Harvey v. Dept. of Correction

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HARVEY v. DEPT. OF CORRECTION—CONCURRENCE
D’AURIA, J., concurring. I agree with and join the
majority’s opinion resolving the certified issue pre-
sented, which asks whether the administratrix of the
estate of a decedent who received permission to sue
the state for medical malpractice under General Stat-
utes § 4-160 (b), and who dies as a result of that malprac-
tice before filing suit, must comply with the statutes of
limitations contained in both § 4-160 (d) and General
Statutes § 52-555 to bring suit against the state for wrong-
ful death premised on medical malpractice. Applying
our precedents and interpreting the legislature’s intent,
I agree with the majority that the answer is yes, the
administratrix, Sandra Harvey, must comply with both
statutes of limitations. Because she did not, sovereign
immunity bars her action, and the trial court properly
dismissed it for lack of subject matter jurisdiction.
I write separately to draw attention to arguably more
fundamental sovereign immunity questions begged in
this case, namely, whether, under these circumstances,
the administratrix of the decedent’s estate even had
authority to bring a wrongful death claim against the
state under § 4-160 (b). That is, when, after receiving
permission to sue the state for medical malpractice, a
decedent dies as a result of that malpractice before
filing suit, is his estate required to return to the Claims
Commissioner to seek permission to sue for wrongful
death? And, if the administratrix must return to the
Claims Commissioner to seek permission to sue for
wrongful death, does § 4-160 (b) even apply to a wrong-
ful death claim premised on medical malpractice?
Although the majority does not address these issues,
the certified question, as framed, appears to presume
that, if the administratrix did comply with both statutes
of limitations, an action for wrongful death would lie
under these circumstances.1 In fact, it appears the answer
to the certified question is relevant only if in fact the
administratrix had authority to bring the wrongful death
action. But whether she did is not clear.
The majority states that ‘‘[t]he theory of liability under-
lying the plaintiff’s wrongful death claim is medical
negligence . . . .’’ This statement plainly is based on
the plaintiff’s allegations that the failure of state agents,
servants, or employees to properly evaluate, diagnose,
and treat the decedent’s oropharyngeal cancer caused
‘‘the progression of [his] cancer condition [that] eventu-
ally led to his death.’’ While he was still alive, the dece-
dent provided a certificate of good faith, and the Claims
Commissioner granted permission to sue, ‘‘limited to
that portion of the claim alleging malpractice . . . .’’
The decedent died before putting the case into suit,
thereby necessitating the appointment of the admin-
istratrix.
Whether a wrongful death claim that is based on
an ‘‘underlying’’ medical malpractice theory of liability
comes within § 4-160 (b), thereby requiring that the
Claims Commissioner grant permission to sue, and
whether such a claim is encompassed by permission
to sue for medical malpractice are, in my view, issues
at least as fundamental—and jurisdictional—as the stat-
ute of limitations issue that the majority decides. The
majority properly does not address these issues because
neither the parties nor the Appellate Court addressed
them. The legislature, of course, could resolve them,
and should, in my view, consider doing so, as neither
§ 4-160 (b) nor our case law provides significant guid-
ance on how to decide these questions.
Section 4-160 (b) provides that, ‘‘[i]n any claim alleg-
ing malpractice against the state, a state hospital or
against a physician, surgeon, dentist, podiatrist, chiro-
practor or other licensed health care provider employed
by the state, the attorney or party filing the claim may
submit a certificate of good faith to the Office of the
Claims Commissioner in accordance with section 52-
190a. If such a certificate is submitted, the Claims Com-
missioner shall authorize suit against the state on such
claim.’’ (Emphasis added.) Under § 4-160 (b), if a claim-
ant provides a certificate of good faith, as the decedent
did in this case, the Claims Commissioner has no discre-
tion to decline to grant permission to sue. Rather, she
must grant permission to sue. See D’Eramo v. Smith,
273 Conn. 610, 622, 872 A.2d 408 (2005) (‘‘the effect of
the statute was to convert a limited waiver of sovereign
immunity to medical malpractice claims, subject to the
discretion of the [C]laims [C]ommissioner, to a more
expansive waiver subject only to the claimant’s compli-
ance with certain procedural requirements’’); Arroyo v.
University of Connecticut Health Center, 175 Conn.
App. 493, 504, 167 A.3d 1112 (‘‘a medical malpractice
action . . . is subject to § 4-160 (b), which . . . strips
the commissioner of [her] discretionary decision-mak-
ing power to authorize suit for such claims against the
state if a certificate of good faith in accordance with
[General Statutes] § 52-190a has been submitted’’), cert.
denied, 327 Conn. 973, 174 A.3d 192 (2017).
