Summary
In O'Dell v. Greenwich Health Care Servs., Inc., No. FSTCV116008364, 2011 WL 4424393, at *1, 4, 10–11 (Conn.Super.Ct. Sept. 6, 2011), the court considered whether the plaintiff's products liability claim premised on an alleged failure to warn about risks associated with an injection of compounded medication was actually a claim for medical malpractice subject to Conn. Gen. Stat. § 52–190a.
Summary of this case from Gallinari v. KlothOpinion
No. FST CV11-6008364
September 6, 2011
Memorandum of Decision on Motions to Dismiss (Nos 112, [part 1] and 116)
Procedural and Factual Background
In this action, the plaintiffs allege that the defendants supplied plaintiff Robert O'Dell ("the plaintiff") with certain pain-relief medication after negligently failing to ensure that the medication was in the proper concentration and formulation, causing various injuries to him and depriving his wife, plaintiff Ruth O'Dell, of her husband's consortium. In the original complaint, filed on February 14, 2011, the plaintiff identifies the defendants as Greenwich Health Care Services, Inc.; Greenwich Hospital; Yale New Haven Hospital, Inc.; and Paul Sygall, M.D. In Count One, the plaintiff alleges that on February 17, 2009, he was undergoing pain-management therapy under the care of Dr. Sygall as an admitted patient of Greenwich Hospital. As part of this therapy, Dr. Sygall allegedly prescribed an "inpatient trial" of pain-relief medications, consisting of neuraxial medications that would be administered via intrathecal injections, according to the complaint. The complaint alleges that these medications were "formulated, concentrated and manufactured" by an outside laboratory [Bryce Laboratories, Inc.] pursuant to an agreement with Dr. Sygall and the other three defendants.
The plaintiff further alleges that after the medications were administered, he experienced "uncontrolled convulsions, an inability to feel his legs, an inability to breathe, [and] a fear of impending death." He was placed in the intensive care unit and allegedly suffered permanent damage to his nervous system, along with nausea, physical and emotional pain, vomiting and fear of dying, according to the complaint. The plaintiff alleges that defendants Greenwich Health Care Services, Inc., Greenwich Hospital and Yale New Haven Hospital, Inc. "represented [themselves] to be competent to administer properly formulated, tested and concentrated medications to their patients such as the plaintiff" but "negligently failed to test, sample or confirm the correct formulation and concentration of medication which was ultimately administered to the plaintiff . . . who relied on the defendant[s] to do so for his safety and well-being while under defendant[s'] care." The plaintiff also makes allegations of negligence against Dr. Sygall. Count two of the original complaint incorporates the entirety of count one and pleads an action in loss of consortium on behalf of plaintiff Ruth O'Dell.
On March 28, 2011, Dr. Sygall filed a motion to dismiss (No. 104) claiming lack of personal jurisdiction (no valid service of process upon him), and lack of a good faith certificate and written opinion of a "similar health care provider" under Conn. Gen. Stat. § 52-190a. The other three defendants moved to dismiss on April 11, 2011 (No. 116) solely on the ground of lack of a good faith certificate and written opinion of a similar health care provider. On April 14, 2011, within his objection (No. 108) to Dr. Sygall's motion, the plaintiff petitioned for an automatic ninety-day extension of the statute of limitations pursuant to General Statutes § 52-190a(b), acknowledging that his action is based in negligence of health care providers, that the statute of limitations expired on February 17, 2011, and that the action was filed without a certificate of reasonably inquiry and a written and signed opinion of a similar health care provider pursuant to General Statutes § 52-190a(a). On April 15, 2011, the plaintiff filed an amended complaint (No. 109) pursuant to Practice Book § 10-59. Counts one and two of the amended complaint are identical to their counterparts in the original complaint. The amended complaint also includes a new count three, a claim for product liability pursuant to General Statutes § 52-572m. Count three incorporates the allegations of counts one and two and further alleges that the defendants are strictly liable to the plaintiff as resellers of medications. The product liability claim is premised on the alleged failure to warn about the dangerous propensities of the medication, failure to properly test and sample the medication, defects and unreasonable dangerousness of the medication and breach of express and implied warranties.
