Young v. Hartford Hospital ( 2020 )

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WENDY YOUNG v. HARTFORD HOSPITAL
(AC 41997)
Moll, Devlin and Beach, Js.
Syllabus
The plaintiff brought an action to recover damages for injuries she sustained
while undergoing a surgical procedure at the defendant hospital when
the camera to a robotic surgical system being used to assist in the
procedure allegedly fell on her. The plaintiff claimed that the defendant’s
negligence regarding the use and placement of the camera created,
inter alia, a dangerous condition. Thereafter, the trial court granted the
defendant’s motion to dismiss the action on the ground that the plaintiff
failed to provide a certificate of good faith and opinion pursuant to the
medical malpractice statute (§ 52-190a). On appeal, the plaintiff claimed
that the trial court erred in determining that her complaint sounded only
in medical malpractice and, therefore, erred in dismissing her complaint.
Held that the trial court erred in dismissing the plaintiff’s complaint for
failing to comply with § 52-190a, as a reading of the complaint as drafted
did not necessarily foreclose the possibility that her injuries were caused
by ordinary negligence not involving the exercise of medical judgment
and, therefore, would not require a certificate of good faith; although
the defendant had been sued in its capacity as a health care provider,
and the alleged negligence arose out of a medical professional-patient
relationship, the factual scenario alleged in the complaint did not detail
the precise circumstances claimed to have resulted in injury, and
although this court did not express any opinion as to the whether the
plaintiff’s claims will be barred by the failure to file a certificate pursuant
to § 52-190a, in light of the court’s duty to construe the allegations in
the light most favorable to the pleader, some of the allegations might
support a conclusion of ordinary negligence and some might support
medical malpractice, as a reasonable reading of the complaint as drafted
left little guidance as to the precise circumstances claimed to have
resulted in injury.
(One judge dissenting)
Argued October 22, 2019—officially released March 3, 2020
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged negligence, brought to the Superior Court
in the judicial district of Hartford, where the trial court,
Swienton, J., granted the defendant’s motion to dismiss
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Reversed; further pro-
ceedings.
Stephen R. Bellis, for the appellant (plaintiff).
Stuart Johnson, with whom, on the brief, were
Michael R. McPherson and Andrew S. Wildstein, for
the appellee (defendant).
Opinion
BEACH, J. The plaintiff, Wendy Young, appeals from
the trial court’s judgment dismissing her complaint
against the defendant, Hartford Hospital, for her failure
to provide a certificate of good faith pursuant to General
Statutes § 52-190a. The plaintiff claims that the trial
court erred in determining that her complaint sounded
only in medical malpractice and, consequently, dismiss-
ing her complaint for failure to file an accompanying
certificate of good faith as required for medical malprac-
tice claims by § 52-190a. We agree.
The following facts, as pleaded by the plaintiff in her
complaint, and procedural history are relevant to our
discussion. The complaint alleged that ‘‘[o]n . . . May
11, 2016 . . . the defendant was in possession and con-
trol of a robotic surgical system that it uses to assist
in performing hysterectomies. . . . On said date, the
plaintiff . . . was a business invitee who had robotic
hysterectomy surgery performed by Catherine C. Grazi-
ani [a physician] . . . . On May 12, 2016, the plaintiff
experienced extreme pain on her left side with a black
and blue [bruise] getting worse each day. . . . On May
16, 2016, the plaintiff contacted . . . Graziani’s office
because the left side of her torso was black and painful.
. . . On May 17, 2016, the plaintiff saw . . . Graziani
and was admitted to the emergency department for a
CT scan. The plaintiff was put on morphine. . . . On
June 10, 2016, the plaintiff was still bruised, swollen
and in pain and, at an office visit with . . . Graziani,
the plaintiff was told that the robotic camera fell on
the plaintiff’s left side. . . . Graziani had advised the
defendant’s employees in charge of the medical equip-
ment, but the plaintiff was never told of said incident.’’
The plaintiff instituted an action against the defendant,
alleging that its negligence ‘‘created a dangerous condi-
tion by:
‘‘a. allowing defective robotic equipment to be used
in assisting with a surgical procedure;
‘‘b. failing to inspect the robotic equipment prior to
its use on the plaintiff;
‘‘c. failing to properly secure the camera so that it
does not fall on patients;
‘‘d. failing to properly train its medical equipment
personnel to recognize that the camera was not secure
and could fall on patients;
‘‘e. operating the robot in such a manner to cause
the camera to fall;
‘‘f. failing to notify the plaintiff that the camera fell
on her;
‘‘g. failing to warn the plaintiff that the camera could
fall on her.’’
