Favors v. Procare Physical Therapy & Sports Medicine LLC
In ruling whether a claim sounds in medical malpractice, courts may consider 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 involves the exercise of medical judgment. Allegedly, a physical therapist who worked at Procare Physical Therapy & Sports Medicine LLC applied a "Biotone" or "Biofreeze" massage gel, and the plaintiff's skin exhibited a rash. The plaintiff sued and alleged that the defendants were negligent and failed to train an agent or employee to test the plaintiff's skin for an allergic reaction, prior to using a new massage gel, and failed to properly clean the plaintiff's skin, after the massage gel had been applied. The defendants moved to dismiss, and argued that the plaintiff did not file a certificate of good faith, pursuant to Connecticut General Statutes §52-190a. The court considered whether the plaintiff's complaint sounded in ordinary negligence or medical malpractice. The court found that the plaintiff sued the defendants in their capacities as healthcare providers, and that the alleged negligence is of a specialized professional health care nature that arises out of the health care professional-patient relationship. The alleged negligence also is substantially related to professional health care diagnosis or treatment. The court found that the plaintiff's complaint sounded in medical malpractice, as opposed to ordinary negligence, and that the plaintiff was required to file a certificate of good faith. The plaintiff did not file a certificate of good faith, and the court granted the defendants' motion to dismiss.