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DOCKET NO.: FST-CV24-5030008-S
KISTLER, SHARON ET AL., : SUPERIOR COURT
Plaintiffs, :
: JUDICIAL DISTRICT OF STAMFORD
v. : AT STAMFORD
:
WHITING FORENSIC HOSPITAL, :
Defendant : APRIL 12, 2024
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS
Pursuant to Practice Book § 10-30, defendant, Whiting Forensic Hospital (“Whiting”)
moves to dismiss the Complaint, dated February 16, 2024, for lack of subject matter jurisdiction.
On January 25, 2024, pursuant to Conn. Gen. Stat. § 54-56d a Superior Court judge
ordered DeNunzio committed to Whiting for competency restoration in connection with pending
criminal charges. Kistler on her behalf and on her son’s behalf, through an alleged power of
attorney, has brought this action asserting nine causes of action against Whiting and seeking a
jury trial, monetary and punitive damages, and a discharge order. The gravamen of these claims
is the alleged deficiencies in the medical care Whiting is providing to DeNunzio.
The Court must dismiss the Complaint for four main reasons.
FIRST: The so-called power-of-attorney that Kistler relies on for her authority to bring
the action in DeNunzio’s name is legally insufficient to confer such authority upon her.
SECOND: Kistler lacks standing to assert any claims. The alleged conduct and
corresponding harms are personal to DeNunzio, not plaintiff Kistler. The Complaint does not
allege any harm to Kistler that is actionable under any of the asserted causes of action, and none
of the alleged causes of action provides for derivative claims under the alleged facts.
THIRD: The first cause of action for medical malpractice and the remaining eight
causes of action that essentially sound in medical malpractice must be dismissed because
plaintiffs failed to attach to the Complaint a good faith certificate and an opinion letter from a
similar medical provider as required by Conn. Gen. Stat. § 52-190a.
FOURTH: To the extent that any of the causes of action do not sound in medical
malpractice, the doctrine of sovereign immunity bars those claims. The Complaint does not
allege a legally recognized exception to sovereign immunity. Whiting cannot be sued for
damages absent a legally recognized exception to its sovereign immunity.
I. BACKGROUND
1. The General Allegations
This action arises from a court’s order under Conn. Gen. Stat. § 54-56d committing
DeNunzio to Whiting for competency restoration in connection with pending criminal charges. 1
Whiting is under the control and supervision of the Department of Mental Health and Addiction
Services, a state Agency. Conn. Gen. Stat. §§ 4-38c; 17a-562. Through the nine-count
Complaint Kistler, on her behalf and on DeNunzio’s behalf, seeks a jury trial, compensatory and
punitive damages, and an order immediately discharging DeNunzio from Whiting. 2 Complaint
(“Compl.”), p. 27. DeNunzio’s history includes psychiatric disabilities and Kistler’s unhelpful
“constant second-guessing of the professionals in charge of Douglas’ care, [that] causes
inconsistent care, duress, anxiety and perseveration to” Douglas DeNunzio. Denunzio v.
Denunzio, 320 Conn. 178, 181-83, 185 (2016) (affirming probate court’s determination that
DeNunzio’s father, instead of Kistler, should be DeNunzio’s conservator).
1
The judicial website lists seven pending cases for DeNunzio with offense dates from October
26, 2020 through October 20, 2023. The offenses include two C felonies, six D felonies, three A
misdemeanors, and five C misdemeanors. Because several of the cases include assault charges it
is unclear for which case(s) DeNunzio was in court on January 25, 2024. Compl, ¶ 13.
2
The Complaint alleges there are several other defendants. Compl., ¶ 1. However, plaintiff has
withdrawn the action against all defendants except for Whiting. Withdrawal (Entry 101.00).
2
In general, the Complaint evinces Kistler’s dissatisfaction with the criminal court
competency proceedings, the public defender’s handling of the criminal case, and Whiting staff’s
alleged failure to recognize the power-of-attorney and provide medical treatment to DeNunzio in
accordance with Kistler’s views regarding DeNunzio’s medical condition and medication needs.
However, the essential allegations are that Whiting “ignored or dismissed Kistler’s Power of
Attorney” (Compl., ¶ 17), Kistler was prevented from visiting DeNunzio (Compl., ¶ 18), Whiting
is providing DeNunzio with medical care that does not meet the standard of care (Compl., ¶¶ 19,
25, 26, 45), and DeNunzio is being unlawfully imprisoned (Compl., ¶ 29).
Kistler asserts that a “power of attorney” grants her the authority to bring this action on
DeNunzio’s behalf. Compl., ¶¶ 16, 17, 18, 63, 109, 110, 111, 137, 138, 139, 140, 141, 142, 157,
158, 160, 161, 167, 172, 177, 178 and p. 28.
As discussed below, the Court must dismiss the Complaint for lack of standing, failure to
comply with Conn. Gen. Stat. § 52-190a, and because the doctrine of sovereign immunity bars
plaintiffs’ claims.
II. STANDARD OF REVIEW
A. Motion to Dismiss for lack of jurisdiction.
“The standard of review of a motion to dismiss is well established. In ruling upon
whether a complaint survives a motion to dismiss, a court must take the facts to be those
alleged in the complaint, including those facts necessarily implied from the allegations,
construing them in a manner most favorable to the pleader. A motion to dismiss tests,
inter alia, whether, on the face of the record, the court is without jurisdiction.” Lawrence
v. State Bd. of Ed., 140 Conn. App. 773, 777 (2013) (cleaned up).
3
“Subject matter jurisdiction involves the authority of the court to adjudicate the
type of controversy presented by the action before it. A court lacks discretion to consider
the merits of a case over which it is without jurisdiction.” Fuller v. Baldino, 176 Conn.
App. 451, 457 (2017) (cleaned up). Instead, “[a] court must dismiss claims over which it
lacks subject matter jurisdiction.” Dressler v. Riccio, 205 Conn. App. 533, 554 (2021).