The legislative history of this exception to the Claims
Commissioner’s discretionary authority, passed in 1998,
explains that the purpose of § 4-160 (b) was to stream-
line and to expedite the litigation process, both for the
benefit of the injured plaintiff and for reasons of judicial
economy. See D’Eramo v. Smith, supra, 273 Conn. 624(Testimony before the Judiciary Committee included
the following statements: ‘‘I would think that I would
file a [c]ertificate of [g]ood [f]aith promptly and the
case would move on. . . . We only seek to get to the
jury and get an opportunity to have our day in court in
these medical negligence cases against the [s]tate and
not have to wait . . . . [W]e have to make it as simple
as possible to accomplish justice even when the sover-
eign is involved.’’ (Citations omitted; internal quotation
marks omitted.)). Section 4-160 (b) only addresses ‘‘any
claim alleging malpractice,’’ however. This court has
not had the opportunity to interpret this phrase. It is
not clear whether ‘‘any claim alleging malpractice’’
includes a wrongful death claim for which malpractice
is the underlying theory of liability. Even if § 4-160 (b)
encompasses wrongful death claims premised on medi-
cal malpractice, it also is not clear if permission to sue
for a common-law medical malpractice claim extends to
a wrongful death claim premised on medical malpractice.2
Section 4-160 (b) does not provide any clear answers
to these questions. I also have found no case law address-
ing them. In Arroyo v. University of Connecticut Health
Center, supra, 175 Conn. App. 493, however, the Appel-
late Court addressed whether a medical malpractice
claim was encompassed by the Claims Commissioner’s
permission to sue. See id., 504. In Arroyo, the plaintiffs
had requested and received permission to sue the state
for medical malpractice. See id., 497. On appeal, the
defendants argued that the trial court lacked subject
matter jurisdiction because the ‘‘theory of liability’’ that
the plaintiffs were pursuing in their lawsuit was ‘‘materi-
ally different’’ from the claim contained in the request
for permission to sue that they had filed with the Claims
Commissioner, which was granted pursuant to the man-
datory provision of § 4-160 (b).3 Id., 500. The Appellate
Court disagreed with the defendants, explaining that,
although the plaintiffs’ theory of the case was more ‘‘par-
ticularized’’ at trial than it was in their request for per-
mission to sue, the general theory remained the same.
Id., 504–506. The court reasoned that it was only natural
for the plaintiffs’ theory to become more particularized
at trial after the plaintiffs had received the benefit of
the discovery process. Id., 506.
The holding in Arroyo at least suggests that the plain-
tiff’s request for permission to sue may be more general
than the actual claim brought against the state. Arroyo
also suggests that materially different claims are not
authorized under § 4-160 (b). It is not clear, however,
whether a wrongful death claim is a more particularized
claim of medical malpractice, as was the case in Arroyo,
which did not involve wrongful death or a materially
different claim. But see Foran v. Carangelo, 153 Conn.
356, 360, 216 A.2d 638 (1966) (wrongful death claim
under § 52-555 is ‘‘a continuance of that which the dece-
dent could have asserted had he lived’’ (internal quota-
tion marks omitted)).
Even if a claim for wrongful death premised on medi-
cal malpractice is not a more particularized claim for
medical malpractice, it is nonetheless arguable that per-
mission to sue the state for medical malpractice might
encompass a wrongful death claim premised on the
same malpractice. Under General Statutes § 4-147,
regarding claims against the state in general, the Appel-
late Court has determined that, ‘‘[w]hile the plaintiff
[is] not required to set forth a formal declaration of the
particular causes of action he [seeks] to bring against
the state, he need[s] to include information that would
clarify the nature of the waiver sought and ensure that
the Claims Commissioner . . . [has] an understanding
of the nature of that waiver.’’ Morneau v. State, 150
Conn. App. 237, 252, 90 A.3d 1003, cert. denied, 312
Conn. 926, 95 A.3d 522 (2014). The Appellate Court has
held that a plaintiff may not bring suit on a claim ‘‘not
included in the proceedings before the Claims Commis-
sioner’’ but is limited to raising the legal theories that
were raised before the Claims Commissioner. Id., 251.
A claim is sufficiently raised before the Claims Commis-
sioner if the allegations before the Claims Commis-
sioner ‘‘would support the elements of [the] distinct
[cause] of action.’’ Id. Under this rule, it is possible that
notice of a medical malpractice claim may be sufficient
to provide notice to the Claims Commissioner of a possi-
ble wrongful death claim, should the plaintiff die, if that
claim is premised on the same allegations of medical
malpractice. It is not clear, however, if this rule applies
to subsection (b) of § 4-160.
If the permission to sue granted in this case did not
encompass the administratrix’ wrongful death claim,
she would be required to seek permission to sue anew.
