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           YOUNG v. HARTFORD HOSPITAL—DISSENT

   DEVLIN, J., dissenting. In this lawsuit, the plaintiff,
Wendy Young, seeks damages for injuries she allegedly
received while undergoing a robotic hysterectomy at
the defendant, Hartford Hospital. The plaintiff asserts
that her complaint sounds only in ordinary negligence
and, therefore, that the requirements to attach a good
faith certificate and written opinion regarding medical
negligence pursuant to General Statutes § 52-190a are
inapplicable. The trial court disagreed and granted the
defendant’s motion to dismiss. The majority reverses
based on its view that, when read ‘‘holistically and rea-
sonably,’’ the complaint, at least in part, alleges ordinary
negligence. In my view, the plaintiff’s complaint alleging
injury suffered during major surgery caused by a sophis-
ticated piece of medical equipment alleges medical neg-
ligence and only medical negligence. Accordingly, I
respectfully dissent.
   The plaintiff’s complaint alleges the following rele-
vant facts.1 On May 11, 2016, the defendant possessed
a robotic surgical system used to assist in performing
hysterectomies. The plaintiff, on that same date, had a
robotic hysterectomy performed by Catherine C. Grazi-
ani, a physician. In the days following the surgery, the
plaintiff experienced pain and ‘‘a black and blue’’ on
her left side. On June 10, 2016, at an office visit with
Graziani, the plaintiff learned that a robotic camera
fell on her left side. Graziani had told the defendant’s
employees in charge of the machine, but the plaintiff
was not told of the incident.
  The plaintiff’s complaint alleged seven specifications
of negligence:
  ‘‘a. allowing defective robotic equipment to be used
in assisting with a surgical procedure;
   ‘‘b. failing to inspect the robotic equipment prior to
its use on the plaintiff;
  ‘‘c. failing to properly secure the camera so that it
does not fall on patients;
  ‘‘d. failing to properly train its medical equipment
personnel to recognize that the camera was not secure
and could fall on patients;
  ‘‘e. operating the robot in such a manner to cause
the camera to fall;
  ‘‘f. failing to notify the plaintiff that the camera fell
on her;
   ‘‘g. failing to warn the plaintiff that the camera could
fall on her.’’
  The issues raised in the defendant’s motion to dismiss
were (1) whether the plaintiff’s complaint is brought
against a health care provider and (2) whether it must
be supported by a certificate of good faith and written
opinion from a similar health care provider that there
appears to be evidence of medical negligence. See Gen-
eral Statutes § 52-190a. It is undisputed that the com-
plaint lacked such certificate and opinion. If the com-
plaint had, in fact, been brought against a health care
provider and alleged only medical negligence, this is a
fatal defect.
   The trial court concluded that the plaintiff com-
menced this action against the defendant in its capacity
as a health care provider, and that the plaintiff’s allega-
tions against the defendant arose out of the medical
professional-patient relationship and were of a special-
ized medical nature, and were related to her medical
treatment and involved the exercise of medical judg-
ment. Accordingly, the court determined that the plain-
tiff’s failure to attach to her complaint a certificate of
good faith and a written opinion by a similar health
care provider in accordance with § 52-190a mandated
the dismissal of her claims.
   The majority agrees, as do I, that the defendant is a
health care provider under applicable Connecticut law;
so the question comes down to whether the plaintiff’s
claim is one of ordinary negligence, as she asserts, or
medical negligence. As the majority correctly states,
this question is resolved by application of the three
part test set forth in Trimel v. Lawrence & Memorial
Hospital Rehabilitation Center, 61 Conn. App. 353, 764
A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889
(2001). Based on Trimel, the relevant considerations
in determining whether a claim sounds in medical mal-
practice 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 involves the exer-
cise of medical judgment. Id., 357–58.
