Opinion
No. MMX CV08 500 4726 S
November 25, 2009
MEMORANDUM OF DECISION
On June 18, 2008, the plaintiff filed her complaint containing a first count setting forth allegations against the defendant Yale-New Haven Hospital, Inc. The complaint included the following:
FIRST COUNT: YALE-NEW HAVEN HOSPITAL, INC. (Negligence)
3. . . . the defendant, Yale Hospital, owned, possessed, controlled, maintained, operated, and managed, in connection with the operation of the hospital, a magnetic resonance imaging machine (MRI) which was utilized for purposes of taking MRI imaging of the Plaintiff and other patients in the hospital . . .
6. The MRI machine and its appurtenances, appliances and wiring used by defendant Yale Hospital in conducting an MRI examination of the plaintiff . . . is and was of an inherently dangerous nature.
7. On June 8, 2006, the Plaintiff was scheduled to have an MRI taken . . . by defendant Yale Hospital at approximately 4:30 p.m. using the aforedescribed MRI machine.
8. On said date and time, Plaintiff arrived at Yale Hospital and was instructed by Yale Hospital's employee, an MRI technician (hereinafter "technician"), to lay supine on the Gentry table of the MRI machine atop a plate which is intended to slightly elevate a portion of the patient's spine when taking an MRI examination.
9. After the Plaintiff was positioned on the Gentry table, the technician voiced concern that the Plaintiff would be unable to fit within the tube of the MRI machine and declined to proceed with the examination.
10. After concluding that the Plaintiff would be unable to fit within the MRI machine, the technician summoned her supervisor (hereinafter "supervisor"), also an employee of Yale Hospital, to seek advice as to whether the examination could occur, given her concern that Plaintiff would not fit within the tube of the MRI machine.
11. The supervisor consulted with the MRI technician and reviewed the facts concerning whether and how the Plaintiff's examination should proceed.
12. The supervisor and technician, after considering the situation described above, re-positioned the Plaintiff on the Gentry table in a supine position with her head facing away from the tube of the MRI machine.
13. The supervisor and/or technician then proceeded to activate the MRI machine which caused the table, upon which the Plaintiff was positioned, to move her body into the tube of the MRI machine.
14. As the table proceeded to move the Plaintiff toward the tube of the MRI machine, her body became lodged in the tube causing the plate upon which she was positioned to push against her rib cage with great force.
15. The technician and the supervisor pushed the designated button on the MRI machine in an attempt to reverse the direction of the table.
16. The MRI machine malfunctioned and/or the technician and/or supervisor operated the machine improperly and the table continued to force Plaintiff through the tube of the MRI machine.
17. The technician and supervisor then attempted to grab Plaintiff's left and right arm and physically pull her from the MRI machine.
18. The technician and/or supervisor subsequently managed to stop the table and remove Plaintiff from the MRI machine . . .
20. The Plaintiff's injuries and damages were caused by the negligence and carelessness of the defendant, Yale Hospital, in one or more of the following ways, in that the defendant Yale Hospital and/or its employees, agents or servants:
a) Used the MRI machine to conduct an MRI examination of the Plaintiff when it knew or should have known that Plaintiff could not fit in the tube of the MRI machine;
b) Used the MRI machine to conduct an MRI examination of the Plaintiff when it knew or should have known that an "open" MRI machine was necessary to safely perform an MRI examination upon the Plaintiff;
c) Failed to extricate the Plaintiff from the MRI machine, after she had become stuck, in a safe and reasonable manner;
d) Failed to train its employees, agents and/or servants in the proper use of an MRI machine;
e) Failed to train its employees, agents and/or servants to properly and accurately determine whether an individual is of an appropriate size to use a particular MRI machine;
f) Failed to properly maintain and/or service the MRI machine; and
g) Failed to train its employees, agents, and/or servants in the proper measures to take if a patient becomes stuck in the tube of the MRI machine . . .
21. As a proximate result of the defendant Yale Hospital's negligence, the Plaintiff suffered the following injuries, some or all of which may be permanent in nature . . .
22. As a further result of the defendant Yale Hospital's negligence, the Plaintiff was forced to expend large sums of money for hospital and medical care, medicines, diagnostic tests and therapy, all necessary to her recovery, and may be forced to expend additional sums in the future.
23. As a further result of the defendant Yale Hospital's negligence, the Plaintiff was unable to work, to her financial detriment.
24. As a further result of the defendant Yale Hospital's negligence, the Plaintiff was unable, and remains unable, to participate in and enjoy her usual activities.
25. As a further result of the defendant Yale Hospital's negligence, the Plaintiff's earning capacity has been and will be impaired all of which has caused her loss and damage.
