Opinion
No. CV06-5008024-S
October 12, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
The plaintiff, Howard M. Likier, M.D., fiduciary of the estate of the decedent, Jerome Benjamin Liker, alleges the following facts in the two count complaint against the defendants, Sunrise Senior Living Services, Inc., doing business as Brighton Gardens of Woodbridge (Sunrise), and Priority Care, Inc. In 2002, the plaintiff's decedent became a resident at a healthcare facility that is presently owned by Sunrise. The prior owner of the facility agreed to provide the decedent with medical services, nursing care when necessary and to monitor his health and provide relevant information to other healthcare providers. Around July of 2004, after Sunrise had acquired the facility, the decedent's health began to decline. He gained fifteen pounds during a one-week period, after which his physician ordered a change in his medication. Although Sunrise's employees received information about the change, they failed to implement it. The decedent's health worsened, but Sunrise did not inform either the plaintiff or the decedent's family. On August 3, 2004, after a family member found the decedent in extreme distress, he was transported to a hospital, where he developed other complications and eventually died on August 15, 2004.
In the summons, the plaintiff's attorney mistakenly listed the plaintiff as Jerome M. Liker, M.D. Consequently, the court's records indicate that the plaintiff is Jerome Liker. This is a typographical error, which the plaintiff may correct pursuant to General Statutes § 52-128.
Before the plaintiff commenced the action, he petitioned the court for a ninety-day extension of the statute of limitations, as permitted by General Statutes § 52-190a(b), in which he noted that the limitations period would otherwise expire on August 16, 2006. The court granted the petition, and the plaintiff commenced the action by serving process on the defendants on November 13, 2006.
General Statutes § 52-190a(b) provides in relevant part: "Upon petition to the clerk of the court where the [personal injury action against a healthcare provider] will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section . . ."
In count one of the complaint, the plaintiff alleges a negligence claim against Sunrise due to its failure to make sure the decedent took the medications that were prescribed to him and to respond to his symptoms of fluid retention, refusing to eat and isolating himself in his room, its lack of an adequate nursing staff and its lack of adequate systems for communicating the decedent's worsening condition to trained nursing or medical staff. The plaintiff attached a letter to his complaint that Victoria V. Carlson, a supervising nurse consultant with the state department of public health, wrote to Sunrise informing it that the department had determined that its facility had violated the Regulations of the Connecticut State Agency and/or the General Statutes. A detailed report is attached to the letter, some of which appears to refer to the facility's conduct in regard to the decedent.
In count two, the plaintiff alleges a negligence claim against Priority Care, Inc., an entity that allegedly provided the decedent with a private nurse.
On February 16, 2007, Sunrise filed a motion to dismiss the plaintiff's complaint on the grounds that it does not allege medical malpractice, and thus it is barred by the applicable statute of limitations, and, alternatively, if it is a medical malpractice action, it must be dismissed pursuant to General Statutes § 52-190a(c) because the plaintiff did not attach a good faith certificate or a copy of a written expert opinion of a similar healthcare provider to the complaint.
"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 . . . 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, 210-11, 897 A.2d 71 (2006). Furthermore, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335 857 A.2d 348 (2004).
I STATUE OF LIMITATIONS: MEDICAL MALPRACTICE OR ORDINARY NEGLIGENCE
Sunrise first contends that this action is not a medical malpractice action, but rather a negligence action. Accordingly, Sunrise contends that the plaintiff is not entitled to utilize the ninety-day extension that is available to medical malpractice actions under § 52-190a(b), and the action is barred by two-year statute of limitations that applies to negligence actions. The plaintiff counters that Sunrise must plead its statute of limitations defense as special defense, and then raise it in a motion for summary judgment, instead of in a motion to dismiss.
As the plaintiff correctly states, as a general rule, "the defense of the Statute of Limitations . . . must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972). See also Practice Book § 10-50. Although the courts have recognized an exception "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law;" (internal quotation marks omitted) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766, 628 A.2d 1303 (1993); that exception does not apply to the present case.
