Berndtson v. USA

Filing 46

ORDER: For the reasons set forth in the attached Ruling, the Motion to Dismiss (Doc. No. 39 ) is hereby GRANTED in part and DENIED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 3/1/17. (Rafferty, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
LOUIS W. BERNDSTON, JR.,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
:
------------------------------x

Case No. 3:15-CV-1879 (AWT)

RULING ON MOTION TO DISMISS
Plaintiff Louis W. Berndston, Jr. (“Berndston”), who
commenced this action proceeding pro se, brings claims against
the defendant for injuries sustained during and after a surgery
to implant a pacemaker, performed at the Department of Veterans
Affairs Medical Center (“VA”) in West Haven, Connecticut, and
for injuries resulting from the administration of morphine to
the plaintiff following the surgery.
dismiss the Complaint.

The defendant has moved to

For the reasons set forth below, the

motion to dismiss is being granted in part.

I.

FACTUAL BACKGROUND
“The complaint, which [the court] must accept as true for

purposes of testing its sufficiency, alleges the following
circumstances.”
1997).

Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.

On May 14, 2013, during the course of a surgery to

implant a pacemaker device at the VA in West Haven, Connecticut,
the plaintiff suffered a perforation in his heart.
Attach. 1 at 3 (Doc. No. 1-1).

See Compl.

The surgical team drained the

effusion and hoped the perforation would close on its own.
After the surgery, however, the perforation continued to bleed,
and the plaintiff required open-heart surgery to repair the
tear.

Upon discharge from the VA, the plaintiff attended

several follow-up appointments and underwent several
echocardiograms, at which point his doctors determined he would
need a second open-heart surgery to repair additional damage
resulting from the perforation.

During the second open-heart

surgery, the plaintiff’s doctors also created a pericardial
window, which is a permanent hole in the pericardium to allow
for future drainage.
While in recovery at the VA from the initial pacemaker
implantation surgery, the plaintiff was administered morphine
via injection to relieve his pain, despite the fact that the
medical record noted he had a known allergy or adverse reaction
to that medication.

After the morphine injection, the plaintiff

suffered vivid hallucinations lasting about one week.

Also, the

plaintiff’s breathing stopped, and he had to be intubated.

-2-

II.

LEGAL STANDARD
The defendant moves to dismiss this case for insufficient

service of process pursuant to Federal Rule of Civil Procedure
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 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)).
When interpreting the allegations in a pro se complaint,
the court applies “less stringent standards than [those applied
to] formal pleadings drafted by lawyers.”

Haines v. Kerner, 404

U.S. 519, 520 (1972); see also Branham v. Meachum, 77 F.3d 626,
628-29 (2d Cir. 1996).

Furthermore, the court should interpret

the plaintiff’s complaint “to raise the strongest arguments [it]
suggest[s].”

Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994).

-3-

III. DISCUSSION
The plaintiff, although now represented by counsel, filed
his complaint pro se on December 29, 2015, under the Federal
Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”).

“[T]he FTCA directs

courts to consult state law to determine whether the government
is liable for the torts of its employees.”

Liranzo v. United

States, 690 F.3d 78, 86 (2d Cir. 2012) (citing FDIC v. Meyer,
510 U.S. 471, 478 (1994) (“[The] law of the State [is] the
source of substantive liability under the FTCA.” (alterations in
original))).
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.
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.

Pursuant to Rule 4(m), a federal court may
-4-

dismiss a case without prejudice for failure to file a good
faith certificate within 90 days of the filing of the complaint.
See Slocum v. U.S. Dep't of Veterans Affairs, No. 3:13-CV-501,
2014 WL 4161985, at *3 (D. Conn. Aug. 19, 2014) (“Here, Slocum
timely filed a FTCA claim, but the good faith certificate was
not filed with the complaint or served on the defendant within
120 days of the complaint's filing.

Therefore, I could have

dismissed the complaint without prejudice pursuant to Rule
4(m).”)

Since Slocum, the Federal Rules have been amended inter

alia to shorten the time to serve a defendant from 120 days to
90 days.

See Fed. R. Civ. P. 4(m).

Accordingly, the Slocum

analysis still applies, but the time in which a plaintiff must
file and serve on the defendant the good faith certificate is
shortened to 90 days.
The court applies Connecticut substantive tort law and
federal procedural law to FTCA claims.

‘“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. § 52190a.”

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,
-5-

2014) (quoting Cole v. Greene, No. 3:11-cv-00543 (SRU), 2013 WL
1759571, at *1 (D. Conn. Apr. 24, 2013)))).
The defendant argues that because the plaintiff did not
file a good faith certificate, this action should be dismissed
pursuant to Rule 12(b)(5) for insufficient service.

