Gill et al v. American Red Cross et al
ORDER: Defendants' Motion 17 to Dismiss is GRANTED. The Clerk is directed to close the case. Signed by Judge Janet Bond Arterton on 03/19/2013. (Flagg, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Joan F. Gill,
American Red Cross,
American Red Cross Connecticut Region, and
American National Red Cross
Civil No. 3:12cv348 (JBA)
March 19, 2013
RULING ON MOTION TO DISMISS
Plaintiff Joan Gill as successor, executrix, and surviving spouse of Frank A. Gill
filed suit against the American Red Cross, a congressionally chartered “non–profit, tax–
exempt, charitable institution,” alleging wrongful death (Count One) pursuant to
Connecticut General Statutes § 52-555 and loss of consortium (Count Two) for the
circumstances arising out of her husband’s death shortly after donating blood in February
2010. Defendants move [Doc. # 17] to dismiss Plaintiff’s Complaint for lack of personal
jurisdiction because she has not complied with the requirements of Conn. Gen. Stat. § 52190a, requiring a good faith certificate or similar health care provider opinion letter for
claims alleging medical negligence. Because the Court concludes that the Complaint
clearly is alleging negligence related to the exercise of medical judgment, Defendants’
motion will be granted.
On February 9, 2010, Plaintiff’s decedent, age 70, went to Westfield Congregation
Church in Danielson, Connecticut to donate blood. (Compl. ¶¶ 4–5.) There, an “agent,
apparent agent, servant and/or employee of the American Red Cross . . . drew blood from
Mr. Gill.” (Id. ¶ 6.) Shortly after giving blood, Mr. Gill collapsed and died a few days later.
(Id. ¶¶ 7, 9.)
Plaintiff alleges that Defendants were negligent in failing to perform appropriate
tests prior to drawing Mr. Gill’s blood, including “pulse rate, blood pressure, temperature,
hemoglobin, hematocrit and platelet count” (id. ¶ 8a), failed to: “conduct the appropriate
examination,” “to follow proper protocol and take a thorough history,” and “to monitor
following the procedure” (id. ¶ 8b–d). Plaintiff also alleges that Defendants failed to train
their personnel in these areas. (Id. ¶ 8e.)
Plaintiff’s Complaint claims that Defendants failed to warn Mr. Gill of the
attendant dangers and risks and permitted the procedure though they knew or should
have known that:
unsafe levels existed causing dangers [that] could be fatal;
medications which were contraindicative to donating blood were in his
he had unsafe levels of iron and lack of hydration;
Mr. Gill should not have given blood on February 9, 2010;
It was potentially dangerous for Mr. Gill to give blood on February 9,
2010 because of his medical condition; and that they should not have
allowed him to give blood that day.
(Id. ¶ 8g–l.)
The Complaint continues, that as a result of the Defendants’ alleged carelessness
and negligence, Mr. Gill was “caused to suffer significant injuries, all of which caused him
physical and mental pain and suffering and ultimately resulted in a violent and untimely
death on February 14, 2010, including anastomotic brain injury, cardiac arrest and
ventricular fibrillation.” (Id. ¶ 9.)
Defendants move to dismiss the Complaint in its entirety, because Plaintiff has
failed to attach the opinion letter required under Conn. Gen. Stat. 52-190a(a), 1 without
which service of process is insufficient and dismissal for lack of personal jurisdiction is
required. They argue that because Plaintiff’s allegations of negligence concern conduct of
a specialized medical nature beyond lay knowledge, this complaint sounds in medical
malpractice and requires the opinion letter. Plaintiff asserts that her complaint only
alleges ordinary negligence and that her allegations do not fit the Connecticut Supreme
Court’s criteria for medical malpractice, because no healthcare provider–patient
relationship2 is inferable from Mr. Gill’s voluntary blood donation at a church, nor is
Conn. Gen. Stat. § 52-190a provides:
(a) No civil action or apportionment complaint shall be filed to recover
damages resulting from personal injury or wrongful death occurring on or
after October 1, 1987, whether in tort or in contract, in which it is alleged
that such injury or death resulted from the negligence of a health care
provider, unless the attorney or party filing the action or apportionment
complaint has made a reasonable inquiry as permitted by the
circumstances to determine that there are grounds for a good faith belief
that there has been negligence in the care or treatment of the claimant.
The complaint, initial pleading or apportionment complaint shall contain
a certificate of the attorney or party filing the action or apportionment
complaint that such reasonable inquiry gave rise to a good faith belief that
grounds exist for an action against each named defendant or for an
apportionment complaint against each named apportionment defendant.
To show the existence of such good faith, the claimant or the claimant's
attorney, and any apportionment complainant or the apportionment
complainant's attorney, shall obtain a written and signed opinion of a
similar health care provider.
“Health care provider” is defined by the General Statutes as: “any person,
corporation, facility or institution licensed by this state to provide health care or
professional services, or an officer, employee or agent thereof acting in the course and
scope of his employment.” Conn. Gen. Stat. § 52-184b.
medical diagnosis or treatment implicated. Plaintiff argues, therefore, that the
requirements of Trimel are not met and the personal jurisdiction requirement of Conn.
Gen. Stat. § 59-190a does not apply here.
Conn. Gen. Stat. § 52-190a requires a substantive determination of whether the
claim is in actuality one of ordinary negligence or medical negligence, requiring a close
review of the circumstances under which the negligence occurred in order to draw that
line. The Connecticut Appellate Court has set out a three–factor test:
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.
