Trella v. Wal-Mart Stores, Inc. et al

Filing 59

ORDER: For the reasons set forth in the attached Ruling, Middlesex Hospital's Motion to Dismiss (Doc. No 27 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 3/7/17. (Rafferty, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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WENDY TRELLA
:
Plaintiff,
:
:
v.
:
:
WAL-MART STORES, INC.,
:
WAL-MART STORES EAST, INC. &
:
WAL-MART STORES EAST, L.P.
:
Defendants/Third:
Party Plaintiffs,
:
:
v.
:
:
MIDDLESEX HEALTH SYSTEM, INC., :
D/B/A MIDDLESEX HOSPITAL,
:
Third-Party
:
Defendant.
:
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CIV. NO. 3:15-cv-1211 (AWT)

RULING ON MOTION TO DISMISS

Third Party Defendant Middlesex Health System, Inc. d/b/a
Middlesex Hospital (“Middlesex Hospital”) has moved to dismiss the
Third Party Complaint filed by Walmart Stores, Inc., Wal-Mart
Stores East, Inc. and Wal-Mart Stores East, L.P. (collectively
“Wal-Mart”).

For the reasons set forth below, the motion to

dismiss is being denied.

I.

LEGAL STANDARD
Under Connecticut law, prior to filing a claim for medical

malpractice, a plaintiff must first conduct a “reasonable inquiry
. . . to determine that there are grounds for a good faith belief
that there has been negligence in the care or treatment of the

claimant.”

Conn. Gen. Stat. Ann. § 52-190a(a). Furthermore:

[t]he 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
. . . shall obtain a written and signed opinion of a
similar health care provider . . . that there appears to
be evidence of medical negligence and includes a detailed
basis for the formation of such opinion.
Conn. Gen. Stat. § 52-190a(a).

“The failure to obtain and file

the written opinion required by subsection (a) of this section
shall be grounds for dismissal of the action.”
§ 52-190a(c).

Conn. Gen. Stat.

The Connecticut Supreme Court has held compliance

with this statute is “a precondition to effective service of
process for the initiation of a medical malpractice action.”
Morgan v. Hartford Hosp., 301 Conn. 388, 400-01 (2011).
The court sitting in diversity applies Connecticut
substantive law and federal procedural law.

‘“The Second Circuit

has not yet determined whether the requirement of a certificate of
good faith in a medical malpractice action is a substantive or
procedural requirement,”’ but “this Court repeatedly has dismissed
medical malpractice claims brought under Connecticut state law for
failure to comply with Conn. Gen. Stat. § 52-190a.”

Gallinari v.

Kloth, 148 F. Supp. 3d 202, 207 n.1 (D. Conn. 2015) (quoting
Cornelius v. ECHN Rockville Gen. Hosp., No. 3:14-cv-00779 (JAM),
2014 WL 2986688, at *3 (D. Conn. July 1, 2014) (quoting Cole v.
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Greene, No. 3:11-cv-00543 (SRU), 2013 WL 1759571, at *1 (D. Conn.
Apr. 24, 2013))).

In so doing, courts in this district have

treated motions to dismiss for failure to comply with § 52-190a as
motions to dismiss for insufficient process under Fed. R. Civ. P.
12(b)(5).

See Slocum v. U.S. Dep’t Veterans Affairs, No. 3:13-CV-

501(SRU), 2014 WL 4161985, at *1 (D. Conn. Aug. 19, 2014)
(“[B]ecause the Connecticut Supreme Court has held that the
omission of a good faith certificate renders service of process
ineffective, the district court should also treat the deficiency
as a matter of insufficient service of process.”).

Although

Middlesex Hospital filed its motion to dismiss pursuant to Rules
12(b)(2) and 12(b)(6), it based its argument entirely on the
alleged deficiency of service of process under § 52-190a, and
accordingly, the court analyzes the motion as one brought pursuant
to Rule 12(b)(5).
In assessing a Rule 12(b)(5) motion, a court must look to
Rule 4, which governs the content, issuance, and service of a
summons. Under Federal Rule of Civil Procedure 4(m):
If a defendant is not served within 90 days after the
complaint is filed, the court -- on motion or on its own
after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.
But if the
plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Id.

