Labissoniere v. Gaylord Hosp., Inc.

• Decision Date: 05 June 2018
• Docket Number: AC 39681
• Citation: 182 Conn.App. 445,185 A.3d 680
• Court: Connecticut Court of Appeals
• Parties: George LABISSONIERE, Coexecutor (Estate of Robert Labissoniere), et al. v. GAYLORD HOSPITAL, INC., et al.

182 Conn.App. 445

185 A.3d 680

George LABISSONIERE, Coexecutor (Estate of Robert Labissoniere), et al.

v.GAYLORD HOSPITAL, INC., et al.

AC 39681

Appellate Court of Connecticut.

Argued February 8, 2018

Officially released June 5, 2018

Keith A. Yagaloff, South Windsor, for the appellants (plaintiffs).

Thomas O. Anderson, with whom were Kyle W. Deskus and, on the brief, Cristin E. Sheehan, Hartford, for the appellees (defendant Eileen Ramos et al.).

Michael G. Rigg, Hartford, for the appellee (named defendant).

Sheldon, Elgo and Harper, Js.^*

HARPER, J.

This appeal arises out of a medical malpractice action brought by the plaintiffs, George Labissoniere and Helen Civale, coexecutors of the estate of Robert Labissoniere (decedent), against the defendants, physicians Moe Kyaw, Madhuri Gadiyaram, and Eileen Ramos (physicians), and their employer, Gaylord Hospital, Inc. (hospital). The plaintiffs appeal from the judgment of the trial court dismissing their amended complaint for lack of personal jurisdiction. On appeal, the plaintiffs claim that the court erred by (1) failing to apply the appropriate legal standard for a motion to dismiss, and (2) determining that the author of the plaintiffs' opinion letter was not a similar health care provider on the basis of their related claim that they had alleged that the defendants were acting outside of their medical specialty such that their conduct should be judged against the standard of care applicable to that specialty. We disagree and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our disposition of this appeal. The plaintiffs commenced this action against the defendants on April 28, 2015. In their original complaint, the plaintiffs alleged that the decedent was admitted to the hospital on February 14, 2013, for medical care and rehabilitation following hip replacement surgery that had been performed at St. Francis Hospital. The plaintiffs alleged that while under the care of the physicians, the decedent suffered from a retroperitoneal hematoma

, a postoperative condition that resulted in irreversible nerve damage, as well as hemorrhagic shock and multiorgan failure, requiring the decedent to be transferred back to St. Francis Hospital as an emergency admission on March 11, 2013.¹

In an attempt to comply with General Statutes § 52–190a(a),² the plaintiffs appended to their original complaint an opinion letter authored by David A. Mayer, a physician and general surgeon who was board certified in surgery. The physicians and the hospital subsequently filed motions to dismiss pursuant to Practice Book § 10–30(a)(2). In their respective motions, the defendants argued that because Mayer was board certified in surgery and not internal medicine, he was not a "similar health care provider," as defined in General Statutes § 52–184c,³ and, therefore, the court lacked personal jurisdiction over them.⁴ Included with the defendants' motions were affidavits,⁵ which established that the physicians are board certified in internal medicine and are not surgeons, that surgeries are not performed at the hospital, and that there are no surgeons on staff at the hospital.

On November 20, 2015, the plaintiffs filed a request for leave to file an amended complaint together with a proposed amended complaint in which they alleged that the physicians were board certified in internal medicine and that the treatment and diagnosis of the decedent was within the medical specialty of surgery. The plaintiffs did not attach to their amended complaint a new or amended opinion letter, nor did they explicitly allege that the defendants had acted outside the scope of their specialty of internal medicine.

The physicians and the hospital subsequently filed amended motions seeking dismissal of the plaintiffs' amended complaint. The defendants again alleged that Mayer was not a similar health care provider under § 52–184c. The plaintiffs objected, arguing that the physicians were acting as surgeons during their diagnosis and treatment of the decedent's retroperitoneal hematoma

. Attached to their objection was Mayer's affidavit, in which he stated that the decedent's condition was a postoperative condition that required consultation with a surgeon. The plaintiffs argued that their amended complaint and Mayer's affidavit demonstrated that the decedent's condition was within the specialty of surgery and, therefore, that the physicians had acted outside the scope of their medical specialty and that Mayer was a similar health care provider under § 52–184c(c).

During oral argument on the defendants' motions, the court asked the plaintiffs' counsel several times to identify where the plaintiffs had alleged that the defendants acted outside the scope of their specialty of internal medicine. The plaintiffs' counsel then cited multiple paragraphs from the amended complaint, which stated that the physicians are board certified in internal medicine and provided the decedent with treatment and diagnosis for a postoperative condition that was within the specialty of surgery. The court responded that the amended complaint "doesn't say that the doctors were acting outside of their specialty [of internal medicine]. It just says that this happened to be a surgery issue."

The court granted the defendants' amended motions to dismiss. In so doing, the court reasoned that "neither the amended complaint (filed after the court allowed discovery on the issues involved in the motion to dismiss) nor the surgeon's written opinion letter allege or state that the defendants were acting outside their specialty of internal medicine in treating the [decedent] or that they undertook the diagnosis and treatment of a condition outside of their specialty such that their conduct should be judged against the standards of care applicable to that specialty. Such an allegation and expert opinion is necessary to fall within the exception contained in [ § 52–184c(c) ].... Therefore, there being no such allegation or expert opinion, this case must be dismissed as to all defendants." (Citation omitted.) This appeal followed.

Before we address the plaintiffs' claims on appeal, we set forth the well settled standard of review. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... When a ... court decides a ... question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must 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.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone."

(Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc. , 300 Conn. 1, 10–11, 12 A.3d 865 (2011).

"In reviewing a challenge to a ruling on a motion to dismiss ... [w]hen the facts relevant to an issue are not in dispute, this court's task is limited to a determination of whether, on the basis of those facts, the trial court's conclusions of law are legally and logically correct.... Because there is no dispute regarding the basic material facts, this case presents an issue of law, and we exercise plenary review." (Internal quotation marks omitted.) Doyle v. Aspen Dental of Southern CT, PC , 179 Conn. App. 485, 491–92, 179 A.3d 249 (2018). "Our review of a trial court's ruling on a motion to dismiss pursuant to § 52–190a is plenary." Torres v. Carrese , 149 Conn. App. 596, 608, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).

I

The plaintiffs' first claim is that the trial court applied an incorrect legal standard in deciding the defendants' motions to dismiss. The plaintiffs argue that it was improper for the court to consider the affidavits that the defendants attached to their motions because "the issues here do not involve factual issues concerning personal jurisdiction that are not determinable on the face of the record." The plaintiffs aver that "the correct standard on [these] motion[s] is that the court must 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." (Citation omitted; internal quotation marks omitted.) We disagree that the court erred by considering the defendants' affidavits.

Practice Book § 10–30(a) provides in relevant part: "A motion to dismiss shall be used to assert ... (2) lack of jurisdiction over the person ...." A motion to dismiss "shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10–30(c). "[I]f the complaint is supplemented by undisputed facts established by affidavits in support of the motion to dismiss ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations in the complaint.... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; internal quotation marks omitted.) Dorry v. Garden , 313 Conn. 516, 522–23, 98 A.3d 55 (2014).

The court did not err when it considered the defendants' affidavits in deciding their motions to dismiss. Although the...