LaPierre v. Mandell & Blau, M.D.'s, P.C. ( 2020 )

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JOSEPH H. LAPIERRE III, SUCCESSOR EXECUTOR
(ESTATE OF ISABELLA LAPIERRE) v. MANDELL
AND BLAU, M.D.’S, P.C., ET AL.
(AC 42948)
Lavine, Alexander and Flynn, Js.*
Syllabus
The plaintiff successor executor of the decedent’s estate sought to recover
damages from the defendants, a medical practice and three physicians,
for injuries the decedent sustained when she allegedly fell off a table and,
thereafter, out of a wheelchair while undergoing a magnetic resonance
imaging (MRI) scan at the defendants’ MRI facility. The plaintiff claimed
that the decedent’s injuries were caused by the defendants’ negligence.
The defendants filed a motion to dismiss the action on the ground
that the trial court lacked personal jurisdiction over them because the
plaintiff’s claim sounded in medical malpractice, and, therefore, pursu-
ant to the statute (§ 52-190a) that governs medical malpractice actions,
he was required to attach to his complaint an opinion letter written and
signed by a similar health care provider, which he failed to do. Following
an evidentiary hearing, the trial court granted the defendants’ motion
to dismiss and rendered judgment dismissing the action, from which
the plaintiff appealed to this court. Held that the trial court properly
dismissed the plaintiff’s action for failing to comply with § 52-190a;
contrary to the plaintiff’s claim that the allegations of his complaint
sounded in ordinary negligence, and, therefore, the opinion letter
requirement of § 52-190a did not apply, this court determined that the
three prongs of the test set forth in Boone v. William W. Backus Hospital
(272 Conn. 551) for determining whether a claim sounds in medical
malpractice were met by the allegations of the complaint, as the defen-
dants were sued in their capacities as medical professionals, the alleged
negligence occurred during the course of an MRI procedure at the
defendants’ facility and, therefore, necessarily involved treatment of a
specialized medical nature that arose out of the medical professional-
patient relationship, and the alleged negligent conduct of the defendants
in their execution of the MRI procedure and in monitoring the decedent
related to the decedent’s medical treatment and involved the exercise
of medical judgment, as an MRI scan is a medical procedure, the proper
execution of which involves the exercise of medical knowledge and
judgment.
Argued September 21—officially released December 29, 2020
Procedural History
Action to recover damages for medical malpractice,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Hon. A.
Susan Peck, judge trial referee, granted the defendants’
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court. Affirmed.
Robert J. Williams, Jr., for the appellant (plaintiff).
David J. Robertson, with whom, on the brief, was
Laura M. Glogovsky, for the appellees (defendants).
Opinion
ALEXANDER, J. The plaintiff, Joseph H. LaPierre III,
successor executor of the estate of Isabella LaPierre
(decedent), appeals from the judgment of the trial court
dismissing his action against the defendants, Mandell &
Blau, M.D.’s, P.C., doing business as Open MRI of Con-
necticut, and physicians Alisa Siegfeld, Neal D. Barkoff
and Richard Glisson, for lack of personal jurisdiction
based on his failure to attach to his complaint an opinion
letter from a similar health care provider as required
by General Statutes § 52-190a.1 On appeal, the plaintiff
claims that the court erred in its determination because
the complaint sounded in ordinary negligence, not med-
ical malpractice, and therefore was outside the scope
of § 52-190a. We are not persuaded and, accordingly,
affirm the judgment of the trial court.
The following facts, as pleaded in the plaintiff’s com-
plaint, and procedural history are relevant to our resolu-
tion of this appeal. The complaint alleged that, on May
6, 2016, ‘‘the [decedent] was a patron of and scheduled
for [a magnetic resonance imaging (MRI) scan] at the
MRI facility [owned and/or controlled by the defen-
dants] located . . . [in] Glastonbury . . . [and], while
undergoing an MRI, was caused to fall off the MRI table
and subsequently allowed to fall out of a wheelchair,
thereby causing her to incur . . . injuries and losses
. . . . ’’ The complaint further alleged that the dece-
dent’s injuries and losses were caused by ‘‘the negli-
gence and carelessness of the defendants, their agents
and/or employees . . . . ’’ Specifically, the complaint
alleged, inter alia, that the MRI table was ‘‘devoid of
restraints so that it rendered [the decedent’s] use of it
hazardous and dangerous’’; that ‘‘the MRI table was
defective and in disrepair so that it rendered [a] patron’s
use of it hazardous and dangerous’’; that ‘‘the MRI table
was not reasonably safe for the uses and purposes
intended’’; that ‘‘the defendants, in the exercise of rea-
sonable care and inspection, should have known of
these conditions and should have remedied the same,
yet failed to do so’’; that ‘‘the defendants negligently
and carelessly allowed the MRI table to remain in use
without restraints’’; that ‘‘the defendants failed to warn
the [decedent] and others lawfully on said premises of
the lack of restraints on the MRI table’’; that ‘‘the MRI
table was insufficiently inspected, maintained and
repaired, so that it rendered [a] patron’s use of it hazard-
ous and dangerous’’; that ‘‘the defendants failed to hire
properly fit and trained personnel’’; that ‘‘the defendants
failed to properly train and supervise their personnel’’;
and that ‘‘the defendants failed to monitor the [dece-
dent] while she was a patron at the facility.’’ The plaintiff
did not attach an opinion letter to the complaint from
a similar health care provider.
