Jefferson v. Waveny Care Ctr., Inc.

CourtSuperior Court of Connecticut
Citation40 A.3d 825,52 Conn.Supp. 254
Docket NumberNo. CV–08–5007985–S.,CV–08–5007985–S.
PartiesLouis F. JEFFERSON v. WAVENY CARE CENTER, INC., et al.*
Decision Date21 December 2010

40 A.3d 825
52 Conn.Supp.
254

Louis F. JEFFERSON
v.
WAVENY CARE CENTER, INC., et al.*

No. CV–08–5007985–S.

Superior Court of Connecticut, Judicial District of Stamford–Norwalk.

Dec. 21, 2010.


[40 A.3d 827]

Michael C. McMinn, for the plaintiff.

Liam M. West, Stamford, for the named defendant et al.

Gina M. Hall, Hartford, for the defendant Professional Healthcare Services, LLC.ADAMS, J.
[52 Conn.Supp. 255] I
BACKGROUND

The operative complaint, the plaintiffs Second Amended Complaint (Complaint), alleges that defendant Waveny Care Center, Inc., and affiliated companies (Waveny) operated a health care center in New Canaan, Connecticut, and contracted with defendant Professional Healthcare Services, LLC (Procare) for the latter to provide “staffing services for the position of Registered Nurse, Licensed Practical Nurse, Certified Nursing Assistant” during the time relevant to this case. Complaint, Count One, ¶ 6; Count Three, ¶ 12. The plaintiff, Louis F. Jefferson, was admitted to Waveny for rehabilitative care due to knee replacement surgery on January 23, 2007, and the defendants undertook to furnish care and treatment. Id., Count One, ¶ 8. In February, 2008, Jefferson developed multiple pressure sores on his feet alleged to be the result of “negligence” by the defendants in that the defendants failed to assess Jefferson as an at-risk patient, failed to use ordinary [52 Conn.Supp. 256] care to prevent the development of the ulcers, violated state and federal regulations, and failed to act as a reasonable prudent person. Id., Count One, ¶¶ 10–11 (against Waveny); Count Three, ¶¶ 10–11 (against Pro-care). Also, it is alleged in late January, 2007, that Jefferson suffered a spread of Methicillin-resistant Staphylococcus Aureus (MRSA) as a result of the negligence of the defendants. Id., Count One, ¶ 12; Count Two, ¶¶ 10–11 (against Waveny); Count Three and Count Four, ¶ 19 (against Procare.) Two counts of the Amended Complaint are directed at Waveny and Pro-care, respectively, one alleging negligence regarding the pressure ulcer, and one alleging negligence regarding the spread of MRSA. In all four counts, in the specifications of negligence, it is alleged that the defendants failed to act as “a reasonabl[y] prudent person.”

Waveny moved to dismiss the initial complaint against it, which made similar allegations on the ground that Jefferson was alleging professional negligence or medical malpractice, but had failed to comply with the provisions of General Statutes § 52–190a requiring a certificate of good faith, and a written opinion by a similar health care provider. The Superior Court ( Hon. Kevin Tierney, judge trial referee) denied the motion to dismiss on the ground that the issue of whether this case is a ordinary negligence case or a professional negligence case was “best fleshed out on a motion for summary judgment after discovery [was] done.... After we have discovery, then we may be revisiting this particular matter.” Transcript, October 20, 2008. pp. 37–38. Judge Tierney subsequently granted a motion to reargue, but again denied the motion to dismiss.

[40 A.3d 828]

Order, January 5, 2009. (Docket Entry 108.00.) Subsequently, this court denied defendant's motion to strike, which argued that noncompliance with § 52–190a made the complaint legally insufficient, stating that the Appellate Court had ruled that the proper means to raise a § 52–190a issue [52 Conn.Supp. 257] was by motion to dismiss. This court also stated it saw no reason to revisit Judge Tierney's decision, which explicitly left the matter subject to a motion for summary judgment. Memorandum of Decision, April 17, 2009. (Docket Entry 119.10.)

The defendants Waveny and Procare have each moved for summary judgment seeking dismissal of the two counts directed at them. The gist of each motion is that the plaintiff has not disclosed an expert and cannot prevail on a medical malpractice case without providing expert medical testimony. The plaintiff has filed an objection to both motions and both defendants have replied.

II
SCOPE OF REVIEW

Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law....” (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, supra, at 209, 757 A.2d 1059. “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” [52 Conn.Supp. 258] Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. at 209, 757 A.2d 1059.

III
DISCUSSION

A. Law of the case. The plaintiff's first line of defense against summary

[40 A.3d 829]

judgment is that the issue of whether this is a medical malpractice case has been decided against the defendants three times, and should not be revisited because of the law of the case doctrine. Plaintiff's Opposition, pp. 5–7. The argument is substantively incorrect. There has been no decision in this case that the plaintiff's complaint is properly one of ordinary negligence. At best for the plaintiff, it has been held that it was premature, based on the pleadings alone, to determine whether this was an ordinary or professional negligence case, and that determination should be made [52 Conn.Supp. 259] on a fuller factual record. The court finds there is no “law of the case” applicable to this proceeding, and therefore turns to the motions for summary judgment.

B. The motions for summary judgment. These motions are based on the premise that plaintiff's case is a case of professional negligence—medical malpractice—and the fact that the plaintiff has not disclosed, indeed has specifically refused to disclose, an expert competent to render an opinion that the defendants committed malpractice even after being on notice of the defendants' position. It is clear that what the plaintiff labels his complaint is not dispositive of the actual nature of the action. Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). The Connecticut Supreme Court has specifically held that: “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.” (Emphasis in original; internal quotation marks omitted.) Trimel v....

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