2007 Ct. Sup. 21266
No. CV 07-5011899Connecticut Superior Court Judicial District of Hartford at Hartford
December 3, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
JAMES M. BENTIVEGNA, JUDGE.
This matter came before the court at short calendar on November 26, 2007, concerning a Motion to Dismiss filed by the defendant, Hartford Hospital. The plaintiff appeared pro se.[1]
The plaintiff filed a writ of summons and complaint, dated July 16, 2007, against Hartford Hospital and various other defendants. According to the complaint, the plaintiff was transported by ambulance to Hartford Hospital on July 17, 2004. She alleges that she was restrained while at the hospital and complains that she was physically and emotionally damaged because the restraints impaired her circulation. Her cause of action against Hartford Hospital clearly sounds in medical negligence. See Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63, 864 A.2d 1 (2005); Gold v. Greenwich Hospital Ass’n., 262 Conn. 248, 254, 811 A.2d 1266 (2002).
Hartford Hospital moves to dismiss the plaintiff’s complaint on the following grounds: (1) The plaintiff failed to file a recognizance pursuant to Practice Book § 8-4 and General Statutes § 52-185; and (2) The plaintiff failed to comply with General Statutes § 52-190a by failing to append to the complaint a written and signed opinion that there was evidence of medical negligence and failed to certify that a reasonable inquiry had been made leading to good faith belief that grounds exist for an action against the defendant Hartford Hospital.
Any defendant wishing to contest the court’s jurisdiction may do so by filing a motion to dismiss. Practice Book § 10-31 provides that: “(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. (b) Any adverse party who objects to this motion shall, at least five days before the motion is to be CT Page 21267 considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.” The plaintiff failed to file an objection.
“Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. Facts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment. All such facts are known as jurisdictional facts.” Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). “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 court will first address the issue raised by Hartford Hospital concerning the lack of an attached written opinion of a similar health care provider General Statutes § 52-190a provides in relevant part: “(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in Section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of CT Page 21268 medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate . . . (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.”
Clearly, General Statutes § 52-190a requires an attorney or party filing an action for damages allegedly caused by the negligence of a health care provider to make a reasonable inquiry to determine whether there is a good faith belief negligence has occurred and to include a certificate regarding the reasonable inquiry and good faith belief with the complaint. In addition, the claimant shall obtain a written and signed opinion of a similar health care provider indicating there appears to be medical negligence and detailing the basis for such opinion. Although this opinion is not subject to discovery, a copy of the written opinion shall be attached to the complaint according to Conn. Gen. Stat. § 52-190a. Thus, General Statutes § 52-190a serves as a jurisdictional hurdle for medical malpractice actions and requires a plaintiff to attach to the initial pleading a certificate of good faith and a written opinion of a similar health care provider Moreover, pursuant to subsection (c) of 52-190a, when a plaintiff fails to attach to his or her initial pleading a copy of a written, expert opinion the court must dismiss the action. Numerous Superior Court cases have addressed this same issue. See Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 055000482S (April 19, 2006, Matasavage, J.) [41 Conn. L. Rptr. 222] Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06-5000424 (July 24, 2006, Weise, J.) [41 Conn. L. Rptr. 695]; Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05-6000010 (June 7, 2006, Miller, J.) [41 Conn. L. Rptr. 504]; Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06500100 (October 25, 2006, Hiller, J.) [42 Conn. L. Rptr. 244]; Thomas v. Walgreen Eastern Co., Superior Court, judicial district of Hartford, Docket No. CV 065001896 (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.); Mastrone v. St. Vincent’s Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05500477 (May 23, 2006, Rodriguez, J.) [41 Conn. L. Rptr. 375]. CT Page 21269
The plaintiff in this case has failed to supply either a certificate of reasonable inquiry or a written opinion of a similar health care provider supporting her claim. Under § 52-190a, the failure to obtain and file the written opinion shall be grounds for the dismissal of the action. This section clearly indicates that attachment of a similar health care provider’s opinion is mandatory and renders a complaint that fails to include it subject to dismissal. The plaintiff’s claims against Hartford Hospital must, therefore, be dismissed pursuant to the requirements of § 52-190a.
For the above-stated reasons, the defendant’s motion to dismiss is granted. Since the case is dismissed on the afore-mentioned basis, the court does not need to consider the remaining ground for the motion.
SO ORDERED.
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This matter came before the court at short calendar on November 26, 2007, concerning a motion to strike filed by the defendant, East Hartford Police Department. The plaintiff appeared pro se.[1a]
The plaintiff filed a writ of summons and complaint, dated July 16, 2007, against the East Hartford Police Department and various other defendants. According to the complaint, on July 17, 2004, the plaintiff entered a gas station to use the ATM machine. As the plaintiff returned to the cab, a police cruiser was backed up behind it and an ambulance backed up in front of it. The plaintiff was placed in the back of the ambulance, restrained, syringed at each arm and clothes cut-off. The plaintiff was then transported by ambulance to Hartford Hospital.
The defendant, East Hartford Police Department moves to strike the plaintiff’s complaint on the grounds that the plaintiff has not made a single allegation against the East Hartford Police Department or a member thereof and because the East Hartford Police Department is immune from liability for the intentional torts of its employees.
Any party wishing to contest the legal sufficiency of a pleading may do so by filing a motion to strike. Practice Book § 10-39 provides: “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal CT Page 21270 sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.” “Any adverse party who objects to this motion shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17
a memorandum of law.” Practice Book § 10-42(b). The plaintiff failed to file an objection.
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the [pleading] . . . and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged.” (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). A motion to strike should be granted if facts provable in the complaint would not support a cause of action. Comm’r. of Labor v. C.J.M. Servs., Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party’s] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted,” (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
Construing the complaint in the manner most favorable to sustaining its legal sufficiency, the court finds that the complaint fails to state a claim against the East Hartford Police Department for assault or battery. See Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006), citing Restatement (Second), Torts Sec. 13 (battery); Restatement (Second), Torts Sec. 21 (assault). The complaint also fails to state a claim against the East Hartford Police Department for liability for the intentional torts of its employees. See O’Connor v. Bd. of Educ. of Town CT Page 21271 of Wethersfield, 90 Conn.App. 59, 64-65, 877 A.2d 860 (2005) (a municipality cannot be liable for intentional torts committed by its employees under General Statutes Sec. 52-557n). “The defendant [is] immune from suit for the intentional torts of its employees, regardless of whether the acts were ministerial or discretionary, . . .”O’Connor v. Bd. of Educ. of Town of Wethersfield, supra, 90 Conn.App. 65.
For the above-stated reasons, the motion to strike all claims against the East Hartford Police Department is granted.
SO ORDERED
CT Page 21272