Opinion
No. CV 03 0518847
January 28, 2004
MEMORANDUM OF DECISION RE MOTION #112, MOTION TO DISMISS
FACTS
On March 13, 2003, the plaintiff, Katherine E. Stobierski, filed an amended two-count complaint against the defendant, Walnut Hill, Inc., alleging negligent deprivation of rights under the Patient's Bill of Rights, General Statutes § 19a-550, and willful deprivation or deprivation in reckless disregard of the plaintiff's rights under the Patient's Bill of Rights, § 19a-550.
The amended complaint is the operative complaint for the purposes of the defendant's motion and will hereinafter be referred to as "the complaint."
The facts relevant to the disposition of the defendant's motion are as follows. On November 29, 2000, the plaintiff was admitted to the Walnut Hill Care Center (Walnut Hill) in New Britain, Connecticut. Plaintiff alleges that she has a long history of insulin dependent diabetes and had been self-administering her diabetes medications for several years. Upon admittance to Walnut Hill, the plaintiff was assigned a treating physician, Dr. Kagan. Within a few days of admittance to Walnut Hill, the plaintiff avers that she discovered, via communication with one of the staff nurses, that she was being given insulin amounts that were different from those that she had been self-administering consistent with the instructions from her doctor, Dr. Shoukri, a diabetic specialist. Plaintiff further alleges that she also discovered that the diet prescribed for her by Walnut Hill was different from the diet that she had been adhering to at home under the direction of Shoukri.
In light of the aforementioned discoveries, the plaintiff avers that she notified Walnut Hill nurses and other personnel of her need to see Kagan to inform him that her insulin amounts and her diet needed to be changed. The plaintiff contends that the Walnut Hill staff would not comply with her requests. Furthermore, the plaintiff alleges that not only did the nurses and other personnel refuse to allow her to administer her own medication, but they also failed to notify her assigned doctor that she wanted to self-administer. Plaintiff alleges that the defendant's actions amount to a violation of § 19a-550(b)(3), (5), (6), (8) and (10) and that as a result of said violations she has suffered mental anguish and emotional distress. Moreover, the plaintiff alleges that she feared her life was in danger because she believed that the defendant was giving her the wrong amounts of insulin. The plaintiff is seeking compensatory and punitive damages as well as interest and costs.
On July 17, 2003, the defendant filed a motion to dismiss for lack of subject matter jurisdiction on the grounds that the plaintiff, as a matter of law, failed to properly conduct a reasonable precomplaint inquiry as required by General Statutes § 52-190a.
General Statutes § 52-190a(a) provides in relevant part that "[n]o 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 attorney or 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."
DISCUSSION
The issues presented to this court are as follows: (1) whether the facts as pleaded sound in medical malpractice, thereby triggering the requirements of General Statutes § 52-190a, where the plaintiff alleges that she suffered harm during the course of her admission at the defendant facility stemming from the administration of insulin medication and the regulation of her diet regime; (2) whether the plaintiff has complied with the "similar health care provider" requirement of § 52-190a, as defined by General Statutes § 52-184c, where the plaintiff purported to rely on an investigation done by the Connecticut Department of Public Health for purposes of the plaintiff's certificate of reasonable inquiry; and (3) whether a legally insufficient certificate of good faith is a jurisdictional defect, thereby rendering this court without subject matter jurisdiction, properly brought via a motion to dismiss.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, CT Page 1731 261 Conn. 434, 442, 804 A.2d 152 (2002). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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.) Kizis v. Morse Diesel International Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).
"The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint . . . Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
"[I]f a pleading . . . on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted, a motion to strike is required . . . A motion to dismiss, by contrast, 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914, 922 (1991).
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and [the court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
In their memorandum in support of their motion to dismiss, the defendant argues that the plaintiff's precomplaint inquiry is legally insufficient where the plaintiff's certificate of good faith was not based on an opinion from a "similar health care provider," as defined by General Statutes § 52-184c, and as required by § 52-190a. The defendant further argues that the precomplaint inquiry, as manifested in the good faith certificate, is a condition precedent to filing suit, the failure to comply of which mandates dismissal of the case.