The “plaintiff bears the burden of proving subject matter jurisdiction, whenever and
however raised.” Fort Trumbull Conservancy, LLC v. City of New London, 265 Conn. 423, 430
n.12 (2003). A plaintiff must clearly “allege facts demonstrating that [they are] a proper party to
invoke judicial resolution of the dispute.” St. George v. Gordon, 264 Conn. 538, 545 (2003)
(cleaned up).
Standing implicates a court’s subject matter jurisdiction. Deutsche Bank Nat’l Tr. Co. v.
Cornelius, 170 Conn. App. 104, 110, cert. denied, 325 Conn. 922 (2017). Absent an allegation
of a direct injury, a plaintiff lacks “standing to invoke the jurisdiction of the court.” Johnson v.
Rell, 119 Conn. App. 730, 739 (2010). “Our standing jurisprudence consistently has embodied
the notion that there must be a colorable claim of a direct injury to the plaintiff, in an individual
or representative capacity.” Conn. State Med. Soc’y v. Oxford Health Plans, 272 Conn. 469, 476
(2005) (cleaned up). A plaintiff lacks standing to bring a claim if the alleged harms are too
indirect, remote, and derivative of injuries of others. Id. Put another way, “if the injuries
claimed by the plaintiff are remote, indirect or derivative with respect to the defendant’s conduct,
the plaintiff is not the proper party to assert them and lacks standing to do so.” Id. (citation
omitted).
Lack of subject matter jurisdiction may be found in: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
4
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Conboy v. State,
292 Conn. 642, 651 (2009) (citation omitted).
The court must resolve the subject matter jurisdiction issue “before taking one step
further to adjudicate other matters pending before it in the action.” R.S. Silver Enters., Inc. v.
Pascarella, 148 Conn. App. 359, 366, (2014).
Connecticut courts are solicitous of self-represented litigants “when it does not interfere
with the rights of other parties to construe the rules of practice liberally in favor of the pro se
party.” Worth v. Korta, 132 Conn. App. 154, 157 (2011). However, “the right of self-
representation provides no attendant license not to comply with relevant rules of procedural and
substantive law.” Id.
B. The Doctrine of Sovereign Immunity.
“It is well established that the doctrine of sovereign immunity implicates subject matter
jurisdiction and is therefore a basis for granting a motion to dismiss.” Machado v. Taylor, 326
Conn. 396, 403 (2017) (cleaned up).
“The principle that the state cannot be sued without its consent, or sovereign immunity, is
well established under our case law.” Columbia Air Servs. v. DOT, 293 Conn. 342, 349 (2009).
There are only three exceptions to sovereign immunity: “(1) when the legislature, either
expressly or by force of a necessary implication, statutorily waives the state’s sovereign
immunity; (2) when an action seeks declaratory or injunctive relief on the basis of a substantial
claim that the state or one of its officers has violated the plaintiff’s constitutional rights; and (3)
when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of
wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.” Id.
(cleaned up).
5
“Once the state has asserted a sovereign immunity defense, plaintiff bears the burden of
establishing that sovereign immunity is inapplicable.” Whitnum v. State, Docket No.
CV165015817S, 2017 Conn. Super. LEXIS 2818, at *3 (Conn. Super. Ct. May 31, 2017) (citing
C.R. Klewin N.E., LLC v. Fleming, 284 Conn. 250, 258-59 (2007)). “To meet that burden, the
plaintiff must identify and analyze the legal theory on which sovereign immunity is not
applicable.” Id., at *3 (citing DePietro v. Dep't of Pub. Safety, 126 Conn. App. 414, 421 (2011)).
Conn. Gen. Stat. § 4-160(f) provides a waiver of sovereign immunity for medical
malpractice claims that “extends no further than medical malpractice actions.” Escobar-Santana
v. State, 347 Conn. 601, 613 (2023). Although § 4-160(f) contains a waiver of sovereign
immunity for medical malpractice claims against the State, “filing a medical malpractice action
in the Superior Court directly still requires that the plaintiffs submit a certificate of good faith”
and expert opinion letter because the legislature in abrogating sovereign immunity for medical
malpractice claims substituted one gatekeeper – the claims commissioner – for another, the
requirements in Conn. Gen. Stat. § 52-190a. Id. at 615.
III. ARGUMENT
The Complaint asserts nine causes of action: (1) Negligence – Medical Malpractice; (2)
Breach of Fiduciary Duty; (3) Breach of Contract; (4) Fraud – Intentional; (5) Fraud –
Concealment; (6) Intentional Infliction of Emotional Distress; (7) Breach of Implied Covenant of
Good Faith and Fair Dealing; (8) Breach of the Connecticut Unfair Trade Practices Act
(CUTPA); and (9) Intentional False Imprisonment. Each cause of action must be dismissed.
A. The so-called power-of-attorney does not grant Kistler authority to bring this
action on DeNunzio’s behalf.
The Complaint includes the so-called power-of-attorney upon which Kistler relies to
assert that she is authorized to bring this action on DeNunzio’s behalf (“Document”). Compl.,
6
Attachment D. The Document – entitled “Combined Mental Health Care Declaration and Power
of Attorney” – is dated January 20, 2024. According to plaintiffs, on January 3, 2024, seventeen
days before the Document was executed, a group of forensic interviewers deemed DeNunzio not
competent to stand trial. Compl., ¶ 222. And five days after it was executed a court ordered
DeNunzio to be sent to Whiting for competency restoration. Compl., ¶¶ 13-14.
The Document does not comport with any of the forms in Conn. Gen. Stat. § 1-352 or
contain a provision regarding authority for claims and/or litigation as contemplated Conn. Gen.
