Gina Marciano v. University of Connecticut Health Center–John Dempsey Hospital et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 131

The defendant has filed this motion to dismiss as to count two of the amended complaint dated March 14, 2013, claiming lack of subject matter jurisdiction, and arguing that the plaintiff has not stated a cause of action.

FACTS

The plaintiff, Gina Marciano, in her amended complaint dated March 13, 2013, includes as defendants the University of Connecticut Health Center—John Dempsey Hospital (hospital), and Jayne C. Cluett, a medical doctor who is the moving defendant here.¹  The plaintiff alleges the following facts.   On the evening of December 30, 2010, the plaintiff presented to the hospital's emergency department with abdominal pain, loss of appetite, nausea, and vomiting.   The plaintiff reported that she was pregnant, and was evaluated by the defendants to determine whether the pregnancy was viable.   Quan Dau, a resident at the hospital, concluded that the plaintiff was eleven weeks pregnant, and had a possible abnormal pregnancy.   He consulted with the defendant, and asked for her advice and recommendation regarding the plaintiff's care and treatment.   Dau and the defendant advised the plaintiff to terminate her pregnancy, and developed a plan that involved the administration of Methotrexate to cause that termination.   The defendant did not examine or assess the plaintiff.

Some hours later, an additional ultrasound was performed, and the results were sent for evaluation by a radiology department outside Connecticut.   Prior to receipt of a radiology report, Methotrexate was administered to the plaintiff, and she was discharged from the hospital.   The subsequent radiology report indicated that the plaintiff's condition suggested early pregnancy, or less likely, incomplete reabsorption of a spontaneous abortion.

A subsequent evaluation of the plaintiff on January 4, 2011, indicated that she was five weeks pregnant, while an evaluation on January 7, 2011, indicated that she was six weeks and three days pregnant.   Due to concerns over the effect of Methotrexate on the developing fetus, the pregnancy was eventually terminated by the plaintiff's physician.   The plaintiff alleges injury as a result.   Count two, directed solely at the moving defendant, alleges that the plaintiff's injuries were caused by the defendant's negligence and departures from the standard of care in various ways.

On July 1, 2013, the defendant filed a motion to dismiss count two of the plaintiff's amended complaint on the ground that the court lacks subject matter jurisdiction.   The defendant filed a memorandum of law in support of her motion, accompanied by a copy of the plaintiff's Affidavit of Pre–Suit Good Faith Inquiry, and supporting case law.   On August 23, 2013, the plaintiff filed a memorandum in opposition to the defendant's motion, which was accompanied by a Consultation Record from the hospital dated December 31, 2010.   The matter was argued at short calendar on August 26, 2013.

DISCUSSION

The defendant moves to dismiss the plaintiff's amended complaint on the grounds that she has failed to allege a physician-patient relationship, that she has not alleged proximate cause and damages, and that she has not alleged that the administration of Methotrexate caused her damages.   The defendant concludes that the plaintiff's amended complaint must be dismissed for lack of subject matter jurisdiction because the plaintiff cannot as a matter of law state a claim upon which relief may be granted.   The plaintiff filed a memorandum in opposition to the defendant's motion, arguing in relevant part that the defendant moves to dismiss on grounds not recognized by the rules of practice.

“[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.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “The grounds which may be asserted in [a motion to dismiss include] ․ lack of jurisdiction over the subject matter ․” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action.   That should be done, instead, by a motion to strike ․” (Citation omitted.)  Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).   See also Practice Book § 10–39.

In as much as the defendant is testing the legal sufficiency of the complaint as opposed to whether the complaint states a cause of action, the court will treat this motion as a motion to strike as opposed to motion to dismiss.   See Marshall v. Marshall, 119 Conn.App. 120, 127 n.4, 988 A.2d 314, cert. granted, 296 Conn. 908, 993 A.2d 467 (2010).  (“Although the plaintiff styled the motion as a motion to dismiss the petition for a new trial, the trial court properly treated it as a motion to strike because it challenged the legal sufficiency of the petition.”)   Rather than denying the defendant's motion to dismiss on procedural grounds, the court will analyze it as though it were a motion to strike.²

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, supra, 308 Conn. 349.  “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).

The defendant argues that the plaintiff did not allege the existence of a patient-physician relationship between the parties, that the plaintiff has not alleged proximate cause or damages, and that administration of Methotrexate did not cause damages to the plaintiff.   The plaintiff argues that she alleges she was treated by the defendant, a medical doctor, after she presented at the hospital with abdominal pain.   The plaintiff emphasizes that the treatment—namely the premature administration of Methotrexate—was prescribed after the defendant was contacted and duly consulted.   Following the administration of Methotrexate, the plaintiff's viable pregnancy was terminated.

