Perry v. Valerio

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KATHERINE PERRY v. SHARON VALERIO ET AL.
(AC 38405)
Beach, Keller and Harper, Js.
Argued May 24—officially released August 23, 2016
(Appeal from Superior Court, judicial district of
Waterbury, Brazzel-Massaro, J.)
Kent J. Mancini, with whom was Abigail T.
Miranda, for the appellant (plaintiff).
Cynthia J. Coccomo, for the appellees (defendants).
Opinion
KELLER, J. The plaintiff, Katherine Perry, brought
this action as parent and next friend of Magan Perry,
her minor daughter,1 against the defendants, Sharon
Valerio and Cindy Jackson’s Children’s Therapy Ser-
vices, LLC (limited liability company),2 seeking dam-
ages for injuries alleged to have been sustained when
Magan fell while attempting to ambulate with a walker
while wearing a leg brace. Valerio, an employee of the
limited liability company, was providing physical ther-
apy services to Magan at the time of the incident. The
defendants filed a motion to dismiss the complaint,
and the trial court granted the motion and rendered
judgment dismissing the action on the ground that the
plaintiff had failed to provide a good faith certificate
and an opinion of a similar health care provider as
required by General Statutes § 52-190a. On appeal, the
plaintiff claims that the court improperly dismissed her
action because it erroneously concluded that her com-
plaint sounded in medical malpractice rather than ordi-
nary negligence. We conclude that the plaintiff was
required to comply with § 52-190a and, thus, affirm the
judgment of the trial court.
The following facts, as alleged in the plaintiff’s one
count complaint,3 and procedural history are relevant
to the disposition of this appeal. Magan, a high school
student, suffers from myotonic dystrophy and wears
leg braces throughout the day. On January 23, 2013,
Valerio was at Magan’s high school for the purpose of
providing physical therapy services to Magan. Valerio’s
duties included ‘‘assisting and supervising [Magan] to
attempt to walk with a leg brace and with the assistance
of a walker.’’ While Magan ‘‘was attempting to walk
with the assistance and under the supervision of Val-
erio,’’ she fell to the ground and sustained injuries to
her left leg. Valerio, while acting within the scope of her
authority and employment, was negligent and caused
Magan’s injuries by, inter alia, failing to (1) ‘‘properly
put on [Magan’s] leg brace’’ before her attempt to ambu-
late, (2) ‘‘properly supervise, monitor or support
[Magan] while she was attempting to ambulate with the
assistance of the brace and walker,’’ (3) ‘‘take such
steps as reasonably necessary to prevent’’ Magan from
falling, and (4) ‘‘provide adequate support or assistance
to [Magan] when [Magan] fell to prevent [Magan] from
injuring herself.’’
The plaintiff commenced the present action on Janu-
ary 31, 2015. On April 1, 2015, the defendants filed a
motion to dismiss her complaint, claiming that she had
alleged medical malpractice but had failed to comply
with § 52-190a.4 Specifically, the defendants claimed
that the plaintiff (1) failed to include a certificate stating
that she had made reasonable inquiry giving rise to a
good faith belief that grounds existed for an action in
medical negligence against the defendants, and (2)
failed to attach a written opinion of a similar health care
provider, stating that there appeared to be evidence of
medical negligence, that included a detailed basis for
the formation of such an opinion. In response to the
defendants’ motion, the plaintiff filed an objection, an
affidavit by the plaintiff, and a surreply to the defen-
dants’ reply to the plaintiff’s objection. The plaintiff
argued that Valerio was not performing professional
medical services at the time of the incident and that
§ 52-190a did not apply because she had alleged ordi-
nary negligence in her complaint.
The court heard argument on June 16, 2015. On Sep-
tember 8, 2015, the court issued its memorandum of
decision granting the defendants’ motion to dismiss. In
its decision, the court first recited pertinent case law
with respect to its consideration of a motion to dismiss
and the applicability of § 52-190a to medical malpractice
actions. The court set forth the plaintiff’s argument that
her complaint alleged ordinary negligence, rather than
medical malpractice, so that she was not required to
file a good faith certificate or the written opinion of a
similar health care provider. As noted by the court, the
plaintiff took the position that a layperson could put a
leg brace on Magan, and that such conduct did not
require any degree of medical knowledge or skill.5
In determining whether § 52-190a was applicable to
the plaintiff’s action, the court first determined that
Valerio, who was licensed by the state as a physical
therapist, was a health care provider within the parame-
ters of the statute. Next, in evaluating whether the plain-
tiff’s allegations in her one count complaint sounded
in medical negligence or ordinary negligence, the court
referenced the standard set forth in Trimel v. Law-
rence & Memorial Hospital Rehabilitation Center, 61
Conn. App. 353, 357–58, 764 A.2d 203, appeal dismissed,
258 Conn. 711, 784 A.2d 889 (2001) (certification
improvidently granted). Using this court’s criteria in
Trimel, the trial court reviewed the complaint and
determined that the plaintiff had alleged ‘‘that [Valerio]
was working with [Magan] specifically and was not
simply a third party placing the braces on her legs but
was providing much more professional assistance in
using the devices and then ambulating.’’ The court con-
cluded: ‘‘The sole purpose of the treatment in this case
was medical in nature and required professional judg-
ment. Accordingly, because the physical therapy treat-
ment itself was to facilitate [Magan] in using her leg
brace, the alleged negligence is substantially related
to medical treatment.’’ The court rendered judgment
dismissing the plaintiff’s action, and this appeal
followed.