Stat. § 1-351k. The Document is neither notarized nor does it contain an attestation from the
witnesses regarding the principal being “of sound mind and able to under the nature and
consequences of health care decisions at the time the document was signed,” as required by
Conn. Gen. Stat. §§ 19a-575, 19a-575a, 19a-576 and 19a-577, the statutes which govern written
health care directives. In addition, the Document does not contain a notary seal or statement
acknowledging that it was sworn to under oath, as required to be presumptively genuine under
Conn. Gen. Stat. § 1-350d.
With respect to litigation authority, the Document does not purport to authorize the agent
to conduct litigation on behalf of the principal. Rather, it grants “full power and authority to
make mental health care decisions for me . . . .” Document, Part III.D. And in Connecticut, it is
well settled that “authorization to appear pro se is limited to representing one’s own cause, and
does not permit individuals to appear pro se in a representative capacity.” Ellis v. Cohen, 118
Conn. App. 211, 215 (2009). Thus, Kistler lacks the legal authority to bring this action on
DeNunzio’s behalf.
B. Kistler lacks standing to bring this action because she has not suffered a harm
from the alleged wrongful conduct.
7
To the extent that plaintiffs have alleged harms by Whiting, those harms arise from the
medical treatment that Whiting is providing to DeNunzio. In other words, as discussed below,
plaintiffs’ allegations really amount, either directly or indirectly, to claims asserting medical
malpractice. And because Kistler is not a Whiting patient, she does not (and cannot) allege she
was directly harmed by Whiting’s alleged improper conduct in connection with DeNunzio’s
medical treatment. Compl., passim. Instead, Kistler asserts the alleged improper conduct will
result in an increase in her financial, functional, and emotional burden of support for DeNunzio.
Compl. ¶¶ 23-24, 29. This harm is derivative of DeNunzio’s harm. And Kistler has not alleged
any cause of action under the facts as pleaded which would allow her to recover for a derivative
harm.
The only two allegations regarding a conceivable direct harm to Kistler are her alleged
inability to visit DeNunzio (Compl. ¶ 18) and Whiting’s alleged failure to abide by the power-of-
attorney. Kistler does not have standing to assert either claim.
Regarding visitation, the Complaint includes a conclusory assertion that Kistler has been
prevented from visiting DeNunzio but does not assert that Whiting’s conduct prevented Kistler
from visiting. The Complaint does not allege that Kistler attempted to visit DeNunzio and was
turned away. Instead, it alleges that Kistler asked to be allowed to visit DeNunzio, received and
completed a visitation application, and expects that the visitation application will be approved.
Compl., ¶¶ 152-54. Those allegations do not support any of the causes of action alleged by
plaintiffs. Moreover, plaintiffs have not sought a remedy regarding visitation. Compl., passim.
Regarding the so-called power-of-attorney, Kistler asserts that Whiting is ignoring the
power-of-attorney. However, a review of the document and the relevant statutes reveals that it is
8
of questionable validity. In addition, plaintiffs have not alleged a cause of action to enforce the
power-of-attorney or sought a remedy regarding enforcement of it.
“The granting of a power of attorney does not give the grantee independent standing.”
Winston v. People's United Bank, NA, Docket No. FBTFBTCV216106869S, 2021 Conn. Super.
LEXIS 2105, at *9 (Conn. Super. Ct. Dec. 17, 2021) (quoting Stardust, LLC v. Moran, Docket
No. CV-12-6032322S, 2015 Conn. Super. LEXIS 2013 (Conn. Super. Ct. July 28, 2015) and
citing Manina v. Low, Docket No. CV-12-6012664S, 2012 Conn. Super. LEXIS 2306 (Conn.
Super. Ct. Sept. 10, 2012)).
In short, neither the power-of-attorney nor the other allegations demonstrate that Kistler
has standing to bring this action on her behalf.
C. Plaintiffs’ medical malpractice claims must be dismissed for failure to attach an
opinion letter as required by Conn. Gen. Stat. § 52-190a.
1. Plaintiffs’ first cause of action expressly asserts a medical malpractice
claim. Compl., pp. 22-3.
Conn. Gen. Stat. § 52-190a governs medical malpractice actions. It provides:
No civil action 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, as defined
in section 52-184c, which similar health care provider shall be selected pursuant to
9
the provisions of said section, that there appears to be evidence of medical
negligence and includes a detailed basis for the formation of such opinion.
This requirement applies to claims against institutional defendants as wells as individual
defendants. Wilkins v. Conn. Childbirth & Women’s Ctr., 314 Conn. 709, 719 (2014) (cleaned
up). It applies to a civil action in tort or in contract to recover damages for negligence of a health
care provider. Kissel v. Ctr. for Women's Health, P.C., 205 Conn. App. 394, 412 (2021). The
court must dismiss the corresponding complaint if it does not include a copy of a written opinion
letter from a similar health care provider in accordance with Conn. Gen. Stat. § 52-184c. Id.
Plaintiffs have failed to comply with Conn. Gen. Stat. § 52-190a. The Complaint does
not contain a good faith certificate or a written and signed opinion letter from a similar health
care provider asserting that there appears to be evidence of medical negligence. Compl., passim.
A malpractice claim is properly dismissed under Conn. Gen. Stat. § 52-190a(c) if “the statutorily
required written opinion is not annexed to the complaint or initial pleading.” Votre v. County
Obstetrics & Gynecology Grp., P.C., 113 Conn. App. 569, 584, cert. denied, 292 Conn. 911
(2009). Thus, the Court must dismiss plaintiffs’ first cause of action.
2. Plaintiffs’ second through eighth causes of action must be dismissed
because they too sound in medical malpractice.
Merely asserting that a cause of action is other than one for medical malpractice is
insufficient to make it so.
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.
Professional 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 reputable
member of the profession with the result of injury, loss, or damage to the recipient
of those services.
10
Furthermore, malpractice presupposes some improper conduct in the treatment or
operative skill or the failure to exercise requisite medical skill.
Trimel v. Lawrence & Mem’l Hosp. Rehab. Ctr., 61 Conn. App. 353, 357-58 (2001) (cleaned up).