The complaint further alleged, that as a result of the
defendant’s negligence, the plaintiff sustained injury.
The plaintiff did not attach a certificate of good faith
to her complaint.
On June 7, 2018, the defendant moved to dismiss the
complaint on the ground that the trial court lacked
personal jurisdiction. The defendant argued that the
plaintiff had alleged a medical malpractice action,
which, pursuant to § 52-190a, required her to include
with her complaint a certificate of good faith based on
the opinion of a similar health care provider, and her
failure to do so deprived the court of personal jurisdic-
tion over it. The plaintiff filed a memorandum in opposi-
tion to the defendant’s motion, and the defendant filed
a reply to the plaintiff’s opposition. On August 8, 2018,
the trial court granted the defendant’s motion to dismiss
the complaint. This appeal followed.
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.’’ (Internal
quotation marks omitted.) Bennett v. New Milford Hos-
pital, Inc., 300 Conn. 1, 10–11, 12 A.3d 865 (2011). ‘‘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 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.’’ (Citations omitted; internal quota-
tion marks omitted.) Nichols v. Milford Pediatric
Group, P.C., 141 Conn. App. 707, 710–11, 64 A.3d 770
(2013).
‘‘When a motion to dismiss for lack of personal juris-
diction raises a factual question which is not determin-
able 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 bur-
den, due process requires that a trial-like hearing be
held, in which she has an opportunity to present evi-
dence and to cross-examine adverse witnesses . . . .’’
(Citations omitted; internal quotation marks omitted.)
Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750
(2008).
On appeal, the plaintiff claims that she did not need
to comply with the requirements set forth in § 52-190a
(a) because the statute did not apply to her claim. If
§ 52-190a (a) does apply, subsection (c) provides that
‘‘[t]he failure to obtain and file the written opinion
required by subsection (a) . . . shall be grounds for
the dismissal of the action.’’
Section 52-190a (a) provides in relevant part: ‘‘No
civil action . . . shall be filed to recover damages
resulting from personal injury . . . in which it is
alleged that such injury . . . resulted from the negli-
gence of a health care provider, unless the . . . 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 . . .
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 simi-
lar health care provider . . . that there appears to be
evidence of medical negligence and includes a detailed
basis for the formation of such opinion.’’
According to its plain language, the provision applies
only 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. Although ‘‘health care provider’’
is not defined in § 52-190a, we note that General Statutes
§ 52-184b (a) defines the term, for the purpose of that
section, as ‘‘any person, corporation, facility or institu-
tion licensed by this state to provide health care or
professional services, or an officer, employee or agent
thereof acting in the course and scope of his employ-
ment.’’ General Statutes § 19a-490 (b) defines a hospital
as ‘‘an establishment for the lodging, care and treatment
of persons suffering from disease or other abnormal
physical or mental conditions . . . .’’ We agree with
the trial court’s conclusion that the defendant is a health
care provider for purposes of § 52-190a. The critical
determination, then, is whether the trial court correctly
determined that, as pleaded, the plaintiff’s complaint
sounded only in medical malpractice.
This court, in Trimel v. Lawrence & Memorial Hospi-
tal Rehabilitation Center, 61 Conn. App. 353, 764 A.2d
203, appeal dismissed, 258 Conn. 711, 784 A.2d 889
(2001), established a three part test for determining
whether allegations sound in medical malpractice. ‘‘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
. . . . From those definitions, we conclude that the
relevant considerations in determining whether a claim
sounds in medical malpractice are whether (1) the
defendants are sued in their capacities as medical pro-
fessionals, (2) the alleged negligence is of a specialized
medical nature that arises out of the medical profes-
sional-patient relationship and (3) the alleged negli-
gence is substantially related to medical diagnosis or
treatment and involved the exercise of medical judg-
ment.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Id., 357–58.
The plaintiff challenges the trial court’s finding that
each of the three prongs of the Trimel test was satisfied.