“[W]hen a defendant moves to dismiss under Rule 12(b)(5), the

plaintiff bears the burden of proving adequate service.” Dickerson
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v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010) (alteration in
original) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298
(2d Cir. 2005)).

II.

FACTUAL BACKGROUND
On September 14, 2013, while Plaintiff Wendy Trella

(“Trella”) was shopping at a Wal-Mart store in Wallingford,
Connecticut, a display of one-gallon apple juice boxes fell over
onto her.

Trella suffered the following as a result of this

incident: injuries to her cervical, dorsal, and lumbar spine;
injuries to her head, left shoulder, right hip, right buttock, and
right leg; disc protrusions to her lumbar spine; radiculopathy;
posttraumatic headaches; post-concussive syndrome; pain; spasms;
weakness; and limited range of motion in her neck, back, head,
left shoulder, right hip, right buttock and right leg.
On or about June 16, 2015, Trella was admitted to Middlesex
Hospital to undergo a surgical procedure.

Employees of Middlesex

Hospital placed Trella on an operating room table and administered
sedation.

After Trella was sedated, but before the surgical

procedure began, she was allowed to fall fully or partially off
the operating room table.

Trella alleges that as a result of this

incident, she sustained a head injury, a concussion, a laceration
to the head, cognitive loss, headaches and cognitive impairments.
Wal-Mart alleges that the injuries Trella suffered as a
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result of the June 16, 2015 incident were caused by the
carelessness and negligence of Middlesex Hospital in that its
employees, servants, and/or agents, inter alia, failed to properly
secure Trella to the operating room table, failed to adequately
monitor her movements, and failed to provide adequate staffing so
Trella could be watched after she was sedated.

Wal-Mart further

alleges that if Trella prevails on her claim against Wal-Mart,
Middlesex Hospital is liable for all or a proportionate share of
the liability.

III. DISCUSSION
Middlesex Hospital moves to dismiss the Third-Party Complaint
because Wal-Mart has failed to attach to it a good faith
certification and obtain a good faith expert opinion letter as
required by Conn. Gen. Stat. § 52-190a.

The motion to dismiss is

being denied because this is not a case where compliance with
§ 52-190a is required.
The Connecticut Supreme Court has set forth a framework for
distinguishing malpractice claims from claims involving ordinary
negligence:
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
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reputable member of the profession with the result of
injury, loss, or damage to the recipient of those services.
. . . Furthermore, malpractice presupposes some improper
conduct in the treatment or operative skill [or] . . . the
failure to exercise requisite medical skill . . . . From
those definitions, we conclude that the relevant
considerations in determining whether a claim sounds in
medical malpractice are 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.
Boone v. William W. Backus Hosp., 272 Conn. 551, 562-63 (2005)
(alterations in original) (quoting Gold v. Greenwich Hosp. Ass’n,
262 Conn. 248, 254 (2002)).
Here, the material questions to be analyzed are whether “the
alleged negligence is of a specialized medical nature that arises
out of the medical professional-patient relationship,” and whether
“the alleged negligence is substantially related to medical
diagnosis or treatment and involved the exercise of medical
judgment.”
Middlesex Hospital has submitted the affidavit of Barbara
Thompson, RN, MSN, CNOR.

Thompson avers that:

The Hospital perioperative staff’s conduct in positioning,
securing and monitoring Ms. Trella, a patient under
sedation on the operating room table awaiting imminent
surgery, involves conduct of a specialized nature and
entails the inherent exercise of medical/professional
judgment substantially related to the provision of
medical/surgical services.
There are professional nursing standards, contained in the
[Association of periOperative Registered Nurses (“AORN”)]
Guideline for Positioning the Patient position statement.
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This position statement was developed by the AORN
Recommended Practices Committee and was approved by the
AORN Board of Directors.
It contains a series of
recommendations germane to this topic.
This position
statement was formulated with the intention of informing
perioperative registered nurses’ medical/professional
decision[-]making, with the ultimate goal of minimizing
the risk of perioperative complications, such as the
subject incident.
Thompson Aff. 2, ¶¶ 10-11 (Doc. No. 57-1).