“[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.” Votre, 113
Conn. App. at 576 (cleaned up); see also Escobar-Santana, 347 Conn. at 626.
A review of the allegations in counts two through nine reveal that: (1) Whiting is being
sued in its medical professional capacity; (2) the alleged negligence is of a specialized medical
nature that arises out of the medical professional-patient relationship; and (3) the alleged
negligence in each instance is substantially related to medical diagnosis or treatment and
involved the exercise of medical judgment. The alleged harms under each cause of action
emanate from the alleged failure of Whiting to provide medical care to DeNunzio in a manner
corresponding to care that Kistler views as appropriate.
Regarding the second cause of action, breach of fiduciary duty, the only allegations
regarding any fiduciary duty are those concerning the patient-provider relationship arising from
DeNunzio’s medical care at Whiting. Compl., ¶¶ 187-90. And the wrongful conduct complained
of is the deficient care that plaintiffs complained of in the first cause of action for medical
malpractice. Compl., ¶¶ 187-90.
The third cause of action, breach of contract, is based on Whiting’s alleged refusal to
provide DeNunzio with prescribed medicines. Compl., ¶ 193. And the fourth cause of action,
intentional fraud, although some of the allegations are difficult to discern, appears to be based on
11
Whiting’s alleged inferior medical expertise and provision of allegedly, construed in the most
favorable light, improper medical treatment. Compl., ¶ 197. The fifth cause of action,
fraudulent concealment, is based on plaintiffs’ allegations regarding concealment of Whiting’s
so-called bad reputation and level of expertise in connection with DeNunzio’s treatment.
Compl., ¶¶ 207, 208. The sixth cause of action, intentional infliction of emotional distress, is
based on Whiting’s alleged denial of DeNunzio’s prior medical diagnoses and alleged
discontinuation of formerly prescribed medications. Compl., ¶ 212. The seventh cause of
action, violation of the implied covenant of good faith and fair dealing, relies solely on the
allegations in the medical malpractice count to assert conclusively that those actions are unfair
and in bad faith. Compl., ¶¶ 215-17. Similarly, the eighth cause of action, violation of the
Connecticut Unfair Trade Practices Act (CUTPA), is based solely on the allegations in the
medical malpractice count. Compl., ¶¶ 218-20. In each of these cases, the cause of action is a
repackaged medical malpractice claim.
Lastly, the ninth cause of action, intentional false imprisonment, is based on the
allegations in the medical malpractice count and the assertion that DeNunzio wants to leave
Whiting.3 Plaintiffs do not allege any other conduct that would suggest DeNunzio’s current
inpatient admission is improper. On the contrary, as plaintiffs point out, a court ordered
DeNunzio to Whiting for competency restoration. Compl., ¶¶ 13-15. Thus, here again this cause
of action is a repackaged medical malpractice claim.
3
The basis for the assertion that DeNunzio wants to leave Whiting is unclear at best. Compl., ¶
227. There is no evidence that DeNunzio was at all involved in drafting the Complaint, and
Kistler alleges that Whiting has “denied Doug access to Kistler and to any form of electronic
communication.” Compl., ¶225.
12
Because these causes of action are all essentially medical malpractice claims, the Court
must dismiss them for failure to comply with Conn. Gen. Stat. § 51-190a.
D. Sovereign immunity bars all of plaintiffs’ non-medical malpractice claims.
Assuming arguendo that the causes of action in counts two through nine do not sound in
medical malpractice, the doctrine of sovereign immunity nevertheless bars those claims. Conn.
Gen. Stat. § 4-160(f) only provides a waiver of sovereign immunity for medical malpractice
claims. Escobar-Santana, 347 Conn. at 613; Morneau v. State, Docket No.
MMXCV125008157S, 2012 Conn. Super. LEXIS 3106, at *17 (Conn. Super. Ct. Dec. 21, 2012),
aff’d, 150 Conn. App. 237 (2014) (General Assembly never waived sovereign immunity for
negligent infliction of emotional distress or CUTPA violations).
“In the absence of legislative authority [the supreme court has] declined to permit any
monetary award against the state or its officials.” Miller v. Egan, 265 Conn. 301, 316-17 (2003)
(cleaned up) (emphasis added) (reversing trial court’s denial of motion to dismiss and ordering
dismissal of all counts in a complaint that included four counts of defamation, two counts of
false imprisonment, two counts of civil conspiracy and two counts of violation of 42 U.S.C. §
1983); see also Columbia Air Servs., 293 Conn. 342 at 353 (breach of contract and fraud); Doe v.
Comm’r of the Dep’t of Child. & Fams., Docket No. X06UWYCV206053076S, 2020 Conn.
Super. LEXIS 1472, at *25 (Conn. Super. Ct. Nov. 10, 2020) (breach of fiduciary duty);
Lawrence v. State, Docket No. HHDCV106013623S, 2011 Conn. Super. LEXIS 1324, at *9
(Conn. Super. Ct. May 26, 2011) (CUTPA and intentional misrepresentation). In other words,
absent express statutory language providing the right to sue the State for monetary damages, the
claim is barred by sovereign immunity. Here, apart from the medical malpractice exception to
sovereign immunity, plaintiffs have not pleaded any allegations supporting a waiver of sovereign
13
immunity. Accordingly, to the extent that any of plaintiffs’ causes of action do not sound in
medical malpractice, those causes of action must be dismissed because sovereign immunity bars
them.
E. Plaintiffs have failed to state a cause of action which would grant them their
request for immediate discharge.
The only non-monetary relief plaintiffs seek is DeNunzio’s immediate release from
Whiting. However, plaintiffs have not pleaded a cause of action that provides for such relief.
