Teresa Beshara v. Charlotte Hungerford Hospital Center for Behavioral Health (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

The issue before the court is whether to grant the defendant's motion to dismiss the plaintiff's complaint for lack of personal jurisdiction based on the failure to attach a certificate of good faith or the written opinion of a similar health care provider, pursuant to General Statutes sec. 52–190a.   The motion to dismiss is denied.

I

NATURE OF THE PROCEEDINGS

This case arises out of a dispute between a former mental health patient and her healthcare provider.   On June 19, 2013, the plaintiff, Theresa Beshara, filed a three-count complaint against the defendant, Charlotte Hungerford Hospital Center for Behavioral Health, pursuant to General Statutes sec. 17a–550, which permits a civil action against a mental health treatment facility for damages resulting from a violation of the psychiatric patient bill of rights, General Statutes sec. 17a–540 et seq.¹

Count one alleges that the defendant deprived the plaintiff of her right to independently contract with an employer and to negotiate lawful accommodations pursuant to the Americans with Disabilities Act (“ADA”), in violation of General Statutes sec. 17a–541.²  The following facts are alleged in this count.   As of March 1, 2011, the plaintiff had been diagnosed with schizophrenia, residual type;  obsessive compulsive disorder;  and pathological gambling—all diagnoses which place the plaintiff within the class of persons entitled to reasonable workplace accommodations pursuant to the ADA. The defendant had been the exclusive provider of mental health services to the plaintiff for almost six years.

On March 18, 2011, by telephone, the plaintiff notified the defendant of her intent to pursue an unspecified workplace accommodation under the ADA. On March 21, 2011, the plaintiff was seen by her clinician, Kathleen Thayer, A.P.R.N., who is employed by the defendant.   The request for workplace accommodations was discussed during this medication review session and the plaintiff requested a letter for her unnamed employer.   Thayer did not provide any such documentation.   The plaintiff made another request for a letter on March 28, 2011.   On that date, the plaintiff was provided with “a terse handwritten letter,” “scrawled on a piece of letterhead that was not suitable for use in negotiations with her employer.”   The plaintiff was also provided with a handwritten note which stated:  “If you think this will help—you can give this to your employer.   However, I will not speak to your employer without seeing you first and discussing the purpose.   Take care.”  (Emphasis in original.)   On March 31, 2011, the plaintiff met with Thayer to discuss her request for accommodation at work, although Thayer contends that the meeting was scheduled to discuss medication.

On April 5, 2011, the plaintiff submitted a written request for a letter to verify her diagnosis of OCD for discrimination purposes and to support an appeal.   The plaintiff was advised that job performance is not within Thayer's or the defendant's ability to assess in line with the plaintiff's symptoms.   A treatment note, on April 6, 2011, indicates that the defendant's medical director and multidisciplinary staff advised that a letter commenting on job performance and supporting documentation could not be provided.

In response to a phone call requesting that the letter be sent, the plaintiff was advised to “come in to discuss her symptoms and behavior and her perception of employer motives.”   The plaintiff made multiple phone calls to the defendant requesting a letter for her employer, which the defendant continually refused to supply, advising the plaintiff that her behavior was “quite obsessive and may be symptomatic.”   Ultimately, on April 18, 2011, the plaintiff was provided with a handwritten letter, stating that she was not disabled, and noting that “however, due to your disorders your symptoms can exacerbate which requires increased doses of medication.”

Count two alleges that “the defendant used medication as a substitute for a habilitation program in violation of General Statutes sec. 17a–544(b),³ but simultaneously, in violation of General Statutes sec. 17a–542,⁴ with gross disregard for the dignity of the patient and with a lack of regard for health and welfare of the patient, failed to order the appropriate medications from the pharmacy.”   Count two incorporates all of the factual allegations contained in count one, and alleges, further, that on March 21, 2011, the plaintiff was seen for a medication review, medications were prescribed and a follow-up appointment was scheduled for May 16, 2011.   However, on March 31, 2011, during the period when the plaintiff was requesting accommodation letters, the defendant increased the dosages of her medications, and authorized refills sufficient through June. On April 13, 2011, the defendant instructed the plaintiff to again increase the dosage of one of her medications.   This increased dosage, however, was not called into a pharmacy.

On May 9, 2011, the plaintiff called the defendant because the increased dosage, authorized on April 13, 2011, was not adequately provided for by prescription and she was running low on the medication.   The defendant refused to provide the plaintiff with any medication, informing her that she would need to be seen first.   The plaintiff was seen by the defendant on May 16, 2011, as previously scheduled.   After this appointment, the plaintiff made multiple calls to the defendant seeking medication, but was not accommodated.   Rather, the plaintiff was advised that she needed to be evaluated.   On May 23, 2011, the plaintiff arrived for an evaluation but, after waiting one hour, she left without being seen.   On May 31, 2011, the plaintiff was administratively discharged from services.

The complaint alleges that between May 27, 2011, and May 31, 2011, the plaintiff made over thirty phone calls to the defendant requesting medication, and requesting to speak with managers and the hospital president because the plaintiff was desperate to have proper medication;  between May 9, 2011, and May 31, 2011, no clinician from the defendant reviewed the plaintiff's chart to determine whether she needed medication;  and between March 21, 2011, and May 31, 2011, twelve separate appointments were scheduled for the plaintiff in an effort to medicate her and deter her from exercising her rights under the ADA because the defendant believed that the plaintiff's demand for an accommodation letter was a reflection of clinical decompensation.

The complaint further alleges that the plaintiff followed the treatment schedule set forth by the defendant, but, nonetheless, was deprived of the medication she was instructed to take.   The defendant's treatment of the plaintiff was “demeaning, demoralizing, humiliating, cruel and unnecessary, and it constituted a violation of her right to be treated humanely by her mental health treatment provider.”

Count three alleges that “the defendant failed to develop or implement a discharge plan for the plaintiff, failed to provide reasonable notice of her impending discharge, failed to include the plaintiff in planning for her discharge, and failed to plan for appropriate aftercare of the patient, all in violation of General Statutes sec. 17a–542.”   Count three incorporates all of the factual allegations contained in counts one and two, and further alleges that the plaintiff's discharge from treatment on May 31, 2011, was unplanned and the circumstances of the discharge were not in accordance with a designed treatment plan.   The plaintiff asserts that the defendant knew or should have known that, at the time of the discharge, the plaintiff lacked an adequate supply of medication, the plaintiff did not have a new medical provider, and the plaintiff was not clinically stable.

