Opinion
FSTCV145014327S
11-24-2015
David Simmons v. Dr. Scott Weiss
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT (#117.00)
Kenneth B. Povodator, J.
Nature of the Proceeding
This is a " medical malpractice" case--and the extent to which the proceeding can be so characterized is at the heart of this decision. The plaintiff is self-represented. The three defendants are represented by two different law offices, and motions to dismiss the action were filed and granted as to all defendants and all claims.
On September 8, 2015, the court entered the following order (#117.01) relating to this matter and motion, summarizing what had happened during argument on September 8, 2015, in turn addressing a (belated) motion to open judgment, filed more than four months but less than five months after motions to dismiss had been granted:
The motions to dismiss had been granted by another judge who subsequently recused himself from further involvement in this matter; the case, and especially the pending motion, were assigned to the undersigned.
* * * *
All defendants moved to dismiss the complaint, based on the claim that this is a medical malpractice action and that the plaintiff had failed to comply with General Statutes § 52-190a. The court granted both motions (#102.00 and #104.00).
While it is true that the complaint does contain medical malpractice-type allegations, it also asserts claims outside the scope of § 52-190a--particularly, lack of consent/informed consent. See, e.g., LUCISANO v. BISSON, 132 Conn.App. 459, 469, 34 A.3d 983 (2011) (" The plaintiff next argues that § 52-190a does not apply to her failure to obtain informed consent claim because the claim does not sound in medical malpractice. We agree"), citing, in turn, SHORTELL v. CAVANAGH, 300 Conn. 383, 15 A.3d 1042 (2011).
Particularly given the posture of the case--a motion to dismiss being filed prior to a request to revise through which a separation of counts might be requested/ordered--it may not have been recognized adequately, earlier, that the motion only was applicable (properly) to a portion of the complaint. The court has inherent authority to correct errors, etc., CITIBANK, N.A. v. LINDLAND, 131 Conn.App. 653, 661, 27 A.3d 423 (2011), and whether the court's action is perceived as correction of an error, clarification of the scope of the prior order, or otherwise, the court is identifying the proper scope of the proper outcome of the properly-filed motions to dismiss.
Proper interpretation of the pleadings is a function of the court, and that includes identifying multiple causes of action contained within a single complaint/count. When dealing with self-represented parties, while the court cannot act in such a manner as to adversely impact any substantive rights of a represented party, it also must be sensitive to the rights of the self-represented party, including recognition of a possible lack of precision in drafting a complaint. HILL v. WILLIAMS, 74 Conn.App. 654, 813 A.2d 130 (2003).
Since the parties were unaware (in advance) of the direction that would be taken by the court, the court has allowed the defendants three weeks in which to provide the court with memoranda, indicating why they believe that the court lacks the authority to enter this order and/or that the lack of consent/informed consent comes within the scope of § 52-190a. Memoranda are to be filed by September 24, and the court will entertain further argument on September 28, 2015.
This order does not in any way alter the applicability of the prior decisions to the portions of the complaint properly characterized as medical malpractice/negligence; those claims properly were dismissed and the court is in no way affecting the finality of that disposition.
The computer system used for generating orders does not permit italics; therefore, the undersigned has adopted a protocol whereby case names and other emphasized terms (bold, underline and/or italics) are converted to uppercase, in order to have them stand out in such orders.
Subsequent, the defendants did file memoranda, articulating the reasons why they believe the court should not open the judgment, even on the limited basis set forth above (only as to non-medical-malpractice claims), relying on the requirement in General Statutes § 52-212a that any motion to open a judgment must be filed within 4 months of the entry of judgment. The claim is that there is no basis for the court to act on a motion filed outside that 4-month period. The court entertained further argument on this issue on September 28, 2015. For the reasons set forth below, the court believes that it is appropriate that the court grant the motion in part.
During the course of argument, counsel for the defendants pointed out that the 20-day period for appealing a ruling of September 8 was expiring that day, and expressed some uncertainty as to whether the court's action on September 8, 2015 had resulted in the actual opening of the judgment. Recognizing the ambiguity in what had been done, and trying to avoid the possible need for what might prove to be an unnecessary or premature appeal, the court " clarified" its earlier ruling so as to state that it had not intended to open the judgment in any definitive sense prior to counsel for defendants having had an opportunity to respond.
