Opinion
No. FBT CV 10-6007389 S
September 2, 2010
MEMORANDUM OF DECISION
The present action involves the accidental death of Robert Richter, Jr. (decedent), who allegedly died of injuries sustained when his wheelchair fell down the front steps of Bridgeport Manor, a nursing home owned and operated by the defendant, Bridgeport Health Care Center, Inc. On March 1, 2010, the plaintiffs, Kevin Kelly, executor of the estate of decedent, and Maria Richter, wife of the decedent, served the defendant with a six-count complaint, sounding in negligence, recklessness and loss of consortium.
All six counts of the complaint are based on essentially the same factual allegations. The plaintiff's claim that the decedent was confined to a wheelchair and was admitted to Bridgeport Manor suffering from dementia, periods of confusion, memory loss and forgetfulness on July 20, 2007. Over the next year, the decedent repeatedly tried to leave the facility unsupervised, causing Bridgeport Manor to assign staff to monitor the decedent or require staff to be on heightened awareness of his location. On June 22, 2008, the decedent left the building in his wheelchair, passing both nurses' stations and the reception desk, culminating in his fatal fall from the front steps. Based on these facts, the plaintiffs allege that the defendant failed to supervise the decedent, failed to stop him from leaving the facility, and failed to stop him from falling over the stairs.
The first count claims damages for common-law negligence under the wrongful death statute, C.G.S. 52-555. The second count claims damages for negligent violation of the patients' bill of rights statute C.G.S. 19-550(e) and is also brought under C.G.S. 52-555. The third count alleges common-law recklessness. The fourth count claims damages for reckless violation of the patients' bill of rights statute C.G.S. 19-550(e) and is also brought under C.G.S. 52-555. In the fifth count, the decedent's widow claims damages for loss of consortium under C.G.S. 52-555b and alleges common-law negligence. In the sixth count, the decedent's widow claims damages for loss of consortium under C.G.S. 52-555b and alleges common-law recklessness.
On April 30, 2010, the defendant moved to dismiss the complaint claiming that all claims stated therein are based on medical malpractice and that the plaintiff failed to comply with the mandates of General Statutes § 52-190a. Specifically, in its brief filed in support of its motion to dismiss, the defendant asserts that plaintiff did not file with his complaint either a certificate signed by the plaintiffs or plaintiffs' attorneys attesting a good faith belief that grounds exist for the complaint, or a written opinion from a similar health care provider, both of which are required by the statute. The plaintiffs, in their memorandum in opposition to the motion to dismiss dated June 7, 2010, contend that the complaint sounds in ordinary negligence and recklessness and therefore is not subject to the requirements of § 52-190a. Hearing on the motion to dismiss was held on July 12, 2010.
DISCUSSION
A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating "that there appears to be evidence of medical negligence and includ[ing] a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). "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 . . . However, the legislature has provided that such a failure does render [the] complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy . . ." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, cert. denied, 292 Conn. 911 (2009).
"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." (Emphasis omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254 (2002); Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63 (2005); see also Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, appeal dismissed, 258 Conn. 711 (2001).
The defendant argues that each of the six causes of action asserted in the complaint satisfy all three of the elements outlined in Gold, supra. The defendant claims that the first element (being sued in its capacity as a medical professional) is satisfied because the plaintiffs allege that the defendant failed to provide adequate and appropriate care.
The second element (allegations to be of a specialized medical nature that arise out the professional-patient relationship) is allegedly met because the decedent allegedly was suffering from medical conditions such as agitation and dementia and received improper care. The defendant argues that such allegations are sufficiently specialized because a lay person could not establish the level of supervision required for a patient suffering from those medical conditions.
The third element (a substantial relation to medical treatment or diagnosis as well as the exercise of judgment) is claimed to be satisfied because the defendant was responsible for the care of a patient with dementia and other conditions, and the nature of those conditions necessarily involves medical treatment and judgment in determining proper supervision. Again, the defendant claims that expert medical testimony would be necessary to establish whether the decedent was at risk for attempting to leave the facility.