On July 16, 2013, the defendant filed the present motion to dismiss for lack of personal jurisdiction (# 101).   The plaintiff filed an objection to the motion to dismiss on August 1, 2013 (# 105).   The defendant filed a reply memorandum on August 15, 2013 (# 109).   The matter was heard on the October 15, 2013 short calendar.

II

MOTION TO DISMISS

“[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 (2013).   Among “[t]he grounds which may be asserted in [a motion to dismiss] are ․ lack of jurisdiction over the person ․ [and] insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985), citing Practice Book sec. 143, which is now sec. 10–31.  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651 (2009).

III

CLAIMS OF THE PARTIES

The defendant moves to dismiss on the ground that the court lacks personal jurisdiction because the plaintiff's complaint sounds in medical malpractice, but the plaintiff failed to attach a certificate of the good faith basis and a written opinion of a similar healthcare provider,⁵ as required by General Statutes sec. 52–190a.⁶  The defendant relies on Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357–58, appeal dismissed, 258 Conn. 711 (2001), in which the court set forth the relevant considerations to determine whether a claim sounds in medical malpractice or ordinary negligence:  “[W]hether (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.”

The defendant asserts that the plaintiff's complaint satisfies the Trimel test for medical malpractice.   First, the defendant contends that the cause of action lies against the defendant's therapists in their capacity as medical professionals.   Second, the defendant asserts that the negligence alleged by the plaintiff—the failure to provide a letter to support her request for a workplace accommodation, negligent prescription and dispensing of medication, and the failure to design and implement a discharge plan—are of a specialized medical nature arising from the plaintiff's relationship with her treaters.   In fact, the defendant contends, at least one Superior Court has determined that allegations of negligent prescription and dispensing of medication are medical malpractice claims requiring written opinion letters;  Simmons v. CVS Pharmacy, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–08–5021084–S (June 17, 2009, Hiller, J.); ⁷  and that our Supreme Court has ruled that “the administration of prescription medication is of a specialized medical nature and requires the exercise of medical judgment ․” Boone v. William W. Backus Hospital, 272 Conn. 551, 564 (2005).   Finally, the defendant argues, each claim of alleged negligence by the plaintiff is substantially related to medical diagnosis or treatment, and involved the exercise of medical judgment.   Specifically, in count one, the plaintiff claims that the defendant believed her requests for an accommodation letter represented an escalation of her symptoms of mental illness and determined that such a letter could not be provided.   According to the defendant, the claimed negligent failure to provide the letter is both related to medical diagnosis and constitutes an exercise of medical judgment.   Next, count two alleges that the defendant increased the plaintiff's dosage of medications but never advised the dispensing pharmacies that the doses had been increased.   These alleged omissions, the defendant asserts, related to medical treatment and are an explicit exercise of medical judgment.   Likewise, the claimed negligence in count three, i.e., the failure to create and implement a proper treatment and discharge plan, also arise from medical treatment and judgment.

In contrast, the plaintiff argues that her claims do not sound in medical malpractice.   According to the plaintiff, the facts alleged in the complaint reveal that the dispute between the plaintiff and the defendant stems from a decision by the plaintiff to exercise her federal statutory rights by way of seeking an accommodation pursuant to the ADA. The core allegations are that the defendant interfered with the plaintiff's exercise of her rights under the ADA;  that her treatment during the conflict was inhumane;  and that her discharge from care was unplanned and did not meet the requirements of the statutory protections.   According to the plaintiff, the psychiatric patient bill of rights permits her to bring a direct suit for the damages resulting from the defendant's violation of these statutory protections.   Furthermore, the plaintiff argues that the psychiatric patient bill of rights operates independently of common law negligence, forms an entirely new tort and a violation of the statute, alone, is actionable.

In reply, the defendant argues that, to sufficiently state a claim for violation of the psychiatric patient bill of rights, the plaintiff's allegations must rise above negligence, but, the plaintiff's complaint fails in this respect, alleging only negligent treatment.   In fact, the defendant asserts, the plaintiff does not even allege any violation of an existing right, as she does not claim, in particular, that she was unable to secure a workplace accommodation under the ADA. Rather, she claims nothing more than negligent treatment of her psychiatric condition.   Indeed, according to the defendant, an exercise of medical judgment is claimed in that, despite knowing that the plaintiff sought a workplace accommodation, the defendant made a determination that the plaintiff's requests were a sign of progression of her mental illness.

IV

DISCUSSIONAApplicable Law

General Statutes sec. 52–190a(a), which requires the filing of a certificate of good faith and an opinion of a similar health care provider, only applies if the cause of action is for medical malpractice.   As noted by the defendant, the test for whether an action is one for medical malpractice or negligence is set forth in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357–58.   However, in this court's view, the issue presented is not whether the plaintiff has alleged a claim for ordinary negligence as opposed to medical malpractice, but rather is whether the plaintiff's statutory cause of action under the psychiatric patient bill of rights is a claim for “medical negligence,” which requires compliance with General Statutes sec. 52–190a(a).

Although not dispositive of the issue, it is notable that in Scherer v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV–97–0137073–S (February 22, 2000, Pellegrino, J.),⁸ the plaintiff alleged, inter alia, a violation of General Statutes sec. 17a–542, in count one, and medical malpractice, in count eight, arising out of the plaintiff's care and treatment at Waterbury Hospital.   The court found that, although the factual basis for the plaintiff's claim that “the defendants violated the patient's bill of rights is similar to the basis for her claim of medical malpractice ․ the allegations are different.   The first count finds fault with the alleged inhumane and undignified treatment of the plaintiff resulting when the defendant employees of Waterbury Hospital forced the plaintiff into a secluded room and forced her to disrobe while in the presence of a male security guard.   The first count is not based upon negligence, but intentional conduct.   Whereas, the eighth count, sounding in medical malpractice, contains an allegation that the defendants failed to provide the plaintiff with a prompt and adequate mental status examination prior to implementing force.”  Id. The court denied the defendant's motion to strike on the ground that “[a]lthough the first count and eighth count arise from the same factual circumstance, the first count is not negligence recast.”  Id.;  see Campbell v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV04–0092783–S (April 27, 2005, Pickard, J.) (section 52–190a did not apply to alleged violation of General Statutes sec. 17a–546 for failure to permit plaintiff to make telephone calls because it was not an action to recover damages for personal injury resulting from negligence).