On July 5, 2018, the defendants filed a motion to
dismiss and a memorandum of law in support thereof,
arguing that the court lacked personal jurisdiction over
them. Specifically, they argued that the plaintiff’s claim
sounded in medical malpractice and that, pursuant to
§ 52-190a, the plaintiff was required to attach to the
complaint an opinion letter written and signed by a
similar health care provider.2 The defendants further
argued that the plaintiff’s failure to do so deprived the
court of personal jurisdiction over them. On November
28, 2018, the plaintiff filed a memorandum of law in
opposition to the motion to dismiss, arguing that the
complaint did not allege any breach of a medical stan-
dard of care or the exercise of medical judgment and
that the test for what constitutes a claim for medical
malpractice, as outlined in Boone v. William W. Backus
Hospital, 272 Conn. 551, 562–63, 864 A.2d 1 (2005),
had not been met. Therefore, he argued, the complaint
sounded in ordinary negligence and an opinion letter
was not required.
On December 3, 2018, the court heard arguments on
the motion to dismiss and, on March 15, 2019, issued an
order stating that an evidentiary hearing was required
to address the jurisdictional issue. On April 26, 2019, the
court held the additional hearing on the jurisdictional
issue, and both sides presented further argument, but
neither side elected to present any evidence. On April
30, 2018, the court issued its memorandum of decision
granting the motion to dismiss, finding that the plaintiff
had failed to establish that his complaint sounded in
ordinary negligence, and, therefore, § 52-190a applied
to the complaint, and the plaintiff failed to comply with
the statutory requirements.
On appeal, the plaintiff claims that the court erred
in granting the defendant’s motion to dismiss. Specifi-
cally, he argues that the allegations of the complaint
sounded in ordinary negligence, and, therefore, the
requirements of § 52-190a, namely, the attaching of a
written and signed opinion letter from a similar medical
provider, did not apply. The defendants counter that
§ 52-190a does apply because the factors for determin-
ing whether a cause of action sounds in medical mal-
practice, as outlined in Boone v. William W. Backus
Hospital, supra, 272 Conn. 562–63, are met by the allega-
tions of the complaint. We agree with the defendants.
‘‘The standard for reviewing a court’s ruling on a
motion to dismiss pursuant to Practice Book § 10-30
(a) (2) is well settled. A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the court’s
ultimate legal conclusion and resulting [determination]
of the motion to dismiss will be de novo. . . . Our
Supreme Court has held that the failure of a plaintiff
to comply with the statutory requirements of § 52-190a
(a) results in a defect in process that implicates the
personal jurisdiction of the court. . . . Thus, where
such a failure is the stated basis for the granting [of] a
motion to dismiss, our review is plenary. . . . Further,
to the extent that our review requires us to construe
the nature of the cause of action alleged in the com-
plaint, we note that [t]he interpretation of pleadings is
always a question of law for the court . . . . Our
review of the trial court’s interpretation of the pleadings
therefore is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) Young v. Hartford Hospital, 196
Conn. App. 207, 210, 229 A.3d 1112 (2020).3
The plaintiff argues that § 52-190a does not apply to
his claim. We disagree. ‘‘[Section 52-190a] applies . . .
when two criteria are met: the defendant must be a
health care provider, and the claim must be one of
medical malpractice and not another type of claim, such
as ordinary negligence.’’ Id., 211–12. ‘‘[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.’’ (Inter-
nal quotation marks omitted.) Boone v. William W.