Compl., passim. Conn. Gen. Stat. § 54-56d governs the competency restoration process for
defendants charged with criminal offenses. Under § 54-56d, if the court finds there is probable
cause to believe the defendant committed the charge for which the defendant is charged and is
not competent to stand trial but is restorable to competency, after a competency hearing the court
can order the defendant committed to treatment facility. Conn. Gen. Stat. § 54-56d(h). Under
this statute, DeNunzio’s commitment to Whiting remains subject to the criminal court’s order
and it is the criminal court that has jurisdiction to order continued commitment or release. Conn.
Gen. Stat. § 54-56d(j), (k), (l), (m), (o). Plaintiffs cannot collaterally attack that court order in
this proceeding. Schoenhorn v. Moss, 347 Conn. 501, 509 (2023); Valvo v. Freedom of Info.
Comm’n, 294 Conn. 534, 543-44 (2010). In short, although plaintiffs have requested non-
monetary relief – release from Whiting – they have not pleaded a cause of action for that
remedy.4
4
If plaintiffs assumed that the remedy for false imprisonment is release, they are incorrect. False
imprisonment “is categorized as an intentional tort for which the remedy at common law was an
action for trespass.” Nodoushani v. Southern Conn. State Univ., 152 Conn. App. 84, 92 (2014)
(cleaned up).
14
IV. CONCLUSION
Plaintiff Kistler is not legally authorized to bring this action in DeNunzio’s name, and she
lacks standing to bring this action in her own name because the alleged improper conduct and
corresponding harms are personal to DeNunzio, not to her. In addition, plaintiffs’ claims must be
dismissed because they sound in medical malpractice, but plaintiffs have failed to comply with
the requirement of Conn. Gen. Stat. § 52-190a. But even if these claims do not sound in
malpractice, they nevertheless must be dismissed because they are barred by the doctrine of
sovereign immunity. For these reasons, the Court must dismiss the Complaint.
RESPECTFULLY SUBMITTED,
THE DEFENDANT,
WHITING FORENSIC HOSPITAL
WILLIAM TONG
ATTORNEY GENERAL
BY: /s/441241___________________________
Shawn L. Rutchick
Assistant Attorney General
165 Capitol Avenue
Hartford, CT 06106
Ph: (860) 808-5210
Fax: (860)808-5385
Shawn.Rutchick@ct.gov
15
CERTIFICATE OF SERVICE
I hereby certify that on April 12, 2024, a copy of the foregoing was sent by first class,
postage prepaid mail to the following:
Sharon Kistler
45 Terrace Ave
Riverside, CT 06878
Douglas DeNunzio
38A Putnam Green
Greenwich, CT 06830
/s/ 441241
Shawn L. Rutchick
Assistant Attorney General
16
Preview
DOCKET NO.: FST-CV24-5030008-S KISTLER, SHARON ET AL., : SUPERIOR COURT Plaintiffs, : : JUDICIAL DISTRICT OF STAMFORD v. : AT STAMFORD : WHITING FORENSIC HOSPITAL, : Defendant : APRIL 12, 2024 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS Pursuant to Practice Book § 10-30, defendant, Whiting Forensic Hospital (“Whiting”) moves to dismiss the Complaint, dated February 16, 2024, for lack of subject matter jurisdiction. On January 25, 2024, pursuant to Conn. Gen. Stat. § 54-56d a Superior Court judge ordered DeNunzio committed to Whiting for competency restoration in connection with pending criminal charges. Kistler on her behalf and on her son’s behalf, through an alleged power of attorney, has brought this action asserting nine causes of action against Whiting and seeking a jury trial, monetary and punitive damages, and a discharge order. The gravamen of these claims is the alleged deficiencies in the medical care Whiting is providing to DeNunzio. The Court must dismiss the Complaint for four main reasons. FIRST: The so-called power-of-attorney that Kistler relies on for her authority to bring the action in DeNunzio’s name is legally insufficient to confer such authority upon her. SECOND: Kistler lacks standing to assert any claims. The alleged conduct and corresponding harms are personal to DeNunzio, not plaintiff Kistler. The Complaint does not allege any harm to Kistler that is actionable under any of the asserted causes of action, and none of the alleged causes of action provides for derivative claims under the alleged facts. THIRD: The first cause of action for medical malpractice and the remaining eight causes of action that essentially sound in medical malpractice must be dismissed because plaintiffs failed to attach to the Complaint a good faith certificate and an opinion letter from a similar medical provider as required by Conn. Gen. Stat. § 52-190a. FOURTH: To the extent that any of the causes of action do not sound in medical malpractice, the doctrine of sovereign immunity bars those claims. The Complaint does not allege a legally recognized exception to sovereign immunity. Whiting cannot be sued for damages absent a legally recognized exception to its sovereign immunity. I. BACKGROUND 1. The General Allegations This action arises from a court’s order under Conn. Gen. Stat. § 54-56d committing DeNunzio to Whiting for competency restoration in connection with pending criminal charges. 1 Whiting is under the control and supervision of the Department of Mental Health and Addiction Services, a state Agency. Conn. Gen. Stat. §§ 4-38c; 17a-562. Through the nine-count Complaint Kistler, on her behalf and on DeNunzio’s behalf, seeks a jury trial, compensatory and punitive damages, and an order immediately discharging DeNunzio from Whiting. 2 Complaint (“Compl.”), p. 27. DeNunzio’s history includes psychiatric disabilities and Kistler’s unhelpful “constant second-guessing of the professionals in charge of Douglas’ care, [that] causes inconsistent care, duress, anxiety and perseveration to” Douglas DeNunzio. Denunzio v. Denunzio, 320 Conn. 178, 181-83, 185 (2016) (affirming probate court’s determination that DeNunzio’s father, instead of Kistler, should be DeNunzio’s conservator). 1 The judicial website lists seven pending cases for DeNunzio with offense dates from October 26, 2020 through October 20, 2023. The offenses include two C felonies, six D felonies, three A misdemeanors, and five C misdemeanors. Because several of the cases include assault charges it is unclear for which case(s) DeNunzio was in court on January 25, 2024. Compl, ¶ 13. 2 The Complaint alleges there are several other defendants. Compl., ¶ 1. However, plaintiff has withdrawn the action against all defendants except for Whiting. Withdrawal (Entry 101.00). 