Opinion
No. CV 06-5005430 S
May 24, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
FACTS
On August 2, 2006, the plaintiff Patricia Votre, filed an eight-count complaint against the defendants, County Obstetrics Gynecology Group, P.C., Adina Chelouche, Ljiljana Plisic and Scott Casper, who are physicians specializing in obstetrics and gynecology. This action arises out of acts or omissions of the defendants that occurred during the plaintiff's hospitalization in July of 2003. In her complaint, the plaintiff alleges the following facts. She was a patient of the defendants on July 14, 2003, when she was hospitalized at Yale New Haven Children's Hospital. She was considered a high risk pregnancy patient because of her previous loss of an infant and a diagnosis of "incompetent cervix." During her hospitalization, she requested several times that the defendants bring in physicians experienced in high risk pregnancies as she and the defendants had discussed prior to her hospitalization, but the defendants refused to listen to her requests. In fact, she consulted with the Yale high risk group, and the defendants received a consultation report but concealed it from her. Although her condition worsened from July 14, 2003 to July 26, 2003, showing symptoms of premature labor, fever, infection, and back pain, the defendants refused to refer her to high risk pregnancy experts.
The plaintiff's complaint is not clear on how her consultation with the Yale high risk group occurred.
In counts one, two, and three, the plaintiff alleges that the defendants negligently, intentionally and recklessly inflicted severe emotional distress on her by refusing her repeated requests for referral and disregarding the implied representations of the use of high risk experts that they made prior to her hospitalization. In count four, she alleges that she suffered damages as a result of the defendants' breach of a contract created by "the legal relationship" between her and the defendants. In counts six, seven and eight, she alleges intentional, reckless and negligent misrepresentation, respectively, in that the defendants made several untrue statements that were designed to mislead her.
On September 20, 2006, the defendants filed a motion to dismiss the complaint for a lack of subject matter jurisdiction on the ground that the plaintiff failed to file a good faith certificate and a written opinion of a similar health care provider as required by General Statutes § 52-190a. On November 8, 2006, the plaintiff filed a memorandum of law in opposition to the motion.
General Statutes § 52-190a provides in relevant part: "(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a healthcare 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 . . . 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 healthcare provider . . . that there appears to be evidence of medical negligence . . . (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."
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "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, 211, 897 A.2d 71 (2006).
The defendants move to dismiss the complaint on the ground that this court lacks subject matter jurisdiction because the claims in the complaint are medical malpractice claims and the plaintiff failed to file a good faith certificate and a written opinion as required by § 52-190a. The plaintiff counters that § 52-190a is inapplicable to this case, and, thus, a good faith certificate or a written opinion is not required because this action is not a medical malpractice action, but an ordinary tort and breach of contract action against medical providers. She further argues that her allegations are not based on the defendants' acts or omissions in rendering medical treatment, and, therefore, expert testimony is not necessary to establish her claims. Additionally, she argues that a motion to dismiss is not a proper vehicle to attack her complaint because a failure to file a good faith certificate or a written opinion does not implicate the court's subject matter jurisdiction.
"Section 52-190a applies to actions for damages where the plaintiff alleges that injury resulted from the negligence of a health care provider. General Stautes § 52-190a(a). In such actions, the plaintiff is required to attach to the complaint a certificate of good faith belief that grounds exist for an action against each named defendant and a written and signed opinion of a similar health care provider that there appears to be evidence of medical negligence . . . § 52-190a(a)." Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 695, 696). As a result, the failure to file a good faith certificate or a written opinion in a negligence action against health care providers constitutes grounds for dismissal of such actions. § 52-190a(c).
"A motion to dismiss is the proper procedural vehicle" to challenge the court's jurisdiction under § 52-190a(c) because a failure to comply with the requirements of § 52-190a deprives the court of subject matter jurisdiction. Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001000 (October 25, 2006, Hiller, J.) ( 42 Conn. L. Rptr. 244, 245). "The statutory language and the legislative intent indicate that the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions." (Internal quotation marks omitted.) Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 500679 (October 19, 2006, Pickard, J.) ( 42 Conn. L. Rptr. 163, 164).