The plaintiffs insist that their complaint does not satisfy any of the three elements. They assert that the first element is not met because the complaint alleges that the defendant breached its duty to supervise, which does not implicate its capacity as a medical professional. The second element is not satisfied because the allegations involve routine, supervisory tasks as opposed to specialized medical knowledge deriving from medical treatment. With respect to the third element, the supervision did not require any medical judgment nor was it substantially related to any medical treatment. The plaintiffs claim that even if the court were to determine that medical judgment was involved at some stage of the evaluation of the decedent, it was limited to the decision that the decedent was a threat to leave the facility. Such judgment, the plaintiffs argue, did not extend to the supervision, which was the activity alleged in the complaint to be negligent and reckless.
The issue of whether the first element of a medical malpractice claim is satisfied is a close one. In their complaint, the plaintiffs do not claim that the defendant deviated from the standard of care required of a medical professional, instead, the defendant is being sued because it is the alleged owner of Bridgeport Manor, a nursing home at which the decedent was residing at the time the injury occurred. The plaintiffs' argument that the first element turns on how the alleged breach of duty is characterized must fall. Such an analysis would insufficiently distinguish the first element from the second and third. The court finds that the allegation that the defendant owned the nursing home at which the decedent was receiving care is sufficient to satisfy the first Gold element.
With respect to the second and third Gold elements, there are no appellate-level Connecticut cases directly on point. The most factually similar is Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 386, 505 A.2d 741 (1986). Badrigian involved a patient at a psychiatric institute who discharged himself as a permanent resident against medical advice, was accepted as a day patient that same day, and subsequently died after being struck by a car while crossing the street on his way to eat lunch at the day treatment facility. The plaintiff in Badrigian claimed that the defendant breached its duty to supervise the plaintiff as he crossed the road and characterized it as a negligence claim as opposed to medical malpractice. The Appellate Court agreed, upholding the trial court's decision that the failure to provide a supervisor to help the plaintiff cross the road was not a medical procedure.
Though close factually Badrigian is distinguishable on several grounds, all of which were noted by the Appellate Court in a later decision: 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 . . . 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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 363. In the present case, the decedent was an admitted resident of the facility as a consequence of his medical condition, and the defendant's alleged duty to prevent resident patients from leaving is not one owed to the general public.
Apart from Badrigian, there are two other appellate-level opinions as to whether a breach of a duty to supervise a patient injured in a fall sounds in medical malpractice: Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 353 and Levett v. Etkind, 158 Conn. 567 (1969). The courts in both Levett and Trimel held claims to be medical malpractice where the plaintiff was challenging the judgment of the medical professional that the patient did not require supervision. In Levett, an unsupervised patient fell while disrobing for an examination where the physician only suggested to a nurse that the patient might need assistance to undress. In Trimel, a patient, as a part of a physical therapy session, was injured while transferring herself from a wheelchair to a mat without the assistance of the physical therapist. Calling the medical judgment question a "close one," the Trimel court held: "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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 358, 363-64.
Levett and Trimel are also factually distinguishable for both the second and third elements of the medical malpractice test outlined in Gold, supra. For the second element, both patients in those cases received outpatient care, making it easy to identify the discrete times they were receiving "specialized medical treatment" arising out the doctor-patient relationship, as opposed to a long-term resident of a nursing home, which is a living facility as well as a treatment center. The most significant difference involves the "medical judgment" inquiry in the third element. Both Levett and Trimel, relative to the present action, more clearly involve the medical judgment of the health care provider. Both challenged the decisions of the health care providers to allow the patient to proceed unsupervised. In the present case, the plaintiffs are alleging that supervision was ordered. The difference is a distinct one.