On April 21, 2011, Dr. Sygall moved to dismiss the amended complaint. (No. 112) incorporating and repeating both claims made in his earlier motion to dismiss (No. 104) directed to the original complaint: part one claims the lack of a good faith certificate and written opinion under Conn. Gen. Stat. § 52-190a and part two claims lack of personal jurisdiction over him in that he was allegedly not validly served with process. On April 27, 2011 the other three defendants also moved to dismiss the amended complaint as it pertains to them (No. 116) on the ground that it sounds in medical malpractice but lacks a good-faith certificate and a statement by a similar health care provider as required by § 52-190a(a). Attached to the defendants' motion to dismiss are memoranda of law. On May 4, 2011, the plaintiff filed memoranda in opposition to the motion to dismiss. Attached to the memoranda is the plaintiff's affidavit (discussed, infra). The court heard oral argument in this matter on May 9, 2011.
The moving defendants attached two memoranda to their motion to dismiss the amended complaint on April 27. The first filing (#117) is a supplemental memorandum to the defendants' motion to dismiss the original complaint, which is no longer the operative complaint in this matter, and is identical to a memorandum filed on April 15 (#110). The second filing (#118) discusses the motion to dismiss the amended complaint. Because the grounds for both motions are the same, the court has reviewed both memoranda filed by the defendants.
On May 4, 2011, the plaintiff filed two memoranda in opposition to the motion to dismiss. The first filing (#121) is directed to the motion to dismiss the original complaint. The second filing (#122) is directed to the motion to dismiss the amended complaint. In order to ensure that the legal arguments raised by the parties are given due consideration, the court has reviewed both memoranda filed by the plaintiff.
The court also heard argument on Dr. Sygall's motion to dismiss the amended complaint on May 9 (No. 112). Due to the need to schedule an evidentiary hearing pertaining to Dr. Sygall's claim of defective service of process, and since that hearing was not ready to proceed after several continuances, Dr. Sygall's motion to dismiss (No. 112) was marked off by order of the court (Jennings, J.) on May 27, 2011 (#112.86).That order, however, was intended to mark off only that part of the motion claiming lack of service of process, which required an evidentiary hearing. The first claim of lack of a good faith certificate and written opinion of a similar health care provider under Conn. Gen. Stat. § 52-190a was not intended to be marked "off" the calendar. The court has now clarified the order of May 27, 2011 to limit the "off" marking to the claim of lack of service of process. The claim of lack of good faith certificate and written opinion of similar health care provider was argued at short calendar and is therefore reinstated on the calendar and will be decided herein.
Because the original complaint has been superceded by the amended compliant, and the amended complaint is now the operative complaint, this memorandum will be the court's decision of the motions to dismiss filed in April which are directed to the amended complaint.
STANDARD OF DECISION
"[B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process . . ." Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011). "Because . . . the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction. It is in the nature of a pleading that must be attached to the complaint." Id.
"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.) C.R. Klewin Northeast, LLC v. State, 299 Conn. 167, 174, 9 A.3d 326 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10, 12 A.3d 865 (2011). "As a general matter, the burden is placed on the defendant to disprove personal jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it . . . 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.) Piteau v. Board of Education, 300 Conn. 667, 670 n. 6, 15 A.3d 1067 (2011). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, supra, 300 Conn. 11.
DISCUSSION
The defendants' core argument in moving to dismiss is that the plaintiff's complaint sounds in medical malpractice and not in ordinary negligence and that it therefore requires a good-faith certificate and a written statement by a similar health care provider pursuant to § 52-190a(a). Before proceeding to examine the defendants' argument, the court must first consider the legal effect of the plaintiff's April 14, 2011 petition to extend the statute of limitations pursuant to § 52-190a(b). Defendants argue that the petition amounts to a judicial admission that Count One of the original complaint is a medical malpractice action that requires the submission of a good faith certificate and written medical opinion of a similar health care provider under Conn. Gen. Stat. § 52-190a(a). The statute requires that good faith inquiry documentation in the case of ". . . a civil action or apportionment complaint filed to recover damages resulting from personal injury or wrongful death occurring 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 . . ." The language of the petition tracks the statutory language: "On February 14, 2011 the Plaintiffs filed the within action, which bases its claims against the defendants, who are medical providers, in negligence." But that does not amount to a "clear, deliberate, and unequivocal" binding admission that Count One requires, but does not have, the written opinion of a similar medical health care provider under § 52-190a(a) because, as will be discussed below, not all allegations of negligence against medical providers fall within the ambit of that statute. The motions to dismiss therefore cannot be granted on the basis of a judicial admission contained within the February 14, 2011 petition.