Practice Book § 10-50 provides in relevant part: "Facts with are consistent with [the plaintiff's statements of fact] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . the statute of limitations . . . must be specially pleaded . . ."
Furthermore, if the court were to consider Sunrise's statute of limitations argument in this context, it is important to recall that "[t]he motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided on that alone." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). Although the movant has the option of submitting affidavits containing undisputed facts, in which case, "the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint"; (internal quotation marks omitted) id., 346-47; Sunrise did not pursue that option. Instead, Sunrise's argument that this is not a malpractice action is based on its contention that the allegations of the complaint are incorrect, which it attempts to support with its interpretation of an unauthenticated document that it contends is its residency agreement with the decedent. That document is not properly before the court. Accordingly, the court must decide the issue on the basis of the allegations in the complaint.
Our Supreme Court has stated that "[t]he 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 these 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.) Gold v. Greenwich Hospital Association, 262 Conn. 248, 254, 811 A.2d 1266 (2002).
Here, the plaintiff's allegations satisfy the first two requirements in that he alleges, by implication, that Sunrise "agreed to provide [the decedent] with a variety of basic medical services . . . and . . . to monitor his health and provide information concerning [his health] to the appropriate healthcare providers." The plaintiff further implies that Sunrise's employees were responsible for monitoring the decedent's medications and his medical condition.
Regarding the third consideration, the Appellate Court has explained that "[t]he 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. The rule is illustrated by review of the major cases, specifically Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969), and Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 505 A.2d 741 (1986) . . ." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 360, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).
In Levett, the plaintiff's decedent, who was elderly and infirm, was injured when she fell during a visit to the office of the defendant, her family physician. The plaintiff alleged that the defendant was negligent in failing to provide supervision or attention to the decedent while she was disrobing in the dressing room. The Supreme Court decided that the trial court's jury charge was consistent with medical malpractice law, explaining that "[t]he determination whether the decedent needed help in disrobing and, in the event she should refuse such help, what course of conduct to pursue called for a medical judgment on the part of the physician predicated on his knowledge of her physical and mental condition on that day. The duty of the defendant in his capacity as a physician was to exercise reasonable care, skill and diligence in treating the plaintiff as a patient. This duty was met if the defendant exercised the degree of skill and care which physicians in the same general neighborhood and in the same general line of practice ordinarily have and exercise in like cases." Levett v. Etkind, supra, 158 Conn. 573.
The Appellate Court reached a similar conclusion in Trimel. In that case, the plaintiff, who was dependent on a wheelchair, alleged that she was injured when she fell while she was transferring herself from a wheelchair to a mat during a physical therapy session at the defendant's facility. She argued that the trial court improperly granted the defendant's motion for summary judgment on the ground that she did not file a certificate of good faith, as required by General Statutes § 52-190a, because her claim was based on ordinary negligence. The Appellate Court affirmed the judgment of the trial court, explaining that "[t]he 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 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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 364-65. Therefore, her claim was for medical malpractice, and not ordinary negligence. Id., 363.
In contrast, in Badrigian, the Appellate Court concluded that the trial court properly declined to charge the jury with the elements of medical malpractice. In that case, the defendant's psychiatric facility provided outpatient treatment to the plaintiff's decedent. During the course the treatment, the facility encouraged its outpatient clients to eat lunch at its inpatient facility. The decedent followed this recommendation, and was killed when he was hit by a car while he was crossing the highway in between the two facilities. The court determined that "[t]he [trial] court correctly decided that this was not a medical malpractice action, but an action sounding in ordinary negligence and subject to proof of the standard of care owed by a reasonably prudent person under the particular facts and circumstances . . . [O]ne need not be guided by medical experts in determining whether a mentally ill person should be allowed to cross on foot a heavily traveled four lane state highway without supervision. There was no esoteric or uniquely medical issue to be determined under the allegations of this case, and the court correctly categorized the negligence charged against the hospital as involving `no materia medica, nor any complex issue requiring specialized knowledge.'" Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn.App. 386.