Despite the lack of clear appellate authority, this court concludes that the present allegations are closer to Badrigian than Levett and Trimel and agrees with the trial court's decision in Fallo v. McLean Assn., Inc., Superior Court, judicial district of New Britain, Docket No. CV99 0499101 (July 17, 2001, Shapiro, J.) ( 30 Conn. L. Rptr. 217), which held on similar facts that such claims are negligence and not medical malpractice. In Fallo, the complaint alleged that a patient at an assisted living facility, who was known to be disoriented, anxious and prone to wander, was negligently allowed to wander from her room and injure herself by falling down a stairwell. The claims for negligence included a failure to supervise, a failure to prevent her from wandering, a failure to secure the stairwell, and a failure to have adequate staffing. The court found no allegations of harm that occurred during treatment, rejecting the defendant's argument that the patient, by virtue of being a full-time resident, was receiving medical treatment at all times.
Courts outside of Connecticut analyzing factually analogous claims generally agree, albeit under varying, though comparable, standards of what constitutes medical malpractice. A number of courts have held that a failure to supervise under similar circumstances is ordinary negligence, reasoning that the duty to supervise is not related to medical treatment or diagnosis. See, e.g., Bailey v. Rose Care Center, 307 Ark. 14, 19, 817 S.W.2d 412 (1991) (wheelchair-bound patient killed by motor vehicle after leaving unnoticed from nursing home); Ostrom v. Manorcare Health Services, Inc., United States District Court, Docket No. 06 CV 12041 (E.D.Mich. January 22, 2007) (Alzheimer's patient injured after exiting nursing home and tripping over light post); First Healthcare Corp. v. Hamilton, 740 So.2d 1189, 1191-92, appeal dismissed, 743 So.2d 12 (Fla. 1999), overruled on other grounds, Florida Convalescent Centers v. Somberg, 840 So.2d 998 (Fla. 2003) (nursing home patient wandered from facility and drowned); Dispenzieri v. Hillside Psychiatric Hosp., 283 App.Div.2d 389, 389-90, 724 N.Y.S.2d 203 (2001) (psychiatric patient known to be suicidal injured after jump from hospital window).
At least one court outside of Connecticut has held that a failure to supervise is medical malpractice, reasoning that supervision is part of the health care and treatment that nursing homes provide. In McKnight v. D W Health Services, Inc., 873 So.2d 18, 23-24 (1st Cir. 2003), the court found medical malpractice where the complaint alleged that a nursing home did not properly supervise a patient who was allegedly confused and unable to care for himself when he wandered away from the facility and died of injury, heat exhaustion and exposure. The court stated, inter alia, that "the negligence was treatment related, as the care of physically and mentally incapacitated patients is the type of health care for which nursing homes are generally dedicated." Id., 23.
Two other cases, Rosemont, Inc. v. Marshall, 481 So.2d 1126 (Ala. 1985) and Golden Villa Nursing Home v. Smith, 674 S.W.2d 343 (Tex.App. 1984, writ ref'd n.r.e.), though factually analogous, do not fit comfortably in either category. Rosemont holds that expert testimony is necessary to establish liability based on the specific language of the Alabama Medical Liability Act, which requires nursing homes providing "services" — a very broad term — to use the same degree of care used by other facilities in the community. Moreover, Rosemont does not discuss any distinction between negligence and medical malpractice. Golden Villa held that expert testimony was not necessary, but on the basis that the jury could rely on its own experience to determine if the standard of care was breached. Golden Villa did not sufficiently clarify whether the claim sounded in negligence or medical malpractice. Regardless, as this decision notes, under Connecticut law, the necessity of expert testimony does not determine whether an action is negligence or medical malpractice.