On July 28, 2008, the defendant Yale-New Haven Hospital moved to dismiss for lack of subject matter jurisdiction. The defendant alleged in support thereof that the plaintiff's complaint failed to include a good faith certificate as required by General Statutes § 52-190a and, accordingly, that the complaint against it "must be dismissed."
On September 11, 2008, the plaintiff objected to the defendant's motion to dismiss on the alleged grounds that "her claim sound[ed] in ordinary negligence and as such [General Statutes] § 52-190a is inapplicable and no good faith certificate need be filed."
On November 23, 2009, the motion to dismiss and objection were argued.
Practice Book § 10-31 provides in relevant part:
(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .
See also St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (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 . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. (Internal quotation marks omitted.) State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001).
Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
. . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . ."
Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). In this case, as it could have, see Bayer v. Showmotion, Inc., 292 Conn. 381, 393 n. 8, 973 A.2d 1229 (2009), citing Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983), the defendant Yale-New Haven Hospital did not seek an evidentiary hearing or file any affidavits in support of its motion to dismiss.
In Cogswell v. American Transit Ins. Co., supra, affidavits were submitted in support of the motion to dismiss:
Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . . (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001); see also Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608 (noting that "this court has previously considered the undisputed factual allegations in the complaint as well as the undisputed factual allegations in the various affidavits when adjudicating the motion [to dismiss] where no evidentiary hearing has been held").
[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised . . .
Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
. . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002) (internal quotation marks omitted).
A motion to dismiss pursuant to General Statutes § 52-190a(c) may be decided by the court even if it does not implicate the court's subject matter jurisdiction, Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582, 583-84, 966 A.2d 813 (2009):
General Statutes § 52-190a(c) provides:
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.
A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action. However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading.
General Statutes § 52-190a(a) is entitled in part "Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider . . ." and provides in relevant part:
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 . . .
After the foregoing sentence referring to "negligence of a health care provider" and to "negligence in the care or treatment of the claimant" General Statutes § 52-190a(a) then refers to "medical negligence;"
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.
The Supreme Court has determined the meaning of "medical negligence;"
we conclude that the phrase "medical negligence," as used in § 52-190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence . . .
Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009).
"Health care provider" is defined in General Statutes § 52-184b as follows:
. . ."health care provider" means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.
General Statutes § 52-184c(a) sets forth the plaintiff's burden to prove by a preponderance of the evidence that the alleged actions of the health care provider were a breach of the prevailing professional standard of care for that health care provider:
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.
In General Statutes § 52-184c(b), the requirements for an expert witness where the 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 are set out:
If 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.
General Statutes § 52-184c(d) provides that
Any health care provider may testify as an expert in any action if he: (1) is a "similar health care provider" pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge 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.
A recent Appellate Court decision, Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 542-43 (2009), explains and emphasizes the mandatory requirements of General Statutes § 52-190a and compliance therewith to avoid dismissal of a claim against a health care provider:
In establishing the requirements of the prelitigation opinion letter, § 52-190a(a) specifically requires that the opinion be authored by a similar health care provider as defined in § 52-184c. Thus, in resolving the issues presented in this appeal, we must examine both statutes. We begin with a review of § 52-190a. Section 52-190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make `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 . . . To show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that "such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . General Statutes § 52-190a(a). Prior to its amendment in 2005 by Public Acts 2005, No. 05-275, § 2 ( P.A. 05-275), the statute did not require a plaintiff to include with the complaint a written opinion of a similar health care provider attesting to a good faith basis for an action.
Effective October 1, 2005, the statute was amended by P.A. 05-275 to require, to demonstrate good faith, that plaintiffs or their counsel, prior to filing suit, "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 . . ." General Statutes § 52-190a(a). The amended statute also provides that plaintiffs or their counsel "shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate "General Statutes § 52-190a(a). Subsection (c) of § 52-190a, which was added by P.A. 05-275, § 2, provides that "[t]he 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 this court held in Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008), "[t]he plain language of [§ 52-190a(c) . . . 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)." See also Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
The decisions cited by the plaintiff in support of an "ordinary negligence" exception to the requirements of General Statutes § 52-190a were rendered before the 2005 amendments to such statute and do not discuss or address the current requirements of such statute. In a post 2005 decision, Tenerow v. Concentra Health Services, Inc., 2009 Ct.Sup. 10597, No. CV08 5004011S, Superior Court, Judicial District of New Haven at Meriden (Jack W. Fischer, J., June 24, 2009) [ 48 Conn. L. Rptr. 55], Judge Fischer recently determined that the medical provider was not being sued in its capacity as a medical professional and the alleged negligence was not of a specialized medical nature that arose out of the medical professional-patient relationship. The alleged negligence was not substantially related to the plaintiff's medical diagnosis and treatment that required the exercise of medical judgment. Judge Fischer found that the plaintiff's claim sounded in ordinary negligence rather than medical negligence and the requirements of General Statutes § 52-190a were inapplicable:
This consensual professional/patient relationship is absent in this case because [the employer] instructed [the plaintiff] to undergo the physical and a drug screening at the defendant's facility. These screenings were performed solely for [the employer's] benefit, and the therapist did not provide any affirmative treatment or medical advice during the screening. Additionally, administering an agility test is not medical in nature. It appears that the agility test in question is only comprised of rudimentary tasks which the patient either completes or fails. While the test may have been administered by a licensed physical therapist, it appears no degree of skill or medical knowledge is required to administer such a test.
