Lapierre v. Mandell and Blau, M.D.'S, P.C., 122920 CTCA, AC 42948

Docket Nº:AC 42948
Opinion Judge:ALEXANDER, J.
Party Name:JOSEPH H. LAPIERRE III, SUCCESSOR EXECUTOR ESTATE OF ISABELLA LAPIERRE v. MANDELL AND BLAU, M.D.'S, P.C., ET AL.
Attorney:Robert J. Williams, Jr., for the appellant (plaintiff). David J. Robertson, with whom, on the brief, was Laura M. Glogovsky, for the appellees (defendants).
Judge Panel:Lavine, Alexander and Flynn, Js.
Case Date:December 29, 2020
Court:Appellate Court of Connecticut

JOSEPH H. LAPIERRE III, SUCCESSOR EXECUTOR ESTATE OF ISABELLA LAPIERRE

v.

MANDELL AND BLAU, M.D.'S, P.C., ET AL.

No. AC 42948

Court of Appeals of Connecticut

December 29, 2020

Argued September 21-2020

Procedural History

Action to recover damages for medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Hon. A. Susan Peck, judge trial referee, granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

Robert J. Williams, Jr., for the appellant (plaintiff).

David J. Robertson, with whom, on the brief, was Laura M. Glogovsky, for the appellees (defendants).

Lavine, Alexander and Flynn, Js. [*]

OPINION

ALEXANDER, J.

The plaintiff, Joseph H. LaPierre III, successor executor of the estate of Isabella LaPierre (decedent), appeals from the judgment of the trial court dismissing his action against the defendants, Mandell & Blau, M.D.'s, P.C., doing business as Open MRI of Connecticut, and physicians Alisa Siegfeld, Neal D. Barkoff and Richard Glisson, for lack of personal jurisdiction based on his failure to attach to his complaint an opinion letter from a similar health care provider as required by General Statutes § 52-190a. [1] On appeal, the plaintiff claims that the court erred in its determination because the complaint sounded in ordinary negligence, not med- ical malpractice, and therefore was outside the scope of § 52-190a. We are not persuaded and, accordingly, affirm the judgment of the trial court.

The following facts, as pleaded in the plaintiff's complaint, and procedural history are relevant to our resolution of this appeal. The complaint alleged that, on May 6, 2016, ‘‘the [decedent] was a patron of and scheduled for [a magnetic resonance imaging (MRI) scan] at the MRI facility [owned and/or controlled by the defendants] located . . . [in] Glastonbury . . . [and], while undergoing an MRI, was caused to fall off the MRI table and subsequently allowed to fall out of a wheelchair, thereby causing her to incur . . . injuries and losses . . . . '' The complaint further alleged that the decedent's injuries and losses were caused by ‘‘the negligence and carelessness of the defendants, their agents and/or employees . . . . '' Specifically, the complaint alleged, inter alia, that the MRI table was ‘‘devoid of restraints so that it rendered [the decedent's] use of it hazardous and dangerous''; that ‘‘the MRI table was defective and in disrepair so that it rendered [a] patron's use of it hazardous and dangerous''; that ‘‘the MRI table was not reasonably safe for the uses and purposes intended''; that ‘‘the defendants, in the exercise of reasonable care and inspection, should have known of these conditions and should have remedied the same, yet failed to do so''; that ‘‘the defendants negligently and carelessly allowed the MRI table to remain in use without restraints''; that ‘‘the defendants failed to warn the [decedent] and others lawfully on said premises of the lack of restraints on the MRI table''; that ‘‘the MRI table was insufficiently inspected, maintained and repaired, so that it rendered [a] patron's use of it hazardous and dangerous''; that ‘‘the defendants failed to hire properly fit and trained personnel''; that ‘‘the defendants failed to properly train and supervise their personnel''; and that ‘‘the defendants failed to monitor the [decedent] while she wasa patron at the facility.'' The plaintiff did not attach an opinion letter to the complaint from a similar health care provider.

On July 5, 2018, the defendants filed a motion to dismiss and a memorandum of law in support thereof, arguing that the court lacked personal jurisdiction over them. Specifically, they argued that the plaintiff's claim sounded in medical malpractice and that, pursuant to § 52-190a, the plaintiff was required to attach to the complaint an opinion letter written and signed by a similar health care provider.2 The defendants further argued that the plaintiff's failure to do so deprived the court of personal jurisdiction over them. On November 28, 2018, the plaintiff filed a memorandum of law in opposition to the motion to dismiss, arguing that the complaint did not allege any breach of a medical standard of care or the exercise of medical judgment and that the test for what constitutes a claim for medical malpractice, as outlined in Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63, 864 A.2d 1 (2005), had not been met. Therefore, he argued, the complaint sounded in ordinary negligence and an opinion letter was not required.

On December 3, 2018, the court heard arguments on the motion to dismiss and, on March 15, 2019, issued an order stating that an evidentiary hearing was required to address the jurisdictional issue. On April 26, 2019, the court held the additional hearing on the jurisdictional issue, and both sides presented further argument, but neither side elected to present any evidence. On April 30, 2018, the court issued its memorandum of decision granting the motion to dismiss, finding that the plaintiff had failed to establish that his complaint sounded in ordinary negligence, and, therefore, § 52-190a applied to the complaint, and the plaintiff failed to comply with the statutory requirements.

On appeal, the plaintiff claims that the court erred in granting the defendant's motion to dismiss. Specifically, he argues that the allegations of the complaint sounded in ordinary negligence, and, therefore, the requirements of § 52-190a, namely, the attaching of a written and signed opinion letter from a similar medical provider, did not apply. The defendants counter that § 52-190a does apply because the factors for determining whether a cause of action sounds in medical malpractice, as outlined in Boone v. William W. Backus Hospital, supra, 272 Conn. 562-63, are met by the allegations of the complaint. We agree with the defendants.

‘‘The standard for reviewing a court's ruling on a motion to dismiss pursuant to Practice Book § 10-30 (a) (2) is well settled. 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. . . . 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. . . . 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...

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