left hand and cervical spine.   The plaintiff seeks compensation for the expenses spent on medical care and treatment, his substantial pain and suffering, and the loss of past and future wages due to impairments.

In count two of the complaint against Doctor Scarfo, the plaintiff essentially alleges the same facts as in count one.   The key distinction in count two is that, unlike the hospital, Scarfo is only liable for his own actions, and is not liable for the actions of the hospital's other employees, agents, and/or servants.

The defendants filed a motion to dismiss the plaintiff's medical malpractice action as to counts one and two, pursuant to General Statutes § 52–190a(c), on the ground that the written opinion attached to the plaintiff's complaint was not authored by a “similar health care provider,” as required by General Statutes § 52–190a(a).

I.

“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 (1985), citing Practice Book § 143, which is now § 10–31.  “The failure to provide 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 ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.”  (Citation omitted;  internal quotation marks omitted.)   Morgan v. Hartford Hospital, 301 Conn. 388, 401–02 (2011).  “[A]n action is subject to dismissal under [General Statutes § 52–190a(c) ] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545 (2009).

“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 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

The defendants filed a motion to dismiss the plaintiff's medical malpractice action, pursuant to General Statutes § 52–190a(c), on the ground that the written opinion attached to the plaintiff's complaint was not authored by a “similar health care provider,” as required by General Statutes § 52–190a(a).   Specifically, the defendants move to dismiss count one as to the hospital because the author of the plaintiff's written opinion is not board certified in emergency medicine or internal medicine, and is not a nurse, nurse's aid or medical assistant.   Morever, the defendants move to dismiss count two on the ground that the plaintiff failed to obtain a written opinion of a similar health care provider as to Doctor Scarfo, because the author of the written opinion is not board certified in emergency medicine or internal medicine.

The plaintiff counters by arguing that the motion to dismiss should be denied because the defendant's safety standards are not unique in emergency medicine and because the author of the opinion letter is a “similar health care provider,” pursuant to § 52–190a(b).  Finally, in the defendants' response to the plaintiff's reply, they argue that General Statutes §§ 52–190a(a) and 52–190a(b) are not satisfied simply because the author may be qualified to render an opinion as to the subject matter of the complaint, and that a similar health care provider as to the hospital is one who maintains the same qualifications as the employees and agents of the hospital who were allegedly negligent.   The defendants also note that the plaintiff apparently conceded that the author of the opinion is not a “similar health care provider” as to Scarfo by failing to address the issue in his motion.

Although not directly raised by the parties, the preliminary issue before the court as to both counts one and two, is whether the claims sound in medical malpractice or ordinary negligence.  Section 52–190a only applies to claims that sound in medical malpractice.   Medical malpractice has been 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.”   (Internal quotation marks omitted.)  Santopietro v. New Haven, 239 Conn. 207, 226 (1996).   In Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, appeal dismissed, 258 Conn. 711 (2001), the court held 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.”

“The vast majority of courts ․ have decided that allegations of negligent supervision amount to ordinary negligence and not medical malpractice.   See Badrigian v. Elmcrest Psychiatric Institute, Inc., [6 Conn.App. 383, 383 (1980) ];  DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, [Docket No. 99 0498385] (October 19, 2000, Kocay, J.) (28 Conn. L. Rptr. 522) (finding that the failure to strap a patient into her hospital bed, to raise the safety bar, and to monitor her are allegations of ordinary negligence because they did not occur during a procedure or specialized medical care) ․” Doe v. The Institute of Living, Superior Court, judicial district of Hartford, Docket No. CV 07 5007981 (August 10, 2007, Wiese, J.) (44 Conn. L. Rptr. 5, 7).

