Opinion
CV166064603S
03-08-2017
Cynthia Hernandez v. Yale Medical Group, et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sybil V. Richards, Judge.
In this action, the defendants move to dismiss the case brought by the plaintiff. The defendants argue that the plaintiff failed to attach a certificate of good faith or an opinion letter from a similar health care provider to her three-count complaint, as required by General Statutes § 52-190a and, by extension thereof on jurisdictional grounds, Practice Book § 10-30, because her allegations sound in medical malpractice and not ordinary negligence.
In her complaint, the plaintiff alleges injuries as a result of the defendants' " medical " negligence, " " common law corporate negligence" and " negligence pursuant to res ipsa loquitur" in counts one, two and three, respectively.
Facts
On April 22, 2013, the plaintiff was admitted to the hospital to undergo breast reduction surgery. According to the plaintiff's allegations, two physicians performed her operation and a scrub person was present during the surgery to ensure that no foreign objects were inadvertently retained in the plaintiff's body. The plaintiff further alleged that she suffered complications in her left breast following her surgery and that she later discovered, when she underwent a mammography on July 15, 2014, that the alleged cause of her complications was due to a retained, metallic surgical staple. On August 25, 2014, the staple was removed by one of the two physicians who performed the plaintiff's breast reduction surgery. In response to the instant motion, the plaintiff filed an objection arguing, among other things, that her complaint does not involve medical malpractice because it is a case involving ordinary negligence, which is within the ordinary knowledge of a lay person rather than expert testimony relating to the exercise of medical judgment. The plaintiff cited the case of Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927) in support of her proposition that Connecticut courts have long held that " cases in which gauze pads, sponges, and similar articles have been left and closed in incisions" do not require expert testimony. On February 27, 2017, the court heard arguments by the parties.
Discussion
" Any defendant, wishing to contest the court's jurisdiction . . . shall do so by filing a motion to dismiss . . ." Practice Book § 10-30(b).
Practice Book § 10-30 further provides, in relevant part that " [a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." It should be noted that, in this case, there is no dispute among the parties regarding the timeliness of the defendants' motion to dismiss.
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).
" A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc ., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
Negligence v. Medical Malpractice Actions
The crux of the issue presented turns on the threshold question of whether the plaintiff's allegations in her complaint required her to attach a certificate of good faith or an opinion letter, prior to filing said complaint, pursuant to General Statutes § 52-190a if said allegations sounded in medical malpractice, as propounded by 'the defendants, or, as refuted by the plaintiff, sounded in ordinary negligence.
The court first begins by setting forth the relevant part of General Statutes § 52-190a(a) with respect to medical malpractice actions. " 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 . . . [T]he claimant or the claimant'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 . . ." Additionally, as our Supreme Court explained in the case of Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011), " Section 52-190a(a) requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate or opinion letter must be filed when the action commences" and " [i]t is the failure to obtain and file the opinion letter which serves as a basis for the dismissal." Moreover, the court in Morgan continued by recognizing that " [c]learly, the legislature unambiguously contemplated a dismissal at the beginning of the action by its usage of the phrase 'obtain and file' . . . General Statutes § 52-190a(c)" and that " [i]ndeed, if the legislature had contemplated a dismissal later in the proceedings after discovery was completed, it surely would have inserted the term 'dismissal' either in lieu of, or in addition to, the language relating to sanctions. The plain language of the statute clearly provides that the legislature contemplated a dismissal being filed early in the proceedings."
The court next cites the factors that the Court must evaluate in order to ascertain whether a cause of action more aptly sounds in medical malpractice as opposed to negligence. " [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." (Internal quotation marks omitted.) Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009); see also Gold v. Greenwich Hosp. Ass'n, 262 Conn. 248, 254, 811 A.2d 1266 (2002). If the three considerations are met, the cause of action properly sounds in medical malpractice, and a written opinion letter is required pursuant to § 52-190a(a). Votre v. County Obstetrics & Gynecology Group, P.C., supra, at 585.
" Pursuant to [§ 52-190a(a)] . . . a cause of action alleging medical malpractice must be brought by a patient against a health care provider because the language of the statute specifically provides that the alleged negligence must have occurred 'in the care or treatment of the claimant . . .' General Statutes § 52-190a." (Citation omitted; emphasis in original.) Jarmie v. Troncale, 306 Conn. 578, 587, 50 A.3d 802 (2012) (holding in context of motion to strike). In Jarmie v. Troncale, the court held that " insofar as the defendants characterize[d] the plaintiff's complaint as sounding in medical malpractice, it [was] legally insufficient because it contain[ed] no allegations that the plaintiff and [the defendant doctor] had a physician-patient relationship as required under Connecticut's medical malpractice law." Id. at 588-89.
" 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. [P]rofessional 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 . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill." (Emphasis in original; internal quotation marks omitted.) Multari v. Yale New Haven Hospital, Inc., 145 Conn.App. 253, 258, 75 A.3d 733 (2013) (holding that the plaintiff was not suing the defendant in its capacity as a medical provider and reversing the trial court's decision granting the defendant's motion to dismiss).