One court has also reviewed a plaintiff's claim of employment discrimination under the psychiatric patient bill of rights.   In Doe v. Odili Technologies, Inc., Superior Court, judicial district of Danbury, Docket No. CV–97–0327738–S (November 18, 1999, Moraghan, J.), the court held that the requirements of the Connecticut Fair Employment Practices Act (“CFEPA”) were not applicable to General Statutes sec. 17a–549 and, therefore, the plaintiff was “under no obligation to pursue and exhaust administrative remedies as a prerequisite” to bringing a claim under sec. 17a–549.   The court noted that although “[b]oth statutes address the issue of employment rights of employees with a present or past history of mental disorders,” the CHRO does not have “exclusive jurisdiction over the issue of employment discrimination based on a mental disorder” and General Statutes sec. 17–206k, now, General Statutes sec. 17a–550, “expressly and specifically provides for a civil action in the Superior Court.”  Id. The court explained that “[t]he plaintiff had a choice as to the statute under which to pursue her claim of discrimination.”

As there is no appellate authority, or superior court guidance, on the precise issue before this court, a careful review of the statutory language and the public policies attending the enactment of the psychiatric patient bill of rights and General Statutes sec. 52–190a is warranted.   This court must follow the dictate of our Supreme Court that “[a] statute should be interpreted according to the policy which the legislation seeks to serve.”  Aaron v. Conservation Commission, 183 Conn. 532, 538 (1981).

General Statutes sec. 52–190a(a) requires the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that “there appears to be evidence of medical negligence” and to attach the opinion to the certificate of good faith to be filed with the complaint.   However, “[s]ection 52–190a(a) does not define medical negligence ․” Dias v. Grady, 292 Conn. 350, 356 (2009).   Our Supreme Court has determined that “medical negligence” as used in General Statutes sec. 52–190a(a) means “breach of the standard of care ․” Dias v. Grady, supra, 359.   The written opinion must set forth “the basis of the similar health care provider's opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care.   In other words, the written opinion must state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care.”  Wilcox v. Schwartz, 303 Conn. 630, 643 (2012).

As previously noted, Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357–58 sets forth a three-part test for determining whether a claim sounds in medical malpractice or ordinary negligence:  “[W]hether (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.”  “Regarding the second and third prongs, which are often considered together, a claim is properly characterized as medical malpractice when it involves a medical professional's judgment, but [w]hen medical personnel commit tortious acts that do not require medical knowledge, do not exercise medical judgment and are not related to medical diagnosis or treatment, such acts constitute ordinary negligence, not medical malpractice.”  (Internal quotation marks omitted.)   Marinara v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV–13–6017978–S (September 20, 2013, Zemetis, J.).

General Statutes sec. 17a–550 permits a civil action for violations of sections 17a–540 to 17a–549.   The plaintiff's complaint purports to allege violations of General Statutes sec. 17a–541, 17a–542 and 17–544(b).  General Statutes sec. 17a–541 provides in relevant part that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law ․” General Statutes sec. 17a–542 provides that “[e]very patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.   Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge and (3) planning for appropriate aftercare to the patient upon his discharge.”   General Statutes sec. 17a–544(b) provides that “[m]edication shall not be used as a substitute for an habilitation program.”

Mahoney v. Lensink, 213 Conn. 548 (1990), is the seminal case interpreting the psychiatric patient bill of rights, and, in particular, what is now, General Statutes sec. 17a–541 and 17a–542.   In Mahoney, the plaintiffs brought an action against the defendants after their son committed suicide.   Id., 552.   The plaintiffs alleged that their son, who suffered from mental illness, was a patient at Norwich Hospital, and that “the defendants' failure to provide proper counseling, medication, supervision or suicide precautions, so as to prevent the decedent from acting on his suicidal tendencies ․ amounted to negligent, wanton, and willful misconduct which caused the death of their son.”  (Internal quotation marks omitted.)  Id. The plaintiffs claimed that this alleged misconduct violated both General Statutes sec. 17–206b (now General Statutes sec. 17a–541) and sec. 17–206c (now General Statutes sec. 17a–542).  Id.

The Mahoney court reviewed the history attending the enactment of the psychiatric patient bill of rights and found that “[e]xamination of the committee hearings on the senate bill that was eventually codified ․ reveals that the act was intended to remedy the then prevailing conditions at state mental health facilities.   The principal testimony was that of Walter Voight, who had been employed for four and one-half years at two of the state's mental health hospitals.   First observing that ‘my employment experience in Connecticut's Mental Hospitals consistently lend[s] credence to the notions that mental hospital patients are regularly exposed to various institutional policies and practices which deprive them of their basic human rights and which have a demoralizing and dehumanizing effect on the individual,’ Voight then articulated the nexus between ‘these [the state's] practices and procedures ․ [and] those which [Senate Bill No.] 592 seeks to modify and control.’  ․ The most interesting revelation in Voight's testimony, however, is his reference to a report concerning an investigation at Fairfield Hills Hospital, a state mental health facility ․ [The report] documented, in detail, the extent to which then prevailing practices at Fairfield Hills Hospital departed from the standards set by the American Psychiatric Association, and described the factors that it found to have contributed to ‘the development and maintenance of a system which inherently must result in violations and limitations of both human and civil rights.’  ․ Having noted that ‘[t]he listed complaints have by now become classic legal problems in mental hospitals in many states, [that have been successfully resolved] by enactment of new legislation in New York and California’ ․ the task force report recommended that the legislature enact a patient's bill of rights to resolve problems that ‘may be generic to all the State hospitals in Connecticut.’  “ (Citations omitted;  emphasis added.)  Id., 559–61.