First, she contends that the first prong of the Trimel
test is not met. She argues that she sued the defendant
in its capacity as a general place of business rather than
in its specific capacity as a health care provider. The
plaintiff posits that the fact that the alleged negligent
conduct occurred within a medical facility does not
automatically invoke the defendant’s status as a health
care provider for the purposes of § 52-190a. Citing Mult-
ari v. Yale New Haven Hospital, Inc., 145 Conn. App.
253, 75 A.3d 733 (2013), the plaintiff contends that ‘‘[t]he
fact that the defendant is a medical provider does not
preclude a finding that [the plaintiff’s] action sounds
in ordinary negligence.’’
The defendant responds that the first prong is satis-
fied because it, in fact, is being sued in its capacity as
an institution providing medical care. It argued in its
memorandum of law in support of its motion to dismiss
that, because ‘‘this is not an instance where the type
of injury alleged and manner by which it occurred could
have occurred on any type of premises,’’ the defendant’s
specific status as a medical provider and not as a general
business owner was invoked. The trial court agreed
with the defendant and found that the first prong was
met, stating: ‘‘The allegations demonstrate that [the
defendant] is being sued in its capacity as a medical
provider, as the negligence alleged of [the defendant]—
its employees, agents and servants—was during the
operation of the robotic camera during a medical proce-
dure and treatment of the plaintiff.’’ (Emphasis
omitted.)
We agree with the conclusions of the trial court. The
robotic camera that allegedly ‘‘fell’’ onto the plaintiff
was inferentially integral to surgical equipment that
would not ordinarily be found in other business settings.
Had the plaintiff’s injuries occurred in circumstances
not related to the alleged use of medical equipment but
common to generic business premises, it may have been
more appropriate to deem the defendant to have been
sued in the capacity of an owner of ordinary busi-
ness premises.
It is clear from the complaint that the plaintiff was
a patient of the defendant and was receiving treatment
at the time of the alleged negligence. The trial court
noted that ‘‘[t]he plaintiff was at [the defendant] for
the sole purpose of having a medical procedure.’’ Cf.
Multari v. Yale-New Haven Hospital, Inc., supra, 145
Conn. App. 253 (plaintiff, who was visitor, brought negli-
gence action against defendant hospital to recover for
injuries she sustained when she slipped and fell as she
exited hospital). In the present case, because the plain-
tiff was under the care of the defendant in its capacity
as a medical provider and suffered injuries while under
treatment, we conclude that the first prong of the Tri-
mel test was met.
In its memorandum of decision, the trial court com-
bined its analyses of the second and third prongs of
the Trimel test, suggesting, at least in this case, that
the two prongs rise or fall together. The court did not
analyze the elements within each prong independently.1
We recognize some overlap, but find the considerations
for evaluating some of the elements somewhat dif-
ferent.
The plaintiff contends that the second prong is not
met. She argues that the alleged negligence is the defen-
dant’s failure, as an owner of business premises, to
keep those premises reasonably safe for invitees, and
is not negligence of a ‘‘specialized medical nature that
arises out of the medical professional-patient relation-
ship.’’ She states in her brief: ‘‘The gravamen of the
allegations in the complaint . . . do not allege negli-
gence of a specialized medical nature. Equipment is not
supposed to fall on business invitees, any more than a
light fixture over the operating table is supposed to
break during an operation and fall on the patient.’’
The defendant argues that both elements of the sec-
ond prong are met because the alleged negligence and
injury occurred while the plaintiff was the defendant’s
patient for the purpose of undergoing surgery. In sup-
port of its claim, the defendant cites to Nichols v. Mil-
ford Pediatric Group, P.C., supra, 141 Conn. App. 707,
and Votre v. County Obstetrics & Gynecology Group,
P.C., 113 Conn. App. 569, 966 A.2d 813, cert. denied,
292 Conn. 911, 973 A.2d 661 (2009).
In Nichols, the plaintiff similarly argued that he was
not required to comply with § 52-190a (a) because he
sought to recover on a theory of ordinary negligence
arising from the defendant’s failure adequately to hire,
to train, and to supervise the employee who collected
his blood sample, resulting in his fainting and suffering
multiple injuries. Nichols v. Milford Pediatric Group,
P.C., supra, 141 Conn. App. 711, 714. Specifically, he
argued that collecting his blood sample was a ‘‘wholly
ministerial act,’’ and, therefore, the act that ultimately
led to his injuries was not of a specialized medical
nature. Id., 714. This court found that because the blood
collection was conducted as part of an overall medical
examination by the defendant, it was of a specialized
medical nature that arose out of a medical professional-
patient relationship. Id.
