Opinion
No. CV10-6003591S
December 20, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS
FACTS
The Plaintiff, Alex Fedorka, Jr., brings this action in his capacity as Administrator of the Estate of Marcia Fedorka. The only named Defendant is the Genesis Health Ventures of Naugatuck, Inc., which operates a nursing home which also provides physical therapy and rehabilitation services.
The facility known as the Glendale Center, is located at 4 Hazel Avenue, in Naugatuck.
On June 19, 2008, the Plaintiff's decedent was recuperating from surgery to her right femur, and was a patient at the Glendale Center. At approximately 3:15 p.m., Marcia Fedorka was being transported to the dining room by one of the defendant's employees.
During the course of the transportation by the unnamed employee, the employee jammed the decedent's right foot into the door jam, causing her to sustain additional injuries. As a result of the incident, it is alleged that rods and medical devices in the right femur were displaced, causing Marcia Fedorka to aggravate muscles, tendons and ligaments in and around the bone, accompanied by additional bruising.
As a result of the injuries suffered on June 19, 2008, it is claimed that the Plaintiffs decedent died on July 2, 2009, after additional medical treatment proved unsuccessful.
In this statutory action for wrongful death, the Plaintiff maintains that the Defendant, acting through its agents and employees was negligent, in one or more of the following ways:
Section 52-555(2) — "In any action surviving to or brought by an executor or administrator for injuries resulting in death, . . . such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonable and necessary medical, hospital and nursing services, and including funeral expenses . . ."
a) In that it failed to properly supervise the employee while the employee was transporting Marcia Fedorka to the dining room;
b) In that it failed to provide adequate access to the dining room for a patient who was being transported in the manner in which Marcia Fedorka was being brought to the dining room;
c) In that the Defendant's employee knew or should have known that he could not clear the doorway when transporting Marcia Fedorka without causing her to fall;
d) In that it failed to train the employee who was transporting Marcia Fedorka on the proper way to bring her into a room such as the dining room.
Because the Defendant facility is a "health care provider" pursuant to § 52-184b(a) of the General Statutes, the Defendant argues that the Plaintiff must file, as part of his complaint, a good faith certificate, pursuant to the provisions of § 52-190a(a) of the General Statutes. That statute reads:
Section 52-184b(a) — ". . . health care provider" means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment."
(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry . . . to determine if there are grounds for a good faith belief that there has been negligence in the care and treatment of the claimant . . . To show the existence of good faith . . . the claimant's attorney . . . shall obtain a written and signed opinion of similar health care provider as defined in Section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such an opinion . . .
The Plaintiff claims that the filing of a certificate of good faith is not necessary based upon the facts presented, in that the allegations of negligence involve allegations of ordinary negligence, rather than medical negligence or malpractice.
The Defendant has moved to dismiss this action, citing the absence of a certificate of good faith.
STANARD OF REVIEW MOTION TO DISMISS
A motion to dismiss properly attacks the jurisdiction of the court by asserting that the plaintiff is unable, as a matter of law, and fact, to state a cause of action which can be heard in the particular forum. Baskin's Appeal from Probate, 194 Court. 635, 640 (1984); Gurliacci v. Mayer, 218 Conn. 531, 544 (1991).
The purpose of the motion is to test whether, on the face of the record, the court lacks either personal jurisdiction, or jurisdiction over the subject matter. Pearson v. Bridgport Hydraulic Co., 141 Conn. 646, 648 (1954).
Where the question is whether or not a certificate of good faith must be filed, and it is determined that a certificate is required, a statute provides that dismissal of the action is the appropriate remedy, where no written opinion is provided.
Section 52-190a(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."
CLAIMS INVOLVING ALLEGATIONS OF ORDINARY NEGLIGENCE AGAINST A HEALTH CARE PROVIDER DO NOT REQUIRE THE PLAINTIFF TO FILE A CERTIFICATE OF GOOD FAITH
By its express terms, § 52-190a of the General Statutes applies to claims of medical negligence. "Medical negligence" involves the breach of the prevailing standard of care applicable to the medical professional.
Section 52-184c(a) defines the prevailing standard of care as ". . . that level of care, skill and treatment which, in light of all relevant circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."
In determining whether a claim involves one of medical negligence, requiring the filing of a good faith certificate, or claims of ordinary negligence where no certificate is required, the Appellate Court, in Trimel v. Lawrence Memorial Hospital Rejmbilitation Center, 61 Conn.App. 353, 357-58 (2001), identified three relevant considerations to be applied on a case by case basis: 1) whether the defendants are sued in their capacity as medical professionals. 2) whether the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and 3) whether the negligence is related to medical diagnosis or treatment, and involves the exercise of medical judgment.
Trimel involved the transfer of a patient from a wheelchair, to an exercise mat, in order to begin a physical therapy session.
Although stating that it was confronted with a "close question," the Court determined that medical judgment was involved in the transfer from the wheelchair, requiring training and practice. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 358-59. Because injury occurred during the course of treatment, the court also determined that medical care and judgment was involved.
Here, all of the claims against the Defendant, Genesis Health Ventures of Naugatuck, Inc., involve claims of ordinary negligence, which did not occur within the context of medical treatment. Most involve claims of respondeat superior, where the acts of an unnamed employee are attributable to the employer, because the negligence occurred within the scope of his employment.
The defendant was being moved to the dining room when the incident occurred, and medical expertise is not required for the transfer of patients within the facility, for meals.
The claims of respondeat superior, based upon the conduct of the employee, involve the employee's alleged inability to be watchful of his surroundings, and his failure to enter the dining room in a manner which did not cause injury to the patient.
Clearly, such admonitions as "don't go too fast," or "look out for objects in the way," are not the type of commonly associated with medical negligence or malpractice.
Because the claims involve ordinary negligence, the Defendant's motion to dismiss, is DENIED.