Backus Hospital, supra, 272 Conn. 562–63; see also
Trimel v. Lawrence & Memorial Hospital Rehabilita-
tion Center, 61 Conn. App. 353, 358, 764 A.2d 203, appeal
dismissed, 258 Conn. 711, 784 A.2d 889 (2001).
In the present case, the plaintiff concedes that the
first prong of the test is met. We therefore focus our
analysis on the second and third prongs.
The plaintiff first contends that the second prong of
the test in Boone is not satisfied. He argues that the
decedent’s alleged fall from the MRI table was not of
a specialized medical nature and that the ‘‘failure to
strap the [decedent] to the MRI table, or let her fall off
it . . . was not related to [her] care but was more of
an administrative routine or procedure.’’ He argues sim-
ilarly with regard to the decedent’s alleged fall from the
wheelchair. The defendants argue that the complaint
alleged that the negligence occurred during the course
of the MRI procedure and, therefore, necessarily
involved treatment of a specialized medical nature that
arose during the medical professional-patient relation-
ship. We agree with the defendants.
In Nichols v. Milford Pediatric Group, P.C., 141
Conn. App. 707, 708, 64 A.3d 770 (2013), the plaintiff
alleged that he had suffered injuries after he fell onto
the floor of the examination room while his blood was
being collected as part of a physical examination. This
court determined that, because the alleged injuries
occurred during a medical examination, a ‘‘medical pro-
fessional-patient relationship . . . existed at all rele-
vant times.’’ Id., 714. This court further determined that,
despite the plaintiff’s argument that the ‘‘finger-stick
method employed to collect his blood sample was a
‘wholly ministerial act’ not performed by a medically
trained professional,’’ the alleged negligence was of a
specialized medical nature because ‘‘the blood collec-
tion at issue admittedly was conducted as part of the
overall medical examination by the defendant.’’ Id. This
court therefore concluded that the second prong had
been met. Id.; see also Votre v. County Obstetrics &
Gynecology Group, P.C., 113 Conn. App. 569, 577, 966
A.2d 813 (determining that second prong of Boone was
satisfied where ‘‘the facts underlying the claim occurred
solely in the context of the defendants’ ongoing medical
treatment of the plaintiff’’ and claim directly involved
plaintiff’s medical condition), cert. denied, 292 Conn.
911, 973 A.2d 661 (2009).
Recently, in Young v. Hartford Hospital, supra, 196
Conn. App. 216–17, this court determined that the pro-
fessional-patient relationship requirement within the
second prong was satisfied where the alleged injuries
occurred while the plaintiff was in surgery. In that case,
the alleged injuries resulted after a camera, attached
to a robotic surgical system, fell on the plaintiff during
an operation. Id., 209. This court determined that the
professional-patient relationship was satisfied because
‘‘the injuries allegedly resulted from an occurrence dur-
ing the plaintiff’s surgery, and the performance of sur-
gery inherently involves the establishment of a medical
professional-patient relationship.’’ Id., 216. Thus,
because the alleged incident occurred during the perfor-
mance of a medical procedure, the professional-patient
relationship was present.
In the present case, the totality of the plaintiff’s allega-
tions of negligence occurred at the MRI facility. Para-
graph 2 of the complaint alleged that, ‘‘at all times men-
tioned [in the complaint], the [decedent] was a patron
of [the defendants] and scheduled for an MRI at the
MRI facility . . . .’’ Paragraph 3 alleged that ‘‘the [dece-
dent], while undergoing an MRI, was caused to fall off
the MRI table and subsequently allowed to fall out of a
wheelchair . . . .’’ (Emphasis added.) Like the physical
examination in Nichols and the performance of surgery
in Young, the allegations in the present case occurred
in the context of the decedent’s receiving medical treat-
ment at the MRI facility.
The plaintiff argues that his allegations of negligence
are not of a specialized medical nature but, instead, are
of ordinary negligence because a layperson would be
able to determine the safety issues related to the use
of the MRI table. In support of this argument, he charac-
terizes the allegations as not related to the decedent’s
care but as an ‘‘administrative routine or procedure.’’
We disagree. As the court in Nichols v. Milford Pediat-
ric Group, P.C., supra, 141 Conn. App. 714, makes clear,
conduct as part of an overall medical examination that
‘‘requires compliance with established medical stan-
dards of care’’ is of a specialized medical nature. In
the present case, the plaintiff’s allegations concern the
proper handling and care of the decedent on an MRI
table and in a wheelchair, all within the MRI facility.