In the present case, the plaintiff alleges that the decedent's death was proximately caused by Sunrise's negligence in failing to comply with its responsibilities to provide the decedent with medical services, to monitor his medications and his health, to refer him to other healthcare providers as necessary. These allegations are more similar to those in Levett and Trimel than to the facts of Badrigian. As the Appellate Court explained in Trimel, "[t]he 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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 362. As was true of the defendants in Levett and Trimel, Sunrise was allegedly responsible for making a judgment based on its knowledge of its patient's physical and mental condition. Furthermore, Sunrise's allegedly negligent acts are directly related to its responsibility to monitor the decedent's medical condition, as was also true of the defendants in Levett and Trimel. Therefore, the complaint sounds in medical malpractice. Accordingly, plaintiff was entitled to use the extension of the statute of limitations provided for by § 52-190a(b).
II GENERAL STATUTES § 52-190a
In the alternative, Sunrise maintains that if the court determines that this is a medical malpractice action, the court is required to dismiss the action because plaintiff failed to file an opinion of a similar health care provider, and the plain language of § 52-190a(c) requires dismissal for such a failure. Sunrise asserts that the legislative history of subsection (c) of § 52-190a also supports its argument. To the extent that the plaintiff intends to rely on the letter and reports that he attached to his complaint to meet this requirement, Sunrise argues that the documents are insufficient because they are not from a similar health care provider, do not indicate that Sunrise failed to meet the appropriate standard of care and do not include a detailed explanation of Sunrise's failure to meet the standard of care. The plaintiff counters that the documents he attached to the complaint satisfy the requirements of § 52-190a.
Section § 52-190a imposes several requirements on plaintiff's bringing medical malpractice actions against healthcare providers. It provides in relevant part: "(a) No civil action . . . shall be filed to recover damages resulting from personal injury . . . whether in tort or in contract, in which it is alleged that such injury . . . resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . had 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. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such 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, 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 claimant or the claimant's attorney . . . shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. 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 . . . shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction . . .
General Statutes § 52-184c, in turn, refers to the definition of health care provider in General Statutes § 52-184b, which provides in relevant part: "`health care provider' means any person, corporation, facility or institution licensed by this state to provide health care or professional services . . ."
"(c) 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."
Public Acts 2005, No. 05-275, which became effective on October 1, 2005, amended § 52-190a to add both the written opinion requirement in subsection (a) and the whole of subsection (c), regarding the failure to comply with this requirement. Our appellate courts have not ruled on the meaning of § 52-190a(c). A split of authority exists in the Superior Court in cases such as the present one, in which the plaintiff has attempted to comply with the written opinion requirement, and the defendant has moved to dismiss the action on the ground that the opinion is inadequate.
In one line of cases, the court has denied motions to dismiss, generally on the basis that "nothing in the plain language of the statute or legislative history . . . indicate that an insufficient opinion is grounds for dismissal of an action. Because this court cannot substitute is judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature . . . this court would not interpret the amended statute in accordance with the defendants' view that it creates a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion." (Citation omitted; internal quotation marks omitted.) Andrikis v. Phoenix Internal Medicine Associates, Superior Court, judicial district of Waterbury, Docket No. CV 05 500482 (April 19, 2006, Matasavage, J.) (41 Conn. L. Rptr. 222, 225). Furthermore, as that court noted, "by obtaining and filing an opinion that contains statements that the plaintiff's claims appears to be based on evidence of medical negligence, the plaintiff has, at the very least, attempted to comply with the . . . statute. Thus, her actions have served the purposes of the . . . statute, which are to narrow down and provide the defendants with details as to the basis for her claim." Id.
The judges adopting this view have come to two alternative conclusions. Some have determined that "if a written opinion of a health care provider is filed with a medical malpractice complaint, an attack on the sufficiency or adequacy of such an opinion should be made by a motion to strike . . . See . . . Lawlor v. Hagstrom, Superior Court, judicial district of Hartford, Docket No. CV 06 5002094 (December 29, 2006, Wiese, J.); Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 000679 (October 19, 2006, Pickard, J.) (42 Conn. L. Rptr. 163, [165])." Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5001663 (July 31, 2007, Priestley, J.). Other judges have decided that "challenges to the sufficiency of a . . . similar health care provider letter [including a challenge to the status of a similar health care provider] are appropriate only after the completion of discovery." Rodriguez v. Norniella, Superior Court, judicial district of New Haven, Docket No. CV 06 5001779 (June 1, 2007, Robinson, J.). See also Doe v. Priority Care, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 4017186 (May 9, 2007, Corradino, J.).
