Opinion
No. CV 06-5000597S
April 16, 2007.
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
FACTS
Lisa Jolly, as administratrix of the estate of Suzanne Jolly, commenced this action on December 19, 2005 against David Smudin, a pharmacist, and his employer, Stop Shop Supermarket Company, LLC (Stop Shop). The complaint alleged that Suzanne Jolly became very ill and ultimately died as a result of medications obtained from Smudin on prescriptions that he forged and filled through other improper means.
Stop Shop is named twice as a defendant — once at a Torrington location and once at a Waterbury location.
On June 13, 2006, Jolly filed a revised six-count complaint, alleging negligence against all the defendants, alleging medical malpractice against Smudin, and alleging that Stop Shop was responsible under respondeat superior for the injuries to Suzanne Jolly caused by Smudin's actions during the course of his employment with Stop Shop. On June 13, 2006, Jolly also filed a certificate of reasonable inquiry from a registered pharmacist practicing as a pharmacy manager in a major retail store, stating that in his opinion Smudin had acted negligently in the care and treatment of Jolly.
Stop Shop filed a motion to dismiss the second and third counts of the complaint on July 20, 2006, on the basis of lack of subject matter jurisdiction. Stop Shop argues that in its capacity as a pharmacy, it is a health care provider under General Statutes § 52-190a. It further argues that Jolly was therefore required to submit a written opinion of a similar healthcare provider, and without such certificate, General Statutes § 52-190a(c) requires the action against it to be dismissed.
Jolly filed an objection to the motion to dismiss on August 8, 2006, alleging that the claims against Stop Shop are for ordinary negligence, not medical malpractice, and that Stop Shop is not a healthcare provider as contemplated by § 52-190a. The court heard oral argument on the motion to dismiss at short calendar on January 22, 2007.
DISCUSSION
An important factor in determining whether a certificate of good faith under § 52-190a is required is not just whether Stop Shop is a health care provider, but whether the claim against Stop Shop sounds in negligence or in medical malpractice. "The fact that an action is against a health care provider or a health care facility, in and of itself, is insufficient to transform a case involving ordinary negligence, into a claim of malpractice." Baynard v. Derma Clinic, Inc., Superior Court, judicial district of Fairfield, Docket No. CV04 4000265 (September 1, 2005, Radcliffe, J.) ( 39 Conn. L. Rptr. 875). See also Radrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386, 505 A.2d 741 (1986); Shaw v. Caldor, Inc., Superior Court, judicial district of Stamford, Docket No. CV94 0135645 (February 23, 1995, Lewis, J.) ( 13 Conn. L. Rptr. 524). In addition, an action brought against a medical provider in its capacity primarily as an employer does not require a certificate of good faith. Nieves v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 03 0402055 (December 1, 2003, Dewey, J.).
Section 52-190a(a) requires that in any action against a health care provider, a certificate stating that "reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . To show the existence of such good faith, the 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 . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." Section 52-190a(c) . . . 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."
"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 . . . From those definitions, we conclude that the 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." (Citations omitted; 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).
In this case the claims against Stop Shop do not sound in medical malpractice, because: (1) Stop Shop is being sued in its capacity as an employer, not as a medical professional; (2) the negligence allegedly arises out of the employer-employee relationship between Stop Shop and Smudin, and is not of a specialized medical nature arising out of a medical professional-patient relationship; and (3) the complaint alleges negligence on the part of Stop Shop in its supervision of its employee and in its failure to have monitoring procedures in place which would have prevented the events that occurred not in conduct by Stop Shop related to a medical diagnosis or treatment or in Stop Shop's exercise of medical judgment. Where the claim does not sound in medical malpractice, no good faith certificate is required to pursue the complaint. The motion to dismiss is denied.