Each of the plaintiff’s allegations are of a specialized
medical nature because they are allegations of conduct
occurring during the course of an MRI procedure and
while the decedent was a ‘‘patron’’ of the facility. It is
of no matter to our analysis that these actions arguably
could be characterized as ‘‘routine’’ or ‘‘procedural’’
because they occurred in the context of the decedent’s
medical treatment by the defendants. We therefore con-
clude that the second prong of Boone is satisfied.
We turn next to the third prong, which requires us
to determine if ‘‘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,
supra, 272 Conn. 563. The plaintiff argues that this prong
is not met because the failure to take ‘‘reasonable pre-
cautions to ensure that medical equipment was safe
and had proper restraints, that the . . . decedent was
properly strapped to the MRI table and that the . . .
decedent was properly monitored to prevent her fall
from the wheelchair do not involve acts or omissions of
a specialized medical nature or the exercise of medical
judgment . . . .’’ We disagree.
In Nichols v. Milford Pediatric Group, P.C., supra,
141 Conn. App. 715, this court concluded that the third
prong was satisfied despite the plaintiff’s arguments
that the blood collection at issue was routine and there-
fore not substantially related to medical diagnosis or
treatment or involving the exercise of medical judg-
ment. This court stated: ‘‘The mere fact that the blood
collection technique utilized in the present case may
have been routine in nature and may or may not have
been performed by a medically trained professional is
of no matter to our analysis. We already have estab-
lished that the blood collection at issue occurred as a
part of a physical examination of the plaintiff by the
defendant. A physical examination is related to medical
diagnosis and treatment of a patient; therefore, any
alleged negligence in the conducting of such an exami-
nation is ‘substantially related’ to medical diagnosis or
treatment. Further, whether the defendant acted unrea-
sonably by allowing a medical assistant to collect blood
samples unsupervised and in the manner utilized and
whether it sufficiently trained its employee to ensure
that any blood collection was completed in a safe man-
ner, including imparting the knowledge necessary to
recognize a ‘syncopic reaction to blood sampling,’
clearly involves the exercise of medical knowledge and
judgment.’’ Id.The plaintiff argues that Nichols is distinguishable
from the present case because the complaint here does
not raise questions regarding ‘‘a medical decision made
by the defendants but rather has alleged that medical
equipment used by the defendants was defective and
unsafe.’’ We disagree. Integral to the plaintiff’s allega-
tions is the alleged failure of judgment by the defendants
in their execution of the MRI procedure and alleged
failure to monitor the decedent. An MRI scan is a medi-
cal procedure, the proper execution of which involves
the exercise of medical knowledge and judgment. We
therefore conclude that the third prong is met.
Because we have determined that the three prongs
of Boone were met, we conclude that the trial court
properly dismissed the plaintiff’s action for failing to
comply with § 52-190a.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority staus on this court as of the
date of oral argument.
1
The plaintiff’s complaint alleges injuries sustained by the decedent on
May 6, 2016. The decedent died on June 11, 2016. On November 1, 2016,
the plaintiff was appointed successor executor of her estate and subse-
quently filed the complaint against the defendants.
2
General Statutes § 52-190a provides in relevant part: ‘‘(a) No civil action
. . . shall be filed to recover damages resulting from personal injury . . .
in which it is alleged that such injury . . . resulted from the negligence of
a health care provider, unless the attorney or party filing the action . . .
has made a reasonable inquiry as permitted by the circumstances to deter-
mine 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 . . . shall obtain a written and signed
opinion of a similar health care provider . . . that there appears to be
evidence of medical negligence and includes a detailed basis for the forma-
tion of such opinion. . . .
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
3
The plaintiff argued in his reply brief and at oral argument before this
court that it was not his burden to prove that the trial court had personal
jurisdiction but, rather, that the burden of proof was on the defendants to
support their motion to dismiss. We disagree. As this court recently stated
in Young v. Hartford Hospital, supra, 196 Conn. App. 211, a case likewise
addressing a motion to dismiss for failing to comply with § 52-190a, ‘‘[w]hen
a motion to dismiss for lack of personal jurisdiction raises a factual question
which is not determinable from the face of the record, the burden of proof
is on the plaintiff to present evidence which will establish jurisdiction. . . .
In order to sustain the plaintiff’s burden, due process requires that a trial-
like hearing be held, in which [the plaintiff] has an opportunity to present
evidence and to cross-examine adverse witnesses . . . .’’ (Internal quotation
marks omitted.) Thus, the plaintiff bears the burden to demonstrate why
§ 52-190a does not apply and, therefore, to establish that the court had
jurisdiction over the matter.