Gerald Dwyer v. CT (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 103

I

ISSUE

Whether the plaintiff's allegations sound in medical malpractice for the purpose of General Statutes § 52–190a.

II

FACTS

The plaintiff, Gerald Dwyer, filed a complaint against the defendant, Bio–Medical Application of CT, Inc., on August 13, 2012, for injuries alleged to have resulted from a fall at the defendant's dialysis center in Meriden, Connecticut.   In his single-count complaint, the plaintiff alleges the following.   He was led onto a scale to have his weight measured before dialysis.   He was left unassisted and without his walker, causing him to fall as a result of the defective and dangerous condition of the scale and its surroundings.   The defendant had actual or constructive notice of the defective and dangerous condition of the premises because it had existed for a substantial amount of time before the plaintiff's fall.   The defendant knew, through its agents or employees, that the plaintiff required a walker to ambulate and, without a walker, would need assistance getting on and off the scale.   The defendant failed to inspect the premises and keep them reasonably safe for persons lawfully on it, failed to have the dangerous condition corrected, allowed a lip to form around the scale causing it to become dangerous and defective, failed to warn the plaintiff of the hazard, and to rope off the area or otherwise prevent injury when it knew or should have known that a person like the plaintiff would be walking in the area, failed to use due care by maintaining the facility in a condition it knew or should have known would tend to cause injury to those like the plaintiff who would have to traverse the area and failed to provide personnel to assist the plaintiff in stepping off the scale or provide the plaintiff with his walker as he stepped off the scale.

On September 25, 2012, the defendant filed a motion to dismiss, accompanied by a memorandum of law, for failure to attach an opinion letter of a similar health care provider under General Statutes § 52–190a.   The plaintiff filed an objection on April 30, 2013 accompanied by a memorandum of law.   The defendant filed a reply on May 3, 2013.   The matter was on the short calendar on May 6, 2013.

III

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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “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).

The defendant argues that the plaintiff's action must be dismissed under § 52–190a because the plaintiff's complaint sounds in medical malpractice and the plaintiff has not attached the written opinion of a similar healthcare provider.   According to the defendant, the plaintiff's actions sounds in medical malpractice because the plaintiff has sued the defendant as a dialysis service provider, assessing the plaintiff's weight was integral to his dialysis care and treatment and assessing a patient's weight and ambulatory ability requires medical judgment.   The plaintiff counters that his claim sounds in ordinary negligence, not medical malpractice.   According to the plaintiff, his claim involves a defective scale and not being provided his walker, which the defendant's agents and employees were aware he required.   The plaintiff argues that none of the actions and omissions alleged are substantially related to medical treatment or involve the exercise of medical judgment.

“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 ․ [T]he 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.)  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).

In this case, as in many involving whether a cause of action sounds in medical malpractice or ordinary negligence, the dispute centers around the third Trimel requirement, that the alleged negligence be substantially related to medical diagnosis or treatment and involve the exercise of medical judgment.   In Trimel, supra, 61 Conn.App. 363, the court, in ruling that the claim sounded in medical malpractice, held that “a medical professional's decision not to supervise a maneuver that was learned through the course of therapy, when the health care provider [wa]s familiar with the strengths and weaknesses of the individual patient,” was substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.   In Nichols v. Milford Pediatric Group, P.C., 141 Conn.App. 707, 715, 64 A.3d 770 (2013), the court similarly held that “whether the defendant acted unreasonably by allowing a medical assistant to collect blood samples unsupervised and in the manner utilized and whether it sufficiently trained its employee to ensure that any blood collection was completed in a safe manner, including imparting the knowledge necessary to recognize a ‘syncopic reaction to blood sampling,’ clearly involve[d] the exercise of medical knowledge and judgment.”

Unlike the plaintiffs in Trimel or Nichols, the plaintiff in the present case has not pleaded a cause of action sounding in medical malpractice because the negligence alleged does not meet the third Trimel factor.   The present case is more analogous to other decisions finding the cause of action sounded in ordinary negligence rather than medical malpractice.   For instance, in DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. CV 99 0498385 (October 19, 2000, Kocay, J.) (28 Conn. L. Rptr. 522, 523), the “plaintiff allege[d] that the defendant failed to strap her into her bed, raise the bed rail and monitor her to ensure that she would not fall from her bed.”   The court, in finding that the plaintiff's cause of action sounded in ordinary negligence, reasoned that “[t]he alleged negligence did not occur during a medical procedure or from any specialized medical care or treatment the defendant may have provided ․ [and that t]he issues [we]re not esoteric or uniquely medical.”  Id.;  see also Lefkimiatis v. Luchini Orthopedic Surgeons, P.C., Superior Court, judicial district of New Haven, Docket No. CV 11 6023249 (April 17, 2012, Wilson, J.) [53 Conn. L. Rptr. 829] (finding no medical malpractice where stool next to physical therapy apparatus slipped while defendant lowered himself onto it as he began therapy);  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, 249) (finding no medical malpractice where employee “alleged to have been negligent in grabbing the decedent and pushing a wheelchair into her leg”);  Sloan v. St. Francis Hospital & Medical Center, Superior Court, judicial district of New London, Docket No. 536439 (November 27, 1996, Hendel, J.) (18 Conn. L. Rptr. 288, 289) (finding no medical malpractice where orderly injured patient while transporting her from emergency room to patient room because “acts complained of were committed at a hospital, but not in the course of medical care or treatment ․ [and] case presents no issue relating to the exercise of medical judgment in the care or supervision of a patient”).

In the present case, the defendant's alleged negligence, that it failed to fix or cordon off a surface it knew or should have known was hazardous and further, through its agents or employees, left the plaintiff, who came onto the premises with a walker, on that hazardous surface without assistance or his walker, is not substantially related to a medical diagnosis or treatment and does not involve the exercise of any medical knowledge or judgment.   Although the patient was at the defendant's facility for a medical procedure, dialysis treatment, the negligence is not alleged to have occurred during the medical procedure, but beforehand, when the plaintiff was being led to and from the scale.   Furthermore, knowing not to leave a person without their walker on a tripping hazard does not involve any medical knowledge or judgment.   Therefore, the allegations sound in ordinary negligence, not medical malpractice.   Thus, § 52–190a does not apply, and an opinion letter is not required.

IV

CONCLUSION

For the foregoing reasons, the motion to dismiss is denied.

BY THE COURT

V. ROCHE, J.

Roche, Vincent E., J.