A clear understanding of what the court did/is doing, and why, requires a review of the complaint that was filed by the plaintiff, a self-represented party. Attached to this decision are two documents--a copy of the hand-written complaint, and an attempt by the court to transcribe that complaint for ease of reading, with some but not all spelling errors corrected.
As the court observed during argument and as should be apparent from a reading of the complaint, the court believes that the primary focus of the complaint is the fact that surgery was performed, at all, rather than the manner in which it was performed or the propriety of any diagnosis. " The interpretation of pleadings is always a question of law for the court . . ." (Internal quotation marks and citation, omitted.) Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 314 Conn. 433, 462, 102 A.3d 32 (2014). While certainly the performance of surgery that had not been necessary could be characterized as medical malpractice, in this case that contention has a dominant overlay--the claim that the surgery was performed in direct conflict with the explicit instructions of (prohibitions from) the plaintiff/patient. This is not simply a case of claimed lack of informed consent; it is a case of medical treatment claimed to have been performed without consent and in explicit defiance of a refusal to provide consent.
As noted in the court's earlier order, a lack of informed consent is not deemed medical malpractice for purposes of General Statutes § 52-190a. Lucisano v. Bisson, 132 Conn.App. 459, 469, 34 A.3d 983 (2011). Medical treatment without consent can be characterized as a battery. In re Cassandra, 316 Conn. 476, 497, 112 A.3d 158 (2015); Godwin v. Danbury Eye Physicians & Surgeons, 254 Conn. 131, 136-37, 757 A.2d 516 (2000). Here, there was not only no consent but an expressed refusal to allow the procedure actually performed.
And later in the complaint: " So he set another scraping for Nov 2, 2012. I agreed and made it perfectly clear that there still would be no amputation because it were not necessary nor essential which he agreed." As stated in the complaint: " At that time I immediately made it clear that any amputation was unnecessary and absolutely unnegotiable."
Despite the fact that it is established law in Connecticut that a lack of informed consent does not require a good-faith letter under § 52-190a, and despite the fact that a total lack of consent may properly be characterized as a battery (a non-negligent tort), the defendants argued to the court that the lack of a good-faith letter required dismissal of the entire proceeding, implicitly and explicitly arguing that the entire case is about medical negligence (thereby invoking the need for compliance with § 52-190a).
Both filed motions treat the claims as sounding only in medical malpractice; nothing else. Both parties mention, at least in passing, a claimed lack of informed consent, but there is no analysis as to whether those allegations can or should be treated as part of a medical malpractice claim implicating the provisions of § 52-190; cf. Lucisano, supra . Indeed, in #103.00, there is a discussion as to why the claims of intentional conduct are no more than mislabeled claims of medical negligence, thereby both ignoring cases describing informed consent as outside of the scope of medical malpractice for purposes of § 52-190a, and wholly disregarding the non-negligent-tortious quality of unauthorized surgical procedures, in effect doing precisely what it is argued should not be allowed--mischaracterizing allegations to suit the pleader's goals.
At page 11 of #103.00, the defendants stated: " The fact that the plaintiff labels some of his allegations as 'abuse' or intentional misconduct, does not allow the plaintiff to circumvent the written opinion requirement of § 52-190a. It bears repeating that the Appellate Court has stated that '[i]t is not the label placed on the action that is pivotal but the nature of the legal inquiry.' Votre [ v. County Obstetrics & Gynecology Group, P.C. ], 113 Conn.App. at 579 (emphasis added). 'Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character.' Gazo v. City of Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001) (citation and internal quotation marks omitted). Thus, 'in determining the nature of a pleading filed by a party, we are not bound by the label affixed to that pleading by the party.' Votre, 113 Conn.App. at 576 (emphasis added)." That is followed by more than 3 pages of discussion as to why the plaintiff's complaint should be treated as a pure medical negligence claim, entirely within the scope of § 52-190a. Nowhere is there any mention or discussion as to whether consent-related issues--informed consent or lack of consent--come within the scope of claims even arguably subject to characterization as negligence, and nowhere is there recognition of existing appellate authority stating the precise opposite.
