Kenneth M. Briggs v. Suzanne Winters (2014)

MEMORANDUM (Motion to Dismiss, # 141 Short Calendar, September 22, 2014)

The defendant, Hartford Dispensary, Willimantic Clinic, moves to dismiss on the ground that the plaintiff failed to attach a certificate of good faith and a written opinion letter from a similar healthcare provider pursuant to General Statutes § 52–190a.

FACTS

On January 10, 2013, the plaintiff, Kenneth M. Briggs, as administrator of his son Reuben C. Perrin's estate, brought a three-count complaint against the defendant, Suzanne L. Winters.   On June 10, 2013, the defendant Winters filed an apportionment complaint against the Hartford Dispensary, Willimantic Clinic (the defendant dispensary).   On June 13, 2013, the defendant dispensary filed its appearance.   On August 15, 2013, the plaintiff filed an amended complaint, which contained a fourth count of negligence as to the defendant dispensary.   On December 23, 2013, this court granted the defendant dispensary's motion to strike the apportionment complaint.

On July 8, 2014, the plaintiff filed a second amended complaint, which contained an additional count of common-law recklessness against the defendant dispensary.   In the second amended complaint, the plaintiff alleges the following facts.   On July 9, 2012, at approximately 6:30 a.m., Perrin was driving westbound on Route 6 in Brooklyn, Connecticut.   The defendant Winters was driving eastbound when the vehicle operated by the defendant Winters crossed the double yellow lines and collided with Perrin's vehicle, resulting in Perrin's death.   The plaintiff alleges that the decedent's death was caused by the defendant Winters driving at an excessive speed and operating the vehicle under the influence of methadone.   Count one alleges negligence, count two alleges statutory recklessness, and count three alleges common-law recklessness against the defendant Winters.

In count four of the second amended complaint, the plaintiff alleges that the defendant dispensary was negligent by the following facts.   On July 9, 2012, the defendant dispensary dispensed, and the defendant Winters ingested, seventy milligrams of methadone.   The defendant Winters then left the clinic of the defendant dispensary and operated her vehicle on the public highway.   The plaintiff alleges that the negligence and carelessness of the defendant dispensary caused the death of the decedent.   The plaintiff alleges that the defendant increased the dosage of methadone to the defendant Winters and did not require her to wait a period of time to observe adverse effects, including impairment of her ability to operate a motor vehicle;  failed to institute such a policy for evaluating side effects and in fact encouraged those receiving methadone to leave immediately after ingestion;  allowed the defendant Winters to operate her motor vehicle;  and failed to warn the defendant Winters of adverse side effects.

Count five of the plaintiff's complaint alleges common-law recklessness against the defendant dispensary based on the facts previously discussed.   The plaintiff further alleges that the dispensary was aware that methadone causes dizziness, drowsiness, hallucinations, and other side effects which affect a person's ability to operate a motor vehicle.   Accordingly, the plaintiff alleges that the decedent's death was caused by the defendant dispensary's reckless and wanton misconduct in the following ways:  (1) allowing the defendant Winters to operate her motor vehicle after dispensing a narcotic to her known to impair the ability to operate a motor vehicle;  (2) maintaining a policy whereby those receiving methadone were encouraged to immediately leave the clinic;  and (3) failing to adopt a policy or procedure for evaluating a person's ability to operate a motor vehicle.   The plaintiff alleges that the defendant's conduct was with the knowledge or substantial certainty that serious personal injury and/or death could occur to other drivers.

On July 24, 2014, the defendant dispensary filed a motion to dismiss counts four and five of the second amended complaint and a memorandum in support.   The plaintiff filed his objection on September 17, 2014.   The matter was heard at short calendar on September 22, 2014.

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).  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10–6 and 10–7 and within the time provided by Section 10–30.”  Practice Book § 10–32.  “Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance.”  Practice Book § 10–30(b).

The defendant argues that counts four and five should be dismissed on the ground that the plaintiff failed to file a certificate of good faith and a written opinion letter by a similar health care provider pursuant to General Statutes § 52–190a, which according to the defendant, governs negligence actions against health care providers.   The plaintiff responds that the defendant dispensary's motion to dismiss is untimely and the action is not a medical malpractice claim.