The petition was filed as Exhibit A to Plaintiff's Objection to Defendant Sygall's Motion to Dismiss, dated April 13, 2011 (Objection is No. 108).
"The statement relied upon as a binding judicial admission must be clear, deliberate and unequivocal." Bowen v. Serksnas, 121 Conn.App. 503, 518 n. 12, 997 A.2d 573 (2010).
The plaintiff now appears to have abandoned any effort to amend his complaint in order to include a written medical opinion as the plaintiff in his memoranda now argues that the substantive allegations in the amended complaint sound in ordinary negligence or lack of informed consent and product liability, and not in medical malpractice, and therefore do not require a good faith certificate or an opinion letter. The court will examine those arguments.
A Count One — Negligence
In moving to dismiss count one, the defendants argue that the plaintiff's allegations sound in medical malpractice but lack a good-faith certificate or statement by a similar health care provider. The plaintiff replies that there is no nexus between patient care and the allegations of his complaint and that his action is one for ordinary negligence or lack of informed consent and therefore is outside the scope of the requirements of § 52-190a(a).
"[T]he interpretation of pleadings is always a question of law for the court." BNY Western Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010). "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." (Internal quotation marks omitted.) Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 812, 945 A.2d 955 (2008). To guide this review, the Appellate Court has developed a three-pronged test. Under this test, "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." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 713, 784 A.2d 889 (2001).
Per the Connecticut Supreme Court's recent decision in Shortell v. Cavanagh, 300 Conn. 383, 393, 15 A.3d 1042 (2011), the three-part test is not relevant for informed consent claims. The court in Shortell relied on a decision in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 293, 465 A.2d 294 (1983), where it had previously ruled that expert testimony is not required for informed consent claims for the purpose of establishing the standard of care. Shortell v. Cavanagh, supra, 300 Conn. 390-91. Thus, the requirements of § 52-190a do not apply to claims of lack of informed consent. Id., 385.
See also Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011, Burke, J.) (explaining the effect of the Shortell decision on actions for medical malpractice); CT Page 18859 Chalk v. Yale Primary Care, Superior Court, judicial district of New Haven, Docket No. CV 11 5033688 (June 21, 2011, Burke, J.) (same).
"[U]nlike the traditional action of negligence, a claim for lack of informed consent focuses not on the level of skill exercised in the performance of the procedure itself but on the adequacy of the explanation given by the physician in obtaining the patient's consent." (Internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 253, 943 A.2d 430 (2008). "Connecticut cases in this area uniformly involve claims for lack of informed consent rising from risks associated with the treatment or procedure itself, not from risks associated with failure to properly diagnose or to provide treatment or testing." (Emphasis in original; internal quotation marks omitted.) Rich v. Foye, 51 Conn.Sup. 11, 31, 976 A.2d 819 [ 44 Conn. L. Rptr. 184] (2007).
The plaintiff submits that his claim against the defendants is based on lack of informed consent. To support his claim, the plaintiff attaches a sworn affidavit to his memorandum in opposition to the motion to dismiss. (Docket Entry #121, Ex. B.) In this affidavit, the plaintiff attests that he "underwent a trial pain medication process which involved the usage of pain medication that was specifically designed, ordered and prescribed by Dr. Sygall." (Exh. B, p. 1.) He further attests that Dr. Sygall never informed him "that this medication was going to be formulated, created and compounded by an outside laboratory" or "that there may be the possibility that this outside laboratory had the potential of over compounding or improperly formulating this medication to my detriment." (Exh. B, p. 1.) The plaintiff attests that he was not informed about and did not consent to "having an outside laboratory improperly manufacture medication that could potentially harm" him and was not informed "that neither Greenwich Hospital and its affiliates nor Dr. Sygall would not sample nor test a small amount of this medication formulated by an outside laboratory before it was injected into my body to confirm it was an accurate compounding of the medication and would not harm me." (Exh. B, p. 2.) Lastly, he attests that he was not informed about and did not consent to "the possibility of having improperly concentrated and overly concentrated medication injected into" his body "without any testing nor sampling process at all." (Exh. B, p. 2.)
