Superior Court of Connecticut, Judicial District of New Britain, New Britain
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (#102) & FOR ORDER (#107)
Marcia J. Gleeson, J.
This case arises from an alleged burn suffered by the plaintiff, Jennifer Torres, when the defendant dentist, Thomas Dolan, made contact with her face in the midst of a dental procedure while his gloved hand had an acidic substance on it. On February 9, 2015, the plaintiff filed a one-count complaint in which she alleged the following facts. On April 14, 2014, the plaintiff was undergoing a dental procedure performed by the defendant at his offices in Wethersfield. The defendant did not realize that his gloved hand had an acidic substance on it and he made contact with the plaintiff's face, burning her and causing severe and potentially permanent injuries.
On February 24, 2015, the defendant filed his motion to dismiss and memorandum in support of the motion. The plaintiff filed an objection to the motion on March 2, 2015, to which the defendant replied on March 30, 2015. In addition, the defendant filed his affidavit in support of the motion to dismiss on March 30, 2015. On April 1, 2015, the plaintiff filed a motion for order seeking an order allowing jurisdictional discovery relevant to the pending motion to dismiss. The defendant filed his objection to the motion on April 7, 2015, to which the plaintiff replied on April 13, 2015. Both matters were heard by the court on June 22, 2015.
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." Practice Book § 10-30(a)(2). A defect in process or service thereof mandates dismissal for lack of personal jurisdiction. Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).
Under General Statutes § 52-190a(a), in any action " in which it is alleged that . . . injury or death resulted from the negligence of a health care provider . . . The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that [the attorney or party's] 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 or the claimant's attorney . . . 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 formation of such opinion."
" The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with [General Statutes] § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Citation omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 401-02. " [A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and . . . dismissal of a letter that does not comply with § 52-190a(c) is mandatory . . ." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). General Statutes § 52-190a(c) provides that " [t]he failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action."
In the present action, the plaintiff brought her cause of action in negligence and did not attach an opinion letter or certificate of good faith to her initial pleadings. The defendant has moved to dismiss on the ground that such letter and certificate were required, as this is a medical malpractice action, and the plaintiff was required to comport with the requirements of § 52-190a. The plaintiff argues in response that the claim sounds not in medical malpractice but in ordinary negligence, and has moved for an order compelling jurisdictional discovery or an evidentiary hearing regarding the issue.
As to the motion for order, the plaintiff argues that because the defendant has submitted an affidavit averring that the alleged injury took place during a medical procedure, an evidentiary hearing is required so that she may glean evidence to challenge the notion that this case sounds in medical malpractice. This, she argues, is a critical factual dispute regarding a jurisdictional issue, namely, whether the plaintiff was required to comply with § 52-190a. The plaintiff argues that an evidentiary hearing or discovery is required before the court can decide the motion to dismiss.
Our Supreme Court has stated that " where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009). In the present case, there is simply no such factual dispute. The defendant avers in his affidavit that he was wearing disposable gloves during the procedure he performed on the plaintiff, and that the acidic material that allegedly burned her face was located on one of the gloves. These averments are entirely consistent with the allegations in the plaintiff's complaint: that she was undergoing a dental procedure, and was burned by an acidic substance on the defendant's glove. There is simply no dispute here: the affidavit restates information proffered by the plaintiff in her complaint related to the glove, the procedure, and the acidic material. While these facts are material to the determination of the jurisdictional question before the court, as the subsequent discussion of the motion to dismiss will demonstrate, they are not disputed. Thus, it is not necessary for the court to conduct an evidentiary hearing or order limited discovery because the jurisdictional issue, whether compliance with § 52-190a was necessary, can be decided with reference to undisputed facts already in the record, with or without reference to the defendant's affidavit. Accordingly, the plaintiff's motion for order is denied.
As to the defendant's motion to dismiss, whether the plaintiff should have complied with § 52-190a depends on whether the action sounds in medical malpractice. " The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 360, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). The Trimel court articulated a three-prong test to determine whether an action sounds in medical malpractice or conventional negligence. Id., 358. The court stated: " the 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." Id. " The characterization of a claim as . . . medical malpractice . . . does not turn on whether expert testimony is required. Id., 360; Collier v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV-14-6046660-S (December 5, 2014, Wilson, J.) (59 Conn. L. Rptr. 387, 389), 2014 Conn. Super. LEXIS 3007.
Because the plaintiff alleges that she was injured while undergoing a dental procedure at the defendant's office, the plaintiff has sued the defendant in his capacity as a medical professional. As the alleged negligence occurred during the defendant's performance of a dental procedure on the plaintiff, it arose out of the medical professional-patient relationship. Thus, the first two prongs of the Trimel analysis have been satisfied. The plaintiff primarily argues that the third prong has not been satisfied because the negligence at issue was not related to diagnosis or treatment and did not involve medical judgment.
Courts have broadly interpreted the third prong of the Trimel analysis. In Nichols v. Milford Pediatric Group, P.C., 141 Conn.App. 707, 708, 64 A.3d 770 (2013), the plaintiff was a patient undergoing a physical examination by the defendant medical provider. The defendant directed the plaintiff to sit upright on an examination table as the defendant performed a routine finger-stick blood sample collection. Id., 708-09. The plaintiff fainted and fell off of the table during the procedure, injuring his face. Id., 709. The plaintiff argued that the defendant should have safeguarded him by directing him to lie down on the table, instead of sit upright. Id., 709. The plaintiff ...