Frank Bertino v. Garden Catering et al. (2013)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (104.00, 107.00)

I. Background

This action was commenced by the plaintiff, Frank Bertino, representing himself, against several defendants, including Dr. James Brunetti and the Greenwich Hospital, and generally alleging a failure to meet the needs and assess the physical and mental condition of the plaintiff's father Frank Bertino, Sr., who died on November 20, 2012.

Dr. Brunetti and Greenwich Hospital have moved to dismiss the claims against them on jurisdictional grounds, and filed memoranda of law in support thereof.   Specifically, they contend that the plaintiff lacks standing to assert his claims because he has not been appointed administrator or executor of his father's estate and as a self-represented party, has no authority to represent others.   They also contend that the claims alleged by the plaintiff against them are medical malpractice claims, and the plaintiff has not abided by the requirement of General Statutes § 52–190(a) to attach to the complaint an opinion letter by a similar health case provider.

The plaintiff did not file any papers opposing the motions to dismiss.   At oral argument on April 15, 2013, the plaintiff stated he had no intention to sue in medical malpractice.   His stated purpose was to “fix” things in order to stop what happened to his father from happening again.

II. Discussion

A motion to dismiss contests the jurisdiction of the court to hear and decide the case, and it may raise lack of subject matter jurisdiction, or lack of personal jurisdiction over one or more defendants.  Practice Book § 10–31.   Both motions presently before the court were timely filed.

The allegations directed at Dr. Brunetti appear in Paragraph 2 of the complaint:

Continuing use of medications without psycho social supervision;  b. Unnoticed signs of tooth lost [sic] and behavioral conditions at family's concern.   Lack of family social concerns for doctor/family relationship. c. Son and parent's relationship poor due to doctor and family relationship.

The allegations directed at the Greenwich Hospital appear in Paragraph 3 of the complaint:

A lack of social worker presents [sic] at hospital.   Involving both parents. b. Unnoticed diet consumption for care. c. Failure to employ social work case environment. d. Lack of professionalism;  nurses and doctors and importantly social worker.

As a self-represented party the plaintiff may only represent his own interests.   Furthermore, the complaint makes no allegation that the plaintiff is authorized to represent his father's estate.   The complaint, which asks for money damages, clearly seeks to right wrongs purportedly done to his father, and the court agrees with the contentions and arguments made by the moving defendants, that the plaintiff lacks standing to pursue these claims.   A cause of action for injuries resulting in death has been created by statue.   General Statutes § 52–551.   This cause of action must be brought by the executor or administrator of the deceased's estate.   See Boykin v. Rutherford, Superior Court, judicial district of New Haven, CV 07 500 9783 (December 6, 2007, Holden, J.), and authorities cited therein.   The plaintiff lacks the standing to bring this case, and therefore, this court has no subject matter jurisdiction over it.

The court also agrees with the moving defendants that the claims against them are medical malpractice claims.   The paragraph directed at Dr. Brunetti alleges improper administration or prescription of medication.   The paragraph directed at Greenwich Hospital alleges improper and unprofessional activities by health care providers at the hospital.   These claims are made against health care professionals in their capacities as such;  they involve medical negligence arising out of a patient relationship with the plaintiff's father, and it related to either the diagnosis or treatment of the father involving the exercise of medical judgment.  Gold v. Greenwich Hospital Association, 262 Conn. 248, 254 (2002);  see also Boykin v. Rutherford, supra.

As a medical malpractice claim, the plaintiff was required to file a written opinion by a similar health care provider with the complaint.  General Statutes 52–190(a).   This requirement was not met.

III. Conclusion

For the reasons set forth above, and in the moving defendants' motion papers, the claims against Dr. Brunetti and the Greenwich Hospital are dismissed.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.