General Statutes § 52-184c provides in relevant part that "a `similar health care provider' is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
In her memorandum of law in opposition to the defendant's motion to dismiss, the plaintiff asserts that, as a preliminary matter, the case at bar does not sound in medical malpractice and therefore does not require a certificate of good faith. Plaintiff contends that she has not alleged negligence in performing any medical procedure but rather claimed that the defendant failed to consult with plaintiff's assigned doctor about her concerns. Furthermore, plaintiff submits that count two of the complaint, which alleges willful or reckless conduct on the defendant's part, is not subject to the requirements of § 52-190a. Lastly, the plaintiff asserts that even if the case does sound in medical malpractice, the motion to dismiss is not the proper procedural vehicle to challenge the certificate of good faith.
The plaintiff did in fact attach a certificate of good faith to her complaint, however argues that she "read [§ 52-190a] to mean that she could use the opinion of a similar health care provider but did not have to." Plaintiff's Reply to Defendant's Reply Brief, p. 2.
A
As a threshold matter, this court must determine whether the case at bar is one sounding in medical malpractice or ordinary negligence. "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. Professional 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." (Emphasis in original; internal quotation marks omitted.) Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). "[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." Id., 358.
By way of illustration, consider the Trimel court's analysis of Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969) and Badrigian v. Elmcrest Psychiatric Institute, 6 Conn. App. 383, 505 A.2d 741 (1986):
The distinction between the negligence claim in Levett and the negligence claim in Badrigian is predicated on the relation of the alleged negligent act or omission to the treatment. In Levett, the plaintiff was in [a] physician's office for purposes of a scheduled visit. Her claim for injuries that resulted from a fall while disrobing in the office, after her physician had made a medical judgment that she could disrobe safely, was substantially related to her medical treatment and, therefore, properly was a claim of medical malpractice. In contrast, the decedent in Badrigian was on [a] lunch break from his scheduled treatment [when he was struck and killed by oncoming traffic while attempting to cross a highway]. The mere fact that the treatment facility encouraged the patient to eat at its facility, which was designed in such a way as to require patients to cross a major highway, did not make meals a part of the treatment and thereby transform the claim into one sounding in medical malpractice. The facility in Badrigian owed a duty to any customer to provide a safe facility, not just to patients, and in failing to do so the plaintiff properly asserted a claim of ordinary negligence. The alleged negligence, therefore, was not substantially related to the medical services provided by the facility and, accordingly, the court properly classified the plaintiff's claim as involving ordinary negligence." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 362-63.
The plaintiff's allegations fall within the three factor test articulated in Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 358. The plaintiff has sued the defendant in their capacity as a medical professional entity, specifically the plaintiff has initiated a cause of action against Walnut Hill, Inc., as opposed to the nurses or staff members in their individual capacities. Moreover, the plaintiff, a patient, was at the defendant facility, a nursing home, for the purpose of receiving post-hospital treatment and care. (Amended complaint, count one, ¶¶ 1, 9, and 10). This treatment required the defendant to administer insulin and prescribe and monitor a diet regime. The plaintiff alleges that upon discovering that the defendant was giving her insulin amounts and prescribing a diet that was different from that with which she had been previously accustomed, she notified the defendant's nurses and personnel that she wanted to speak with her assigned physician. In essence, the plaintiff alleges that the defendant's staff members' failure to notify the assigned doctor that she wanted to self-administer her insulin and regulate her diet, resulted in harm. (Amended complaint, count one). Where an alleged injury occurred during treatment because of a negligent act or omission that was substantially related to treatment, the case must be characterized as sounding in medical malpractice. See e.g., Berglass v. Somatic Therapies, Superior Court, judicial district of New Haven, Docket No. CV02047001 (Arnold, J., July 9, 2003) (non-performance of certain blood tests by the defendants can be characterized as an omission in medical treatment). Accordingly, the plaintiff alleges a cause of action sounding in medical malpractice and not ordinary negligence therefore a good faith certificate is required as to count one of the plaintif's complaint.