In particular, “[i]n cases where patient injuries have occurred due to the alleged failure to secure safety devices, courts have held the allegations to be ordinary negligence when the patients' falls were unrelated to treatment and did not involve medical judgment.   See, e.g., Simpson v. Norwalk Hospital, [Superior Court, judicial district of Fairfield, Docket No. CV 10 6014978 (July 20, 2011, Dooley, J.) (52 Conn. L. Rptr. 245, 246) ] (allegations of negligence stemming from rehabilitation facility employee's failure to lock plaintiff's bed wheels did not involve exercise of medical judgment);  Oats v. United Community and Family Services, Inc., [Superior Court, judicial district of New London, Docket No. CV 06 5000450 (August 6, 2007, Hurley, J.T.R.) (44 Conn. L. Rptr. 26, 28) ] (precautions to prevent patient from falling out of wheelchair during transport did not require specialized medical knowledge or the exercise of medical judgment);  Ferrara v. St. Joseph's Living Center, [Superior Court, judicial district of Norwich, Docket No. CV 97 0112858 (December 16, 1998, Hurley, J.) (23 Conn. L. Rptr. 567, 568) ] (alleged failure to lock wheelchair wheels or apply brake locks did not require medical judgment).”   Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., Superior Court, judicial district of New Britain, Docket No. CV 10 6006066 (November 10, 2011, Shortall, J.T.R.) (52 Conn. L. Rptr. 874, 877).

Nevertheless, “[i]n cases involving the failure to follow safety procedures in general, courts have found medical malpractice when the alleged negligence occurred in the course of medical treatment and when the allegations questioned a medical judgment that such safety procedures were necessary.   See, e.g., Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 363–64 (claim of plaintiff hurt while maneuvering herself out of a wheelchair without supervision during physical therapy session sounded in medical malpractice because ‘plaintiff's treatment had included unassisted transfers with supervision, and ․ [i]t was a medical professional's judgment that allowed the transfer to proceed unassisted’);  Casey v. Hospital of Central Connecticut, [Superior Court, judicial district of New Britain, Docket No. CV 11 6009158 (July 19, 2011, Swienton, J.) ] (decision to encourage patient to perform unsupervised ambulatory functions in which there was a potential risk of falling due to his dizzy post-operative condition involved exercise of medical judgment);  Skoczylas v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152531 [ (October 8, 1999, Leheny, J.) (25 Conn. L. Rptr. 481, 482–83) ] (hospital's decision regarding whether to leave unsupervised a patient hospitalized for suicidal tendencies and suffering from a pre-existing balance disorder involved the exercise of medical judgment).”  Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., supra, 52 Conn. L. Rptr. 877.

II.

The issue before the court as to the count one, the claim against the hospital, is whether the allegations sound in medical malpractice or ordinary negligence.   The count alleges that the plaintiff was negligent through the acts of its doctors (presumably including Scarfo), employees, agents and servants.   Any allegations against the hospital that are based on the actions of Scarfo fall under medical malpractice.   Moreover, as discussed below in the analysis of count two, any such allegations do not include sufficient facts for the opinion author to meet the requirements of § 52–184c, and to qualify as a “similar health care provider” to Scarfo.

The allegations against the unnamed and unidentified doctors, nurses, agents, servants, and other employees, however, do not satisfy the third prong of Trimel.   In other words, these allegations of negligence do not involve the exercise of medical judgment.   Based on the allegations in the complaint, Scarfo was apparently the only employee of the hospital who prescribed and administered the sedative to the plaintiff.   Therefore, Scarfo was responsible for assessing the medical condition of the plaintiff while he was under the influence of said treatment, and then taking the appropriate actions to ensure the safety of the plaintiff.   Scarfo had to exercise his medical judgment in order to ensure the safety of the plaintiff subsequent to treatment.

In contrast, to the extent that the unnamed employees were not directly involved in prescribing and administrating the treatment, they were not required to exercise medical judgment.   Furthermore, to the extent that the plaintiff alleges mere negligent supervision by the hospital, these allegations fall under ordinary negligence.   See Doe v. The Institute of Living, supra, 44 Conn. L. Rptr. 7. Moreover, to the extent that the plaintiff is alleging that these unnamed individuals failed to follow routine procedures and/or Scarfo's instructions, the allegations would also fall under ordinary negligence, as the unnamed individuals did not use medical judgment.

As a result, because the allegations of negligence against the unnamed employees of the hospital did not involve the exercise of medical judgment, these allegations sound in ordinary negligence.   As such, §§ 52–190a and 52–184c do not apply, and a medical opinion letter is not required in support of any of these allegations.   Therefore, the motion to dismiss count one is denied.

III.