The court then went on to address the provisions of General Statutes sec. 17–206c (now General Statutes sec. 17a–542), which, at that time, provided in relevant part that “[e]very patient treated in any facility for treatment of the mentally disordered shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.” ⁹  (Internal quotation marks omitted.)  Mahoney v. Lensink, supra, 213 Conn. 550 n.1. Our Supreme Court stated that this provision creates a new statutory tort cause of action “unknown to the common law, and therefore independent of common law negligence.”  Id., 563.   The court acknowledged that “the legislature chose not to attach a statutory definition to the phrase ‘humane and dignified treatment,’ “ and, therefore, the court looked to the purpose of the statute as revealed by the legislative history and circumstances surrounding its enactment.  Id.

The court determined that “[i]n its adoption of a statutory right to humane and dignified treatment, the legislature intended to afford patients a meaningful right to treatment, consistent with the requirements of good medical practice ․ Meaningful treatment ․ requires not only basic custodial care but also an individualized effort to help each patient by formulating, administering and monitoring a ‘specialized treatment plan’ as expressly mandated by sec. 17–206c.”  (Citation omitted.)  Id., 565.   The court noted, however, that “[t]he statutory responsibility for the formulation and subsequent monitoring of an appropriate treatment plan for each patient does not, however, encompass a guarantee that the treatment plan will invariably produce the desired results.   A poor outcome may occur despite the best possible medical practice ․ The standard for determining whether the provisions of sec. 17–206c have been violated thus cannot depend on the outcome of treatment.   For similar reasons, the standard does not sound in negligence.   To recover for a violation of the statute, a plaintiff must prove, as the statute prescribes ․ that the conditions of his hospitalization were statutorily deficient.   The plaintiff must allege and prove that the hospital failed initially to provide, or thereafter appropriately to monitor, an individualized treatment suitable to his psychiatric circumstances.   In assessing whether the plaintiff has met his burden of proof, the trier of fact must inquire not whether the hospital has made the best decision possible but rather whether its treatment plan was permissible and reasonable in view of the relevant information available and within a broad range of discretion ․ The issue, under sec. 17–206c, is whether the hospital made good faith efforts to improve the patient's mental health and not whether it succeeded in fulfillment of this goal.”  (Citations omitted;  emphasis added.)  Id., 566–67.

The court emphasized that, in determining whether a hospital's treatment plan was permissible and reasonable, the role of the trier of fact “is not to make independent judgments concerning treatment but rather to scrutinize the record to ensure that an expert more qualified than he has made a responsible exercise of his professional judgment.   Courts have long fulfilled this role in supervising administrative agencies.   Every regulatory agency is charged with the enforcement of a broad statute or statutes which require highly specialized training and knowledge;  the legislature provides a broad standard, the administrator develops workable rules and procedures, and the court ensures that the standard and rules are evenhandedly applied to individuals.   The role of the court in reviewing determinations of a mental health administrator should be similar to its role in any administrative review.” ¹⁰  (Internal quotation marks omitted.)   Id., n.23.

Finally, the court considered the scope of the protections provided by General Statutes sec. 17–206b (now General Statutes sec. 17a–541) which, at that time, provided in relevant part that “[n]o patient hospitalized or treated in any public or private facility for the treatment of the mentally disordered shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and contract, except in accordance with due process of law ․” ¹¹ (Internal quotation marks omitted.)  Id., 568.   The court held that this provision “intended to secure for mental hospital patients a state statutory remedy for the violation of substantive liberty interests similar to that provided by federal law under 42 U.S.C. sec.1983.”  (Emphasis added.)  Id. The court explained that “an expansive construction of ‘personal, property, or civil rights' is consistent with the usage and interpretation of similarly phrased rights guaranteed by 42 U.S.C. sec.1983.   The scope of 42 U.S.C. sec.1983 is derived, in turn, from the mandates of the due process clause of the United States constitution, and includes not only those rights recognized by the Appellate Court that a patient holds absent hospitalization but more expansively encompasses a right to treatment that results because of hospitalization ․ [T]he freedom from deprivation of ‘any personal, property, or civil rights' provided in sec. 17–206b includes not only those statutory rights expressly enumerated, but necessarily incorporates as well the freedom from deprivation of ‘any rights, privileges, or immunities secured by the Constitution’ as guaranteed under 42 U.S.C. sec.1983.”  (Citations omitted.)  Id., 569–70.

The court also determined that a claim under this provision must rise above negligence, explaining that “[t]he United States Supreme Court has held, in the context of sec.1983 actions, that acts of mere negligence do not violate an individual's rights under the due process clause of the United States constitution ․” (Citations omitted.)  Id., 572.   The court ultimately found that, since General Statutes sec. 17–206b “necessarily incorporates those rights afforded under 42 U.S.C. sec.1983,” the plaintiffs' complaint, alleging the failure to restrict or control a patient so as to prevent suicide, was sufficient for purposes of alleging a violation of General Statutes sec. 17–206b, as facts similar to those alleged “have been held to be sufficient to allege such a degree of wanton neglect so as to state a cause of action for violation of a patient's rights under 42 U.S.C. sec.1983.”  (Internal quotation marks omitted.)  Id.

As explained in Mahoney, one of the major considerations in enacting the psychiatric patient bill of rights was that mental hospital patients were being “regularly exposed to various institutional policies and practices which [deprived] them of their basic human rights, which [had] a demoralizing and dehumanizing effect on the individual,” and which contributed to “the development and maintenance of a system which inherently must result in violations and limitations of both human and civil rights.”  (Emphasis in original;  internal quotation marks omitted.)  Mahoney v. Lensink, supra, 213 Conn. 559–61.   To remedy these issues, the psychiatric patient bill of rights codified the constitutional guarantees which must be afforded to all persons with psychiatric disabilities being treated in a facility for treatment of such persons.   See Melville v. Sabbatino, 30 Conn.Sup. 320, 324 (1973) ( “[t]he act ․ codifies certain constitutional guarantees which must be afforded to all patients in a hospital for the mentally disordered ․”).  Indeed, our Supreme Court has described the psychiatric patient bill of rights as a statute addressing the civil rights of persons who are mentally ill, and has used its analysis in Mahoney as guidance for interpreting other statutes concerned with protecting the rights of individuals with mental difficulties.   Oller v. Oller–Chiang, 230 Conn. 828, 839–40 (1994).¹²