Allegations of the cause of action of lack of informed consent, however, are missing from the amended complaint. While paragraph thirty-seven of Count One the amended complaint alleges in part that Dr. Sygall "negligently failed to warn and failed to inform the plaintiff of the possibility of an over concentrated, improperly formulated/concentrated medication being administered to him during the trial process," that single clause of a single sentence, inserted into the forty-one paragraphs over ten pages of the allegations of Count One, falls short of alleging the cause of action of informed consent. In order to prevail on a cause of action for lack of informed consent a plaintiff must prove that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of his injury. Shortell, supra, 300 Conn. at 388, citing Logan v. Greenwich Hospital Assn., supra, 191 Conn. 282, 293, 465 A.2d 294 (1983). There is no allegation that Dr. Sygall had actual or even constructive knowledge that the medication as formulated, concentrated, and manufactured by non-party Bryce Laboratories, Inc. and administered to the plaintiff was "over concentrated, improperly formulated/concentrated medication." Likewise plaintiff's allegations of proximate cause (Complaint, ¶ 38) claim that his injuries were caused by "the negligence, carelessness, reckless acts and omissions and willful and wanton misconduct of the defendants . . ." without any particular reference to alleged failure to warn and inform. It is also significant that the claimed cause of action is not pleaded in a separate count, but rather inserted in Count One as one of multiple specifications of negligence. See Hoog, v. Chacarelli, Superior Court, Judicial District of New Haven, Docket No. CV08-5020876 (May 4, 2009, Corradino, J.), 2009 Ct.Sup. 7561, 47 Conn. L. Rptr. 607, where the court held that a claim of lack of informed consent would require a good faith certificate and medical opinion letter under § 52-190a (a result overturned in March 2011 by the Supreme Court in Shortell), but also held that an allegation of lack of informed consent inserted into a one-count complaint of medical negligence would have resulted in a dismissal even "if the court is incorrect on this [the need for the written medical opinion for lack of informed consent]" Id. fn 1, since the lack of informed consent was not pleaded in a separate count. A similar concept was expressed by Judge Hiller in Simmons v. CVS Pharmacy, Superior Court, Judicial District of Fairfield, Docket No. CV08-5021084S (June 17, 2009, Hiller, J.), 2009 WL 2230841 (Conn.Super.) In commenting on allegations of negligent supervision lurking in a malpractice count:
There is no allegation that the hospital defendants (Greewich Health Care, Greenwich Hospital or Yale New Haven Hospital) negligently failed to warn or inform the plaintiff. Consequently, this allegation of ¶ 37 has no bearing on the motion to dismiss (No. 116) filed by those defendants.
The court is aware that a motion to dismiss which must be filed at a very early stage of the litigation before the allegations of the complaint can be subjected to a request to revise is not meant to test the legal sufficiency of the complaint as in the case of a motion to strike. But in this situation where a court must determine whether or not a certain cause of action has been validly pleaded or mischaracterized, a court must be mindful of and guided to an extent by the elements of that cause of action, particularly in a case such as this where the cause of action has not been pleaded in a separate count or otherwise labeled in the complaint.
The only allegations which may even be generously construed as pertaining to a claim for negligent supervision are limited to two paragraphs in the first count stating that CVS and its agents, servants and employees were negligent, careless, and reckless in the training and supervision of its technicians and assistants. These allegations, however, were interspersed among the other allegations of negligent and reckless conduct by both CVS and its pharmacists and they were repeated and reaalleged in every count of the complaint, including those which the plaintiff now contends sound in products liability, misrepresentation, and breach of warranty. Therefore, it is impossible for the court to read these allegations as setting forth a claim of negligent supervision that is separate and distinct from, rather than founded upon or at least derived from, the underlying allegation of negligence in the pharmaceutical care of the plaintiff. Id. *4.