We begin with the appropriate standard of review and
legal principles that guide our analysis of the plaintiff’s
claim on appeal. ‘‘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 pro-
cess that implicates the personal jurisdiction of the
court. See Morgan v. Hartford Hospital, 301 Conn. 388,
401–402, 29 A.3d 451 (2011). 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 complaint, 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 quotation marks
omitted.) Nichols v. Milford Pediatric Group, P.C., 141
Conn. App. 707, 710–11, 64 A.3d 770 (2013). ‘‘[T]he com-
plaint must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded . . . .’’ (Internal quota-
tion marks omitted.) Boone v. William W. Backus Hos-
pital, 272 Conn. 551, 560, 864 A.2d 1 (2005).
The gravamen of the plaintiff’s claim is as follows:
‘‘[Section] 52-190a cannot apply to the instant matter
because . . . [the] defendants’ negligence in failing to
properly secure [Magan’s] leg brace does not substan-
tially relate to the diagnosis or treatment of [her] condi-
tion(s) or involve the exercise of medical judgment.
When the alleged acts of a medical professional do not
require the exercise of medical judgment . . . inci-
dents of negligence by the medical professional consti-
tute ordinary negligence and not medical malpractice.’’
We agree that the plaintiff’s one count complaint
includes allegations that Magan’s leg brace was not
properly secured at the outset of her physical therapy
session.6 This alleged act of negligence by Valerio, how-
ever, is not the sole basis for the plaintiff’s action. The
complaint also alleges, inter alia, that Valerio ‘‘failed to
properly supervise, monitor or support’’ Magan while
she attempted to ambulate with the assistance of the
leg brace and the walker, ‘‘failed to take such steps as
reasonably necessary to prevent [Magan] from falling,’’
and ‘‘failed to provide adequate support or assistance
to [Magan] when [Magan] fell to prevent [Magan] from
injuring herself.’’ Accordingly, we must determine
whether these alleged acts of negligence sound in ordi-
nary negligence, which would not require compliance
with § 52-190a, or sound in medical malpractice, which
would require compliance with § 52-190a.
As did the trial court, we look to the seminal case
of Trimel v. Lawrence & Memorial Hospital Rehabili-
tation Center, supra, 61 Conn. App. 353, in reaching our
conclusion. In Trimel, the defendants provided physical
therapy services to the plaintiff, who suffered from mul-
tiple sclerosis and had been confined to a wheelchair
for several years prior to the incident at issue. Id., 354.
Her physical therapy sessions included transfers to and
from her wheelchair, and she performed the transfers
without assistance in the presence of a physical thera-
pist. Id. During one of her physical therapy sessions,
the plaintiff fell while transferring unassisted from her
wheelchair to an exercise mat and sustained injuries.
Id., 354–55. She brought a negligence action against the
defendants, as health care providers, for allowing her
to transfer without supervision, but she did not comply
with § 52-190a because she claimed that she had alleged
ordinary negligence rather than medical malpractice.
Id., 354–55, 360.
In resolving the plaintiff’s claim in Trimel, this court
set forth the following three part test for determining
whether the allegations in a complaint 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]rofes-
sional 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 profes-
sion with the result of injury, loss, or damage to the
recipient of those services. . . . Furthermore, mal-
practice presupposes some improper conduct in the
treatment or operative skill [or] . . . the failure to
exercise requisite medical skill . . . . From those defi-
nitions, we conclude that the relevant considerations
in determining whether a claim sounds in medical mal-
practice 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 exer-
cise of medical judgment.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Id., 357–58.
After stating the applicable test, this court in Trimel
noted that the defendants were medical professionals
and that the plaintiff was at the clinic for her therapy
session when she fell. Id., 358. This court further noted
that training the plaintiff to perform transfers was a
stated goal of therapy, requiring routine assessments
by the health care providers of the plaintiff’s physical
capabilities. Id., 360. This court concluded that ‘‘[i]t
was a medical professional’s judgment that allowed the
transfer to proceed unassisted,’’ and that the plaintiff’s
claim ‘‘involved a negligent act or omission during an
activity that was substantially related to her treatment.’’
Id., 363–64. Accordingly, the plaintiff’s complaint
sounded in medical malpractice, and she was required
to comply with § 52-190a.
In the present case, the plaintiff does not dispute that
she brought this action against the defendants in their
capacities as medical professionals. Further, the plain-
tiff does not dispute that Magan’s alleged injuries
occurred during a physical therapy session that arose
out of a medical professional-patient relationship.