“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.”  Trimel v. Lawrence & Memorial Hosp. Rehabilitation Center, 61 Conn.App. 353, 357, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).  “[P]rofessional negligence or malpractice ․ [is] 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, 682 A.2d 106 (1996).  “Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature.”   Camposano v. Claiborn, 2 Conn.Cir.Ct. 135, 137, 196 A.2d 129 (1963).  “[A] cause of action alleging medical malpractice must be brought by a patient against a health care provider.”  (Emphasis omitted.)  Jarmie v. Troncale, 306 Conn. 578, 587, 50 A.3d 802 (2012).  “[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 ․ [T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.”  (Emphasis omitted.)  Id., 588.

As to the defendant's claims, the court finds that plaintiff has alleged a patient-physician relationship.   The second count incorporates paragraphs one through 25 of the first count.   In paragraph 14 the plaintiff alleges that the defendant was a medical doctor.   In paragraph 15 the plaintiff alleges that the defendant was an employee of the Hospital and in paragraph 16 the plaintiff alleges that she presented at the Hospital for treatment for her medical complaints.   The defendant next argues that the plaintiff has not alleged proximate cause or damages in count two of the amended complaint.   In paragraph 2 of count two of the plaintiff's amended complaint, the plaintiff alleges:  “The plaintiff's injuries were caused by the negligence and departures from the standard of care of the defendant Cluett in one or more of the following ways.”   The plaintiff enumerates, in paragraphs (a) through (u), the various ways in which the defendant caused her injury.   Finally, the defendant claims in her motion to dismiss that the plaintiff failed to allege that the administration of Methotrexate caused damages to the plaintiff.   Paragraph 23 of the first count incorporated by reference in count two alleges that the defendant implemented the plan to administer Methotrexate and paragraph 33 of the second count alleges that the injuries suffered by the plaintiff were caused by the defendant's negligent administration of “improper drugs.”

The amended complaint is legally sufficient and it contains all of the allegations if proved that sound in medical malpractice.   The court will therefore deny the defendant's motion to dismiss.

It is so ordered this 15th day of November, 2013.

PELLEGRINO, JTR

FOOTNOTES

FN1. The plaintiff's original six-count complaint was filed on September 7, 2012, against the following defendants:  physicians Ian Medora, Genevieve O'Connell, Shawn London, Matthew Barr, and Quan Dau, as well as the hospital.   The plaintiff subsequently withdrew the counts of her complaint relating to the physician defendants..  FN1. The plaintiff's original six-count complaint was filed on September 7, 2012, against the following defendants:  physicians Ian Medora, Genevieve O'Connell, Shawn London, Matthew Barr, and Quan Dau, as well as the hospital.   The plaintiff subsequently withdrew the counts of her complaint relating to the physician defendants.

FN2. It is noted, however, that the court is not required to treat the defendant's motion to dismiss as a motion to strike.   See Gold v. Rowland, 296 Conn. 186, 226, 994 A.2d 106 (2010) (“Although our case law supports the concept of allowing a motion to dismiss to be treated as a motion to strike in situations in which the trial court has done so ․ it does not support the concept of requiring trial courts to do so, when they have not done so.”  [Citation omitted] ).Nevertheless, the interests of “facilitat[ing] business and advanc[ing] justice”;  Practice Book § 1–8;  support doing so in this instance.   Were the court to deny the defendant's motion to dismiss because the defendant has raised grounds not recognized by the rules of practice, the defendant would likely next file a motion to strike, setting forth the same arguments.   In treating the defendant's motion to dismiss as a motion to strike from the outset, the parties are saved the time and expense of filing and arguing an additional motion, and the court's resources are conserved.   While it may be argued that the plaintiff was not formally given the opportunity to brief an opposition to a motion to strike, she addressed the adequacy of the allegations contained in her amended complaint in her memorandum in opposition to the defendant's motion to dismiss.   The issue has therefore been adequately briefed so as to allow the court to render a decision relative to the motion as presented to the court in its present procedural posture..  FN2. It is noted, however, that the court is not required to treat the defendant's motion to dismiss as a motion to strike.   See Gold v. Rowland, 296 Conn. 186, 226, 994 A.2d 106 (2010) (“Although our case law supports the concept of allowing a motion to dismiss to be treated as a motion to strike in situations in which the trial court has done so ․ it does not support the concept of requiring trial courts to do so, when they have not done so.”  [Citation omitted] ).Nevertheless, the interests of “facilitat[ing] business and advanc[ing] justice”;  Practice Book § 1–8;  support doing so in this instance.   Were the court to deny the defendant's motion to dismiss because the defendant has raised grounds not recognized by the rules of practice, the defendant would likely next file a motion to strike, setting forth the same arguments.   In treating the defendant's motion to dismiss as a motion to strike from the outset, the parties are saved the time and expense of filing and arguing an additional motion, and the court's resources are conserved.   While it may be argued that the plaintiff was not formally given the opportunity to brief an opposition to a motion to strike, she addressed the adequacy of the allegations contained in her amended complaint in her memorandum in opposition to the defendant's motion to dismiss.   The issue has therefore been adequately briefed so as to allow the court to render a decision relative to the motion as presented to the court in its present procedural posture.

Pellegrino, Joseph H., J.T.R.