A

Timeliness of the Defendant's Motion to Dismiss

“ ‘[A]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance ․’ Practice Book § 10–30 [and § 10–32].   The rule[s] specifically and unambignously [provide] that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance and] in the sequence required by Practice Book § 10–6 ․ Any claim of insufficiency of process is waived if not sooner raised.”  (Internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 402–03, 46 A.3d 90 (2012).

“The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.”  (Citation omitted;  internal quotation marks omitted.)   Morgan v. Hartford Hospital, 301 Conn. 388, 401–02, 21 A.3d 451 (2011).

General Statutes § 52–102b(d) provides:  “Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.”  “Because § 52–102b implicates personal jurisdiction, a party must object to defective service of process for a claim brought pursuant to the statute within thirty days of the filing of an appearance.   Failure to do so waives any such objection.”  Carpenter v. Law Offices of Dressler and Associates, LLC, 85 Conn.App. 655, 662, 858 A.2d 820 (2004).

In Carpenter v. Law Offices of Dressler and Associates, LLC, the plaintiff had asserted direct claims against the apportionment defendants on September 6, 2001.  Id., 657.   The apportionment defendants had filed a motion to strike the apportionment complaint on September 14, 2001, which had been granted on February 22, 2002.  Id. On January 9, 2002, while the apportionment complaint had still been pending, the plaintiff had filed another amended complaint, which had been identical to the previous amended complaint “except that it amplified and expanded some of the claims against the original defendants.”  Id. On January 15, 2003, the apportionment defendants had filed a motion to dismiss the direct claims against them.  Id., 657–68.   The Appellate Court held that because the plaintiff had amended her complaint and asserted her direct claims against the apportionment defendants on September 6, 2001, the apportionment defendants' motion to dismiss the direct claims against them, which had been filed on January 15, 2003, was outside the thirty-day time period.  Id., 662.

The defendant argued at short calendar that Practice Book § 10–61, which addresses pleading after an amendment, applies in this situation.  Section 10–61 allows an adverse party to plead within the time provided by Practice Book § 10–8 when a pleading has been amended.   In the alternative, if the adverse party has already pleaded, the pleading may be altered within ten days after the amendment or such other time as the rules of practice or the judicial authority may prescribe.  Practice Book § 10–61.  Practice Book § 10–8 provides in relevant part that:  “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of thirty days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required, except that in summary process actions the time period shall be three days and in actions to foreclose a mortgage on real estate the time period shall be fifteen days.”   The defendant's argument implies that it would have thirty days from the second amended complaint, dated July 8, 2014, from which to file a motion to dismiss.

Nevertheless, Carpenter v. Law Offices of Dressler and Associates, LLC, is controlling.   While the case is not clear as to whether the motion to dismiss must be filed within thirty days from the appearance or thirty days from when the direct claims are asserted, the Appellate Court's final conclusion focused on the date on which the direct claims were asserted against the apportionment defendants and whether the motion to dismiss was filed within thirty days of this date.  Carpenter v. Law Offices of Dressler and Associates, LLC, supra, 662.¹

In the present case, an apportionment complaint was filed against the defendant dispensary on June 10, 2013.   The defendant dispensary filed its appearance on June 13, 2013.   The plaintiff first asserted a direct claim against the defendant dispensary pursuant to § 52–109b on August 15, 2013.   The defendant dispensary moved to dismiss those claims on the ground of failure to comply with § 52–190a, challenging personal jurisdiction, on July 24, 2014, which was well outside the thirty-day time period.   The motion to dismiss in the present case was filed over one year after the appearance, as well as almost one year from when the first direct claim was asserted.   Therefore, the defendant dispensary waived any challenge to the court's personal jurisdiction.

B

Section 52–190a and Medical Malpractice Actions

Furthermore, even if the defendant's motion had been timely, § 52–190a applies to causes of action sounding in medical malpractice.  “[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”  (Internal quotation marks omitted.)  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Coun. 911, 973 A.2d 661 (2009);  see also Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002).   If the three considerations are met, the cause of action properly sounds in medical malpractice, and a written opinion letter is required pursuant to § 52–190a(a).  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 585.

“Pursuant to [§ 52–190a(a) ] ․ a cause of action alleging medical malpractice must be brought by a patient against a health care provider because the language of the statute specifically provides that the alleged negligence must have occurred ‘in the care or treatment of the claimant ․’ General Statutes § 52–190a.”  (Citation omitted;  emphasis in original.)  Jarmie v. Troncale, 306 Conn. 578, 587, 50 A.3d 802 (2012) (holding in context of motion to strike).   In Jarmie v. Troncale, the court held that “insofar as the defendants characterize[d] the plaintiff's complaint as sounding in medical malpractice, it [was] legally insufficient because it contain[ed] no allegations that the plaintiff and [the defendant doctor] had a physician-patient relationship as required under Connecticut's medical malpractice law.”  Id., 588–89.