The

plaintiff concedes that he never filed a good faith certificate,
but argues that his claims should be read as claims for lack of
informed consent, which sound in ordinary negligence, not
medical malpractice, and thus were not subject to Conn. Gen.
Stat. § 52-190a.
The plaintiff filed his complaint pro se and throughout
labels his claims as medical malpractice.

See, e.g., Compl. at

2 (“This is a Medical Malpractice case [sic].”); Compl. Attach.
1 at 2 (“ . . . Medical Malpractice has occurred in this
sequence of events [sic].”).

Nevertheless, “the interpretation

of pleadings is always a question of law for the court.”

Boone

v. William W. Backus Hospital, 272 Conn. 551, 559 (2005).

Also,

“[t]he 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.”

Id. at 562.

“[I]n evaluating the pleading, the

court ‘is not bound by the label affixed to that pleading by the
party.’”

Freeman v. United States, 166 F. Supp. 3d 215, 220 (D.

Conn. 2015) (quoting Simoneau v. Stryker Corp., No. 3:13-cv-1200
-6-

(JCH), 2014 WL 1289419, at *3 (D. Conn. Mar. 31, 2014); Votre v.
Cnty. Obstetrics & Gynecology Grp., P.C., 113 Conn. App. 569,
576 (2009)).
“[T]he 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.”
Gold v. Greenwich Hosp. Ass’n., 262 Conn. 248, 254 (2002)
(quoting (Trimel v. Lawrence & Mem’l Hosp. Rehab. Ctr., 61 Conn.
App. 353, 357-58 appeal dismissed, 258 Conn. 711 (2001)).
Because the plaintiff filed his complaint pro se, the court
interprets the complaint to “raise the strongest arguments [it]
suggest[s].”

Burgos, 14 F.3d at 790; see also Buthy v. Comm’r

Office of Mental Health of N.Y. State, 818 F.2d 1046, 1051 (2d
Cir. 1987) (liberally construing the plaintiff’s pro se
complaint even after the plaintiff had retained counsel by the
summary judgment stage).

Counsel for the plaintiff now urges

the court to construe the plaintiff’s claims as being for lack
of informed consent, and thus sounding in ordinary negligence,
rather than for medical malpractice.
Dismiss at 5 (Doc. No. 44).

See Pl. Mem. Opp’n Mot.

“In order to prevail on a cause of

action for lack of informed consent, a plaintiff must prove both
that there was a failure to disclose a known material risk of a
-7-

proposed procedure and that such failure was a proximate cause
of his injury.”

Shortell v. Cavanagh, 300 Conn. 383, 388

(2011).
If the court were to agree that the claims sound in
ordinary negligence, this interpretation would be the strongest
argument the complaint suggests, as the alternative would
require dismissal of the complaint pursuant to Conn. Gen. Stat.
§ 52-190a.

Accordingly, the court has reviewed the plaintiff’s

pro se complaint to determine whether, when construed liberally,
it raises a claim for lack of informed consent.

The court does

not find a claim for lack of informed consent in either count,
but does find a claim for battery in Count II.

Because a claim

for battery does not sound medical malpractice, it is the
strongest argument the complaint suggests.

A.

Count I: Complications Re Pacemaker Implantation

The complaint alleges that on May 14, 2013, the plaintiff
arrived at the VA in West Haven, Connecticut for “routine
pacemaker implantation surgery,” during which:
“Surgeon Dr[.] Paras S[.] Bhatt or a member of his team
tore a hole in [the plaintiff’s] heart while installing
the Pacemaker leads. . . .
The injury also necessitated two open heart surgeries:
the first to assess and repair the damage caused by the
Pacemaker installation surgery, the second (months
later) to clear a resultant tamponade[,] which was
threatening [the plaintiff’s] life.
-8-

The second surgery, to clear the tamponade, also
resulted in the creation of a permanent ‘pericardial
window’ for draining any future effusion.”
Compl. Attach 1 at 2.

Although the complaint gives significant

detail regarding the events occurring during and after the
surgery, along with excerpts from his medical records for
support, nowhere does the plaintiff suggest that had he known of
these risks, he would have opted not to have the surgery.

In

fact, nowhere does he indicate whether he was informed of the
risks, or whether these complications were given as potential
risks.

Nor does he allege that a reasonable patient would want

to be informed of these risks prior to agreeing to the surgery.
The court finds nothing in the plaintiff’s pro se complaint,
even when construed liberally, that suggests a lack of informed
consent.

In fact, the plaintiff meticulously lays out how his

claim meets each element of “medical negligence,” yet nowhere
mentions consent, informed or otherwise.
On the other hand, the plaintiff’s complaint satisfies the
three requirements for a claim to sound in medical malpractice,
as set forth in Gold, 262 Conn. at 254.