In contrast, the purpose of General Statutes sec. 52–190a “is to prevent frivolous lawsuits against health care providers.”  King v. Sultar, 253 Conn. 429, 450 (2000);  see Dias v. Grady, supra, 292 Conn. 357 (initial purpose of General Statutes sec. 52–190a “was to prevent frivolous medical malpractice actions”);  Wilcox v. Schwartz, 119 Conn.App. 808, 813–14 (2010), aff'd, 303 Conn. 630 (2012) (“purpose of sec. 52–190a is to ‘inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider’ ”).   In Dias v. Grady, supra, 257–58, our Supreme Court described the history of the statute:  “Section 52–190a originally was enacted as part of the Tort Reform Act of 1986 ․ The original version of the statute required the plaintiff in any medical malpractice action to conduct ‘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 [plaintiff]’ and to file a certificate ‘that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.’  ․ The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence, but permitted the plaintiff to rely on such an opinion to support his good faith belief ․ [T]he purpose of the original version of sec. 52–190a was to prevent frivolous medical malpractice actions ․

“In 2005, the legislature amended sec. 52–190a(a) to include a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that ‘there appears to be evidence of medical negligence’ and to attach the opinion to the certificate of good faith to be filed with the complaint ․ In addition, the amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint ․ The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts.”  (Citations omitted.)

The histories attending the enactments of the psychiatric patient bill of rights and General Statutes sec. 52–190a convinces this court that claims for violations of General Statutes sec. 17a–541, 17a–542 and 17a–544(b) are not subject to the requirements of General Statutes sec. 52–190a.   The psychiatric patient bill of rights is a remedial act and, therefore, “must be liberally construed in favor of those whom the legislature intended to benefit;” (Internal quotation marks omitted.)  Rutka v. Meriden, 145 Conn.App. 202, 215 (2013);  and “should be construed generously to accomplish its purpose.”  (Internal quotation marks omitted.)  Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 245 (2006).   The psychiatric patient bill of rights was clearly enacted to benefit patients receiving psychiatric treatment by ensuring the protection of their civil liberties.   The duty owed under the psychiatric patient bill of rights is grounded in constitutional due process, and the humanitarian and constitutional purposes of the act would not be accomplished if General Statutes sec. 52–190a applied to conduct that the psychiatric patient bill of rights makes actionable in General Statutes sec. 17a–541, 17a–542 and 17a–544(b).  Indeed, “[i]n giving a statute its full meaning where that construction is in harmony with the context and policy of the statute, there is no canon against using common sense in construing laws as saying what they obviously mean.”  (Internal quotation marks omitted.)   Singh v. Singh, 213 Conn. 637, 655 (1990).   Moreover, this court is required to presume that the legislature, when it enacted General Statutes sec. 52–190a as part of the Tort Reform Act of 1986, was aware of the existing provisions set forth in the psychiatric patient bill of rights, which was enacted in 1971.   See Southern New England Telephone Co. v. Dept. of Public Utility Control, 274 Conn. 119, 129 (2005) (“[w]e presume that the legislature is aware of existing statutes when enacting new ones”).  “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.”  (Internal quotation marks omitted.)  Nunno v. Wixner, 257 Conn. 671, 682 (2001);  see Mack v. Saars, 150 Conn. 290, 298 (1963) (“[i]t is a well-recognized rule of statutory construction that the legislature is presumed to know all the existing statutes, the judicial interpretation of them, and the effect that its action or nonaction will have on them”).   Based on the policies which the tort reform act and the psychiatric patient bill of rights seek to serve, there is no understandable reason why the legislature would have intended that General Statutes sec. 52–190a apply to the statutory cause of action authorized by the psychiatric patient bill of rights.

This court finds that the cases cited by the defendant do not compel a different result.   The defendant relies on a series of cases in which courts found that a plaintiff could not recast a medical malpractice claim as other causes of action.   In Haynes v. Yale New Haven Hospital, 243 Conn. 17 (1997), the plaintiff sued the hospital and physician, who provided emergency health care after an automobile accident, alleging malpractice and claims under the Connecticut Unfair Trade Practices Act (“CUTPA”).   Our Supreme Court held, inter alia, that professional malpractice does not fall under CUTPA.  Id., 34.   The court explained that “[a]lthough physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA.”  Id. However, the court explained, further, that “[a] blanket exemption for the medical profession would ․ be improper ․ We thus conclude that the touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel.   Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation.   To hold otherwise would transform every claim for medical malpractice into a CUTPA claim.”  (Citation omitted.)  Id., 38.

In Rumbin v. Baez, 52 Conn.App. 487, 490–91 (1999), the Appellate Court, citing, inter alia, Haynes, applied the entrepreneurial rule, striking a CUTPA claim against a clinical psychologist.   The plaintiff had alleged that he was denied state services as a result of an evaluation conducted by the defendant, who, the plaintiff alleged, “was not qualified or competent to perform such tests but falsely represented himself as such for personal pecuniary gain.”  Id., 488–89.   The court explained that “[t]he defendant in this case was a licensed clinical psychologist, maintained a clinical psychology practice and held himself out to the public as qualified to practice clinical psychology.   The defendant's failure to meet the standards of that profession would constitute a malpractice claim.”  Id., 490.   The court also struck the plaintiff's breach of contract claim and tortious interference claims.  Id., 491.   With regard to the breach of contract claim, the court acknowledged that a distinct claim may arise and exist where the physician and patient contract for a specific result, but found that the plaintiff's complaint contained “no allegations of a breach of a contractual duty owed to him ․ [and] no allegation that the parties contracted for a specific result.   The claim is essentially a medical malpractice claim clothed in the language of contract.”  Id., 491–92.