This court likewise concludes that the minimal half-sentence allegation of failure to warn or inform cannot save Count One from scrutiny as to whether or not it is a claim of medical malpractice requiring a good faith certificate and medical opinion letter under § 52-190a. It is worthy of note that the plaintiff himself failed to characterize any of his claims as a claim of lack of informed consent in his briefing in opposition to the motions to dismiss the original complaint, and even in his May 3, 2011 objection (No. 120) to defendant Sygall's motion to dismiss his amended complaint. It was not until his "Supplemental Memorandum in Objection to Defendants Sygall's Motion to Dismiss," also dated May 3, 2011 (No. 123) that he cites at page 3 the "just decided on March 15, 2011" Supreme Court decision of Shortell v. Cavanaugh, supra, and argues for the very first time that he is making a claim of lack of informed consent, to take advantage of Shortell's holding that a good faith certificate and opinion letter are not required for a case of lack of informed consent. Although in that memorandum he accuses defendant Sygall of ". . . carving out language [of the amended complaint] to its best use and attempting to create a medical malpractice case where none exists" (p. 4) it is the plaintiff himself who performed the ultimate carving out of language from paragraph thirty-seven to attempt a recharacterization of his complaint as one of lack of informed consent. This is not a case such as Hill v. Williams, 74 Conn.App. 654 (2003) where the plaintiff was attempting to save her action against her attorney from being barred by the three-year tort statute of limitations by arguing that her complaint also alleged a breach of contract. In holding for the plaintiff, the Appellate Court noted certain allegations of the attorney's "refusal to take certain actions in furtherance of the matters for which the defendant had been hired." The court construed the word "refused" as importing "an intentional act rather than some inadvertence or negligent act or omission on the part of defendant in breach of the agreement between the parties." Id. 659. But the court also relied on the express allegation in the plaintiff's complaint describing her complaint as a "breach of contract lawsuit," Id. In this case plaintiff O'Dell makes no similar allegation that he is suing Dr. Sygall for lack of informed consent, and has belatedly isolated a few words from his allegations of negligence to recharacterize his action as a claim of lack of informed consent.
And the plaintiff may not alter or recharacterize the allegations of his amended complaint through an affidavit attached to a memorandum in opposition to a motion to dismiss. Bradley v. Yale New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV 10 5033272 (January 28, 2011, Burke, J.). In Bradley was a case arising out of injuries allegedly received during treatment at a hospital, a plaintiff included an affidavit with her memorandum of law in opposition to a motion to dismiss. Id. The court declined to consider the affidavit, reasoning in part as follows: "[T]he plaintiff is not offering the affidavit merely to assert facts outside the record for the narrow purpose of this motion to dismiss. She is attempting to use the affidavit to make those facts part of the record, in this case, the complaint, so that the court will characterize the complaint for the remainder of this lawsuit as negligence as opposed to medical malpractice. Affidavits cannot be used for such purposes even in the context of jurisdictional motions to dismiss. The proper procedure for adding allegations to a complaint is to file a request for leave to amend . . ." (Emphasis in original). Id. The same reasoning applies in this case. Accordingly, the court has disregarded the May 3, 2011 affidavit of the plaintiff Robert O'Dell submitted in opposition to these motions to dismiss.
"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.) Dimmock v. Lawrence Memorial Hospital, Inc., supra, 286 Conn. 813. Pursuant to the recent ruling in Shortell, "if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52-190a." Shortell v. Cavanagh, supra, 300 Conn. 393. In the context of allegations pertaining to health care providers' use of medicine or tissue, the gross-negligence exception has been applied to instances where written warnings pertaining to use have been completely ignored. For instance, in Bourquin v. B. Braun Melsungen, 40 Conn.App. 302, 305, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996), the plaintiff alleged that a graft of commercially prepared human tissue material provided to the defendant hospital contained imprints stating that it was only to be used in Canada and only for investigational or testing purposes. The plaintiff claimed that the use of this graft resulted in the death of his wife. Id., 305-06. The Appellate Court ruled that the hospital's failure to investigate the source of the tissue in light of the alleged warnings on the imprints did not require expert testimony on the standard of care. Id., 316. "Whether reasonably prudent hospital personnel would have been alerted by the imprints to inquire about their significance is a question that can be resolved on the basis of the common knowledge that jurors possess. The failure to observe or heed a warning is not a novel basis for finding negligence." Id., 316-17.
Similarly, in Incardona v. St. Mary's Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. CV 07 6000812 (September 4, 2008, Eveleigh, J.) ( 46 Conn. L. Rptr. 425, 426), the plaintiff alleged that a catheter inserted into the plaintiff's decedent at the defendant hospital came with warnings that it was not to be used for more than twelve months and should not have ointments used on it. The plaintiff alleged that the catheter was used for almost 14 months and had various ointments applied to it, ultimately leading to the death of the plaintiff's decedent. Id. The court denied the motion to dismiss, ruling that the action did not require a good faith certificate and signed opinion of a similar health care provider. Id., 429, 430. The court reasoned as follows: "The plaintiffs' claims of negligence raise the issue of obvious, ordinary negligence that is well within the common knowledge of the members of a lay jury to determine whether the defendants may be negligent, without any expert testimony. The warnings contained on the catheter in the instant case could be communicated to the patient and the patient's doctors through hospital administrators, staff, nurses, and other doctors. There is no intrinsic medical judgment . . . which must be exercised by doctors in this case." Id., 429.