In Votre v. County Obstetrics & Gynecology Group,
P.C, supra, 113 Conn. App. 569, the plaintiff brought an
action against her physicians and their medical practice,
for their failure to consult the a certain high risk medical
group concerning her case and their failure to refer her
to that group regarding her pregnancy. Id., 573. This
court held that the claim arose ‘‘out of the professional-
patient relationship between the defendants and the
plaintiff, as the facts underlying the claim occurred
solely in the context of the defendants’ ongoing medical
treatment of the plaintiff. The claim is of a ‘specialized
medical nature’ because it directly involves the plain-
tiff’s medical condition: her high risk pregnancy.’’ Id.,
577.
In the present case, the trial court found that the
second prong was met, stating that it ‘‘cannot imagine
a scenario wherein the performance of surgery would
not entail . . . the establishment of a medical profes-
sional-patient relationship.’’ (Emphasis in the original.)
We agree with the trial court insofar as it held that
the complaint alleged injury arising out of the medical
professional-patient relationship. Here, the injuries
allegedly resulted from an occurrence during the plain-
tiff’s surgery, and the performance of surgery inherently
involves the establishment of a medical professional-
patient relationship. The court did not expressly
address the specialized medical nature element in con-
cluding that the second prong was met. It is not clear
to us that the injury necessarily was caused by negli-
gence of a ‘‘specialized medical nature,’’ or, relatedly,
that the alleged negligence involved the exercise of
medical judgment.2
The plaintiff argues that, although the injury in this
case occurred during her treatment, the negligent con-
duct that caused such injuries was not related to her
treatment because they were caused by equipment that
broke and fell onto her during the procedure. Although
the context was medical, she claims that the negligence
was not medical in nature.
In response, the defendant argues that the second
and third prongs are easily met because ‘‘the mechanism
of injury . . . was not a mere object on the premises
. . . [but, rather], it was a medical device instrumental
in providing medical treatment.’’ In support of its argu-
ment, the defendant cites to a federal case from Louisi-
ana, Moll v. Intuitive Surgical, Inc., United States Dis-
trict Court, Docket No. 13-6086 (EEF) (E.D. La. April
1, 2014). In its brief, the defendant contends that Moll
is highly instructive in analyzing whether the negligence
was ‘‘of a specialized nature substantially related to the
plaintiff’s medical treatment,’’ thereby combining one
element of the second prong with another of the third
prong. The defendant stated that, ‘‘[l]ike Moll, the grava-
men of the plaintiff’s claim here is that the hospital’s
clinicians should not have used the particular robotic
equipment and that they operated the same ‘in such a
manner to cause the camera to fall.’ ’’ It cites Moll for
the proposition that ‘‘[w]hen the tort [being] alleged
relates to an injury caused by a m[a]lfunction in a medi-
cal device instrumental in providing medical services,
the case for classifying the associated negligence as
medical malpractice becomes stronger.’’ (Internal quo-
tation marks omitted.) Id., *4. The court in Moll found,
inter alia, that ‘‘the incident occurred during a surgical
procedure, which is clearly within the context of the
physician-patient relationship’’; id.; and held that the
plaintiff had alleged claims of medical malpractice and,
thus, was required to comply with the applicable plead-
ing requirements. Id.,*5. Moll is not binding on this
court, of course, and there are also factual differences
between Moll and the present case.
In Moll, the plaintiff similarly underwent a robotic
assisted laparoscopic hysterectomy. According to the
plaintiff, the defendant healthcare provider, who pur-
chased the surgical system used during her surgery,
‘‘breached its duty to furnish its hospital with reason-
ably adequate surgical equipment . . . that [the defen-
dant] had custody . . . [guard] . . . and control over
the device and knew or should have known of [its]
unreasonably dangerous nature.’’ (Internal quotation
marks omitted.) Id., *1. As a consequence, she alleged
that ‘‘she suffered a left ureter cautery burn that pre-
vented a post-operative stent . . . [and] had to
undergo [a] ureteral re-implantation.’’ Id. The facts
relied on in Moll, then, are sufficiently specific to sup-
port the conclusion.
