Elaine Palmese v. Med–Help, P.C. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 104.00

I

PROCEDURAL HISTORY

This action arises out of allegations of negligence in connection with medical treatment that the plaintiff, Elaine Palmese, received from the defendant, Med–Help, P.C. (“urgent care facility,” n/k/a Greater Bristol Primary Care Group, P.C.).   On January 17, 2013, the plaintiff filed a one-count complaint against the defendant wherein the following relevant allegations are made.   On January 8, 2011, the plaintiff sought medical assistance from the defendant for a cut on her hand that was “bleeding significantly.”  (Compl.¶ 3.)   The plaintiff informed a physician's assistant or intake worker that “she felt woozy, light-headed and became nauseous and fearful of the sight of her blood.”  (Id., ¶ 4.)   In response, the physician's assistant/intake worker placed the plaintiff's hand in an antibiotic solution and left the room.  (Id., ¶ 5.)   Immediately thereafter, the plaintiff fell off the examining table and injured herself.   It is alleged that this injury was due to the negligence of the defendant for, among other things, “fail[ing] to address the [p]laintiff's concerns regarding her lightheadedness and fear of her own blood ․” and “fail [ing] to provide a safe environment in which to treat the [p]laintiff and [leaving] the [p]laintiff alone when it was imprudent to do so ․” (Id., ¶ 7.)

On March 15, 2013, the defendant filed the present motion to dismiss arguing that the plaintiff failed to comply with General Statutes § 52–190a(a), because, as alleged, the action sounds in medical malpractice, rather than ordinary negligence, and the plaintiff failed to file a good faith certificate and an opinion letter by a similar health care provider.   On April 16, 2013, the plaintiff filed her objection thereto along with a memorandum of law.   On April 26, 2013, the defendant filed its reply.   On May 28, 2013, the court heard oral argument.

II

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).

The defendant argues that despite the plaintiff's efforts to plead ordinary negligence, this is a medical malpractice action.   Specifically, it is argued:  (1) that the plaintiff has sued the defendant in its capacity as an urgent care center;  (2) that the negligence is of a specialized medical nature that comes from her interactions with the defendant when she sought medical care;  and (3) that the claimed negligence is related to the medical diagnosis and treatment of the plaintiff's hand injury and involved the exercise of medical judgment.   Consequently, the defendant argues, because the plaintiff failed to comply with § 52–190a(a), the court must dismiss the action for lack of personal jurisdiction.   In response, the plaintiff contends that none of her allegations purport that the defendant was negligent as a medical provider in her care and treatment.   Additionally, none of the allegations set forth the need for any specialized medical knowledge.   Instead, her claims are merely those of ordinary negligence where expert testimony is not required as to causation.   Specifically, “the issues of what precautions the [d]efendant should have taken relative to providing a safe environment, assuring restrictions so the [p]laintiff would not fall and the stability of the examining table are questions of ordinary negligence which does not [require] expert testimony and, therefore, do not need to comply with the good faith certificate requirement ․” (Pl.'s Memo. 7.)

Section 52–190a(a) provides in relevant part:  “No civil action ․ shall be filed to recover damages resulting from personal injury ․ in which it is alleged that such injury ․ resulted from the negligence of a health care provider, unless the attorney or party filing the action ․ has made 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.   The complaint ․ shall 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 ․ To show the existence of such good faith, the claimant or the claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

“In Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001) (certification improvidently granted) ․ [t]he plaintiff did not file a good faith certificate as required pursuant to the predecessor of the current § 52–190a (a) and claimed that one was not required because she was suing the defendants on a theory of ordinary negligence, not medical malpractice ․ The trial court concluded to the contrary that the claims sounded in medical malpractice and, thus, a certificate of good faith was required ․ In affirming the trial court's decision ․ [the Appellate Court] established a three part test for determining whether allegations sound in medical malpractice ․ [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.)  Nichols v. Milford Pediatric Group, P.C., 141 Conn.App. 707, 711–13 A.3d (2013).

In Nichols, the Appellate Court concluded that the alleged negligence of a health care provider, in connection with a fall that occurred from an examination table while drawing a patient's blood, was a claim of medical malpractice for purposes of § 52–190a.   See id., 708–09.   The court reached this conclusion despite the argument that the “finger-stick” blood collection technique at issue was routine in nature and may not have been performed by a trained medical professional.   See id., 715.   Specifically, in Nichols, the plaintiff alleged that he “was a patient of the defendant for the purpose of obtaining a physical examination.   As part of that examination, a medical assistant employed by the defendant collected a blood sample from the plaintiff ‘employing a finger-stick device.’   The medical assistant directed the plaintiff to sit upright on the edge of the examination table with his feet hanging down over the floor.   While his blood was being collected, the plaintiff fainted and fell ․ onto the floor of the examination room.”  Id., 708.