In the present case, the allegations against the defendants are not in the realm of obvious negligence that could be clear to a layperson. The amended complaint describes the treatment as "an inpatient trial of intrathecal injection of neuraxial medications." The alleged failure to test and sample trial medications is different from a failure to heed warnings as in Bourquin and Incardona. Thus, this case is not within the gross negligence exception to § 52-190a.
Having determined that the exceptions to § 52-190a are inapplicable, the court must now apply the three-part test of Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358, to decide whether the plaintiff's allegations in count one of the amended complaint sound in medical malpractice or ordinary negligence. Under the first factor, the court must consider "whether . . . the defendants are sued in their capacities as medical professionals . . ." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358. This factor is satisfied by direct language within paragraphs 19, 24 and 29 of count one of the amended complaint, which allege that each of the defendants "represented itself to be competent to administer properly formulated, tested and concentrated medications to their patients such as the plaintiff . . ."
The second factor requires the court to examine "whether . . . the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship . . ." Id. In his brief, the plaintiff argues that "the improper mixing and formation of the concentration of the medications is a standard administrative practice, which does not amount to medical negligence or medical malpractice." (Docket Entry #121, p. 5.) The defendants rely on the ruling in Simmons v. CVS Pharmacy, Inc., supra, for their claim that the plaintiff's action sounds in medical malpractice. In Simmons, the plaintiff alleged that the defendant pharmacy filled her prescription of 5 mcg tablets with 25 mcg tablets, with the label on the bottle listing the contents as 5 mcg tablets. Id. After noticing that the pills appeared to be different from those she was used to receiving, she contacted the pharmacist but was informed "that the manufacturer was utilizing a new formulation and that the pills were correct and acceptable to take" and proceeded to ingest the medication, resulting in injury. Id. The court ruled that the allegations were within the scope of § 52-190a because "[t]he negligent acts of providing the wrong prescription medication and assuring the plaintiff that she had received the appropriate medication were, at the very least, substantially related to the pharmaceutical care she received from the defendants" and "[t]he defendants exercised specialized medical judgment and skill by assuring the plaintiff that she had received the proper medication." Id.
In Conlin v. Khan, Superior Court, judicial district of Hartford, Docket No. CV 10 6016536 (April 7, 2011, Wagner, J.T.R.) ( 51 Conn. L. Rptr. 702, 702), the plaintiff alleged that the defendants, a pharmacy and pharmacist, provided her with a mislabeled prescription, resulting in pain. The court denied the defendants' motion to dismiss for lack of compliance with § 52-190a, distinguishing the case from Simmons "because Conlin [did] not allege: that the defendants held themselves out in such a manner; or that the defendants should be held to a higher standard of care of accepted pharmaceutical practices or that the pharmacy advised her that the medication was correct." Id., 703. In the present case, however, the plaintiff does allege that the defendants held themselves out to be competent to administer the medications.
In Burke v. CVS Pharmacy, Inc., Superior Court, judicial district of New Haven, Docket No. CV 08 5024739 (February 9, 2009, Licari, J.), the court was called on to decide "whether or not a pharmacist's misfiling a prescription is medical malpractice or simple negligence." The court ruled that such an action was one in ordinary negligence that did not need to abide by the requirements of § 52-190a, reasoning as follows: "The filling of this prescription did not require any exercise of medical discretion. Medical judgment was not required. The defendant was not called upon to decide which drug to dispense. It was there to read. The failure to read correctly is a matter of common experience which the jury would be equipped to evaluate." Id.
In a recent case, a plaintiff brought suit against a medical center after becoming ill following administration of a tetanus injection, "alleging that it knew or should have known that the tetanus shot was compromised and/or unsafe, and it distributed and/or caused [a co-defendant] to administer such to the plaintiff, causing his injuries." Henderson v. Medi Quik Hospital, Superior Court, judicial district of New Haven, Docket No. CV 10 5033427 (February 3, 2011, Fischer, J.). The court ruled that the action sounds in medical malpractice because "the plaintiff has brought claims against the defendants in their capacities as healthcare providers, the alleged negligence is of a specialized medical nature that arose out of the medical professional-patient relationship when he sought medical treatment for a nail in his foot, and the alleged negligence in the administration of the tetanus injection is substantially related to the medical treatment, which involved a medical judgment." Id.