Like Fallo, the out-of-state cases characterizing such claims as ordinary negligence are persuasive. In those cases, the plaintiffs were not challenging any specific medical diagnoses or treatment of the patients. The patients already had received diagnoses that precluded them from leaving the facilities unsupervised. The claims essentially alleged that the nursing homes failed to prevent the patients from leaving. Even if this court were to agree with McKnight's conclusion that similar supervision of a nursing home resident is "treatment related," that conclusion by itself would not establish that the alleged negligence is of a "specialized medical nature" or involves the "exercise of medical judgment" as contemplated by the second and third elements of a medical malpractice inquiry outlined in Gold, supra.
Nevertheless, to sound in negligence, the plaintiff's complaint truly must not challenge the medical judgment as to whether the patient should be supervised. A complaint alleging that a medical judgment for supervision had been made, but negligently followed does not sound in malpractice. Fallo v. McLean Assn., Inc., supra, Superior Court, Docket No. CV 99 0499101. On the other hand, where a complaint alleges that a medical judgment requiring supervision should have been made but was not, the action sounds in medical malpractice. See, e.g., Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. CV 06 5001967 (March 24, 2009, Lager, J.) ( 47 Conn. L. Rptr. 387) (medicated hospital patient complaining of head injuries and dizziness injured in a slip and fall on icy hospital steps).
The allegations of the present complaint do not challenge any medical judgment as to the need for supervision of the decedent. The complaint alleges that the decedent attempted to leave the facility on multiple occasions prior to the accident culminating in his death, and based on that history, the defendant either assigned staff or placed staff on heightened awareness, or instituted a policy to prevent the defendant from exiting the facility unsupervised. Consequently, the complaint does not allege that a different medical judgment should have been made, but merely that the nursing home breached its duty by failing to prevent the decedent from leaving its facility and placing himself in harm's way. The plaintiffs' specific allegations regarding the breach of duty, include the failure to monitor the front door, the failure to secure the front door, the failure to prevent him from leaving his room, and the failure to stop him in the hallway also do not require any specialized medical knowledge or involve medical judgment. Consequently, the court finds that plaintiffs' complaint sounds in ordinary negligence and not medical malpractice.
The defendant contends that expert medical testimony would be necessary to prove these allegations, as these claims would not be within the common knowledge of jurors, but the question of the need for expert testimony is not relevant to this analysis. "The characterization of a claim as ordinary negligence or medical malpractice . . . does not turn on whether expert testimony is required." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360. Connecticut courts have held that expert medical testimony is unnecessary for certain obvious medical malpractice claims, Boone v. William W. Backus Hospital, supra, 272 Conn. 567, but not for determining whether the claim is medical malpractice in the first place. Expert testimony is required in many ordinary negligence claims as well. While this court does not determine whether expert testimony ultimately is necessary or who would qualify as an expert, it notes that the defendant fails to consider the possibility that a nursing home administrator, perhaps with limited training or no training as a doctor or nurse, might qualify as an expert on the standard of care for nursing home supervision of this nature.
The fact that limited expert medical testimony may be given as to the decedent's condition and the defendant's knowledge of that condition does not transform this action into a medical malpractice action. See CT Page 17229 Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn.App. 383, 386 ("Such [expert] testimony of the mental condition of the plaintiff's decedent was, however, helpful in establishing the ordinary negligence alleged. The expert medical testimony which was presented provided the jury with evidence of the mental condition of the decedent on the date of the accident, which was relevant only to a consideration by the jury that the plaintiff's decedent needed supervision . . . that the defendant knew or reasonably should have known of that need, that the failure to provide it constituted negligence, and to the degree of contributory or comparative negligence of the plaintiff's decedent"); see also Petronio v. Bunch, Superior Court, judicial district of New Britain, Docket No. CV 01 0509130 (April 23, 2002, Wiese, J.) ( 32 Conn. L. Rptr. 156), and numerous cases cited therein.
Because the plaintiffs' complaint sounds in ordinary negligence and recklessness as opposed to medical malpractice, the plaintiffs were not obligated to file with their complaint a good faith certificate or a written opinion from a similar health care provider pursuant to § 52-190a. For the foregoing reasons, the defendant's motion to dismiss is denied.