The following analysis reveals that Nichols and the present case are virtually indistinguishable.

Is the defendant being sued in its capacity as a medical professional?

The plaintiff alleges that she was at the defendant's medical facility for the purpose of seeking urgent medical assistance because her hand was “bleeding significantly.”  (Compl.¶ 3.)   When the fall occurred, she was already inside of an examining room being assisted by a physician's assistant/intake worker.   (Id., ¶¶ 4–6.)   The fall was directly related to the treatment that the plaintiff received while inside the examining room.   Consequently, the court finds that the defendant is being sued in its capacity as a medical professional.   See Multari v. Yale–New Haven Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 11 6012180 (March 6, 2012, Dooley, J.) (53 Conn. L. Rptr. 610, 611) (allegation that hospital was location where both underlying care and subsequent incident occurred sufficient), citing 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, 583) (“allegation that the defendant owned the nursing home at which the decedent was receiving care is sufficient to satisfy the first ․ element”);  and 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, 248) (first prong satisfied in case of allegations against assisted living facility arising out of conduct of its employees while plaintiff was residing at its facility).

Is the alleged negligence of a specialized medical nature that arises out of the medical professional-patient relationship?

The plaintiff alleges that her injuries occurred during the course of medical treatment.   A medical professional-patient relationship therefore existed at all relevant times.   See Nichols v. Milford Pediatric Group, P.C., supra, 141 Conn.App. 713–14.   Nevertheless, the plaintiff contends, as did the plaintiff in Nichols, that the treatment was a “wholly ministerial act,” suggesting that the action that ultimately led to the injuries alleged was not of a specialized medical nature.   Additionally, the plaintiff argues that her allegations sound in ordinary negligence because she merely alleges that the defendant failed to adequately supervise the plaintiff and failed to provide a safe environment.

The incident at issue occurred in the context of ongoing medical treatment by the defendant.   Specifically:  the physical examination, the dialogue regarding the plaintiff's symptoms, the use of the antibiotic solution, and the subsequent decision by the agent of the defendant to leave the plaintiff unsupervised, during which time she fell, is in and of itself care or treatment that requires compliance with established medical standards of care and, thus, necessarily is of a specialized medical nature.   Allegations of negligence directed toward the decision of the defendant's agent to leave the plaintiff unsupervised, after the plaintiff had described her symptoms and the defendant had administered an antibiotic solution, directly relates to the medical treatment of the plaintiff because it required the agent to utilize medical judgment in determining whether it was permissible to leave the plaintiff unsupervised.   See id., 713–14.

The court finds that the negligence alleged by the plaintiff is of a specialized medical nature arising out of a medical professional-patient relationship.

Does the alleged negligence substantially relate to medical diagnosis or treatment and involve the exercise of medical judgment?

The analysis under the third part of the test is similar to the second articulated above.   Ultimately, the allegations take issue with the decision of the defendant's employee to leave the plaintiff unsupervised after the employee had administered an antibiotic solution and the plaintiff had described to the employee her symptoms and concerns.   The fact that utilizing the antibiotic solution may have been routine in nature is of no moment.   Again, at base, the actions at issue, “occurred as a part of a physical examination of the plaintiff by the defendant.   A physical examination is related to medical diagnosis and treatment of a patient;  therefore, any alleged negligence in the conducting of such an examination is ‘substantially related’ to medical diagnosis or treatment.”  Nichols v. Milford Pediatric Group, P.C., supra, 141 Conn.App. 715.   Further, whether the employee acted unreasonably by allowing the plaintiff to go unsupervised subsequent to hearing the plaintiff's symptoms, “clearly involves the exercise of medical knowledge and judgment.”   Id.

III

CONCLUSION

After considering the relevant three-part test to determine whether the claim sounds in medical malpractice, the court concludes that the plaintiff's complaint sounds in medical malpractice and not ordinary negligence.   Consequently, the plaintiff was required to satisfy the requirements of § 52–190a(a) by filing a good faith certificate and an opinion letter by a similar health care provider when she initiated this action.   Because the plaintiff failed to comply fully with all of the requirements set forth in § 52–190a(a), the defendant's motion to dismiss is hereby granted.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.