Laura Bonchuk v. State of Connecticut et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (# 112)

On November 14, 2012, the plaintiff, Laura Bonchuk, filed a one-count complaint against the State of Connecticut, the University of Connecticut Health Center, Robert Tucker, and John Dempsey Hospital.   The defendants filed a motion to dismiss on June 4, 2013.   The plaintiff filed an opposing brief on July 23, 2013.   The defendants' motion was argued on August 5, 2013.

FACTS

The complaint alleges the following facts, all of which are taken as true for present purposes.  Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004) (in determining jurisdiction on a motion to dismiss, the facts are taken to be those alleged, including facts necessarily implied, construed most favorably to the pleader).

The defendant State of Connecticut owned and/or operated medical facilities known as the University of Connecticut Health Center and John Dempsey Hospital at which the plaintiff received medical treatment.   The defendant Tucker, a duly licensed occupational therapist specializing in orthopedic therapy, was an employee, agent, representative and/or independent contractor for the defendant University of Connecticut Health Center and/or John Dempsey Hospital (defendant hospitals).   On September 20, 2010, the plaintiff had left hand surgery at the University of Connecticut Health Center.   On October 1, 2010, the plaintiff injured her right hand index finger, with lacerations of both the flexor digitorum profundus and flexor digitorum superficialis tendons.   To repair those injuries, she underwent right hand surgery at the defendant hospitals on October 4, 2010.   On October 6, 2010, the plaintiff began treatment with the defendant Tucker.   On or about November 18, 2010, Tucker negligently began rehabilitation to strengthen the plaintiff's right hand without adequate clinical assessment and documentation.   As a result, the plaintiff suffered damage to, and/or re-rupture of, the tendon or tendons in her right index finger and hand.   At the same time, Tucker instructed the plaintiff to perform grip strength testing with a dynamometer on her right hand, causing her injuries and damages.

On or about October 18, 2012, the plaintiff filed a notice of claim, pursuant to General Statutes § 4–147, with the Connecticut Claims Commissioner, together with a certificate of good faith required by General Statutes § 52–190a for medical malpractice cases, in which claim she requested the commissioner's permission to sue the defendants.

The complaint does not allege that the Claims Commissioner gave her permission to sue.

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.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).

Because the state can act only through its officers and agents, a suit against a state officer is in effect a suit against the state, which cannot be sued without its consent.  Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977).   To avoid the defense of sovereign immunity in this malpractice case, the plaintiff must show that the state legislature, either expressly or by necessary implication, statutorily waived the state's sovereign immunity.   See Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003).   The doctrine of sovereign immunity implicates subject matter jurisdiction.  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).   A motion to dismiss is the appropriate way to raise a claim that sovereign immunity bars an action.  Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006), aff'd, 102 Conn.App. 315, 926 A.2d 38 (2007);  see Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing former Practice Book § 143, which is now § 10–31.

The defendants argue that the plaintiff did not obtain authorization from the claims commissioner prior to filing the present action, as required by General Statutes § 4–160.¹  “When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim ․ The claims commissioner, if he deems it ‘just and equitable,’ may sanction suit against the state on any claim ‘which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable ․ This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions.’  “ (Citations omitted.)  Krozser v. New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied, 439 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990).   The defendants claim that sovereign immunity from the plaintiff's claim has not been waived and, therefore, that the complaint must be dismissed for lack of subject matter jurisdiction.

The plaintiff argues that, because the certificate of good faith was submitted to the claims commissioner, release to sue is automatically granted.   She claims that requiring her to wait for written authorization would subject her to the very harm that the legislature intended to avoid by enacting § 4–160(b).  General Statutes § 4–160(b) provides:  “In any claim alleging malpractice against the state, a state hospital or a sanitorium or against a ․ licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52–190a.   If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.”

In Calvert v. University of Connecticut Health Center, 142 Conn.App. 738, 68 A.3d 107 (2013), the court held that the defendant's motion to dismiss had been properly granted because the plaintiff had not obtained authorization to sue from the claims commissioner at the time she had commenced the action.   While the claims commissioner does not have “discretion to deny a claim that is submitted with a certificate of good faith, irrespective of the facts and circumstances,” that does not mean that the claim filing procedure is a “step that has no value.”  (Internal quotation marks omitted.)  Calvert v. University of Connecticut, supra, 142 Conn.App. 743.   The procedure allows the claims commissioner to deny a claim for untimeliness and there is “nothing futile in requiring a potential medical malpractice claimant to file a good faith certificate with the claims commissioner as a precondition to obtaining the commissioner's authorization to sue the state.”  Id., 744.

Prior to filing this suit, the plaintiff filed her § 52–190a certificate of good faith with the claims commissioner, but she did not receive the commissioner's release to sue.   The former is optional.   The latter is required for sovereign immunity to be waived.   This court does not have subject matter jurisdiction over the plaintiff's complaint because the claims commissioner has not authorized suit and sovereign immunity has not been waived.²

For the foregoing reasons, the defendant's motion to dismiss is granted.

Cole–Chu, J.

FOOTNOTES

FN1. General Statutes § 4–160(a) provides as follows:  “When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.”.  FN1. General Statutes § 4–160(a) provides as follows:  “When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.”

FN2. General Statutes § 4–160(c) requires the plaintiff to allege “authorization [to sue] and the date on which it was granted ․” The date when authorization to sue was granted by the claims commissioner must be alleged “because that date triggers the time frame within which the action must be brought.”  Capers v. Lee, 239 Conn 265, 272, 684 A.2d 696 (1996).   The court need not reach the question of whether noncompliance with § 4–160(c), whether or not authorization to sue has been granted, deprives the court of subject matter jurisdiction..  FN2. General Statutes § 4–160(c) requires the plaintiff to allege “authorization [to sue] and the date on which it was granted ․” The date when authorization to sue was granted by the claims commissioner must be alleged “because that date triggers the time frame within which the action must be brought.”  Capers v. Lee, 239 Conn 265, 272, 684 A.2d 696 (1996).   The court need not reach the question of whether noncompliance with § 4–160(c), whether or not authorization to sue has been granted, deprives the court of subject matter jurisdiction.

Cole–Chu, Leeland J., J.