2011 Ct. Sup. 13560
No. CV 11 5033688Connecticut Superior Court Judicial District of New Haven at New Haven
June 21, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #106
RICHARD E. BURKE, Judge.
FACTS
This action was commenced by a small claims complaint, dated November 15, 2010, by the plaintiff, William Chalk, against the defendant, Yale Primary Care. The matter was transferred to the Superior Court and the complaint was entered on the case docket on January 24, 2011. The complaint alleges that as a result of the negligence of the Yale Primary Care Clinic in losing or misplacing his Viagra medication, the plaintiff’s romantic relationship ended.
On January 28, 2011, the defendant filed a motion to dismiss with an accompanying memorandum of law on the ground that the court lacked subject matter jurisdiction because the plaintiff failed to comply with General Statutes § 52-190a. On February 25, 2011, the plaintiff filed an objection to the motion. The matter was heard at short calendar on February 28, 2011.
DISCUSSION
A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating “that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.” General Statutes § 52-190a(a). “A plaintiff’s failure to comply with the requirements of § 52-190a(a) does not destroy the court’s subject matter jurisdiction over the claim . . . However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy . . .” Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). “[Section] 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 CT Page 13561 Milford Hospital, Inc., 300 Conn. 1, 25, 12 A.3d 865 (2011).
The defendant argues that since the plaintiff has brought a claim against a health care provider, he must comply with § 52-190a. Specifically, he must attach a written opinion by a similar health care provider to the complaint. Since the plaintiff has failed to do so, the action should be dismissed. The plaintiff counters that pursuant to §52-190a, he has time to file another clinic’s report. He maintains that the defendant’s motion was filed too soon, that it takes time to find another clinic and that he is unsure what the defendant wants from a second clinic.
The issue is whether the plaintiff has pleaded a claim of medical negligence that would trigger the application of § 52-190a, and thus, the requirement of a written opinion letter from a similar health care provider, as defined in General Statutes § 52-184c. This determination is based on the Appellate Court’s decisions in Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001); Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 569, an Selimoglu v. Phimvongsa, 119 Conn.App. 645, 989 A.2d 121 (2010); as well as the Connecticut Supreme Court’s recent decision in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011).
The Appellate Court in Trimel, Votre and Selimoglu resolved this issue by applying a three-part test to determine whether a claim sounds in medical malpractice or ordinary negligence. 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.” Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 576; Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 358. If all of the factors are met, the cause of action properly sounds in medical malpractice and a written opinion letter is required pursuant to § 52-190a. Votre v. County Obstetrics Gynecology Group, P.C., supra, 585.
Recently, though, the Connecticut Supreme Court in Shortell did not use that three-part test in holding that an informed consent claim did not require a written opinion under § 52-190a. Instead, the Shortell court relied on an earlier holding in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 293, 465 A.2d 294 (1983), which decided on grounds of CT Page 13562 public policy that informed consent claims do not require expert testimony to establish the standard of care. The Shortell court stated generally that “if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52-190a.” Shortell supra, 300 Conn. 393.
Shortell does not require a complete rejection of the three-part test used by the Appellate Court. The informed consent claim was a unique circumstance in which the court had the benefit of a previous holding. Moreover, the holding in Logan was based on public policy grounds particular to informed consent, namely, a concern “about [t]he incongruity of making the medical profession the sole arbiter of what information was necessary for an informed decision to be made by a patient concerning his own physical well-being . . .” (Internal quotation marks omitted.) Id., 390-91. Neither Logan nor Shortell offer any alternative to the three-part test that could be applied to other cases.
Nevertheless, Shortell does require a reassessment of when to use the three-part test due to its broader holding that an opinion letter is unnecessary where no expert medical testimony is required for the standard of care. Apart from informed consent, there is another circumstance where a cause of action would meet the three-part test for medical malpractice, but would not require medical expert testimony for the standard of care. This circumstance is “where the professional negligence is so gross as to be clear even to a lay person.”[1]
(Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005); see, e.g., Slimak v. Foster, 106 Conn. 366, 371, 138 A. 153 (1927) (piece of surgical instrument left in patient after nasal surgery). In such cases, one would not need to apply the three-part test.
Consequently, the requirements for § 52-190a will not apply when (1) the courts have decided for other reasons that expert medical testimony is not required for the standard of care, as in cases like informed consent; and (2) in cases of gross negligence where the standard of care would be obvious to a layperson. If either of those two circumstances apply, it is irrelevant whether the claim would be considered medical malpractice under the three-part test.
In the present case, because the allegations are not in the same category of claims as informed consent nor do the alleged actions of the defendant implicate gross negligence, the court must apply the three-part test to ascertain whether the action is medical malpractice or ordinary negligence.
CT Page 13563 As to the first factor, the plaintiff alleges that pharmacy division of the defendant lost his medication. It reasonably can be inferred that the plaintiff is suing the defendant in its official capacity as a medical professional. As to the second factor, while it can be inferred that the negligence arises out a medical professional-patient relationship, as the clinic allegedly was responsible for storing the plaintiff’s medication, this allegation is not of a “specialized medical nature.” The loss of pills merely infers that a hospital administrative procedure for storing pills either had not been followed or should have been in place. There are no inferences that can be generated from lost pills that suggest “specialized medical” issues are involved. Thus, the second factor is not satisfied.
The third factor is also not satisfied. Allegations that the defendant lost the plaintiff’s medication are neither substantially related to medical diagnosis or treatment nor does it involve the exercise of medical judgment. The plaintiff is not alleging, for example, that the defendant should or should not have prescribed the medication, which clearly would have involved diagnosis and medical judgment, but only that the defendant lost his medication. The storage of pills is separate and distinct from any diagnosis or treatment, and their loss does not implicate any medical judgments. Accordingly, the cause of action in the present case sounds in ordinary negligence, not medical malpractice and an opinion letter by a similar health care provider is not necessary. Therefore, the motion to dismiss is denied.
(2005). These two exceptions are irrelevant to § 52-190a because they apply to elements other than the standard of care, and § 52-190a is solely concerned with the standard of care.
CT Page 13564