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Perry v. Valerio

Court of Appeals of Connecticut

August 23, 2016

KATHERINE PERRY
v.
SHARON VALERIO ET AL.

          Argued May 24, 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).

          Beach, Keller and Harper, Js.

          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 Services, LLC (limited liability company), [2] seeking damages 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 therapy 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 complaint sounded in medical malpractice rather than ordinary 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 Valerio, ’’ 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 ambulate, (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 January 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 defendants’ 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 ordinary negligence in her complaint.

         The court heard argument on June 16, 2015. On September 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 parameters of the statute. Next, in evaluating whether the plaintiff’s allegations in her one count complaint sounded in medical negligence or ordinary negligence, the court referenced the standard set forth in Trimel v. Lawrence & 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 concluded: ‘‘The sole purpose of the treatment in this case was medical in nature and required professional judgment. Accordingly, because the physical therapy treatment 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 process 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 complaint 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 quotation marks omitted.) Boone v. William W. Backus Hospital, 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 substantially relate to the diagnosis or treatment of [her] condition(s) or involve the exercise of medical judgment. When the alleged acts of a medical professional do not require the exercise of medical judgment . . . incidents of negligence by the medical professional constitute 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, however, 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 ordinary 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 Rehabilitation Center, supra, 61 Conn.App. 353, in reaching our conclusion. In Trimel, the defendants provided physical therapy services to the plaintiff, who suffered from multiple 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 therapist. 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 ...


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