The defendants are correct that, generally, General Statutes § 52-212a requires that a motion to open judgment be filed within four months of the date of issuance of the order or decision on which the judgment was based. Our courts have recognized exceptions to the four-month time limit, in circumstances where such a departure may be appropriate, generally relying on equitably-compelling circumstances. In recognizing a general concept allowing exceptions to be made, the Appellate Court, in Connecticut Savings Bank v. Obenauf, 59 Conn.App. 351, 356, 758 A.2d 363 (2000) stated: " where, however, there is a judicial action of the trial court that requires a change in a judgment because it affects justice, and appellate court should effect that change." (Internal quotation marks and citation, omitted). The court went on to note that " although the [moving party] slept on [his] rights for a perilously long period of time, the record demonstrates quite clearly that the [moving party] seeks to correct an injustice in the original judgment that was contrary to existing law." (Internal quotation marks and citations, omitted.) 59 Conn.App. 356-57. In Obenauf, the motion to open was filed seven years after the judgment originally had entered, 59 Conn.App. 352; notwithstanding the delay, the Appellate Court reversed the trial court's refusal to open the judgment, finding the injustice inherent in the original decision to compel such a result. (Here, the delay is less than one month.)
In Irving v. Firehouse Associates, LLC, 82 Conn.App. 715, 846 A.2d 918 (2004), the Appellate Court held that the conduct of the objecting party was sufficiently inequitable that " [i]t was within the [trial] court's discretion to hold that equitable considerations required that the judgment be opened." More generally, the Supreme Court has recognized that " [i]t is a well-established general rule that even a judgment rendered by the court . . . can subsequently be opened [after the four-month limitation] . . . if it is shown that . . . the judgment, was obtained by fraud . . . or because of mutual mistake." In re Jonathan M., 255 Conn. 208, 238, 764 A.2d 739 (2001) (internal quotation marks and citation, omitted; ellipses as in cited case).
See, also, Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 12, 85 A.3d 1 (2014), where despite a seemingly absolute statutory prohibition (General Statutes § 49-15) against opening a judgment of foreclosure after title vests, the court held that " equity permits a court to provide relief in response to an egregious mistake."
The court does not wish to suggest that this case involves conduct on a par with Irving, but the court is troubled by the seeming lack of forthrightness with the court about the nature of the claims and the applicability of § 52-190a--more accurately, inapplicability of the statute to much of the case. A fair reading of the complaint certainly would suggest a substantial portion of the allegations of the plaintiff might or do come within the parameters of the statute, but the court perceives the dominant theme to be lack of consent and defiance of the explicit refusal to give consent--indeed, an expressed prohibition. In other words, the dominant theme in the complaint is more accurately characterized as a claim of battery, rather than malpractice. The court cannot help but feel that there is a degree of lack of candor with the court in the defendants' presentation of the complaint as if it were a monolithic allegation of professional negligence coming within the scope of " medical malpractice" in general, and the statute in particular, such that a motion to dismiss, based on failure to comply with the statute, should be treated as fatal to the entire complaint.
At this juncture, the court is less concerned with whether counsel for the defendants actually knew of the existence of appellate authority stating that consent-related issues were outside the scope of § 52-190a (which would implicate Rule 3.3(a)(2) of the Rules of Professional Responsibility), and more concerned about the distortion of adjudication resulting from the treatment of the entire claim as sounding in medical negligence, notwithstanding alleged conduct that included intentional conduct and was perceived as asserting intentional conduct; see, footnote 5. Semi-graphically, lack of consent = unauthorized touching/injury = assault/battery; lack of consent = unauthorized touching/injury #x2260; negligence.
Conclusion
At a minimum, the defendants implicitly misstated the law when arguing to the court that the entire complaint asserted claims governed by § 52-190a (and as suggested in footnote 5 addressing part of #103.00, two of the defendants went further and affirmatively argued that the intentional conduct alleged still came within the scope of the statute (without focusing on consent issues specifically)). Is there any question that if the arguments had identified lack of informed consent (or especially lack of any consent to the procedure performed) as an issue distinct from medical malpractice and requiring separate legal analysis, the rulings on the motions to dismiss would have been different--and almost certainly not a simple " granted" ?
For the compelling equitable reasons stated, the motion to open the judgment is granted in part, limited to the claims of the plaintiff asserting lack of consent and/or lack of informed consent, i.e. issues fairly within the scope of the complaint but not asserting medical negligence. The motion is denied with respect to claims of medical negligence, for which § 52-190a is applicable.
