Opinion
No. FST CV 08 5007985 S
April 17, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (115.00)
I. FACTS AND PRIOR PROCEEDINGS
On July 3, 2008, the plaintiff, Louis F. Jefferson, commenced this action by service of process against the defendants, Waveny Care Center, Inc., Waveny Care Center Network, Inc., and Waveny Care Center Health Services, Inc., for personal injuries he allegedly sustained as a result of the defendants' negligence. The plaintiff filed a two-count amended complaint, in which he alleges the following facts. After undergoing knee surgery on January 16, 2007, the plaintiff was admitted into Waveny Care Center for rehabilitative care on January 23, 2007. The defendants agreed to provide such care and treatment in return for compensation.
In count one, the plaintiff alleges that upon admission, he was assessed by the defendants not to be at risk for skin impairment. On or about February 5, 2007, within two weeks of the plaintiff's admission into Waveny Care Center, the plaintiff developed serious and substantial blisters on the top and bottom of both his feet, which developed into multiple pressure ulcers. The plaintiff claims that these blisters were caused by the negligence of the defendants in that they: "failed to assess [the plaintiff] as a risk patient;" "failed to use ordinary care to prevent the development of blisters and multiple pressure ulcers on his feet;" "violated [f]ederal and [s]tate regulations by failing to prevent said complications;" and "failed to act as a reasonable prudent person."
In count two, the plaintiff alleges that on or about January 24, 2007, the plaintiff was put on precautions for Methicillin-Resistant Staphylococcus Aureus (MRSA) of nares. Subsequently, the plaintiff's MRSA of his nares spread to his surgical wound site and to his heels, thereby causing the plaintiff great harm, additional pain, and a delay in his healing process. The plaintiff claims that the spread of the MRSA of the plaintiff's nares to his surgical wound and to his heels was caused by the negligence of the defendants in that they: "failed to use ordinary care to prevent MRSA and the spread of MRSA to [the plaintiff's] surgical wound site and to his heels;" "violated [f]ederal and [s]tate regulations by failing to prevent said complications;" and "failed to act as a reasonable prudent person."
On September 2, 2008, the defendants filed a motion to dismiss the plaintiff's original complaint on the ground that the plaintiff "failed to comply with the mandates of General Statutes § 52-190a which require a plaintiff, who brings a medical malpractice action, to append to the complaint a certificate of good faith and a written opinion of a similar health care provider, as defined by General Statutes § 52-184c." The motion to dismiss was denied in a decision from the bench by Judge Tierney on October 20, 2008. On November 7, 2008, the defendants filed a motion to reargue. The motion to reargue was granted and on reargument, the motion to dismiss was once again denied by Judge Tierney on January 5, 2009. On January 20, 2009, the defendants filed the present motion to strike. The motion was heard at Short Calendar on March 2, 2009.
II. DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, (2006).
The defendants move to strike the plaintiff's amended complaint on the ground that it is legally insufficient. Specifically, the defendants claim that the amended complaint fails to properly allege a prima facie case of ordinary negligence and instead alleges medical malpractice as defined by § 52-184c and, therefore, requires compliance with § 52-190a.
Section 52-184c(a) provides: "In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."
Section 52-190a(a) provides in relevant part: "No civil action . . . 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 . . . party filing the action . . . 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 . . . shall contain a certificate of the . . . party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist . . . To show the existence of such good faith, the claimant . . . 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." Additionally, § 52-190a(c) states: "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."
In Rios v. CCMC Corp., 106 Conn.App. 810, (2008), the Appellate Court held that, because § 52-190a(c) requires the dismissal of a medical malpractice action in which a plaintiff fails to provide the defendant with a written opinion of a similar healthcare provider, a motion to dismiss is the proper procedural vehicle to address the issue.
In Rios, the appellants claimed that the court improperly failed to find that a motion to dismiss was not the proper vehicle to address the defendants' claim. Specifically, the plaintiffs argued that the defendants' motion to dismiss should have been denied, and the defendants should have been directed to file a motion to strike. The court disagreed with the plaintiffs, however, based on the 2005 amendment to the statute. Rios v. CCMC Corp., supra, 106 Conn.App. 821-22. The court stated that "[u]nlike the preceding revisions of the statute, the current revision of § 52-190a includes an additional subsection, (c), which was added by P.A. 05-275, and states that [t]he failure to obtain and file the written opinion as required by subsection (a) of this section shall be grounds for the dismissal of the action . . . The plain language of this new statutory subsection . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a). Accordingly, the [Appellate Court found that the Superior Court] properly considered and granted the defendants' motion to dismiss." (Citation omitted; internal quotation marks omitted.) Id., 822.
The defendants are moving to strike the plaintiff's amended complaint on the grounds that it is not an ordinary negligence case, rather, it is a medical malpractice case requiring compliance with 52-190a. Superior Courts have been split in their interpretation of the dismissal language in Rios as to whether it is jurisdictional in nature. When a court's subject matter jurisdiction is called into question, that issue must be addressed no matter in what form it is presented. Tinney v. New Haven Firefighters, Local 825, Superior Court, judicial district of New Haven, CV 07 40299029 (sic) (October 17, 2008, Cosgrove, J.) [citing Castro v. Viera, 207 Conn. 420 (1988)]; see also Practice Book § 10-33. Very recently however, the Appellate Court has held that the failure to comply with Section 52-190(a) when it is applicable, while subjecting a complaint to dismissal, does not implicate a court's subject matter jurisdiction over the claim. Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 583-84 (2009). Votre makes clear that subject matter jurisdiction is not implicated, and Rios says the issue of whether a complaint is required to include a certificate of good faith and a written opinion of a similar health care provider should be raised by a motion to dismiss, not a motion to strike. Therefore, the defendants' motion to strike is inappropriate.
As noted earlier, the issue raised in this motion was also raised in a motion to dismiss which was denied by Judge Tierney, and that decision was adhered to after a motion to reargue. Although Judge Tierney ruled on the original complaint which has since been amended, the amended complaint strengthens the plaintiff's argument that he is not prosecuting a medical malpractice case. Thus, there is no basis to revisit Judge Tierney's decision
III. Conclusion
For the reasons stated above, the motion to strike is denied.