Tenerow v. Concentra Health Services, Inc., supra, 2009 Ct.Sup. at 10600. Compare Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 356-58, 360, 764 A.2d 203, cert. denied, 258 Conn. 711, 784 A.2d 889 (2001):
The plaintiff further argues that her claim may be characterized as a negligent supervision claim rather than a medical malpractice claim because expert testimony is not required to establish the negligence of the defendants. Medical malpractice claims do not necessarily require expert testimony. Although a court requires expert testimony to establish the relevant standard of care in most cases; see Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995); "[s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge;" Caron v. Adams, supra, 33 Conn.App. 690; and, thus, do not require expert testimony. The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required.
The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment. That rule is illustrated by review of the major cases, specifically Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70 (1969), and Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386, 505 A.2d 741 (1986) . . .
In Levett, the plaintiff's injuries were determined to be the result of medical malpractice, and in Badrigian, the death of the decedent was determined to be as a result of ordinary negligence. The Appellate Court in Trimel explained the distinction between the cases as follows:
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 the 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 his lunch break from his scheduled treatment. 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.
We conclude, considering Badrigian and Levett and the definition of medical malpractice, that the plaintiff's claim is one of medical malpractice rather than ordinary negligence. It cannot be said that a medical professional's decision not to supervise a maneuver that was learned through the course of therapy, when the health care provider is familiar with the strengths and weaknesses of the individual patient, is any less a medical judgment than the decision to supervise a patient with known physical deficiencies in the course of a routine as common to everyday existence as dressing and undressing.
The plaintiff was in the defendants' facility for treatment, the plaintiff's treatment had included unassisted transfers with supervision, and the plaintiff's injury resulted from a mishap during a transfer without supervision. It was a medical professional's judgment that allowed the transfer to proceed unassisted. Those considerations lead to the conclusion that the plaintiff's claim against medical professionals with whom she had a medical professional-patient relationship involved a negligent act or omission during an activity that was substantially related to her treatment. As such, she was required to file a certificate of good faith pursuant to § 52-190a and failed to do so. The court's granting of the defendants' motion for summary judgment therefore was proper as a matter of law.Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. at 362-64.
Earlier in its decision the Appellate Court set out a more detailed explanation of the defendants' medical malpractice:
The plaintiff suffers from multiple sclerosis and has been confined to a wheelchair since 1990. The defendants provided the plaintiff's regimen of physical therapy, which she attended on a regular basis starting in 1995. The physical therapy sessions included "transfers" to and from a wheelchair. One method of transfer involved the use of a transfer board, which permitted the plaintiff to move unassisted from the wheelchair to another location. The plaintiff eventually learned to perform transfers without assistance. Although she performed the transfers without assistance, she did so in the presence of a physical therapist. See footnote 4. On October 22, 1995, while attending a physical therapy session at Flanders, which is a satellite clinic of Lawrence and Memorial, the plaintiff attempted to use her transfer board to maneuver from her wheelchair to an exercise mat where the therapy session would begin. During that maneuver, the plaintiff fell from the wheelchair and sustained injuries.
Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. at 354-55.
Also, taking the allegations of plaintiff's complaint as true as required in the context of the motion to dismiss, although it seems to be a matter of common sense that it is more likely or probable than not that a person should not be placed by a hospital technician into the interior of a machine that is too small to accommodate her, and to do so is a violation of the duty owed to her and a deviation from the prevailing professional standard of care so expert testimony might not be necessary to establish such claim, General Statutes § 52-190a does not provide for such an exception to its broad application and requirements and thus plaintiff or her counsel must have provided a certificate of good faith for her claim and a written and signed opinion of a similar health care provider as defined in General Statutes § 52-184c, and she was required to attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate as set forth in General Statutes § 52-190a(a).
For the foregoing reasons, the defendant Yale-New Haven Hospital's motion to dismiss is granted.