APPENDIX
Typed version of complaint
I David Simmons am filing this claim and lawsuit against Dr. Scott Weiss, Scott Brown, and Norwalk Hospital with the complete knowledge and truth that exists in this travesty. I'm also having difficulties in obtaining legal assistance in filing this claim. Therefore I would appreciate the court appointing counsel to me. I've been abuse, misuse, and intentionally violated. And I have no choice to think otherwise it was due to my skin and economic status in which I exist. It is a clear case of neglect, deceit, deception, destruction, and dishonesty. On Oct. 2, 2012 I had a appointment at the Norwalk Community Health Care. As usual I spoke with the head physician Dr. J. O'Connell which at that time he arranged for me to be taken to the Emergency Room. At that time the ER misdiagnosed me then and on 2 next occasions following. Finally on Oct. 23, 2012 when he send me back I was admitted to the Norwalk Hospital due to the leakage of a fluid from the ankle and heel of my right foot. I met Dr. Scott Weiss the following day. Without any real examination he suggested I should amputate my right foot ten inches above my ankle. At that time I immediately made it clear that any amputation was unnecessary and absolutely unnegotiable. I informed him after his suggestion that once he opened it scraped a flush would be adequate because the antibiotics would heal it on his own. Which is all I intended to consent to which he was absolutely aware of. On Oct. 26, 2012 at 4:00 p.m. I was taken to the OR. I signed the consent for the opening, scraping, and flushing on my right foot 8 inches away from my 5th toe. At that time I possessed a good pulse and blood flow along with good feelings. I still possess a good pulse and movement in my fingers and remaining toes. The next day during the changing of the bandage he stated he wanted to scrape more. So he set another scraping for Nov 2, 2012. I agreed and made it perfectly clear that there still would be no amputation because it were not necessary nor essential which he agreed. At that time he arranged for second OR surgery Nov 2 2012 at 5:00 p.m. After the following operation he came to change the bandage he didn't have the nerve or respect to explain what he had done. He actually abdicated to non-infected perfectly normal toes. When I looked and I realized what had been done. I've had my hands and feet examined on several occasions examined and never have they had a lack of blood flow, pulse or damage to these limbs. I then asked him why did he go against my consent and desire? He stated they were mush. I have yet to find the medical terminology for mush? Therefore I have no actual feeling except the physical pain and nerve damage for the loss of limbs along with the psychological pain of being misdiagnosed, totally betrayed, manipulated and violated. My right as a human being has been violated as though I were incapable of making my best and own decision, which I've been doing for the pass six decades. He breach my life and physical well-being. Now he has cause more pain and suffering then I have ever endured in my life, since I met him. Since when does individual have the rights create nonconsensual patients? Who gives him or that facility the right to remove perfectly functional limbs? Cause I am a intelligent and sane individual. It would have been less painful and better had he refused to proceed any procedure on me at all, because I would still possess my 10 functional toes. It is obvious that he has a lack of genuine interest and concern for his patients or was it just because of my color. His honesty should have prevented him from performing this cruel, careless and greedy act. It is also obvious that his only interest derived from his bank account and financial status. It is evident that he had no feelings for my concern or well-being. Each time I entered the OR we agreed that there would be no amputation attempt. Therefore, that is why I am seeking $5,000,000.00 in compensation for loss of limb, mental and physical cruelty, breach of consent, using poor judgment, because none of my limbs have never been " MUSH ." How, who, and why would someone remove an individual limbs without their consent? I've never been so disrespected nor humiliated in such a manner in my life. He deserves to be banded from the medical profession and license revoked. How does he live with himself after intentionally and recklessly destroying my precious being? He--he has proven to be no more than a menace such as Hitler. Had he pursued my treatment with dignity and integrity, opposed to greed I wouldn't be painfully suffering nor feeling like a freak. I am requesting $5,000,000.00 in compensation. If I were Abe Beam or Ed Koch would have he treated them this way? He and Scott Brown had nerve to make light of the treatment. They both spent weeks with others attempting to manipulate me into amputating my right foot 10 inches above ankle. I have forty years of use with these limbs. But my foot won't be as well as it were in 2012. Prior to their deception, I were in good health.
I hereby verify under oath the statement made on my behalf in the attached pleading.
[signed; David Simmons 8-12-14]
Some spelling errors have been corrected.