A majority of recent superior court cases have held that the failure to attach a good faith certificate or a written opinion of a similar healthcare provider implicates the court's subject matter jurisdiction. See Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 065001000 (October 25, 2006, Hiller, J.) ( 42 Conn. L. Rptr. 244, 245); Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 500679 (October 19, 2006, Pickard, J.) ( 42 Conn. L. Rptr. 163, 164); Thomas v. Walgreen Eastern Co., Superior Court, judicial district of Hartford, Docket No. CV 06 5001896 (September 20, 2006, Miller, J.); Kudera v. Ridgefield Physical Therapy, LLC, Superior Court, judicial district of Danbury, Docket No. CV 065000993 (September 18, 2006, Shaban, J.); Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 065000424 (July 24, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 695); Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 60000010 (June 7, 2006, Miller, J.) ( 41 Conn. L. Rptr. 504); Mastrone v. St. Vincentis Medical Center, Superior Court, judicial district of Bridgeport, Docket No. CV 05 5000477 (May 23, 2006, Rodriguez, J.) ( 41 Conn. L. Rptr. 375); but see Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 065000596 (June 21, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 609) (holding that such failure does not implicate court's subject matter jurisdiction and dismissal is discretionary).
Count One: Negligent Infliction of Emotional Distress
In the present case, the plaintiff concedes that she has failed to file both a certificate of good faith and a written opinion of a similar healthcare provider. The issue is whether the plaintiff's claim sounds in medical malpractice or ordinary negligence. "[O]rdinary negligence claims . . . do not require good faith certificates [while] medical malpractice claims . . . do require a certificate of good faith pursuant to § 52-190a . . ." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 356, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).
"Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint." Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). "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. [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 . . . [T]he 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." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63, 864 A.2d 1 (2005).
In general, "there is no medical malpractice where the jury need not be guided by medical experts in determining whether the defendant breached its duty of care to the patient and there are no esoteric or uniquely medical issue[s] to be determined . . . nor any complex issue requiring specialized knowledge." (Internal quotation marks omitted.) Tavalozzi v. Tandem Healthcare, Superior Court, judicial district of New Britain, Docket No. CV 02 9518293 (September 28, 2004, Burke, J.) ( 38 Conn. L. Rptr. 1). "Medical malpractice claims [however] do not necessarily require expert testimony. Although a court requires expert testimony to establish the relevant standard of care in most cases . . . [s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge . . . and, thus, do not require expert testimony. The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required." (Citations omitted; internal quotation marks omitted.) Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360.
In the present case, in count one, the plaintiff alleges negligent infliction of emotional distress. She alleges that the defendants refused to listen to her repeated requests that she be treated by high risk pregnancy physicians although they "implied" several times that "they would work hand in hand with high risk doctors." She also alleges that the defendants disregarded the recommendations of the Yale high risk group in treating her. She further alleges that the defendants knew or should have known that those requests for referral reflected her well contemplated decisions concerning her health care.
The plaintiffs claim in count one sounds in medical malpractice. The defendants are being sued in their capacities as medical professionals for their failure or refusal to refer the plaintiff to specialized physicians. Referring high risk patients to other specialized physicians is inherently of a specialized medical nature because only health care professionals with a certain degree of medical skill and learning may do so. Moreover, refusing to make such referral is substantially related to medical diagnosis and involves medical judgment because a referring physician must determine whether the referral would benefit the patient in treatment under the particular circumstances. Accordingly, it is submitted that count one should be characterized as a medical malpractice action.