“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.  [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 or operative skill [or] ․ the failure to exercise requisite medical skill.”  (Emphasis in original;  internal quotation marks omitted.)  Multari v. Yale New Haven Hospital, Inc., 145 Conn.App. 253, 258, 75 A.3d 733 (2013) (holding that the plaintiff was not suing the defendant in its capacity as a medical provider and reversing the trial court's decision granting the defendant's motion to dismiss).²

In Multari v. Yale New Haven Hospital, Inc., a grandmother had sustained injuries when she slipped and fell while carrying her granddaughter, who had undergone surgery, out of a hospital.  Id., 255.   The grandmother had alleged that the hospital was negligent in creating a dangerous condition by forcing her to leave, not assisting her with carrying her granddaughter or personal items, not providing a wheelchair, and not allowing her to wait until her son returned to the surgical area.  Id., 255–56.  “The plaintiff [had] not alleged medical malpractice ․ but simply ordinary negligence against an entity that happen[ed] to be a medical provider.   The fact that the defendant [was] a medical provider, [did] not, by itself, preclude a finding that the plaintiff's action sound[ed] in ordinary negligence.”  Id., 260.

The defendant dispensary acknowledged in its memorandum in support of its motion to dismiss that “the determination by medical personnel of a patient's reaction to prescribed medication is of a specialized medical nature arising out of the professional-patient relationship.”

There was no physician-patient relationship between the defendant dispensary and the plaintiff's decedent, and thus the three elements of a medical malpractice claim discussed in Votre and Multari have not been met.   The defendant Winters was the recipient of care and services rendered by the defendant dispensary, not the plaintiff's decedent.   Therefore, the plaintiff's claims do not sound in medical malpractice and § 52–190a does not apply to the alleged negligence claims.   Therefore, an opinion letter from a similar healthcare provider is not necessary and counts four and five are not subject to dismissal in the absence of such a letter.

CONCLUSION

The defendant dispensary's motion to dismiss is denied.

BY THE COURT

CALMAR, J.

FOOTNOTES

FN1. Carpenter v. Law Offices of Dressler and Associates, LLC cites to Lostritto v. Communily Action Agency of New Haven, Inc., 269 Conn. 10, 14, 34, 848 A.2d 418 (2004), which involved motions to dismiss the apportionment complaint.   Both of these cases are unclear as to whether the thirty-day time period is measured from service of the apportionment complaint, see Lostritto v. Community Action Agency of New Haven, Inc., supra, 34, the appearance of the apportionment defendant, or the date of the first direct claims asserted against the apportionment defendant, see Carpenter v. Law Offices of Dressler and Associates, LLC, supra, 662.   In the present case, however, the motion to dismiss was filed well beyond thirty days of the June 13, 2013 appearance, the June 10, 2013 date of service of the apportionment complaint, and the August 15, 2013 date of the first direct claim against the defendant dispensary..  FN1. Carpenter v. Law Offices of Dressler and Associates, LLC cites to Lostritto v. Communily Action Agency of New Haven, Inc., 269 Conn. 10, 14, 34, 848 A.2d 418 (2004), which involved motions to dismiss the apportionment complaint.   Both of these cases are unclear as to whether the thirty-day time period is measured from service of the apportionment complaint, see Lostritto v. Community Action Agency of New Haven, Inc., supra, 34, the appearance of the apportionment defendant, or the date of the first direct claims asserted against the apportionment defendant, see Carpenter v. Law Offices of Dressler and Associates, LLC, supra, 662.   In the present case, however, the motion to dismiss was filed well beyond thirty days of the June 13, 2013 appearance, the June 10, 2013 date of service of the apportionment complaint, and the August 15, 2013 date of the first direct claim against the defendant dispensary.

FN2. “[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.”  (Internal quotation marks omitted.)  Multari v. Yale New Haven Hospital, Inc., supra, 145 Conn.App. 258..  FN2. “[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.”  (Internal quotation marks omitted.)  Multari v. Yale New Haven Hospital, Inc., supra, 145 Conn.App. 258.

Calmar, Harry E., J.