Opinion
No. CV 02-0819513
January 27, 2005
MEMORANDUM OF DECISION ON MOTIONS FOR PERMISSION TO FILE MOTIONS FOR SUMMARY JUDGMENT
This matter is before the court on both defendants' motions for permission to file a motion for summary judgment. The plaintiff filed a complaint alleging that the defendant, a substance abuse counselor, was negligent in treating him and that her employer's corporate affiliate was negligent in training her. The plaintiff was admitted as a patient to the drug treatment facility of the corporate defendant's affiliate. The individual defendant's duties included conducting group treatment sessions. The individual defendant and the plaintiff commenced an interpersonal relationship. Upon discharge from the facility, the plaintiff moved into the home of the individual defendant and after their relationship soured left claiming the relationship hampered his recovery causing him damages.
The plaintiff's various complaints have had appended to them a certificate of good faith. Notwithstanding, nearly two years after the complaint was filed on September 16, 2002 the plaintiff did not disclose an expert. In August of 2004, seven months prior to trial, the defendant filed a motion to preclude expert testimony. Two months prior to trial on December 6, 2004 the court issued the following order: "defendant's motion to preclude disclosure of experts, dated August 10, 2004 (mot. # 125) is hereby granted. See Practice Book § 13-4; Millbrook Owner's Assoc. v. Hamilton Standard, 257 Conn. 1 (2001), at 17-18. Disclosure of expert fifteen months late, with no legitimate excuse, this close to trial, is unfair to defendant. Per order of Lavine, J." On January 5, 2005 both defendants then filed motions for permission to file motions for summary judgment on the basis that the plaintiff lacked the expert testimony necessary to prosecute the negligence count of the complaint to which the certificate of good faith presumably relates.
Connecticut General Statutes § 52-190a, as amended by Public Acts 2003, No. 03-202, § 14 requires prior reasonable inquiry and certificate of good faith in order to prosecute a negligence action against health care provider. Specifically, it provides inter alia that "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 has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the Superior Court, 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." Connecticut General Statutes § 52-190a(a).
The filing of a valid good faith certificate is a serious matter. That section further provides that, "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 upon motion or upon its own initiative, shall impose upon the person who signed such certificate, or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney submitted the certificate." Id.
The statutes afford prospective plaintiffs in malpractice actions additional time to conduct a reasonable inquiry in that it provides that, "Upon petition to the clerk of the court where the action 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. This period shall be in addition to other tolling periods." Connecticut General Statutes § 52-190a(b).
The failure to file a certificate of good faith may be dispositive of a case. "A failure to attach a certificate of good faith in a medical malpractice action is a basis for granting a motion to strike a malpractice count. Connecticut General Statutes § 52-190a, as amended by Public Acts 2003, No. 03-202, § 14; Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 384, cert. denied, 228 Conn. 928 (1994). In addition our Appellate Court affirmed the decision of the Superior Court, (Gordon, J.), granted defendants' motion for summary judgment in a case where a patient sued rehabilitation center and clinic, alleging she was injured when she fell during a transfer from wheelchair to exercise mat reasoning that the claim involved medical malpractice and thus required the filing of a certificate of good faith. Trimel v. Lawrence Memorial Hosp. Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203, (2001). The Appellate Court has approved the grant of a summary judgment in a medical malpractice case when, as in this case, it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding the applicable standard of care. Guzze v. New Britain General Hospital, 16 Conn.App. 480, 484-85, 547 A.2d 944, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988). It has also upheld a decision setting aside a verdict when expert testimony as to the standard of care of a medical provider has been precluded by an order of the trial court because of the plaintiff's untimely disclosure of the name of his expert. Perez v. Mount Sinai Hospital, 7 Conn.App. 514, 509 A.2d 552 (1986). "It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary." Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982).
This case raises an issue of whether expert testimony is necessary as there is an exception to the requirement of filing a good faith certificate where the alleged acts or omissions on which the plaintiff relies constitute ordinary negligence within the ken of the average person. Id., at 308, 449 A.2d 176 (needle found in patient after hernia operation); Console v. Nickou, 156 Conn. 268, 274-75, 240 A.2d 895 [ 40 Conn.App. 315] 1968) (needle left in patient after delivery of child); Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957) (lacerations to patient's leg in removal of cast); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927) (piece of surgical instrument left in patient after nose operation).
Arguably the parties are least prejudiced in this context by the grant or permission to file a motion for summary judgment as the issue will arise at trial. See Sullivan v. Yale-New Haven Hosp., Inc. 64 Conn.App. 750, 785 A.2d 588 (Conn. 2001), in which the Appellate court held that a medical malpractice defendants' supplemental motions for summary judgment were properly granted on ground that plaintiff failed to produce expert testimony concerning standard of care, despite plaintiff's claim that trial court failed to first schedule and hear defendants' motions for permission to file their supplemental motions, and that plaintiff was thus denied opportunity to prepare; plaintiff had approximately four months to prepare from court's decision granting defendants' motions for permission to file supplemental motions to when court heard argument on those supplemental motions.
A motion for summary judgment may be filed at any time as of right before case is on trial list, but only by leave of court after case is on trial list. Practice Book § 17-44. "The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." Id. Given the fact the court's recent order precluding the plaintiff from introducing expert testimony thereby creating the factual predicate for a motion for summary judgment, this court finds that the defendants could not have filed a motion for summary judgment earlier because of the plaintiff's assertion that it had an expert which it could and would indeed disclose. The plaintiff failed to do so and cannot claim to be prejudiced by its own omission. Equity warrants giving the defendant an opportunity to assert any legal rights they may have as a result of the plaintiff's failure to disclose an expert.
The defendant's motions for permission to file motions for summary judgment on the issue of the absence of expert testimony is granted. Having done so, and necessarily continued the trial which had been scheduled on April 14, 2004 for February 2, 2005. In order to afford the court an adequate opportunity to hear and decide the motions for summary judgment, the court by consent of the parties orders the trial to commence on May 12, 2005.
BY THE COURT
Vanessa L. Bryant, P.J.