Opinion
No. CV-10-6002010-S
November 16, 2010
RULING ON THE DEFENDANTS' MOTION TO DISMISS (#105)
Mountainside Foundation, Inc., doing business as Mountainside Lodge (Mountainside Foundation), and MC1 Healthcare, LLC (MC1) move to dismiss the counts against them in a complaint brought by the plaintiff, John Harris. Mountainside Foundation and MC1 claim that the plaintiff failed to comply with the requirements of General Statutes § 52-190a. The plaintiff objects to the motion, asserting first, that a motion to dismiss is not the proper vehicle for challenging a complaint that is not accompanied by a good faith certificate, and second, that § 52-190a does not apply to this case. The motion to dismiss is denied.
FACTS
On March 29, 2010, the plaintiff filed a ten-count complaint alleging that Gordon Wood, another defendant, was employed as a counselor at an inpatient rehabilitation facility known variously as Mountainside Foundation, Mountainside Lodge or MC1, located in North Canaan, Connecticut. The plaintiff was an inpatient at the facility on March 7, 2008, when an incident occurred that gave rise to the complaint. The plaintiff describes the incident as: "a verbal dispute . . . between the Defendant Wood and a resident of the facility . . . Defendant Wood confronted the subject resident in an effort to discipline him, and in the course of such confrontation, punched and/or kicked the resident of the facility, who was being restrained by the plaintiff, causing the plaintiff to violently fall to the ground and sustain serious personal injuries and losses."
Mountainside Foundation and MC1 (hereinafter the defendants) are charged in counts three through ten of the complaint. The plaintiff alleges that the defendants are responsible for the plaintiff's injuries for a variety of reasons, including the fact that they employed Wood, they failed to screen Wood properly before hiring him and they failed to supervise him appropriately. The defendants filed the present motion to dismiss on May 13, 2010, and the plaintiff filed an objection on July 28, 2010. This matter was heard at the August 30, 2010 short calendar.
DISCUSSION
A motion to dismiss 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). The defendants move to dismiss the complaint due to the plaintiff's failure to obtain a certificate of good faith and a copy of a written opinion from a similar health care provider that there appears to be evidence of negligence in the care or treatment of the claimant. The defendants argue that such a certificate and opinion are required by § 52-190a(a) and that failure to comply is grounds for dismissal of the action. The defendants claim that the law is clear that such a certificate and opinion are required, and they cite Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008), in support of their position. The plaintiff objects to the motion to dismiss, arguing first that a motion to dismiss is not the proper method of challenging failure to include a good faith certificate, and second, that § 52-190a does not apply to this case.
Section 52-190a provides in relevant part: "(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made 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 claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
As to the plaintiff's first argument that the motion to dismiss is an improper method of challenging the failure to comply with § 52-190a, the plaintiff relies principally on King v. Sultar, 253 Conn. 429, 449 n. 9, 754 A.2d 782 (2000), and LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990), for the proposition that a challenge to a failure to produce a good faith certificate should be brought by way of a motion to strike. The cases on which the plaintiff relies interpret a prior version of the relevant statute. In 2005, the legislature added subsection (c) to § 52-190a, making the failure to obtain and file the written opinion required by § 52-190a(a) "grounds for the dismissal of the action." (Emphasis added.) A motion to dismiss is the proper method of attacking the complaint that lacks a good faith certificate. Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582-84, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009); Rios v. CCMC Corp., supra, 106 Conn.App. 810, 821-22.
The plaintiff also argues that a good faith certificate is not required because the complaint does not allege negligence in providing medical care or treatment. The plaintiff contends that all suits against healthcare providers do not necessarily require good faith certificates. If the suit sounds in ordinary negligence, they argue, a good faith certificate is not required.
The plaintiff does not disagree with the proposition that the defendants are healthcare providers within the meaning of § 52-190a.
For all of the following reasons, the court concludes that the plaintiff is correct. The defendants' reliance on Rios is misplaced. In Rios, the plaintiffs filed a medical malpractice case alleging "that the defendants were negligent in failing to diagnose appendicitis . . ." Rios v. CCMC Corp., supra, 106 Conn. 810, 813. In the present matter, the impetus for the cause of action is set forth in paragraphs two through four of the first count. Paragraph two asserts that Wood was a counselor at an inpatient rehabilitation facility. The plaintiff, according to paragraph three, was an inpatient resident of that facility. The plaintiff alleges in paragraph four that on March 7, 2008, Wood was engaged in a verbal dispute with another resident of the facility. Wood allegedly confronted the other resident and attempted to "[punch] and/or [kick] the [other] resident of the facility, who was being restrained by the Plaintiff, causing the Plaintiff to violently fall to the ground and sustain serious personal injuries . . ."