The defendant contends that count two should also be dismissed pursuant to the stipulations of § 52-190a in that the plaintiff merely realleges count one under the heading of wilful deprivation or deprivation in reckless disregard. However, reading the complaint in the light most favorable to the plaintiff, it is submitted that the plaintiff has sufficiently alleged wilful deprivation or deprivation in reckless disregard in count two of the complaint and therefore count two is not subject to the requirements of § 52-190a. "[Where a] count alleges wilful rather than negligent conduct [said] count is not subject to the requirements of § 52-190a, which apply only to actions based upon negligence." (Internal quotation marks omitted.) Triano v. Fitzpatrick, M.D., Superior Court, judicial district of New Britain, Docket No. CV 00 0494828 (February 17, 2000, Graham, J.) ( 26 Conn. L. Rptr. 454), citing Pascarelli v. Corning Clinical Laboratories, Inc., Superior Court, judicial district of Danbury, Docket No. 325312 (March 25, 1997, Moraghan J.) ( 19 Conn. L. Rptr. 82).
B
The next step in the inquiry is to ascertain whether the good faith certificate was sufficient whereby the plaintiff drew upon on a Connecticut Department of Public Health investigation as the basis for the plaintiff's good faith in bringing suit. Section 52-190a states in relevant part that, "[f]or purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, 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." (Emphasis added).
Moreover, section 52-184c(b) provides in relevant part that, "[i]f the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a similar health care provider is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." (Internal quotation marks omitted.).
The Connecticut Department of Public Health is not a licensed nursing home nor is it "trained and experienced in" nursing home care as a result of "active involvement in the practice or teaching of medicine." Therefore, as a matter of law, the plaintiff's precomplaint inquiry is insufficient so far as it purports to comply with the "similar health care provider" requirement of § 52-190a.
It is worthwhile to note that the plaintiff has not contested the defendant's assertion that the Connecticut Department of Public Health is not a "similar health care provider" within the meaning of § 52-190a as defined by § 52-184c.
C
The proper procedural mechanism for addressing the flawed certificate of good faith should have been a motion to strike, rather than a motion to dismiss. "[T]he absence from the complaint of the statutorily required good faith certificate renders the complaint subject to motion to strike . . . for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment . . ." LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990). The defendant argues that LeConche is not controlling under the facts of this case in that the question presented is not whether or not a good faith certificate was attached to the complaint, but rather whether the precomplaint inquiry, as evinced in the good faith certificate, was sufficient as a matter of law. More specifically, the defendant argues that the defects in the precomplaint inquiry render the entire complaint subject to a motion to dismiss whereby the precomplaint inquiry amounts to a condition precedent to bringing suit. This court rejects the defendant's proposition. There is no authoritative Connecticut case law on point, however the principles articulated in LeConche arguably elicit a different result.
In LeConche, the court took note that while "[the plaintiffs] conceded that a reasonable precomplaint inquiry is a subject matter jurisdictional requirement[,] [w]e are not bound by that concession and we decline to adopt it because it is not necessary to the decision in this case." LeConche, supra, 215 Conn. 701, 708 n. 7.
In LeConche v. Elligers, supra, 215 Conn. 701, our Supreme Court held that "in enacting 52-190a, the legislature did not intend to make the good faith certificate a jurisdictional requirement." Id., 708. The court aptly noted that "traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action. The issue, presented, therefore, is whether the legislature intended 52-190a to create an additional jurisdictional requirement of a good faith certificate in such a case. That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction." Id., 709-10. The LeConche court held that while the general purpose of § 52-190a is to discourage the filing of baseless lawsuits against health care providers, the good faith certificate is not so central to that purpose that it is of the essence of the thing to be accomplished. Id., 710-11.
The court further noted as follows:
[A]lthough 52-190a does not address the consequences of a failure to file a certificate, it does address the consequences of filing what is later deemed to be a false certificate. The statute provides: `If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney submitted the certificate.' Assuming without deciding that an appropriate sanction for filing a false certificate includes dismissal, it is clear that such a dismissal would be discretionary, rather than required due to lack of subject matter jurisdiction." Id., 712.
Whereas a complete absence of a good faith certificate arguably evincing little or no proof of a precomplaint inquiry merely renders a complaint subject to a motion to strike, a flawed good faith certificate should impose no greater penalty.
For all of the foregoing reasons the defendant's motion to dismiss is denied. So Ordered.
Richard A. Robinson, J.