In the present case, the trial court concluded that
‘‘the allegations of negligence are substantially related
to the medical treatment,’’ as ‘‘[t]he plaintiff was under-
going a hysterectomy when the camera fell on her,
causing the injuries she is alleging. It fell during the
medical procedure.’’ (Emphasis in original.)
The plaintiff argues that, even if the camera fell during
a medical procedure, the medical judgment requirement
is still not met. In her brief, she asserts that ‘‘[t]he
accidental malfunction of the equipment . . . does not
involve the medical judgment of the medical profes-
sional, because it was caused by the malfunction of the
equipment itself. The malfunction would not have been
avoided by the exercise of . . . Graziani’s medical
judgment, instead, it could have been avoided by the
defendant’s exercise of its duty to provide a reasonably
safe environment for its business invitees. It does not
require medical judgment to regularly check and main-
tain the facility and the equipment in it to avoid situa-
tions in which the equipment breaks and falls onto
patients.’’ The defendant argues, on the other hand, that
‘‘whether and how to use the robot during surgery is a
question involving the exercise of medical judgment,
and cannot be determined by a lay jury without expert
testimony.’’ (Emphasis omitted.)
In addressing the medical judgment element, the trial
court stated: ‘‘The use of the robotic equipment . . .
clearly involves medical judgment. . . . The court can-
not imagine a scenario wherein the performance of
surgery would not entail the involvement of medical
judgment . . . .’’ (Emphasis in original.) We are obli-
gated, however, to follow the well established law that
‘‘[w]hen a . . . court decides a . . . 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, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Internal quotation marks
omitted.) Bennett v. New Milford Hospital, Inc., supra,
300 Conn. 10–11.
Our analysis is hampered by a paucity of facts. We,
of course, must treat the facts alleged in the complaint
as true, but there are very few facts alleged. The plaintiff
has alleged that the defendant, at the time in question,
‘‘was in possession and control of a robotic surgical
system that it [used] to assist in performing hysterecto-
mies’’ and that she was in significant pain after undergo-
ing ‘‘robotic hysterectomy surgery.’’ She alleges that
she later was told that ‘‘the robotic camera fell on [her]
left side.’’ She then listed seven specifications of the
defendant’s alleged negligence.3 Depending on the fac-
tual circumstances, some of the allegations might sup-
port a conclusion of ordinary negligence (e.g., ‘‘failing
to properly secure the camera so that it does not fall on
patients’’) and some might support medical malpractice
(e.g., ‘‘operating the robot in such a manner to cause
the camera to fall’’). Neither we nor the trial court are
assisted by any facts regarding a description of the
camera, where it was, how it was used, whether a medi-
cal provider was manipulating the camera at the time
it ‘‘fell,’’ to state but a few questions.4 A holistic and
reasonable reading of the complaint as drafted does
not necessarily foreclose the possibility that injuries
were caused by ordinary negligence not involving the
exercise of medical judgment.
The specific factual scenario, then, is far from clear.
We are left without guidance as to the precise circum-
stances claimed to have resulted in injury. In light of
the duty to construe the allegations in the light most
favorable to the pleader, we are constrained to reverse
the judgment of dismissal and to remand the matter to
the trial court for further proceedings.5 We, of course,
express no opinion as to whether some or all of the
allegations of negligence will be barred by the failure
to file a certificate pursuant to § 52-190a.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion MOLL, J., concurred.
1
We interpret the second prong to consist of two related but separate
elements, both of which must be met: (1) the alleged negligence is of a
specialized medical nature, and (2) the alleged negligence arises out of the
medical professional-patient relationship. Similarly, the third prong consists
of two related but separate elements, both of which must be met: (1) the
alleged negligence is substantially related to medical diagnosis or treatment,
and (2) the alleged negligence involved the exercise of medical judgment.
We consider each element separately.
2
We consider together the issues of whether the alleged negligence was
of a ‘‘specialized medical nature’’ (part of the second prong) and whether
the negligence ‘‘involved the exercise of medical judgment’’ (part of the
third prong). See Trimel v. Lawrence & Memorial Hospital Rehabilitation
Center, supra, 61 Conn. App. 353.
3
See Multari v. Yale New Haven Hospital, Inc., supra, 145 Conn. App.
260–61.
4
Trimel, by contrast, was appealed to this court after summary judgment
in the trial court, and the facts had been fully developed.
5
Revised pleadings or limited discovery, for example, perhaps may serve
to clarify the issue expeditiously.