Opinion
No. CV05-4002947S
April 10, 2008
MEMORANDUM OF DECISION
On January 9, 2004, the plaintiff, Jennifer Pickering, was involuntarily admitted to the psychiatric ward of the defendant, St. Mary's Hospital, pursuant to a Physicians Emergency Certificate under General Statutes § 17a-502. The plaintiff was held in the psychiatric ward against her will by agents and employees of the defendant and was not allowed to leave the ward until January 12, 2004.
On December 7, 2004, the plaintiff filed an eight-count complaint alleging false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, disclosure of private facts, and violations of General Statutes § 17a-541, § 17a-542, § 17a-544, and § 17a-547, commonly known as the state's "Patient's Bill of Rights." The court subsquently struck down Count Four of the plaintiff's complaint which alleged the disclosure of private facts.
The defendant filed a motion to dismiss the plaintiff's claim on February 5, 2008. In its memorandum in support of the motion, the defendant alleges that the plaintiff failed to include a certificate of good faith that is required for medical malpractice suits pursuant to General Statutes § 52-190a. Without the certificate, the court is deprived of subject matter jurisdiction and the claim should be dismissed. The plaintiff filed its opposition to the motion to dismiss on February 11, 2008, arguing in its memorandum in opposition of the motion that the plaintiff has not alleged a medical malpractice claim and thus, is not subject to the statutory requirement for a good faith certificate. The defendant filed a supplemental memorandum in support of the motion on February 13, 2008.
DISCUSSION
In the present action, the defendant filed a motion to dismiss the claim based on the court lacking subject matter jurisdiction. The defendant argues that the plaintiff has filed a medical malpractice suit pursuant to § 52-190a without the requisite good faith certificate, which, after the October 1, 2005 amendments to § 52-190a were effective, "shall be grounds for the dismissal of the action." General Statutes § 52-190a(c). However, the plaintiff filed her complaint on December 7, 2004, before the amendments went into effect. Prior to the 2005 amendments, a motion to dismiss was not the proper procedural method to attack the subject matter jurisdiction of the court because of the lack of a good faith certificate. In Leconche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), our Supreme Court stated that "[t]he purpose of the certificate is to evidence a plaintiff's good faith derived from the pre-complaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable pre-complaint inquiry giving him a good faith belief in the defendant's negligence. In light of that purpose, the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court . . . [T]he absence from the complaint of the statutorily required good faith certificate renders the complaint subject to a motion to strike pursuant to Practice Book 152(1) for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment pursuant to Practice Book 157 and 175." (Emphasis added.) LeConche v. Elligers, supra, 215 Conn. 711. "The lack of a certificate of good faith is not a jurisdictional defect and thus does not deprive the court of subject matter jurisdiction." Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 384, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). "Our cases explain that the failure to attach a certificate of good faith pursuant to 52-190a subjects the case to a motion to strike the complaint pursuant to Practice Book 157 or Practice Book 175." Id.
Based on the law prior to the October 1, 2005 amendments to § 52-190a, the defendant's motion to dismiss for lack of subject matter jurisdiction premised on the plaintiff's failure to attach a good faith certificate is improper and, therefore, is denied.