Glenn A. Hall v. City of New London Housing Authority et al. (2014)

MEMORANDUM OF DECISION ON MOTION (# 119) OF DEFENDANT SOUND COMMIUNITY SERVICES TO DISMISS COUNT TWO OF THE SECOND AMENDED COMPLAINT

On October 2, 2014, the defendant, Sound Community Services, Inc., moved to dismiss count two of the plaintiff Glenn Hall's second amended complaint, dated August 28, 2014 (the complaint), on the ground that “this is a medical malpractice action and the plaintiff failed to attach to the complaint an opinion letter from a similar health care provider” pursuant to General Statutes § 52–190a.¹  On October 20, 2014, the plaintiff filed a brief in opposition to the motion.   The motion was argued on November 17, 2014.

FACTS

In ruling on a motionto dismiss, the court must take the facts to be those alleged in the challenged pleading and those necessarily implied by the explicit allegations and construe those facts in a manner most favorable to the pleader.  Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).   Viewing the allegations in this light, and aided by reasonable inferences,² the facts relevant to the present motion are as follows.

The plaintiff and defendant Lateefah Hutchins resided at property at 202 Colman St. in New London, Connecticut (the premises), owned by defendant New London Housing Authority.   Hutchins was a patient of the defendant Sound Community Services, Inc., which runs a clinic at the premises, and was receiving treatment on the afternoon of May 11, 2012.   At that place and time, the plaintiff “was pushed, kicked and assaulted by ․ Hutchins,” who, moments before, had been “yelling and arguing with [Sound Community Services'] staff inside [the clinic's] office.”   Sound Community Services, Inc., was negligent in one or more of eight ways:

a. “they created a dangerous area for residents [of the premises] by exposing them to violent mental health patients;

b. they operated a clinic with violent clients within [a] residential area;

c. they failed to warn the [p]laintiff about Lateefah Hutchins;

d. they failed to stop Lateehah Hutchins from assaulting the [p]laintiff;

e. they failed to have adequate security on the premises;

f. they failed to calm down Lateefah Hutchins before she exited the clinic into the residential area [of the premises];

g. they failed to follow Lateehah Hutchins after she exited into the residential area;  and

h. they failed to have policies in place to prevent its clients from assaulting residents.”   The plaintiff was injured as a result of the negligence of Sound Community Services.

DISCUSSION

Construing the facts in the manner most favorable to the pleader, the court assumes that Sound Community Services, Inc., is a healthcare provider within the meaning of General Statutes § 52–190a.   However, not every action against a healthcare provider is a medical malpractice claim.   See Jarmie v. Troncale, 306 Conn. 578, 587, 50 A.3d 802 (2012);  Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV–10–6002180–S (July 2, 2010) (50 Conn. L. Rptr. 246);  Baynard v. Derma Clinic, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–04–4000265–S (September 1, 2005) (39 Conn. L. Rptr. 875).

In this state, a cause of action for medical malpractice can only be brought a healthcare provider by a patient of that provider.  Jarmie v. Troncale, supra, 306 Conn. 587.   That is because General Statutes § 52–190a “specifically provides that the alleged negligence must have occurred ‘in the care or treatment of the claimant.’  “ Id.

The complaint does not allege that the plaintiff had a physician-patient with Sound Community Services, Inc. Therefore, this cannot be considered a medical malpractice action against Sound Community Services.  Jarmie v. Troncale, supra, 306 Conn. 589.   Viewed another way, the good faith inquiry requirement of § 52–190a(a) only applies to actions for “negligence in the care or treatment of the claimant.”   Because this action does not allege care or treatment of the plaintiff by Sound Community Services, no § 52–190a(a) opinion letter is required and the sanction of dismissal, in § 52–190a(c), for neglect of that requirement is not available to the movant.   See also Multari v. Yale New Haven Hospital, Inc., 145 Conn.App. 253, 75 A.3d 733 (2013).

The motion of Sound Community Services, Inc., to dismiss count two is denied.

Cole–Chu, J.

FOOTNOTES

FN1. General Statutes § 52–190a(a) requires that the initial complaint in a negligence action against a health care provider include a certificate of a good faith belief that there are grounds for the action and attach an opinion letter of a similar health care provider showing that the filing attorney or party “made 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.”.  FN1. General Statutes § 52–190a(a) requires that the initial complaint in a negligence action against a health care provider include a certificate of a good faith belief that there are grounds for the action and attach an opinion letter of a similar health care provider showing that the filing attorney or party “made 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.”

FN2. The complaint implies but does not state that the alleged assault was at 202 Colman St..  FN2. The complaint implies but does not state that the alleged assault was at 202 Colman St.

Cole–Chu, Leeland J., J.