First, the defendant is

sued in its capacity as a provider of medical care through the
VA.

Second, the negligence alleged, i.e., injury caused during

a pacemaker implantation surgery, is of a specialized medical
nature that arises out of the medical professional-patient

-9-

relationship.

Third, acts performed during surgery are

substantially related to medical treatment and involve the
exercise of medical judgment.

Because the plaintiff never filed

nor served upon the defendant a good faith certificate, this
claim should be dismissed for insufficient service pursuant to
Fed. R. Civ. P. 12(b)(5).

B.

Count II: Complications Re Morphine Administration

The complaint alleges that at some point during his stay at
the VA, the plaintiff was administered morphine, despite having
a known history of adverse reactions to the drug, specifically,
hallucinations.

The complaint alleges that the plaintiff’s

prior adverse reactions were described clearly in his medical
record, and morphine was listed under “Allergies/Adverse
Reactions,” but the plaintiff still received morphine and was
harmed as a result.

The complaint details the plaintiff’s

previous experience of having been administered morphine, and
the hallucinations he experienced as a result, so the only
reasonable inference is that the plaintiff would not have
consented to the administration of morphine on this occasion,
had consent been sought.
Thus, far from suggesting that the plaintiff wants to
assert a claim based on lack of informed consent because the
plaintiff was not properly warned of the risks of morphine, the
-10-

complaint reflects that the plaintiff was well aware of the
risks, because he had previously experienced the adverse effects
of morphine.

As opposed to claiming that had he been properly

informed the plaintiff would not have consented to the
administration of morphine, the plaintiff’s complaint makes
clear that he was well aware of the potential risk of
hallucinations associated with morphine.

Consequently, there is

no basis for construing the complaint as claiming that any of
the alleged harm to the plaintiff was caused by a lack of
informed consent.
However, the complaint can be construed as asserting a
claim for battery.1

“[M]edical professionals who engage in or

threaten physical contact that has not been consented to, even
when that contact is for purposes of medical diagnosis and
treatment, may be liable for . . . battery under Connecticut
law.”

Telkamp v. Vitas Healthcare Corp. Atlantic, 2016 WL

777906, No. 3:15-CV-726 (JCH) (D. Conn. Feb. 29, 2016).

1

“The

Although 28 U.S.C. § 2680(h) specifically excludes claims for intentional
torts, including battery, from the sovereign immunity waiver effected by the
FTCA, Ҥ 2680(h) does not bar application of the FTCA to tort claims arising
out of the conduct of VA medical personnel within the scope of” what is now
designated as 38 U.S.C. § 7316. . Franklin v. United States, 992 F.2d 1492,
1499-1502 (10th Cir. 1993). The Supreme Court has not addressed this
statutory scheme specifically, but it acknowledged the Tenth Circuit’s
analysis of “§ 7316(f), concerning Department of Veterans Affairs’ medical
personnel, [which] includes an ‘essentially identical counterpart’ to §
1089(e), [concerning military doctors,] which similarly ‘nullif[ies] §
2680(h) and thereby expand[s] the injured party’s remedy against the
government under the FTCA.”’ Levin v. United States, 133 S. Ct. 1224, 1231
(2013) (third and fourth alteration in original) (quoting Franklin, 992 F.2d
at 1501).

-11-

theory of battery as a basis for recovery has generally been
limited to situations where he fails to obtain any consent to
the particular treatment or performs a different procedure from
the one for which consent has been given . . . .”

Logan v.

Greenwich Hosp. Ass’n, 191 Conn. 282, 289 (1983).
Here, the plaintiff’s pro se complaint alleges that the
plaintiff knew the risks morphine posed to him, and he notified
the hospital of his previous adverse reactions to morphine,
which communicated he did not consent to the administration of
morphine.

The complaint further alleges that the hospital

administered morphine to the plaintiff via injection despite his
lack of consent.

Because a claim for battery does not sound in

medical malpractice, it need not be served with a certificate of
good faith nor a medical opinion as contemplated by Conn. Gen.
Stat. § 52-190a, and thus should not be dismissed for
insufficient service under Fed. R. Civ. P. 12(b)(5).

IV.

CONCLUSION
For the reasons set forth above, the defendant’s Motion to

Dismiss (Doc. No. 39) is hereby GRANTED in part and DENIED in
part.

Any claims for medical malpractice or lack of informed

consent are dismissed.

A claim for battery remains.

-12-

It is so ordered.
Signed this 1st day of March, 2017, at Hartford, Connecticut.

___/s/ AWT___________________
Alvin W. Thompson
United States District Judge

-13-