The defendant, in the present case, also directs the court's attention to Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, cert. denied, 292 Conn. 911 (2009), in which the court determined that a plaintiff's claims for infliction of emotional distress, breach of contract and misrepresentation sounded in medical malpractice as those claims arose from an alleged failure by physicians to refer the plaintiff for a consultation with high risk pregnancy specialists.   The court applied Trimel and found that “[t]he claim certainly arises out of the professional-patient relationship between the defendants and the plaintiff, as the facts underlying the claim occurred solely in the context of the defendants' ongoing medical treatment of the plaintiff.   The claim is of a ‘specialized medical nature’ because it directly involves the plaintiff's medical condition:  her high risk pregnancy.   To decide the issues presented by the plaintiff's complaint, a jury would require expert medical testimony.   This is because the issues, including the proper scope of the relationship between a physician and his patient, the appropriate standard of care, which is the measure of the defendants' duty to the plaintiff, and whether the defendants' actions breached that standard, are beyond the knowledge of the ordinary layperson ․ The defendants' alleged acts also substantially are related to their medical diagnosis and treatment of the plaintiff and involved the exercise of their medical judgment.”  (Citation omitted.)  Id., 577–78.

The foregoing cases demonstrate that a claim, the focus of which is on the level of skill exercised in the performance of the treatment, is likely to be a claim for medical malpractice.   Notably, however, these cases also demonstrate that other causes of action, such as breach of contract and CUTPA, are available to address other aspects of health related services.   These cases recognize that a plaintiff may have a variety of claims arising out of health related services that do not focus on the performance of the treatment.   Indeed, in Shortell v. Cavanagh, 300 Conn. 383 (2011), our Supreme Court determined that General Statutes sec. 52–190a does not apply to a claim of lack of informed consent because such a claim is not a medical negligence claim.   The court did not apply the three-part Trimel test, but instead relied on an earlier holding in Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 293 (1983), which determined, on public policy grounds, that informed consent claims do not require expert testimony to establish the standard of care.  Shortell v. Cavanagh, supra, 388.

The Shortell court based its holding on two essential findings.   First, the court determined that expert testimony is not necessary in order to establish the medical standard of care, as a claim for lack of informed consent is determined by a lay standard of materiality.  Id., 388.   Second, the court determined that “although ․ sec. 52–190a does not explicitly limit the requirement of a written opinion letter to cases that require expert testimony, we have concluded herein that its application in a case that does not require expert testimony regarding the standard of care would lead to an absurd result.”  Id., 393.   This is because “[u]nlike the traditional action of negligence, a claim for lack of informed consent focuses not on the level of skill exercised in the performance of the procedure itself but on the adequacy of the explanation given by the physician in obtaining the patient's consent.”  (Internal quotation marks omitted.)  Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 253 (2008).

Like a claim for lack of informed consent, claims for violations of General Statutes sec. 17a–541, 17a–542 and 17a–544(b) do not focus on the level of skill exercised in the performance of the treatment itself.   For example, to recover for a violation of General Statutes sec. 17a–542, which entitles every patient to humane and dignified treatment, a plaintiff must prove “as the statute prescribes ․ that the conditions of his hospitalization were statutorily deficient ․ [T]he issue ․ is whether the hospital made good faith efforts to improve the patient's mental health and not whether it succeeded in fulfillment of this goal.”  (Citations omitted.)  Mahoney v. Lensink, supra, 213 Conn. 566–67.   In determining whether a breach has occurred, the trier of fact “is not to make independent judgments concerning treatment but rather to scrutinize the record to ensure that an expert more qualified than he has made a responsible exercise of his professional judgment ․ The role of the court in reviewing determinations of a mental health administrator should be similar to its role in any administrative review.”  (Emphasis added;  internal quotation marks omitted.)   Id., 567 n.23. Similarly, a claim for violation of General Statutes sec. 17a–541 focuses on whether the plaintiff was deprived of his due process rights.   Finally, the focus of General Statutes sec. 17a–544(b) is upon whether medication was used as a substitute for an habilitation program.   Indeed, although it is conceivable that expert testimony may be necessary to establish a breach of these provisions of the psychiatric patient bill of rights—an issue which is not before this court—such a requirement would not automatically convert this statutory cause of action into one for medical negligence.

As this court finds that General Statutes sec. 52–190a does not apply to claims for violations General Statutes sec. 17a–541, 17a–542 and 17a–544(b), this court must now review the plaintiff's complaint to determine whether it falls within the conduct that the psychiatric patient bill of rights makes actionable.

B

Plaintiff's Complaint 13

Count one of the plaintiff's complaint alleges that the defendant deprived the plaintiff of her right to independently contract with an employer and to negotiate lawful accommodations pursuant to the ADA, in violation of General Statutes sec. 17a–541, which provides that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law ․” This provision incorporates those rights afforded under 42 U.S.C. sec.1983.  Mahoney v. Lensink, supra, 213 Conn. 569–72.   Although a claimed violation of the ADA is not actionable under 42 U.S.C. sec.1983;  see Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir.1999), cert. dismissed, 529 U.S. 1001, 120 S.Ct. 1265, 146 L.Ed.2d 215 (2000);  the ADA is a comprehensive civil rights law that prohibits discrimination on the basis of disability.  42 U.S.C. sec. 12101(b)(1).   This court finds that an alleged interference with a psychiatric patient's exercise of civil rights afforded by the ADA is conduct that the psychiatric patient bill of rights makes actionable.

Whether the plaintiff has, indeed, alleged facts sufficient to state a cause of action under General Statutes sec. 17a–541 is not before this court on the defendant's motion to dismiss.   A motion to dismiss “essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court ․ By contrast, [a] motion to strike attacks the sufficiency of the pleadings ․ There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 621 (2006), cert. denied, 281 Conn. 919 (2007).

As the plaintiff's claims are not subject to General Statutes sec. 52–190a, and count one alleges conduct that the psychiatric patient bill of rights makes actionable, this court has subject matter jurisdiction over count one.   The defendant's motion to dismiss count one is, therefore, denied.

Count two alleges that the defendant used medication as a substitute for an habilitation program in violation of General Statutes sec. 17a–544(b).¹⁴  Certainly, the plaintiff has alleged a violation of General Statutes sec. 17a–544(b) that is actionable under the psychiatric patient bill of rights.   Count two also alleges that the defendant violated General Statutes sec. 17a–542 by failing to order the appropriate medications and quantities thereof from the pharmacy, with gross disregard for the dignity of the patient and with a lack of regard for the health and welfare of the plaintiff.   Count two further alleges that the plaintiff followed the treatment schedule set forth by the defendant, but, nonetheless, was deprived of the medication she was instructed to take.