   As to the first prong of Trimel, the majority agrees
that the defendant has been sued in its capacity as a
health care provider. The majority further agrees that
the alleged negligence arose out of the medical profes-
sional-patient relationship. In the majority’s view, how-
ever, it is ‘‘not clear’’ that the injury necessarily was
caused by negligence of a specialized medical nature
or that the alleged negligence involved the exercise of
medical judgment.
   A review of the cases in this area, both in Connecticut
and around the country, demonstrates that allegations
like those in the present case involved alleged negli-
gence of a specialized medical nature that is substan-
tially related to medical treatment and necessarily
involve the exercise of medical judgment.
  In Nichols v. Milford Pediatric Group, P.C., 141
Conn. App. 707, 64 A.3d 770 (2013), this court addressed
a similar issue of whether negligence alleged during the
drawing of a blood sample in the course of a physical
exam satisfied the Trimel test and, thus, constituted a
claim of medical negligence. While his blood was being
collected, the plaintiff fell face first onto the floor of
the examining room, sustaining an injury. Id., 708. This
court stated: ‘‘A physical examination is care or treat-
ment that requires compliance with established medical
standards of care and, thus, necessarily is of a special-
ized medical nature.’’ Id., 714. As to whether the alleged
negligence related to medical diagnosis or treatment
and involved the exercise of medical judgment, the
plaintiff alleged that the defendant improperly trained
and supervised the agent who collected the plaintiff’s
blood. Id., 714–15. This court stated that ‘‘[a] physical
examination is related to medical diagnosis and treat-
ment of a patient; therefore, any alleged negligence
in the conducting of such examination is substantially
related to medical diagnosis or treatment. Further,
whether the defendant acted unreasonably by allowing
a medical assistant to collect blood samples unsuper-
vised and in the manner utilized and whether it suffi-
ciently trained its employee to ensure that any blood
collection was completed in a safe manner . . . clearly
involves the exercise of medical knowledge and judg-
ment.’’ (Internal quotation marks omitted.) Id., 715.
   In Votre v. County Obstetrics & Gynecology Group,
P.C., 113 Conn. App. 569, 966 A.2d 813, cert. denied,
292 Conn. 911, 973 A.2d 661 (2009), the plaintiff sought
damages for the ‘‘falsehoods and broken promises’’ with
respect to whether the defendant had consulted with
and, should have referred the plaintiff to, the high risk
pregnancy group at Yale-New Haven Hospital. Id., 573–
75. In affirming the dismissal of the plaintiff’s complaint,
this court noted that, ‘‘[a]lthough the plaintiff denomi-
nated the claims in her complaint as sounding in tort
and breach of contract, the factual allegations underly-
ing the claims require proof of the defendant’s deviation
from the applicable standard of care of a health care
provider . . . . It is not the label that the plaintiff
placed on each count of her complaint that is pivotal
but the nature of the legal inquiry.’’ Id., 580.
  In Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969),
the issue was whether the case should have been pre-
sented to the jury under instructions for ordinary negli-
gence or medical malpractice. The plaintiff, an eighty-
one year old woman, fell while disrobing in a dressing
room while a patient at the defendant physician’s office.
Id., 569. Our Supreme Court held that, contrary to the
plaintiff’s claims, ‘‘[t]he determination whether the
[plaintiff] needed help in disrobing . . . called for a
medical judgment on the part of the physician’’ and,
thus, the case was properly categorized as medical mal-
practice. Id., 573.
   The situations where our courts have supported the
plaintiff’s theory of ordinary negligence are clearly dis-
tinguishable from the present case. See, e.g., Badrigian
v. Elmcrest Psychiatric Institute, Inc., 6 Conn. App.
383, 386, 505 A.2d 741 (1986) (action based in ordinary
negligence when patient receiving treatment at defen-
dant’s outpatient facility was struck and killed by car
as he crossed street to get lunch at defendant’s inpatient
facility); see also Multari v. Yale-New Haven Hospital,
Inc., 145 Conn. App. 253, 259, 75 A.3d 733 (2013) (Trimel
test was not satisfied when grandmother, who was
ordered to take disruptive child and leave hospital,
tripped and fell while carrying child).