Thus, Wood is alleged to have struck an individual who is not a party to this action. There is no claim or allegation that Wood's actions constituted medical treatment or that Wood intended to punch or kick the plaintiff. A fair reading of the complaint leads to the conclusion that, if the allegations are established, Wood either intentionally or negligently struck a third person, resulting in injuries to the plaintiff due to, at most, conduct that can only be characterized as ordinary negligence.
"Section 52-190a(a) provides in relevant part that, in any medical malpractice action, the claimant . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence . . . Section 52-190a(a) does not define medical negligence and the phrase is susceptible [of] more than one reasonable interpretation. Specifically, the word `negligence' reasonably may be understood . . . as referring to the cause of action consisting of the elements of duty, breach of the standard of care, causation and damages . . . or it reasonably may be understood . . . as specifying an attribute of the defendant's conduct, namely, a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it." (Internal quotation marks omitted.) Dias v. Grady, 292 Conn. 350, 355-56, 972 A.2d 715 (2009).
"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 . . . [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." (Citations omitted; emphasis added; internal quotation marks omitted.) Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254, 811 A.2d 1266 (2002).
For purposes of this motion, the court assumes that the defendants are being sued in their capacities as medical professionals. See General Statutes § 52-184b. Despite this assumption, the fact that an action is against a health care provider or a health care facility "in and of itself, is insufficient to transform a case involving ordinary negligence, into a claim of malpractice." Baynard v. Derma Clinic, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 04 4000265 (September 1, 2005, Radcliffe, J.) ( 39 Conn. L. Rptr. 875, 877). Under Gold, the court must then ask whether the alleged negligence is of a specialized medical nature arising out of a professional-patient relationship. The court views the allegations in the light most favorable to the defendants. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). Nonetheless, even from that deferential standpoint, the allegations in the complaint do not support a conclusion that the plaintiff's injuries occurred in the context of a professional-patient relationship between the plaintiff and any defendant. Furthermore, there is no suggestion that the plaintiff was injured in the course of receiving any treatment from any defendant. See Delaney v. Newington Children's Hospital, Superior Court, judicial district of Hartford, Docket No. CV 93 0524063 (May 9, 1994, Wagner, J.) (allegations against a hospital where a minor plaintiff was sexually assaulted by his roommate sound in ordinary negligence because there was no medical issue to be determined).
Moreover, to the extent that some of the allegations in this case sound in negligent supervision, such allegations are generally found to constitute allegations of ordinary negligence and not medical malpractice. See Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386, 505 A.2d 741 (1986); DeJesus v. Veterans Memorial Medical Center, Superior Court, judicial district of New Britain, Docket No. CV 99 0498395 (October 19, 2000, Kocay, J.) ( 28 Conn. L. Rptr. 522). It is not possible to conclude that a counselor's action in punching or kicking a patient could be construed as a medical act of a specialized medical nature. See Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV 10 6002180 (July 2, 2010, Marano, J.) ( 50 Conn. L. Rptr. 246).
Finally, the court must determine whether the alleged negligence is substantially related to a medical diagnosis or treatment involving the exercise of medical judgment. The distinguishing factor between ordinary negligence and medical malpractice is whether the negligent act causing the plaintiff's injury was "substantially related to medical diagnosis or treatment." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, cert. dismissed, 258 Conn. 711, 784 A.2d 889 (2001). Even if there could be some theory that would permit the court to conclude that Wood's punching or kicking of a resident was somehow "substantially related to treatment" of the person being restrained by the plaintiff, a doubtful proposition indeed, it is impossible to conclude that Wood's actions were "substantially related to treatment" of the plaintiff. See Beauvais v. Connecticut Subacute Corp. of Waterbury, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0270390 (September 29, 2000, Levine, J.) (a patient who claims to have been assaulted by another patient sounds in ordinary negligence because the protection of patients from a custodial danger is not an integral part of the medical treatment being provided).
The claim in the present matter is similar to the claim in Cotton. In Cotton, the court found that the claim "is based on the force used by the defendant's employee at the assisted living facility, a claim that is not of a specialized medical nature nor bearing a substantial relationship to a medical diagnosis or treatment involving the exercise of medical judgment." Cotton v. Benchmark Assisted Living, LLC, supra, Superior Court, Docket No. CV 10 6002180 ( 50 Conn. L. Rptr. 246, 250).
CONCLUSION
The plaintiff's claim sounds in ordinary negligence, and as a result, the requirements of § 52-190a do not apply. Thus, the defendants' motion to dismiss is denied.