General Statutes sec. 17a–542 provides in relevant part that “[e]very patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.”   In Mahoney v. Lensink, supra, 213 Conn. 565, our Supreme Court explained that “[i]n its adoption of a statutory right to humane and dignified treatment, the legislature intended to afford patients a meaningful right to treatment,” which requires “an individualized effort to help each patient by formulating, administering and monitoring a ‘specialized treatment plan’ ․” This court finds that the allegations that the defendant wrongfully failed to order the appropriate medications is conduct that the psychiatric patient bill of rights makes actionable.   See Mahoney v. Lensink, supra, 213 Conn. 567 (allegations of failure to provide proper counseling, medication, supervision or suicide precautions held sufficient to state a cause of action under General Statutes sec. 17a–542).   Whether the plaintiff has, indeed, alleged facts sufficient to state a cause of action under General Statutes sec. 17a–544(b) and 17a–542 is not before this court on the defendant's motion to dismiss.   As the plaintiff's claims are not subject to General Statutes sec. 52–190a, and count two alleges conduct that the psychiatric patient bill of rights makes actionable, this court has subject matter jurisdiction over count two.   The defendant's motion to dismiss count two is, therefore, denied.

Count three alleges that the defendant failed to develop or implement a discharge plan for the plaintiff, failed to provide reasonable notice of her impending discharge, failed to include the plaintiff in planning for her discharge, and failed to plan for appropriate aftercare of the patient, all in violation of General Statutes sec. 17a–542.  General Statutes sec. 17a–542 provides that “[e]very patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.   Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge and (3) planning for appropriate aftercare to the patient upon his discharge.”   Under this provision, a plaintiff has a right to be an active participant in her treatment plan.   The treatment plan must include a discharge plan and the patient is allowed to participate in planning for discharge.   As the plaintiff in the present case has alleged that she was deprived of these rights, such conduct is actionable under the psychiatric patient bill of rights.

Whether the plaintiff has, indeed, alleged facts sufficient to state a cause of action under General Statutes sec. 17a–542 is not before this court on the defendant's motion to dismiss.   As the plaintiff's claim is not subject to General Statutes sec. 52–190a, and count three alleges conduct that the psychiatric patient bill of rights makes actionable, this court has subject matter jurisdiction over count three.   The defendant's motion to dismiss count three is, therefore, denied.

V

CONCLUSION

This court holds that claims for violations of General Statutes sec. 17a–541, 17a–542 and 17a–544 are not subject to the requirements of General Statutes sec. 52–190a.   As the conduct alleged by the plaintiff falls within the scope of the statutory protections, this court has subject matter jurisdiction.   The motion to dismiss (# 101) is, therefore, denied.

So ordered.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. The complaint alleges that the defendant is a facility for the diagnosis, observation or treatment of persons with psychiatric disabilities with the meaning of General Statutes sec. 17a–540(1), and that the plaintiff was a person with a mental disorder within the meaning of General Statutes sec. 17a–540(2) and (3)..  FN1. The complaint alleges that the defendant is a facility for the diagnosis, observation or treatment of persons with psychiatric disabilities with the meaning of General Statutes sec. 17a–540(1), and that the plaintiff was a person with a mental disorder within the meaning of General Statutes sec. 17a–540(2) and (3).

FN2. General Statutes sec. 17a–541 provides that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law, and unless such patient has been declared incapable pursuant to sections 45a–644 to 45a–662, inclusive.   Any finding of incapability shall specifically state which civil or personal rights the patient is incapable of exercising.”.  FN2. General Statutes sec. 17a–541 provides that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law, and unless such patient has been declared incapable pursuant to sections 45a–644 to 45a–662, inclusive.   Any finding of incapability shall specifically state which civil or personal rights the patient is incapable of exercising.”

FN3. “Medication shall not be used as a substitute for an habilitation program.”  General Statutes sec. 17a–544(b)..  FN3. “Medication shall not be used as a substitute for an habilitation program.”  General Statutes sec. 17a–544(b).

FN4. “Every patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.   Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge and (3) planning for appropriate aftercare to the patient upon his discharge.”  General Statutes sec. 17a–542..  FN4. “Every patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.   Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge and (3) planning for appropriate aftercare to the patient upon his discharge.”  General Statutes sec. 17a–542.

FN5. The defendant also moved to dismiss on the ground that the recognizance of a person to prosecute the action was not signed, in violation of General Statutes sec. 52–185 and Practice Book sec. 8–3 and 8–4.   At oral argument, the defendant indicated that it was not pursuing this ground for dismissal..  FN5. The defendant also moved to dismiss on the ground that the recognizance of a person to prosecute the action was not signed, in violation of General Statutes sec. 52–185 and Practice Book sec. 8–3 and 8–4.   At oral argument, the defendant indicated that it was not pursuing this ground for dismissal.

FN6. Section 52–190a(a) specifies that a party bringing a medical malpractice action must comply with the following requirements:  “[make] a reasonable inquiry ․ 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.”  Section 52–190a(c) provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.”   The good faith certificate and written and signed opinion are “akin to ․ [pleadings] that must be attached to the complaint in order to commence properly the action.”   Morgan v. Hartford Hospital, 301 Conn. 388, 398 (2011).   The failure to comply with sec. 52–190a “constitutes insufficient service of process ․ [and] implicates personal jurisdiction.”  Id., 402.  “A plaintiff's failure to comply with the requirements of sec. 52–190a(a) ․ render her complaint subject to dismissal pursuant to sec. 52–190a(c).”  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583, cert. denied, 292 Conn. 911 (2009)..  FN6. Section 52–190a(a) specifies that a party bringing a medical malpractice action must comply with the following requirements:  “[make] a reasonable inquiry ․ 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.”  Section 52–190a(c) provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.”   The good faith certificate and written and signed opinion are “akin to ․ [pleadings] that must be attached to the complaint in order to commence properly the action.”   Morgan v. Hartford Hospital, 301 Conn. 388, 398 (2011).   The failure to comply with sec. 52–190a “constitutes insufficient service of process ․ [and] implicates personal jurisdiction.”  Id., 402.  “A plaintiff's failure to comply with the requirements of sec. 52–190a(a) ․ render her complaint subject to dismissal pursuant to sec. 52–190a(c).”  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583, cert. denied, 292 Conn. 911 (2009).