Trimel v. Lawrence & Mem’l Hosp. Rehabilitation Ctr., 61 Conn. App. 353, 357 (2001)
(cited with approval and adopted in Gold v. Greenwich Hosp. Ass’n, 262 Conn. 248, 254
(2002)). In Trimel, the Appellate Court concluded that the plaintiff, who suffered from
multiple sclerosis and sued her rehabilitation center for failure to supervise her while she
transferred herself out of her wheelchair, resulting in her fall, was claiming medical
malpractice not ordinary negligence. “[T]he plaintiff was in the defendants’ facility for
treatment, the plaintiff’s treatment had included unassisted transfers with supervision,
and the plaintiff’s injury resulted from a mishap during a transfer without supervision. It
was a medical professional’s judgment that allowed the transfer to proceed unassisted.”
Id. at 363–64.
Defendants urge that Plaintiff’s earlier motion for extension of the statute of
limitations pursuant to § 52-190a(b)3 to permit compliance with the opinion letter
Conn. Gen. Stat. § 52-190a(b) provides:
requirement belies her current characterization of her claim as one of ordinary
Defendants rely on three cases against the American Red Cross in support of their
argument that this is a medical malpractice cause of action. The two which were decided
on summary judgment4 are less helpful to the analysis at the motion to dismiss stage,
although they both required evidence of standards of care for drawing blood. However,
the third case, Bauman v. American National Red Cross, 262 F. Supp. 2d 965, 968 (C.D.
Ill. 2003), specifically addressed allegations of “where and how to inject a needle for
drawing blood,” and concluded:
The standard of care governing this type of decision clearly involves
medical learning or principles, and is not within the knowledge of most lay
people. The allegation that the agents, representatives, or employees of the
Red Cross drew Baumann’s blood in an improper manner “is effectively an
allegation that [they] showed a want of skill . . . in the preparation and
performance of [their] medical duties” and “failed to exercise adequate
care in rendering service,” which “is one definition of malpractice.”
Upon petition to the clerk of the court where the civil action will be filed to
recover damages resulting from personal injury or wrongful death, an
automatic ninety–day extension of the statute of limitations shall be
granted to allow the reasonable inquiry required by subsection (a) of this
See Milton v. American Red Cross, 19 F. App’x 676 (9th Cir. 2001) (in a medical
malpractice action, affirming grant of summary judgment where the plaintiff had failed to
produce any evidence “regarding whether Red Cross deviated from the established
standard of health care when drawing her blood.”); Clark v. American Nat. Red Cross, No.
Civ. 04-765-HA, 2006 WL 696256, at *1 (D. Or. 2006) (In a medical malpractice action
where plaintiff alleged that “the insertion of a large drawing needle into plaintiff's left arm
caused immediate sharp pain and damaged plaintiff's “left lateral antebrachia cutaneous
nerve” severely,” the defendant was entitled to summary judgment because “Plaintiff fails
to establish what the reasonable professional practice for blood draws is in the Portland
community, a question that falls outside the knowledge of a typical jury. Plaintiff also fails
to raise any material issue of fact regarding in what manner the venipuncturist might
have failed to comply with that standard.”).
Therefore, although Baumann was not a “patient” receiving “medical
treatment” in the traditional sense from the Red Cross, . . . this case is one
for medical malpractice rather than simple negligence.
262 F. Supp. 2d at 968 (internal citations omitted).
While Mr. Gill as a blood donor may not fit into the traditional paradigm
described in Trimel of a “patient” receiving “medical treatment,” Plaintiff’s Complaint
contains allegations that undoubtedly involve the exercise of medical judgment—
appropriate testing, including tests regarding “pulse rate, blood pressure, temperature,
hemoglobin, hematocrit and platelet count.” (Id. ¶ 8a.) Lay jurors would have no idea
what such test results mean nor what conduct constitutes negligence without medical
professional testimony. Further, Plaintiff makes no claim that Defendants’ personnel
collecting Mr. Gill’s blood acted outside of a regulated context under medical supervision,
particularly where FDA regulations for blood collection require this function to be
performed by qualified physicians or trained assistants. See 21 C.F.R. § 640.4.5 The
testing, protocol, and monitoring deficiencies Plaintiff alleges unquestionably implicate a
medical assessment as to whether Mr. Gill was or was not a medically appropriate
candidate for a safe blood donation, see Trimel, 61 Conn. App. at 357, which is necessarily
“Collection of the blood,” 21 C.F.R. § 640.4(a) provides:
Supervision. Blood shall be drawn from the donor by a qualified physician
or under his supervision by assistants trained in the procedure. A
physician shall be present on the premises when blood is being collected,
except that blood may be collected when a physician is not present on the
premises, provided the establishment (1) maintains on the premises, and
files with the Center for Biologics Evaluation and Research, a manual of
standard procedures and methods, approved by the Director of the Center
for Biologics Evaluation and Research, that shall be followed by employees
who collect blood, and (2) maintains records indicating the name and
qualifications of the person immediately in charge of the employees who
collect blood when a physician is not present on the premises.
beyond a layperson’s ability to make an informed judgment about. Although Mr. Gill’s
purpose in donating blood was altruistic and not to obtain treatment or diagnosis in a
traditional sense, the alleged failures of care are for medical negligence in assessing and
monitoring his medical condition in Defendants’ implementation of their decision to
collect his blood. Consequently, this action cannot be one of ordinary negligence, and
Plaintiff’s failure to obtain and file an opinion letter requires that the action be dismissed
pursuant to Conn. Gen. Stat. § 52-190a(c).6
For the reasons discussed above, Defendants’ motion [Doc. # 17] to dismiss
Plaintiff’s Complaint is GRANTED. The Clerk is directed to close the case.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 19th day of March, 2013.
“The failure to obtain and file the written opinion required by subsection (a) of
this section shall be grounds for the dismissal of the action.” Conn. Gen. Stat. § 52190a(c).
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