In the present case, the second factor of the three-factor test for medical malpractice is satisfied. The negligence alleged by the plaintiff is of a specialized medical nature relating to an "inpatient trial" of medicine and arises out of the professional-patient relationship directly related to the defendants' treatment of the plaintiff's pain. The plaintiff's attempt to characterize the mixing and testing of medication as an administrative practice is unavailing. The use of the term "inpatient trial" suggests that the defendants' alleged acts cannot be equated to the routine filling of a prescription, thus distinguishing this matter from Burke v. CVS Pharmacy, Inc., supra, Superior Court, Docket No. CV 08 5024739.
An example of an administrative act pertaining to medication arose in the recent decision in Chalk v. Yale Primary Care, supra, Superior Court, Docket No. CV 11 5033688. There, the plaintiff alleged that the defendant's pharmacy division lost or misplaced his Viagra medication, thus causing the end of a romantic relationship. The court ruled that the action sounded in ordinary negligence rather than medical malpractice because the second and third factors of the three-part test were not satisfied. Id. The court noted that "[t]he loss of pills merely infers that a hospital administrative procedure for storing pills either had not been followed or should have been in place," that "[t]here are no inferences that can be generated from lost pills that suggest `specialized medical' issues are involved," and that "[t]he storage of pills is separate and distinct from any diagnosis or treatment, and their loss does not implicate any medical judgments." Id. In contrast to the routine storage of medication in Chalk, the mixing and testing of medication for an "inpatient trial" in the present case does implicate specialized medical issues and decisions.
The next step of the analysis is to decide whether the third factor of the three-factor test is satisfied, namely whether "the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358. The Connecticut Supreme Court has ruled that "the administration of prescription medication is of a specialized medical nature and requires the exercise of medical judgment . . ." Boone v. William W. Backus Hospital, 272 Conn. 551, 564, 864 A.2d 1 (2005). Furthermore, the defendants' alleged negligence is substantially related to the management and treatment of the plaintiff's pain. Accordingly, all three factors of the Trimel test have been met. The court rules that the amended complaint sounds in medical malpractice. Because General Statutes "§ 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers," Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 25, the court dismisses Count One of the amended complaint.
Because the amended complaint contains a claim of product liability pursuant to § 52-572m, count one might be subject to dismissal or a motion to strike due to the exclusivity provision of Connecticut's product liability law, which provides in relevant part that "[a] product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." General Statutes § 52-572n(a). "It is now beyond dispute that this provision provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 27, 930 A.2d 682 (2007); see also Hurley v. Heart Physicians, P.C., 278 Conn. 305, 324, 898 A.2d 777 (2006) ("the exclusivity provision of the liability act makes it the exclusive means by which a party may secure a remedy for an injury caused by a defective product"). This issue, however, has not been raised by the parties, and there is no need to resolve it because the court grants the motion to dismiss count one on other grounds.
B Count Three — Product Liability
The defendants also move to dismiss count three of the amended complaint. They advance two arguments in favor of their motion to dismiss. First, because the third count incorporates the allegations of medical malpractice from count one, the defendants argue that it is in itself a medical malpractice claim that must abide by § 52-190a(a). Second, the defendants argue that a product seller who is engaged in the business of providing a service is outside the reach of Connecticut's product liability statutes.
The court need not consider the second argument raised by the defendants. The defendants acknowledge in their memorandum that this argument goes to the merits of count three. "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.) Mercer v. Rodriquez, 83 Conn.App. 251, 255, 849 A.2d 886 (2004). The decisions cited by the defendants in support of this argument involve motions for summary judgment. The plaintiff argues correctly that the resolution of this particular issue is not appropriate on a motion to dismiss.
As for the defendants' first ground in support of their motion to dismiss count three, the defendants once again rely on Simmons v. CVS Pharmacy, Inc., supra, Superior Court, Docket No. CV 08 5021084, discussed above in Part A. In addition to a claim for medical malpractice, the Simmons plaintiff alleged several other causes of action in her complaint, including products liability and negligent supervision, that incorporated the allegations of the medical malpractice count. Id. The court viewed those additional counts as derivative of the medical malpractice claim and dismissed them along with the entire action, noting that the allegations claimed to support the other causes of action were merely interspersed amongst the allegations of pharmaceutical malpractice and were founded on or at least derived from the allegations of malpractice.