FN7. In Simmons, the court found that “a fair reading of the complaint reveals that the plaintiff's claims do sound in medical malpractice rather than ordinary negligence.   The allegations of the complaint, which were repeated throughout the counts, stated that the defendants undertook to provide pharmaceutical care to the plaintiff and deviated from the appropriate standards of care.   Significantly, the plaintiff also alleged that she specifically consulted with CVS' pharmacists regarding whether the tablets she received were proper and in conformance with her prescription.   It is clearly alleged that the defendants were providing professional services, namely pharmaceutical care, in the course of a medical professional-patient relationship by providing prescription medication and consultation regarding that medication.   The negligent acts of providing the wrong prescription medication and assuring the plaintiff that she had received the appropriate medication were, at the very least, substantially related to the pharmaceutical care she received from the defendants ․ The defendants exercised specialized medical judgment and skill by assuring the plaintiff that she had received the proper medication.   Although the defendants' acts may be obviously negligent to the trier of fact, the distinction between ordinary negligence and malpractice does not hinge on whether expert testimony would be required to establish a standard of care and breach ․ Therefore, the plaintiff's claims sound in medical malpractice and a written opinion letter and certificate of good faith are required pursuant to General Statutes sec. 52–190a.”  (Citations omitted.).  FN7. In Simmons, the court found that “a fair reading of the complaint reveals that the plaintiff's claims do sound in medical malpractice rather than ordinary negligence.   The allegations of the complaint, which were repeated throughout the counts, stated that the defendants undertook to provide pharmaceutical care to the plaintiff and deviated from the appropriate standards of care.   Significantly, the plaintiff also alleged that she specifically consulted with CVS' pharmacists regarding whether the tablets she received were proper and in conformance with her prescription.   It is clearly alleged that the defendants were providing professional services, namely pharmaceutical care, in the course of a medical professional-patient relationship by providing prescription medication and consultation regarding that medication.   The negligent acts of providing the wrong prescription medication and assuring the plaintiff that she had received the appropriate medication were, at the very least, substantially related to the pharmaceutical care she received from the defendants ․ The defendants exercised specialized medical judgment and skill by assuring the plaintiff that she had received the proper medication.   Although the defendants' acts may be obviously negligent to the trier of fact, the distinction between ordinary negligence and malpractice does not hinge on whether expert testimony would be required to establish a standard of care and breach ․ Therefore, the plaintiff's claims sound in medical malpractice and a written opinion letter and certificate of good faith are required pursuant to General Statutes sec. 52–190a.”  (Citations omitted.)

FN8. The defendants also moved to strike the entire complaint on the ground that the plaintiff failed to filed the good faith certificate required by General Statutes sec. 52–190a.   The court did not reach the issue of whether each of the eight counts of the plaintiff's complaint required such a filing, as the plaintiff had, indeed, filed a good faith certificate.  Id..  FN8. The defendants also moved to strike the entire complaint on the ground that the plaintiff failed to filed the good faith certificate required by General Statutes sec. 52–190a.   The court did not reach the issue of whether each of the eight counts of the plaintiff's complaint required such a filing, as the plaintiff had, indeed, filed a good faith certificate.  Id.

FN9. That provision was subsequently transferred and is now General Statutes sec. 17a–542, which provides that “[e]very patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.   Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge and (3) planning for appropriate aftercare to the patient upon his discharge.”.  FN9. That provision was subsequently transferred and is now General Statutes sec. 17a–542, which provides that “[e]very patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.   Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.   Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge and (3) planning for appropriate aftercare to the patient upon his discharge.”

FN10. Our Supreme Court ultimately determined that the plaintiffs' complaint adequately stated a cause of action for violation of General Statutes sec. 17–206c.  Id., 567..  FN10. Our Supreme Court ultimately determined that the plaintiffs' complaint adequately stated a cause of action for violation of General Statutes sec. 17–206c.  Id., 567.

FN11. That provision was subsequently transferred and is now General Statutes sec. 17a–541, providing that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law, and unless such patient has been declared incapable pursuant to sections 45a–644 to 45a–662, inclusive.   Any finding of incapability shall specifically state which civil or personal rights the patient is incapable of exercising.”.  FN11. That provision was subsequently transferred and is now General Statutes sec. 17a–541, providing that “[n]o patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law, and unless such patient has been declared incapable pursuant to sections 45a–644 to 45a–662, inclusive.   Any finding of incapability shall specifically state which civil or personal rights the patient is incapable of exercising.”

FN12. In Oller, our Supreme Court was guided by the Mahoney court's application of canons of statutory construction in interpreting General Statutes sec. 45a–675, which, “like the statute at issue in Mahoney ․ is concerned with protecting the rights of individuals with mental difficulties.”  Oller v. Oller–Chiang, supra, 230 Conn. 838–39..  FN12. In Oller, our Supreme Court was guided by the Mahoney court's application of canons of statutory construction in interpreting General Statutes sec. 45a–675, which, “like the statute at issue in Mahoney ․ is concerned with protecting the rights of individuals with mental difficulties.”  Oller v. Oller–Chiang, supra, 230 Conn. 838–39.

FN13. Although the court has diligently identified those factual allegations that are relevant to the disposition of the defendant's motion, the court notes that many of the allegations contained within the ninety-seven (97) paragraphs that comprise the plaintiff's three-count complaint are repetitious, immaterial, improper and unnecessary.   See Practice Book sec. 10–1 and 10–35..  FN13. Although the court has diligently identified those factual allegations that are relevant to the disposition of the defendant's motion, the court notes that many of the allegations contained within the ninety-seven (97) paragraphs that comprise the plaintiff's three-count complaint are repetitious, immaterial, improper and unnecessary.   See Practice Book sec. 10–1 and 10–35.

FN14. “Medication shall not be used as a substitute for an habilitation program.”  General Statutes sec. 17a–544(b)..  FN14. “Medication shall not be used as a substitute for an habilitation program.”  General Statutes sec. 17a–544(b).

Trombley, Wilson J., J.