Santana v. State ( 2023 )

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ESCOBAR-SANTANA v. STATE—CONCURRENCE
ROBINSON, C. J., concurring. I agree with the majority’s
conclusion that, for purposes of General Statutes § 4-
160 (f),1 the plaintiffs, Celine Escobar-Santana (Escobar-
Santana) and her infant son, Emmett Escobar-Santana,
have pleaded a colorable medical malpractice claim
with respect to count two of their complaint. As the
majority aptly concludes, § 4-160 (f) waives sovereign
immunity for ‘‘ ‘medical malpractice claims only’ ’’ and
affords a mechanism by which plaintiffs can bypass
the Claims Commissioner upon the filing of a timely
medical malpractice action in the Superior Court. Part
II B of the majority opinion. Given our mandate to
construe pleadings broadly; see, e.g., Carpenter v. Daar,
346 Conn. 80, 127, 287 A.3d 1027 (2023); and the legisla-
tive purpose of § 4-160 (f) as explained by the majority;
see part II B 1 and 2 of the majority opinion; I agree
with the majority’s conclusion that count two can be
read to allege a medical malpractice claim by Escobar-
Santana for purposes of the sovereign immunity waiver
provided by that statute. Not only does count two sound
in medical malpractice, but the plaintiffs also attached
a good faith certificate and opinion letter that alleged
that the defendant, the state of Connecticut, had
breached the standard of care during the labor and
delivery process. See General Statutes § 52-190a (a).
Given the common-law trend of recognizing emotional
distress damages in medical malpractice actions, I agree
with the majority’s conclusion that, to the extent that
Escobar-Santana alleged only damages caused by emo-
tional distress, in the absence of her own physical
injury, she is not precluded from bypassing the Claims
Commissioner under § 4-160 (f).
I write separately, however, to emphasize that the
dispositive issue in this case is limited to whether there
has been a waiver of sovereign immunity for purposes
of § 4-160 (f) as a matter of construction of that statute,
thus affording the trial court subject matter jurisdiction
over the claims pleaded in count two of the plaintiffs’
complaint. Because, as was highlighted at oral argument
before this court, the state assumes for purposes of this
motion to dismiss that there was a duty of care owed to
Escobar-Santana, I, too, assume that such duty existed
given the procedural posture of this case. Given that
assumption, I leave to another day a comprehensive
examination of whether there was, in fact, a duty of
care owed to Escobar-Santana and whether she ulti-
mately will prevail on her emotional distress claim.
Accordingly, I join the majority opinion affirming the
decision of the trial court to deny the state’s motion to
dismiss count two of the complaint.
1
See footnote 1 of the majority opinion.