Counts Two and Three: Intentional and Reckless Infliction of Emotional Distress
In counts two and three, which incorporate the allegations of count one in their entirety, the plaintiff additionally alleges that the defendants' acts amount to intentional and reckless infliction of emotional distress. There are several trial court decisions holding that claims asserting intentional or reckless conduct on the part of defendants are not subject to the requirements of § 52-190a inasmuch as "§ 52-190a(a) facially applies only to allegations of negligence." Johnson v. Atlantic Health Services, P.C., Superior Court, judicial district of New Haven, Docket No. 0430613 (August 18, 2000, Blue, J.) ( 28 Conn. L. Rptr. 84, 85); see also, e.g., Petronio v. Burich, Superior Court, judicial district of New Britain, No. CV 01 05091305 (April 23, 2002, Wiese, J.) ( 32 Conn. L. Rptr. 156); Triano v. Fitzpatrick, M.D., Superior Court, judicial district of New Britain, Docket No. 494828 (February 17, 2000, Graham, J.) ( 26 Conn. L. Rptr. 454). "Using a functional analysis, if a health care provider intentionally intends to inflict emotional distress it is difficult to see why either expert opinion or a certificate of good faith would be required. Just as in the case of a surgeon who leaves a sponge inside his patient or amputates the wrong limb, the deviation from professional standards in a case of intentional infliction of emotional distress would be so manifest that any layperson could determine it." (Internal quotation marks omitted.) Petronio v. Burich, supra, 32 Conn. L. Rptr. 157.
In the present case, however, even if counts two and three sound in reckless and intentional infliction of emotional distress, the alleged conduct of the defendants shows no manifest deviation from professional standards, but they present unique medical issues requiring expert testimony. A layperson could not determine whether the defendants deviated from professional standards by refusing to refer the plaintiff to other specialized physicians. To decide that issue, expert testimony would be required to provide specialized knowledge on the term "high risk pregnancy patient" and explain under what circumstances and in what manner a physician should refer such patients to specialized physicians. Accordingly, counts two and three are medical malpractice claims that are subject to the requirements of § 52-190a.
Count Four: Breach of Contract
In count four, which incorporates counts one, two and three, the plaintiff claims a breach of contract by the defendants. The issue in the present case is whether the plaintiff has alleged a claim in medical malpractice or one for a breach of contract.
"A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the physician and patient contract for a specific result." (Internal quotation marks omitted.) Janusauskas v. Fichman, 68 Conn.App. 672, 676, 793 A.2d 1109 (2002), rev'd in part on other grounds, 264 Conn. 796, 826 A.2d 1066 (2003). "Thus, a medical malpractice action is a tort action unless the physician by express contract agrees to effect a cure or warrant that a particular result will be obtained." (Internal quotations marks omitted.) Ali v. Community Health Care Plan, Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 0364055 (July 25, 1995, Martin, J.). "When determining whether a complaint sets forth an independent breach of contract claim or merely dresses a malpractice claim in contract language, the court examines the pleadings to ascertain whether the breach of contract alleged is based on substandard . . . care or exists irrespective of adherence to or deviation from the standard of care." (Internal quotation marks omitted.) Berlin Corp. v. Continental Casualty Co., Superior Court, judicial district of Hartford, Docket No. CV 064021653 (November 2, 2006, Wiese, J.).
"An allegation of medical malpractice does not generally give rise to a breach of contract claim." Rumbin v. Baez, 52 Conn.App. 487, 491, 727 A.2d 744 (1999). "A breach of contract claim against a health care provider requires allegations of a breach of a contractual duty . . ." Berglass v. Somatic Therapies, Superior Court, judicial district of New Haven, Docket No. CV 02 047001 (July 9, 2003, Arnold, J.). A mere physician-patient relationship does not create a duty beyond the standard of care for a medical professional "in the absence of facts tending to show that there was a contractual duty on the part of the defendant." Sheridan v. Quarrier, 127 Conn. 279, 284, 16 A.2d 479 (1940).