In another Superior Court decision addressing the same issue, a plaintiff sued a pharmacist and the pharmacist's supermarket employer, alleging injuries arising out of the pharmacist's forging of prescriptions. Jolly v. Smudin, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000597 (September 20, 2007, Upson, J.). In addition to a claim of medical malpractice against the pharmacist, the complaint accused the supermarket of "carelessness and negligence in numerous ways" including "failure to supervise; failure to implement procedures; failure to properly follow any procedures [and] failure to properly review records" in relation to the actions of its agents, servants and employees. Id. The complaint included a certificate of reasonable inquiry and a statement of a similar health care provider pertaining to the acts of the pharmacist but not to those of the supermarket. Id. The supermarket moved to dismiss, arguing that the plaintiff's allegations pertaining to the supermarket must comply with § 52-190a(a). Id. The court denied the motion, reasoning that "[t]hese allegations do not sound in medical malpractice because they do not provide medical issues to be determined. The plaintiff has not sued Stop Shop as a medical professional, the negligence alleged does not arise out of a medical professional-patient relationship, and the alleged negligent acts are not substantially related to any medical care but are allegations based on Stop Shop's supervision, failure to have monitoring procedures in place and are not substantially related to medical diagnosis or treatment of the plaintiff and do not require use of any medical judgment by Stop Shop." Id.
In the present case, the defendants are correct in their claim that count three incorporates the substantive allegations of medical malpractice contained in the now dismissed count one. As demonstrated by Jolly v. Smudin, supra, Superior Court, Docket No. CV 06 5000597, a plaintiff who suffers an injury that gives rise to a cause of action for medical malpractice is not prevented from pleading other claims that do not sound in medical malpractice and that do not need to comply with § 52-190a(a). This is not a situation where plaintiff has incorporated all of Count One's malpractice allegations and simply adds a conclusion that defendants are therefore liable under the product liability statute. Count three makes certain specific factual allegations (¶¶ 48, 49, 50, 51 a-h, directed at Greenwich Healthcare and equivalent allegations against each other defendant) that are unique to a products liability claim, namely that the defendants were all resellers of medication pursuant to § 52-572m, that the medications "were in a defective and unreasonably dangerous condition," in that the defendants failed to warn that the product was dangerous and subject to failure, that the product was designed in a defective manner, that the defendants used improper materials in the mixture and/or concentration of the product, and that the defendants breached the implied warranties of merchantable quality and fitness for particular purpose. Although the factual predicate of Count Three is in part the same as that of Count One, the court concludes that the defendants in Count Three are being sued not solely or even primarily as medical professionals but as product resellers and that a court ruling on count three need not determine issues of medical care and treatment. Therefore, the court rules that Count Three does not sound in medical malpractice and thus the failure to attach a good faith certificate and a statement of a similar health care provider does not deprive the court of personal jurisdiction over Count Three. The motions to dismiss Count Three are denied.
C. Loss of Consortium
The parties have not briefed Count Two, a loss of consortium claim brought by co-plaintiff Ruth O'Dell. Count Two of the Amended Complaint incorporates all of the allegations of Count One. Count Three then incorporates all of the allegations of Count Two. Mrs. O'Dell is therefore claiming loss of consortium based on the injuries to Mr. O'Dell allegedly caused by the tort alleged in Count One and the statutory cause of action for product liability as alleged in Count Three. Since Count One has been dismissed, Count Two is also dismissed insofar as it is derivative of the cause of action alleged in Count One. But plaintiffs may include loss of consortium claims in product liability actions. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 299, 627 A.2d 1288 (1993). Since the product liability count (Count Three) is not dismissed, Count Two is therefore also not dismissed insofar as it is derivative of Count Three.
CONCLUSION
For the reasons stated above: (1) the motion to dismiss the Amended Complaint filed by defendant Sygall (No. 112, part one) is granted as to Count One insofar as it is based on plaintiff's failure to file a certificate of good faith and a written opinion of a similar health care provider as required by Conn. Gen. Stat. § 52-190a(a), but the court makes no ruling on the second part of that motion claiming defective service of process, which requires an evidentiary hearing which has not been held; (2) The motion to dismiss the Amended Complaint filed by defendants Greenwich Health Care Services, Inc., Greenwich Hospital, and Yale New Haven Hospital, Inc. (No. 116) is granted as to Count One; (2) both motions to dismiss the Amended Complaint (No. 112 part one and No. 116) are denied as to Count Three; and (3) The motions to dismiss the Amended Complaint (Nos. 112 part one and 116) are granted as to Count Two insofar as Count Two is derivative of Count One, but denied insofar as Count Two is derivative of Count Three.
SO ORDERED.