Instead, she argues that Valerio’s failure to secure
Magan’s leg brace did not constitute negligence of a
specialized medical nature, nor did it substantially
relate to the diagnosis or treatment of Magan’s condi-
tion or involve the exercise of medical judgment. As
previously discussed, however, the alleged acts of negli-
gence in the complaint went beyond the failure to prop-
erly secure Magan’s leg brace. The plaintiff also alleged
that Valerio failed to properly supervise, monitor, or
support Magan when she attempted to ambulate with
the walker while wearing the leg brace, that Valerio
failed to take steps as reasonably necessary to prevent
Magan from falling, and that Valerio failed to provide
adequate support or assistance to Magan when she fell
to prevent the injuries.
We agree with the trial court that the plaintiff’s com-
plaint alleges more than ordinary negligence; the com-
plaint sounds in medical malpractice. The claim is of
a specialized medical nature because it directly involves
Magan’s medical condition of myotonic dystrophy and
the therapy necessary for her to ambulate with a walker
while wearing a leg brace, which was a stated goal of
her therapy. The issues involve the appropriate medical
standard of care for supervising, monitoring, and sup-
porting Magan during the physical therapy session,
including the steps to be taken when she fell to prevent
her from injuring herself. The alleged negligent acts or
omissions are substantially related to Magan’s medical
diagnosis and involved the exercise of Valerio’s medical
judgment. The allegations in the one count complaint
suggest that Valerio was required to assess Magan’s
physical capabilities in determining how to support her
while ambulating and in determining the degree of
supervision and support necessary for Magan to safely
ambulate with her walker while wearing the leg brace.
The securing of the leg brace, however routine, was
only one component of the overall physical therapy
session, and Valerio’s alleged failure to properly secure
the leg brace was but one of many allegations of negli-
gence in the complaint.7
On the basis of our consideration of the three prongs
of the Trimel test to determine whether a claim sounds
in medical malpractice, we conclude that the trial court
properly characterized the plaintiff’s complaint as a
medical malpractice claim. We therefore reach the addi-
tional conclusion that the plaintiff was required to sat-
isfy the requirements of § 52-190a (a) by filing a good
faith certificate and an opinion by a similar health care
provider when she initiated her action. Because she
failed to comply with those requirements, we ultimately
conclude that the court properly granted the defen-
dants’ motion to dismiss pursuant to § 52-190a (c).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the complaint refers to Magan Perry as the plaintiff, it is clear
that the only proper plaintiff is Katherine Perry, who brought this action
as the parent and next friend of Magan. See DiPietro v. Farmington Sports
Arena, LLC, 123 Conn. App. 583, 585 n.1, 2 A.3d 963 (2010), rev’d on other
grounds, 306 Conn. 107, 49 A.3d 951 (2012).
2
The action initially was commenced against Valerio and Children’s Family
Services, LLC. On March 6, 2015, the plaintiff moved to amend her complaint
to correct the name of the limited liability company to Cindy Jackson’s
Children’s Therapy Services, LLC. On March 10, 2015, the plaintiff filed a
motion to substitute Cindy Jackson’s Children’s Therapy Services, LLC, as
the defendant in lieu of Children’s Family Services, LLC, which motion was
granted by the court on March 23, 2015.
3
In reviewing the trial court’s decision to grant a motion to dismiss, ‘‘we
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.) May v. Coffey,
291 Conn. 106, 108, 967 A.2d 495 (2009). A motion to dismiss also ‘‘invokes
any record that accompanies the motion, including supporting affidavits
that contain undisputed facts.’’ (Internal quotation marks omitted.) Tellar
v. Abbott Laboratories, Inc., 114 Conn. App. 244, 246, 969 A.2d 210 (2009).
4
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 defen-
dant. To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment com-
plainant’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 medical negligence and includes a
detailed basis for the formation 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.’’
5
In her affidavit, the plaintiff averred that she and other members of the
family routinely removed and secured Magan’s leg braces.
6
We are not convinced that even this isolated allegation is one of ordinary
negligence. Because Magan was attempting to ambulate with the walker
while wearing her leg brace, we do not know whether the method of securing
her leg brace under these circumstances would be different than if Magan
was not in her therapy session and was simply ambulating without the
assistance of the walker.
7
We have reviewed all of the allegations in the single count of the plaintiff’s
complaint in determining whether her complaint sounds in medical malprac-
tice or ordinary negligence. See, e.g., Nichols v. Milford Pediatric Group,
P.C., supra, 141 Conn. App. 707, 716 (blood collection at issue, which may
have been routine in nature, occurred as part of plaintiff’s physical examina-
tion; ‘‘we conclude that the trial court properly characterized the plaintiff’s
complaint as a medical malpractice claim’’); Votre v. County Obstetrics &
Gynecology Group, P.C., 113 Conn. App. 569, 580, 966 A.2d 813 (‘‘[w]e
conclude that the court properly determined that the complaint in this case
sounded in medical malpractice’’), cert. denied, 292 Conn. 911, 973 A.3d 661
(2009); Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn. App. 383,
386, 505 A.2d 741 (1986) (trial court correctly decided plaintiff’s case was not
medical malpractice action; it was action sounding in ordinary negligence).