This brings us full circle to the question of whether the
wrongful death claim is a claim ‘‘alleging malpractice
against the state, a state hospital or against a . . .
licensed health care provider employed by the state’’;
General Statutes § 4-160 (b); thereby requiring that the
Claims Commissioner grant permission to sue if the
administratrix provides a certificate of good faith, or
whether wrongful death is something different that
instead invokes the Claims Commissioner’s discretion-
ary authority. It is perhaps surprising that these issues
previously have not arisen, but they are bound to arise at
some point—either because, as in this case, the injured
party receives permission to sue for medical malprac-
tice but dies before bringing the suit, or because the
injured party receives permission to sue and does bring
suit for medical malpractice but dies before the case
resolves.
At oral argument before this court, the defendants’
counsel declined to commit to a position on whether
an administratrix would have to return to the Claims
Commissioner to seek authorization to sue the state
for wrongful death, the original claimant having died
after receiving permission to sue for medical malprac-
tice but before putting the case into suit. It is under-
standable that counsel might want to hold their fire and
argue in a future case that, narrowly construed, neither
the legislature nor the Claims Commissioner authorized
a wrongful death suit under those circumstances.
Because the legislature specifically decided as a mat-
ter of policy to permit prompt action on medical mal-
practice claims by curtailing the Claims Commissioner’s
discretion when a plaintiff provides a certificate of good
faith, I believe the legislature is best suited to clarify
whether permission to sue the state for medical mal-
practice encompasses a claim for wrongful death prem-
ised on that medical malpractice. See Thibodeau v.
Design Group One Architects, LLC, 260 Conn. 691, 715,
802 A.2d 731 (2002) (‘‘[b]ut just as the primary responsi-
bility for formulating public policy resides in the legisla-
ture . . . so, too, does the responsibility for determin-
ing, within constitutional limits, the methods to be
employed in achieving those policy goals’’ (citations
omitted)). In light of the limited legal guidance available
on these issues, legislative guidance would avoid the
consumption of judicial and other state resources
required to resolve a question that is plainly one of
legislative policy. A legislative solution would also avoid
uncertainty and delay for litigants awaiting resolution
of the estates of those who have passed.
1
The trial court did not decide the issue, either, but did note the possibility
that the Claims Commissioner’s grant to the decedent of permission to sue
the state under § 4-160 (b) did not authorize a wrongful death action: ‘‘[The
trial court] question[ed] whether the plaintiff’s characterization of this law-
suit as a wrongful death action is a proper gloss and/or is properly brought
before this court when the action approved by the [Claims] [C]ommissioner
was a medical malpractice claim. . . . [A] distinctly different claim not
presented to the Claims Commissioner but raised ‘as an afterthought’ [is]
barred by sovereign immunity.’’ The trial court suggested that, if a wrongful
death claim is a distinctly different claim than a medical malpractice claim,
the administratrix would be required to go back to the Claims Commissioner
to get permission to sue. But, if the wrongful death claim was not distinctly
different because the underlying malpractice was in fact before the Claims
Commissioner, then the court’s determination regarding the statute of limita-
tions controlled the outcome of the case.
2
Notably, the legislature in 2019 amended § 4-160 (b) to provide in addi-
tion: ‘‘In lieu of filing a notice of claim pursuant to section 4-147, a claimant
may commence a medical malpractice action against the state prior to the
expiration of the limitation period set forth in section 4-148 and authorization
for such action against the state shall be deemed granted. Any such action
shall be limited to medical malpractice claims only and any such action
shall be deemed a suit otherwise authorized by law in accordance with
subsection (a) of section 4-142.’’ Public Acts 2019, No. 19-182, § 4. This
amendment was not intended to—and did not—clarify the issues this concur-
ring opinion identifies. In fact, the amendment sets up the possibly odd
scenario in which a plaintiff bypasses the Claims Commissioner and brings
an action in court by filing a good faith certificate in support of a medical
malpractice action, and, upon the plaintiff’s death as an alleged result of
that malpractice, the administratrix would have to go the Claims Commis-
sioner for permission to sue.
3
‘‘Specifically, the defendants argue[d] that in alleging that [the defendant
urologist] ‘dissected and ligated . . . vascular structures, thereby . . . sev-
ering blood flow to [the plaintiff patient’s] left testicle,’ the ‘vascular struc-
ture’ to which the plaintiffs must have been referring in their notice of claim
was the testicular artery because the only ‘vascular structure’ that could
have resulted in a lack of blood flow to the testicle was the testicular artery.
The defendants then reasoned that, because the plaintiffs’ theory of liability
presented at trial was that [the defendant urologist] dissected and ligated
a vein, not the testicular artery, and injured the nearby testicular artery in
turn by unintentionally cauterizing it, the plaintiffs did not obtain a waiver
of sovereign immunity for the claim presented to the court.’’ (Emphasis
omitted; footnote omitted.) Arroyo v. University of Connecticut Health
Center, supra, 175 Conn. App. 500.