The issue before the court relating to count two, the claim against Scarfo, is whether the claim sounds in medical malpractice or ordinary negligence.   In the present case, the alleged injury arose out of the medical professional relationship between the plaintiff and the doctor, Scarfo.   Hence, the first prong of Trimel is satisfied.

Moreover, here the alleged negligence by Scarfo occurred while the plaintiff was placed under twenty-four-hour suicide watch in the hospital.   In addition, the plaintiff received treatment from Scarfo, and was under the influence of this treatment at the time of the alleged negligent acts.   Specifically, Scarfo administered fifty milligrams of a sedative to the plaintiff, and the plaintiff subsequently fell from his hospital bed while asleep.   The plaintiff claims that Scarfo failed to use the care and skill ordinarily used by medical facilities in Connecticut, including the failure to place safety rails on the bed to prevent the plaintiff from falling, and the failure to monitor and supervise the plaintiff.   Taken together, these allegations against Scarfo are sufficient to satisfy the second prong, as the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship.

Finally, as to prong three, the plaintiff's allegations regarding Scarfo are substantially related to the medical diagnosis or treatment, and involved the exercise of medical judgment.   Although the plaintiff was not actually receiving medical treatment at the time of the alleged negligent acts, the plaintiff was under the influence of the sedative that was prescribed and administered by Scarfo.   As the acting doctor, Scarfo was responsible for making a medical assessment of the plaintiff's health status, physical abilities, medical needs and general condition.   In this context, Scarfo's allegedly negligent decisions and actions involved the exercise of medical judgment, and were substantially related to the medical diagnosis.   Therefore, prong three is satisfied.

All three prongs of Trimel are satisfied, and the count two allegations against Scarfo fall under medical malpractice, rather than ordinary negligence.   As a result, the issue before the court is whether the author of the submitted medical opinion letter is a “similar health care provider” to Scarfo, pursuant to General Statutes §§ 52–190a and 52–184c.

“Section 52–190a does not define ‘similar health care provider,’ but the text explicitly refers to the definition in § 52–184c.   We must, therefore, read § 52–190a together with § 52–184c, which defines ‘similar health care provider.’  ․ Read in conjunction with one another, §§ 52–190a and 52–184c provide a plain and unambiguous definition of ‘similar health care provider.’  “ (Citation omitted.)  Lucisano v. Bisson, 132 Conn.App. 459, 465 (2011).  “Section 52–190a(a) provides in relevant part that before filing a personal injury action against a health care provider, a potential plaintiff must 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 ․’ Furthermore, the statute requires that to show a good faith belief, the complaint must be accompanied by a written and signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence and including a detailed basis for the formation of that opinion.  Section 52–184c(c) provides in relevant part that ‘[i]f the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a similar health care provider is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a similar health care provider.’  “ (Emphasis added;  internal quotation marks omitted.)  Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 76–77 (2011), cert. denied, 303 Conn. 921 (2012).

In the present case, as to the negligence alleged against Scarfo in count two, § 52–184c(c) requires that the written opinion letter of a similar health care provider be authored by one who is trained and experienced in the same specialty, and certified in the same specialty.   Here, it is an undisputed fact that Scarfo is specialized in emergency medicine and internal medicine, and employed in emergency medicine.   Hence, in order to satisfy the requirements of §§ 52–190a and § 52–184c(c), the plaintiff was required to have as the author of the opinion letter one who was both (1) trained and experienced in emergency and internal medicine and (2) board certified in emergency and internal medicine.   Yet, the copy of the opinion letter attached to the complaint states that the author is board certified in family practice, and trained and experienced in family and emergency medicine.   The fact that the author has experience and training in emergency medicine does not meet the full requirements of § 52–184c(c).  The statute's provision requires that the author also be board certified in that field.   As a result, the submitted opinion letter does not contain sufficient facts for the author of the letter to meet the requirements of § 52–184c(c), and to qualify as a “similar health care provider” to Scarfo under count two.   Therefore, the motion to dismiss count two is granted.

IV.

Therefore, for the foregoing reasons, the motion to dismiss is denied as to Count one;  and the motion to dismiss is granted as to count two.

Matasavage, J.

Matasavage, Paul, J.