In addition, during

her deposition, in response to the question “So with regard to
positioning, that comes within the purview of the nursing staff?”,
Thompson testified as follows: “No.

It’s – it’s a team based

directed by the physicians and anesthesia with nursing a part of
it.”

Thompson Dep. 71:8-12 (Doc. No. 57-1).
Thompson also testified during her deposition, with respect

to positioning the patient, that “[c]hest rolls . . . are used to
relieve some pressure off the chest” and that “[p]illows are also
used to help support” so that “breathing is not inhibited.”
Thompson Dep. 57:1-12 (Doc. No. 45).

She then testified that

pillows are used “under a knee so you can bend the knees or if the
surgeon wants the back bent.”

Id. at 57:16-17.

It is apparent from Thompson’s testimony that the proper
positioning of the patient is a material step in performing the
surgery and is substantially related to the medical treatment,
i.e. the surgery.

It is also apparent that the proper positioning

of the patient involves the exercise of medical judgment, since
the positioner must take into account the particular procedure
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that is being performed.

However, it is not the positioning of

the plaintiff on the operating room table that is the basis for
the Third-Party Complaint.

Had the plaintiff been positioned

precisely as she was but not been allowed to fall off the table,
Wal-Mart would not be bringing its third-party claim.

That is

because its third-party claim is based on Middlesex Hospital’s
failure to prevent Trella from falling off the operating room
table.

The court agrees with the view expressed by Dr. David B.

Burstein, M.D., that “[p]reventing Ms. Trella from falling off the
[operating room] table was not something that required any medical
training at all,” but rather was “a matter of being attentive and
exercising common sense.”

Burstein Decl. 1 (Doc. No. 56, at 13).

Middlesex Hospital contends that cases such as Consiglio v.
Streeto, 2009 WL 1055206, No. CV0650010967S (Conn. Super. Ct. Mar.
24, 2009), Simoneau v. Stryker Corp., 2014 WL 1289419, No. 3:13CV-1200(JCH) (D. Conn. Mar. 31, 2014), and Gill v. Am. Red Cross,
2013 WL 1149951, No. 3:12-CV-348(JBA) (D. Conn. Mar. 19, 2013),
support its position.

They do not.

Rather, they highlight the

difference between this case and ones where the alleged acts are
ones that do constitute medical malpractice.
In Consiglio, for instance, the court observed that a
“decision to permit [the plaintiff] to ambulate without
supervision in light of his specific medical conditions and taking
into account the treatment he had been rendered, including the
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medications that had been administered to him, required a
determination of a specialized medical nature.”
at *4.

2009 WL 1055206,

In Simoneau, the plaintiff alleged that the hospital owed

a duty to advise and warn her that there had been recalls of
certain hip implants, and to alert her to the possibility that the
hip implant being used in her procedure was defective.
1289419, at *4.

2014 WL

Finally, in Gill, the plaintiff alleged that the

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,’
failed to: ‘conduct the appropriate examination,’ ‘to follow
proper protocol and take a thorough history,’ and ‘to monitor
following the procedure.’”
omitted).

2013 WL 1149951, at *1 (citations

The facts in each of these cases involved an act or

omission requiring the use of medical judgment, which is
distinguishable from the facts alleged here.

One need not have

medical training nor exercise medical judgment to prevent a
patient from falling off an operating room table.

IV.

CONCLUSION
For the reasons set forth above, Middlesex Hospital’s Motion

to Dismiss (Doc. No. 27) is hereby DENIED.
It is so ordered.
Signed this 7th day of March, 2017, at Hartford, Connecticut.
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/s/ AWT
Alvin W. Thompson
United States District Judge

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