2 In general, the Complaint evinces Kistler’s dissatisfaction with the criminal court competency proceedings, the public defender’s handling of the criminal case, and Whiting staff’s alleged failure to recognize the power-of-attorney and provide medical treatment to DeNunzio in accordance with Kistler’s views regarding DeNunzio’s medical condition and medication needs. However, the essential allegations are that Whiting “ignored or dismissed Kistler’s Power of Attorney” (Compl., ¶ 17), Kistler was prevented from visiting DeNunzio (Compl., ¶ 18), Whiting is providing DeNunzio with medical care that does not meet the standard of care (Compl., ¶¶ 19, 25, 26, 45), and DeNunzio is being unlawfully imprisoned (Compl., ¶ 29). Kistler asserts that a “power of attorney” grants her the authority to bring this action on DeNunzio’s behalf. Compl., ¶¶ 16, 17, 18, 63, 109, 110, 111, 137, 138, 139, 140, 141, 142, 157, 158, 160, 161, 167, 172, 177, 178 and p. 28. As discussed below, the Court must dismiss the Complaint for lack of standing, failure to comply with Conn. Gen. Stat. § 52-190a, and because the doctrine of sovereign immunity bars plaintiffs’ claims. II. STANDARD OF REVIEW A. Motion to Dismiss for lack of jurisdiction. “The standard of review of a motion to dismiss is well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” Lawrence v. State Bd. of Ed., 140 Conn. App. 773, 777 (2013) (cleaned up). 3 “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. A court lacks discretion to consider the merits of a case over which it is without jurisdiction.” Fuller v. Baldino, 176 Conn. App. 451, 457 (2017) (cleaned up). Instead, “[a] court must dismiss claims over which it lacks subject matter jurisdiction.” Dressler v. Riccio, 205 Conn. App. 533, 554 (2021). The “plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” Fort Trumbull Conservancy, LLC v. City of New London, 265 Conn. 423, 430 n.12 (2003). A plaintiff must clearly “allege facts demonstrating that [they are] a proper party to invoke judicial resolution of the dispute.” St. George v. Gordon, 264 Conn. 538, 545 (2003) (cleaned up). Standing implicates a court’s subject matter jurisdiction. Deutsche Bank Nat’l Tr. Co. v. Cornelius, 170 Conn. App. 104, 110, cert. denied, 325 Conn. 922 (2017). Absent an allegation of a direct injury, a plaintiff lacks “standing to invoke the jurisdiction of the court.” Johnson v. Rell, 119 Conn. App. 730, 739 (2010). “Our standing jurisprudence consistently has embodied the notion that there must be a colorable claim of a direct injury to the plaintiff, in an individual or representative capacity.” Conn. State Med. Soc’y v. Oxford Health Plans, 272 Conn. 469, 476 (2005) (cleaned up). A plaintiff lacks standing to bring a claim if the alleged harms are too indirect, remote, and derivative of injuries of others. Id. Put another way, “if the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant’s conduct, the plaintiff is not the proper party to assert them and lacks standing to do so.” Id. (citation omitted). Lack of subject matter jurisdiction may be found in: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint 4 supplemented by undisputed facts plus the court’s resolution of disputed facts.” Conboy v. State, 292 Conn. 642, 651 (2009) (citation omitted). The court must resolve the subject matter jurisdiction issue “before taking one step further to adjudicate other matters pending before it in the action.” R.S. Silver Enters., Inc. v. Pascarella, 148 Conn. App. 359, 366, (2014). Connecticut courts are solicitous of self-represented litigants “when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” Worth v. Korta, 132 Conn. App. 154, 157 (2011). However, “the right of self- representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” Id. B. The Doctrine of Sovereign Immunity. “It is well established that the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Machado v. Taylor, 326 Conn. 396, 403 (2017) (cleaned up). “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law.” Columbia Air Servs. v. DOT, 293 Conn. 342, 349 (2009). There are only three exceptions to sovereign immunity: “(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity; (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights; and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.” Id. (cleaned up). 5 “Once the state has asserted a sovereign immunity defense, plaintiff bears the burden of establishing that sovereign immunity is inapplicable.” Whitnum v. State, Docket No. CV165015817S, 2017 Conn. Super. LEXIS 2818, at *3 (Conn. Super. Ct. May 31, 2017) (citing C.R. Klewin N.E., LLC v. Fleming, 284 Conn. 250, 258-59 (2007)). “To meet that burden, the plaintiff must identify and analyze the legal theory on which sovereign immunity is not applicable.” Id., at *3 (citing DePietro v. Dep't of Pub. Safety, 126 Conn. App. 414, 421 (2011)). Conn. Gen. Stat. § 4-160(f) provides a waiver of sovereign immunity for medical malpractice claims that “extends no further than medical malpractice actions.” Escobar-Santana v. State, 347 Conn. 601, 613 (2023). Although § 4-160(f) contains a waiver of sovereign immunity for medical malpractice claims against the State, “filing a medical malpractice action in the Superior Court directly still requires that the plaintiffs submit a certificate of good faith” and expert opinion letter because the legislature in abrogating sovereign immunity for medical malpractice claims substituted one gatekeeper – the claims commissioner – for another, the requirements in Conn. Gen. Stat. § 52-190a. Id. at 615. III. ARGUMENT The Complaint asserts nine causes of action: (1) Negligence – Medical Malpractice; (2) Breach of Fiduciary Duty; (3) Breach of Contract; (4) Fraud – Intentional; (5) Fraud – Concealment; (6) Intentional Infliction of Emotional Distress; (7) Breach of Implied Covenant of Good Faith and Fair Dealing; (8) Breach of the Connecticut Unfair Trade Practices Act (CUTPA); and (9) Intentional False Imprisonment. Each cause of action must be dismissed. A. The so-called power-of-attorney does not grant Kistler authority to bring this action on DeNunzio’s behalf. The Complaint includes the so-called power-of-attorney upon which Kistler relies to assert that she is authorized to bring this action on DeNunzio’s behalf (“Document”). Compl., 6 Attachment D. The Document – entitled “Combined Mental Health Care Declaration and Power of Attorney” – is dated January 20, 2024. According to plaintiffs, on January 3, 2024, seventeen days before the Document was executed, a group of forensic interviewers deemed DeNunzio not competent to stand trial. Compl., ¶ 222. And five days after it was executed a court ordered DeNunzio to be sent to Whiting for competency restoration. Compl., ¶¶ 13-14. The Document does not comport with any of the forms in Conn. Gen. Stat. § 1-352 or contain a provision regarding authority for claims and/or litigation as contemplated Conn. Gen. Stat. § 1-351k. The Document is neither notarized nor does it contain an attestation from the witnesses regarding the principal being “of sound mind and able to under the nature and consequences of health care decisions at the time the document was signed,” as required by Conn. Gen. Stat. §§ 19a-575, 19a-575a, 19a-576 and 19a-577, the statutes which govern written health care directives. In addition, the Document does not contain a notary seal or statement acknowledging that it was sworn to under oath, as required to be presumptively genuine under Conn. Gen. Stat. § 1-350d. With respect to litigation authority, the Document does not purport to authorize the agent to conduct litigation on behalf of the principal. Rather, it grants “full power and authority to make mental health care decisions for me . . . .” Document, Part III.D. And in Connecticut, it is well settled that “authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity.” Ellis v. Cohen, 118 Conn. App. 211, 215 (2009). Thus, Kistler lacks the legal authority to bring this action on DeNunzio’s behalf. B. Kistler lacks standing to bring this action because she has not suffered a harm from the alleged wrongful conduct. 7 To the extent that plaintiffs have alleged harms by Whiting, those harms arise from the medical treatment that Whiting is providing to DeNunzio. In other words, as discussed below, plaintiffs’ allegations really amount, either directly or indirectly, to claims asserting medical malpractice. And because Kistler is not a Whiting patient, she does not (and cannot) allege she was directly harmed by Whiting’s alleged improper conduct in connection with DeNunzio’s medical treatment. Compl., passim. Instead, Kistler asserts the alleged improper conduct will result in an increase in her financial, functional, and emotional burden of support for DeNunzio. Compl. ¶¶ 23-24, 29. This harm is derivative of DeNunzio’s harm. And Kistler has not alleged any cause of action under the facts as pleaded which would allow her to recover for a derivative harm. The only two allegations regarding a conceivable direct harm to Kistler are her alleged inability to visit DeNunzio (Compl. ¶ 18) and Whiting’s alleged failure to abide by the power-of- attorney. Kistler does not have standing to assert either claim. Regarding visitation, the Complaint includes a conclusory assertion that Kistler has been prevented from visiting DeNunzio but does not assert that Whiting’s conduct prevented Kistler from visiting. The Complaint does not allege that Kistler attempted to visit DeNunzio and was turned away. Instead, it alleges that Kistler asked to be allowed to visit DeNunzio, received and completed a visitation application, and expects that the visitation application will be approved. Compl., ¶¶ 152-54. Those allegations do not support any of the causes of action alleged by plaintiffs. Moreover, plaintiffs have not sought a remedy regarding visitation. Compl., passim. Regarding the so-called power-of-attorney, Kistler asserts that Whiting is ignoring the power-of-attorney. However, a review of the document and the relevant statutes reveals that it is 8 of questionable validity. In addition, plaintiffs have not alleged a cause of action to enforce the power-of-attorney or sought a remedy regarding enforcement of it. “The granting of a power of attorney does not give the grantee independent standing.” Winston v. People's United Bank, NA, Docket No. FBTFBTCV216106869S, 2021 Conn. Super. LEXIS 2105, at *9 (Conn. Super. Ct. Dec. 17, 2021) (quoting Stardust, LLC v. Moran, Docket No. CV-12-6032322S, 2015 Conn. Super. LEXIS 2013 (Conn. Super. Ct. July 28, 2015) and citing Manina v. Low, Docket No. CV-12-6012664S, 2012 Conn. Super. LEXIS 2306 (Conn. Super. Ct. Sept. 10, 2012)). In short, neither the power-of-attorney nor the other allegations demonstrate that Kistler has standing to bring this action on her behalf. C. Plaintiffs’ medical malpractice claims must be dismissed for failure to attach an opinion letter as required by Conn. Gen. Stat. § 52-190a. 1. Plaintiffs’ first cause of action expressly asserts a medical malpractice claim. Compl., pp. 22-3. Conn. Gen. Stat. § 52-190a governs medical malpractice actions. It provides: No civil action 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, as defined in section 52-184c, which similar health care provider shall be selected pursuant to 9 the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. This requirement applies to claims against institutional defendants as wells as individual defendants. Wilkins v. Conn. Childbirth & Women’s Ctr., 314 Conn. 709, 719 (2014) (cleaned up). It applies to a civil action in tort or in contract to recover damages for negligence of a health care provider. Kissel v. Ctr. for Women's Health, P.C., 205 Conn. App. 394, 412 (2021). The court must dismiss the corresponding complaint if it does not include a copy of a written opinion letter from a similar health care provider in accordance with Conn. Gen. Stat. § 52-184c. Id. Plaintiffs have failed to comply with Conn. Gen. Stat. § 52-190a. The Complaint does not contain a good faith certificate or a written and signed opinion letter from a similar health care provider asserting that there appears to be evidence of medical negligence. Compl., passim. A malpractice claim is properly dismissed under Conn. Gen. Stat. § 52-190a(c) if “the statutorily required written opinion is not annexed to the complaint or initial pleading.” Votre v. County Obstetrics & Gynecology Grp., P.C., 113 Conn. App. 569, 584, cert. denied, 292 Conn. 911 (2009). Thus, the Court must dismiss plaintiffs’ first cause of action. 