In the second line of cases, the court has concluded that the plain language of § 52-190a(c) indicates that "dismissal is the legislatively prescribed consequence. General Statute § 52-190a(c) clearly and plainly requires that a plaintiff file, with his or her complaint, not just a written opinion, but `the written opinion required by subsection (a),' i.e., 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 statute requires dismissal of the action if the requirement is not satisfied . . . Any other action would render the language of the statute superfluous . . . The statute requires that a detailed written opinion be filed, and requires dismissal if it is not filed." (Citation omitted.) Landry v. Zborowski, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07 6000211 (August 21, 2007, Vacchelli, J.). See also Miller v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07 5001172 (April 9, 2007, Sferrazza, J.) (43 Conn. L. Rptr. 694, 695).
This court finds the reasoning and conclusions in the former line of cases to be more persuasive, especially because they are consistent with the reasoning the court used and the conclusion the court reached in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990). In that case, the Supreme Court considered whether certificate of good faith required by § 52-190a imposes a subject matter jurisdictional requirement on medical malpractice actions and decided that it did not. In LeConche, the plaintiffs appealed the trial court judgment dismissing their medical malpractice complaint for lack of subject matter jurisdiction, which was based solely on the plaintiffs' failure to file a certificate of good faith in accordance with § 52-190a. The plaintiffs also argued that the trial court should have granted their motion to amend their complaint in order to attach a certificate. The Supreme Court reversed the judgments of the trial court, explaining that: "We begin with the premise 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 subject matter 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 . . .
"Although the operative sentence of § 52-190a provides that the complaint . . . shall contain a good faith certificate, and although shall has often been held to be mandatory . . . its use in this section does not mandate that such a certificate is jurisdictional. The test for determining whether the use of the word shall is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished . . . That test must be applied with reference to the purpose of the statute . . .
"The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence. In light of that purpose, the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court. The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support cause of action. Viewed through that prism, the 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 . . .
"[T]he trial court should have permitted the plaintiffs to amend their complaint by filing a certificate, because the court had subject matter jurisdiction and because its denial of the motion to amend was based on a perceived lack thereof." (Citations omitted; internal quotation marks omitted.) LeConche v. Elligers, supra, 215 Conn. 709-15. See also Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 635 A.2d 1232 (1994) ("[t]he lack of a certificate of good faith is not a jurisdictional defect and thus does not deprive the court of subject matter jurisdiction . . . Our cases explain that the failure to attach a certificate of good faith pursuant to § 52-190a subjects the case to a motion to strike the complaint . . . for failure to state a claim upon which relief can be granted, but that the defect is curable by a timely amendment"); Carefeno v. Gordon, Superior Court, judicial district of New Haven, Docket No. CV __ 0343687 (May 6, 1993, Thompson, J.) (8 C.S.C.R. 607) ("absence of the good faith certificate required by § 52-190a renders the case subject to a motion to strike").
In the present case, the plaintiff has made a minimal effort to comply with written opinion requirement. Nevertheless, for the foregoing reasons, the court declines to decide the adequacy of his efforts in the context of Sunrise's motion to dismiss.
This decision does not preclude Sunrise from raising the issue of the adequacy of the written opinion in a motion to strike.
Therefore, the motion to dismiss is denied.
In its motion to dismiss, Sunrise also listed the plaintiff's failure to file a certificate of good faith as required by § 52-190a as an additional ground for its motion to dismiss. Sunrise does not, however, pursue this ground it its memorandum, and therefore, the court is not required to address it. Nevertheless, as previously noted, in LeConche v. Elligers, supra, 215 Conn. 701, the court concluded that a plaintiff's failure to comply with this requirement should be addressed in a motion to strike, rather than a motion to dismiss.