Tracy Smith v. Edwin A. Njoku et al. (2014)

The plaintiff in the instant matter has filed an Application for Prejudgment Remedy.   The plaintiff seeks an attachment of the defendant Edwin A. Njoku's real estate located at 46 Grand Street, Hartford, as well as bank accounts and other assets, in the amount of $1,000,000.   A hearing on the application was held on December 6, 2013.

General Statutes § 52–278d(a) authorizes the grant of prejudgment remedy when “there is probable cause is that a judgment in the amount of prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ․”

“Probable cause” has been regularly defined by Connecticut Courts as “a bona fide in the existence of the facts essential under the law for the action, such as would a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it.   See TES Franchising, Inc. v. Lusk Corporation, 172 Conn. 577, 584 (1977);  Wall v. Toomy, 52 Conn. 35, 36 (1884).   Probable cause must be found as to both the merits and damages.   Kosiorek v. Smigelski, 112 Conn.App. 315, 322–23, cert. denied, 291 Conn. 903 (2009).

The plaintiff's compliant is in three counts and alleges medical negligence by defendant Njoku (First Count);  the defendant Christus Medical Group, P.C. acting through its employee or agent Edwin A. Njoku (Second Count) and by Edwin A. Njoku and Christus Medical Group, P.C. acting jointly (Third Count).   The plaintiff alleges that she suffered a pelvic organ prolapse along with associated conditions (such as incontinence), after engaging in sexual intercourse with the defendant Njoku while she was under his care for complications due to hysterectomy and surgical removal of fibroid uterine tumors.

The essential cause of action for medical negligence against both defendants is proof that the negligent conduct occurred in the context of rendering of professional medical services.  “[P]rofessional negligence or malpractice ․ [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.”

“Furthermore, malpractice presupposes some improper conduct in the treatment of operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definition, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are used 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 treatment.”  (Internal quotation marks omitted;  citations omitted;  emphasis in original).  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 33, 358–59 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

In the present case, the facts and circumstances surrounding the encounter between the plaintiff and defendant Njoku at the Comfort Inn Motel in Windsor are indicative of sexual rendezvous between consenting adults, and not the rendering of professional medical services.   On June 19, 2010, the plaintiff asked her ex-husband to give her a ride to the Comfort Inn, motel in Windsor, Connecticut.   The plaintiff intentionally lied to her ex-husband that her meeting with the defendant was for the purpose of real estate business.   The plaintiff arrived earlier than the defendant Njoku, registered, paid with her own credit card and checked into a room.   The plaintiff went to the package store to buy wine or had wine on her person prior to arriving at the motel.   The plaintiff took 2 pills with a glass of wine.   She had sexual intercourse with defendant Njoku.   The plaintiff's testimony that her meeting at the motel was for medical diagnosis and treatment was neither credible nor persuasive.

Accordingly, the court finds that the plaintiff has not carried her burden of demonstrating probable cause that a judgment will be rendered based in her favor based on medical negligence.   Specifically, the court believes that a person of ordinary caution, prudence and judgment, having knowledge of all the relevant facts and circumstances, would not entertain the belief that the sexual encounter between the plaintiff and defendant Njoku was substantially related to medical diagnosis and treatment, such that actionable medical malpractice can be said to have occurred.

Because the plaintiff has failed to sustain her burden of proof with regard to the prejudgment remedy requested, the application for prejudgment remedy is DENIED.

M. Nawaz Wahla

Judge, Superior Court

Wahla, M. Nawaz, J.