   Cases from other states have ruled that medical
equipment failure amounts to medical malpractice. See,
e.g., Corbo v. Garcia, 949 So. 2d 366, 370 (Fla. App.
2007) (The court found, in an action where the plaintiff’s
arms were burned while receiving treatment from a
physical therapy machine, that, ‘‘[t]he basis for [the
plaintiff’s] claim is that the petitioners negligently
administered a treatment modality. Therefore, her
injury occurred during medical treatment, and in order
to prove her claim, she must prove that the petitioners
did not properly maintain their electrical stimulation
equipment, which falls within the standard of care in
treating a patient with that equipment. . . . The fact
that the injury was caused by the use of the equipment
during the rendering of medical treatment takes [the
plaintiff’s] claim into the realm of medical negligence.’’);
Goldman v. Halifax Medical Center, Inc., 662 So. 2d
367, 368, 370 (Fla. App. 1995) (medical malpractice
notice requirements applicable to plaintiff’s claim of
injury when mammogram equipment, improperly cali-
brated, applied too much pressure, causing plaintiff’s
silicone breast implants to rupture).
   In the present case, the defendant cites to Moll v.
Intuitive Surgical, Inc., United States District Court,
Docket No. 13-6086 (EEF) (E.D. La. April 1, 2014), to
support its claim that the plaintiff’s complaint satisfies
the Trimel test. The majority acknowledges Moll but
ultimately finds it unpersuasive. To be sure, that case
is not strictly binding on this court and the plaintiff’s
complaint in Moll was far more detailed than the present
case. That said, the reasoning in Moll and its application
of the Louisiana Supreme Court’s six factor test for
determining whether particular conduct is considered
medical malpractice; see Coleman v. Deno, 813 So. 2d
303, 315–18 (La. 2002); is instructive. Moll concerned
the identical robotic hysterectomy procedure involved
in the present case and the alleged malfunction of the
robotic equipment allegedly caused the plaintiff’s
injury. In ruling that the claims were properly consid-
ered medical malpractice, the District Court noted that
(1) the defect in the device is properly considered treat-
ment because, unlike a hospital bed or other objects
the hospital owns, the device is used only in medical
procedures, (2) expert testimony is likely necessary to
test the surgeon’s decision as to whether and how to use
the device, (3) the incident occurred during a surgical
procedure, and (4) the injury would not have occurred if
the plaintiff had not sought treatment. Moll v. Intuitive
Surgical, Inc., supra, United States District Court,
Docket No. 13-6086.
   The present case is not one in which a nonpatient is
injured on hospital grounds under circumstances unre-
lated to medical treatment. To the contrary, the plaintiff
was allegedly injured during a surgical procedure. Look-
ing beyond the plaintiff’s label and to the nature of
the legal injury, the defendant’s alleged conduct fits
squarely within the definition of medical negligence set
forth in Trimel as well as the cases cited herein. All of
the plaintiff’s allegations of negligence: allowing the
use of the equipment in the surgery, inspection of the
equipment prior to its use on the plaintiff, failing to
secure the camera, failing to train medical equipment
personnel, operating the robot, and failing to properly
advise the plaintiff, relate to her medical treatment and
involve the exercise of medical judgment. As such, these
allegations should be supported by a certificate of good
faith and written opinion as to medical negligence.
      I would affirm the trial court’s judgment of dismissal.
  1
     The majority aptly points out that the complaint alleges a ‘‘paucity of
facts.’’ Indeed, the central allegation of the mechanism of injury—‘‘the plain-
tiff was told that the robotic camera fell on the plaintiff’s left side’’—is not
an allegation of fact but rather of evidence. Notwithstanding such deficienc-
ies, the court’s role on a motion to dismiss is not to examine the sufficiency
of the complaint but whether, as a matter of law, the plaintiff cannot state
a cause of action that is properly before the court. See, e.g., Egri v. Foisie,
83 Conn. App. 243, 247–48, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859
A.2d 930 (2004).