In the present case, the plaintiff claims that "the legal relationship between the plaintiff and the defendants constituted a contract" and that "by accepting the plaintiff as a patient, the defendants accepted the duty and obligation to abide by the plaintiff's decisions concerning her medical care including her choice of physician and treatment." She alleges that she and the defendants "discussed long before the hospitalization" about bringing in physicians experienced in high risk pregnancies to take over the plaintiff's treatment and that the defendants implied that "they would work hand in hand with high risk doctors" but "disregarded those representations."
Count four contains no allegation of a breach of a contractual duty owed to the plaintiff because the mere existence of a doctor-patient relationship does not generate a contractual duty to provide patients with specialized physicians. Additionally, count four is devoid of any allegations that the defendant promised the plaintiff that the medical treatment would have a specific result and that the defendant breached that promise. The plaintiff fails to allege that the defendants promised or agreed that she would be treated by high risk physicians because a mere discussion of a referral or an implication of cooperation with high risk physicians does not constitute a legally binding promise or agreement. Furthermore, the injuries allegedly sustained by the plaintiff consist of mental distress and medical costs incurred in treating, which are generally recoverable in tort actions. Gazo v. Stamford, 255 Conn. 245, 265, 765 A.2d 505 (2001). "[A]lthough the plaintiff has cast [her] claim in contractual language, in essence [she] seeks a tort recovery." Id., 266. Accordingly, the plaintiffs claim in count four is essentially a medical malpractice claim clothed in the language of contract.
Counts Six, Seven and Eight: Intentional, Reckless and Negligent Misrepresentation
"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazimi v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "A claim of . . . intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation to induce the other party to act upon it. Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Reckless misrepresentation requires [t]he intent to defraud. DeLuca v. C.W. Blakeslee Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978)." (Internal quotation marks omitted.) Studio Zee v. The Edge Tattoo Co., Superior Court, judicial district of New Haven, Docket No. CV 01 0449758 (March 25, 2002, Zoarski, J.T.R.) ( 31 Conn. L. Rptr. 701, 702-03).
The issue in the present case is whether the claims in these counts sound in medical malpractice or ordinary tort. The same standards previously articulated to distinguish medical malpractice and ordinary tort in discussing counts one, two and three are also applicable here.
In the present case, in counts six, seven and eight, the plaintiff alleges that, during the course of her treatment, the defendants made several untrue statements and representations designed to mislead her that "she did not need the high risk physicians"; that "the high risk group would participate in her case"; and that "the defendants would follow the recommendations given by the Yale high risk group." She further alleges that she was unaware of their falsity and reasonably relied upon the statements and representations of the defendants to her detriment. The statements or representations allegedly made by the defendants were substantially related to the plaintiff's treatment. Furthermore, whether or when the plaintiff needed a high risk physician during her hospitalization is a question involving the exercise of medical judgment, and, thus, its falsity could not be determined by fact finders without expert testimony. Similarly, whether the defendants followed the recommendations from the Yale high risk group is a question that is also substantially related to the plaintiff's treatment and involves medical judgment, and its falsity could not be determined without the guidance of specialized knowledge. Having determined that the alleged misrepresentations of the defendants were substantially related to the plaintiff's treatment, it is immaterial whether the defendants' acts are alleged to be negligent, reckless or intentional as long as each count raises medical issues requiring expert testimony to determine the standard of care and the falsity of the statements. Accordingly, counts six, seven and eight as alleged by the plaintiff as claims in negligent, reckless and intentional misrepresentation are, in fact, medical malpractice claims.
CONCLUSION
The plaintiff's entire claims sounding in negligent, reckless and intentional infliction of emotional distress, breach of contract, negligent, reckless and intentional misrepresentation should be classified as medical malpractice claims. Therefore, in order to assert these claims, the plaintiff is required to file a good faith certificate and a written opinion of a similar healthcare provider under § 52-190a, but she has failed to do so and such failure deprives the court of subject matter jurisdiction. Accordingly, the defendants' motion to dismiss is granted.