There is, however, a noteworthy exception to the legal principles stated above as first articulated by our Supreme Court in Slimak v. Foster, 106 Conn. 366, 138 A. 153 (1927) and later in Dimmock v. Lawrence and Memorial Hospital, Inc., 286 Conn. 789, 945 A.2d 955 (2008). " An exception to the general rule [requiring] expert medical opinion evidence . . . is when the medical condition is obvious or common in everyday life . . . Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff's evidence creates a probability so strong that a lay jury can form a reasonable belief . . . Expert opinion may also be excused in those cases where the professional negligence is so gross as to be clear even to a lay person." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).
It is entirely conceivable that the matter of a surgical staple being left in the plaintiff's breast perioperatively as claimed here could reasonably be considered to be within the common knowledge of lay persons and be reasonably inferred to rise to the level of the gross negligence exception to the general rule in a medical negligence action that generally would require an expert opinion as to the standard of care. See generally, as cited by the court in Dimmock, supra . Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982) (needle found in patient after hernia operation); Console v. Nickou, 156 Conn. 268, 274-75, 240 A.2d 895 (1968) (needle left in patient after delivery of child); Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957) (lacerations to patient's leg in removal of cast); Slimak v. Foster, 106 Conn. 366, 370-71, 138 A.153 (1927) (piece of surgical instrument left in patient after nasal operation); Bourquin v. B. Braun Melsungen, 40 Conn.App. 302, 314-16, 670 A.2d 1322 (human tissue clearly labeled " For Investigation Use Only" and " Laboratory Sample-For Testing Only" was grafted upon decedent), cert. denied, 237 Conn. 909, 675 A.2d 456 (1996); Shegog v. Zabrecky, 36 Conn.App. 737, 739, 654 A.2d 771 (chiropractor, not licensed to issue prescriptions, prescribed medication not approved by Federal Drug Administration to decedent, who was undergoing cancer treatment), cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).
To resolve the instant motion, the court applies the legal principles set forth above to the facts of this case. Turning to the plain language of the plaintiff's three-count complaint, it is readily apparent that there is no specific mention of the words " medical malpractice" in her allegations or the term " medical negligence" as used in General Statutes § 52-190a. The plaintiff characterizes the defendants' actions as negligence plain and simple. But her allegations, at first blush, seem to suggest medical malpractice inasmuch as she makes the following claims: in count one, the plaintiff claims that she had a surgical procedure performed by two physicians and that a scrub person in charge of documenting surgical instruments was present to count the instruments and that she did not discover the presence of a metallic surgical staple in her left breast until she underwent a mammography approximately one year later and that said metallic surgical staple was removed by one of the two physicians who performed the plaintiff's breast reduction surgery; in count two, the plaintiff alleges that her injuries were caused by the " corporate negligence" of the defendants inasmuch as the defendants allegedly failed to adequately train its staff, namely its " . . . physicians, residents, surgical assistants and scrub person on how to properly perform sponge, needle and instrument counts in the perioperative setting"; and, in the third count, the plaintiff alleges that her injuries were caused by " . . . a retained metallic surgical staple in her left breast following her breast reduction surgery . . ." as a result of " . . . the negligence of Yale and its agents and employees involved in her medical care and treatment."
With these allegations in mind, the court applies the three-prong test to determine whether the plaintiff's complaint, considered in a light most favorable to her pleadings and read broadly, sounds in negligence or medical malpractice. The court finds, upon the application of said test, that the first criterion can only be answered in the affirmative on the ground that it is fairly obvious from the plaintiff's allegations that she is suing the defendants and its physicians and staff, such as its scrub person, in their respective capacities in the medical profession. The court next finds that the second criterion is answered affirmatively as well on the ground that the alleged negligence arises out of a professional-patient relationship. The court further finds that the third prong of the test has been satisfied, too, due to the plaintiff's very own claims, which can be reasonably inferred to be substantially related to the medical treatment she received that involved the exercise of medical judgment by said medical professionals.
Yet, a more thorough review of her allegations indicate that, while said allegations may sound in medical malpractice, lay persons could easily understand the nature of her claims without the need for expert testimony to assist a jury or the court in considering the underlying issues or deciding whether the applicable standard of care was deviated in this case. Therefore, the court agrees with the plaintiff that the exception to the general rule referenced herein, rather than the general rule itself, controls based upon the circumstances of this case.
Conclusion
For the foregoing reasons, the court concludes that although the allegations in the plaintiff's complaint sound in medical malpractice, the plaintiff was not required to adhere to the statutory requirement, as set forth in General Statutes § 52-190a, relating to the attachment of a certificate of good standing or an opinion letter to her complaint on the ground that the surrounding factual allegations as pled can be easily comprehended by a jury in resolving the issues presented in this case without expert testimony. As a result, the court denies the defendants' motion to dismiss and sustains the plaintiff's objection thereto.