2. Plaintiffs’ second through eighth causes of action must be dismissed because they too sound in medical malpractice. Merely asserting that a cause of action is other than one for medical malpractice is insufficient to make it so. 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. Professional 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 reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. 10 Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill or the failure to exercise requisite medical skill. Trimel v. Lawrence & Mem’l Hosp. Rehab. Ctr., 61 Conn. App. 353, 357-58 (2001) (cleaned up). “[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.” Votre, 113 Conn. App. at 576 (cleaned up); see also Escobar-Santana, 347 Conn. at 626. A review of the allegations in counts two through nine reveal that: (1) Whiting is being sued in its medical professional capacity; (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship; and (3) the alleged negligence in each instance is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. The alleged harms under each cause of action emanate from the alleged failure of Whiting to provide medical care to DeNunzio in a manner corresponding to care that Kistler views as appropriate. Regarding the second cause of action, breach of fiduciary duty, the only allegations regarding any fiduciary duty are those concerning the patient-provider relationship arising from DeNunzio’s medical care at Whiting. Compl., ¶¶ 187-90. And the wrongful conduct complained of is the deficient care that plaintiffs complained of in the first cause of action for medical malpractice. Compl., ¶¶ 187-90. The third cause of action, breach of contract, is based on Whiting’s alleged refusal to provide DeNunzio with prescribed medicines. Compl., ¶ 193. And the fourth cause of action, intentional fraud, although some of the allegations are difficult to discern, appears to be based on 11 Whiting’s alleged inferior medical expertise and provision of allegedly, construed in the most favorable light, improper medical treatment. Compl., ¶ 197. The fifth cause of action, fraudulent concealment, is based on plaintiffs’ allegations regarding concealment of Whiting’s so-called bad reputation and level of expertise in connection with DeNunzio’s treatment. Compl., ¶¶ 207, 208. The sixth cause of action, intentional infliction of emotional distress, is based on Whiting’s alleged denial of DeNunzio’s prior medical diagnoses and alleged discontinuation of formerly prescribed medications. Compl., ¶ 212. The seventh cause of action, violation of the implied covenant of good faith and fair dealing, relies solely on the allegations in the medical malpractice count to assert conclusively that those actions are unfair and in bad faith. Compl., ¶¶ 215-17. Similarly, the eighth cause of action, violation of the Connecticut Unfair Trade Practices Act (CUTPA), is based solely on the allegations in the medical malpractice count. Compl., ¶¶ 218-20. In each of these cases, the cause of action is a repackaged medical malpractice claim. Lastly, the ninth cause of action, intentional false imprisonment, is based on the allegations in the medical malpractice count and the assertion that DeNunzio wants to leave Whiting.3 Plaintiffs do not allege any other conduct that would suggest DeNunzio’s current inpatient admission is improper. On the contrary, as plaintiffs point out, a court ordered DeNunzio to Whiting for competency restoration. Compl., ¶¶ 13-15. Thus, here again this cause of action is a repackaged medical malpractice claim. 3 The basis for the assertion that DeNunzio wants to leave Whiting is unclear at best. Compl., ¶ 227. There is no evidence that DeNunzio was at all involved in drafting the Complaint, and Kistler alleges that Whiting has “denied Doug access to Kistler and to any form of electronic communication.” Compl., ¶225. 12 Because these causes of action are all essentially medical malpractice claims, the Court must dismiss them for failure to comply with Conn. Gen. Stat. § 51-190a. D. Sovereign immunity bars all of plaintiffs’ non-medical malpractice claims. Assuming arguendo that the causes of action in counts two through nine do not sound in medical malpractice, the doctrine of sovereign immunity nevertheless bars those claims. Conn. Gen. Stat. § 4-160(f) only provides a waiver of sovereign immunity for medical malpractice claims. Escobar-Santana, 347 Conn. at 613; Morneau v. State, Docket No. MMXCV125008157S, 2012 Conn. Super. LEXIS 3106, at *17 (Conn. Super. Ct. Dec. 21, 2012), aff’d, 150 Conn. App. 237 (2014) (General Assembly never waived sovereign immunity for negligent infliction of emotional distress or CUTPA violations). “In the absence of legislative authority [the supreme court has] declined to permit any monetary award against the state or its officials.” Miller v. Egan, 265 Conn. 301, 316-17 (2003) (cleaned up) (emphasis added) (reversing trial court’s denial of motion to dismiss and ordering dismissal of all counts in a complaint that included four counts of defamation, two counts of false imprisonment, two counts of civil conspiracy and two counts of violation of 42 U.S.C. § 1983); see also Columbia Air Servs., 293 Conn. 342 at 353 (breach of contract and fraud); Doe v. Comm’r of the Dep’t of Child. & Fams., Docket No. X06UWYCV206053076S, 2020 Conn. Super. LEXIS 1472, at *25 (Conn. Super. Ct. Nov. 10, 2020) (breach of fiduciary duty); Lawrence v. State, Docket No. HHDCV106013623S, 2011 Conn. Super. LEXIS 1324, at *9 (Conn. Super. Ct. May 26, 2011) (CUTPA and intentional misrepresentation). In other words, absent express statutory language providing the right to sue the State for monetary damages, the claim is barred by sovereign immunity. Here, apart from the medical malpractice exception to sovereign immunity, plaintiffs have not pleaded any allegations supporting a waiver of sovereign 13 immunity. Accordingly, to the extent that any of plaintiffs’ causes of action do not sound in medical malpractice, those causes of action must be dismissed because sovereign immunity bars them. E. Plaintiffs have failed to state a cause of action which would grant them their request for immediate discharge. The only non-monetary relief plaintiffs seek is DeNunzio’s immediate release from Whiting. However, plaintiffs have not pleaded a cause of action that provides for such relief. Compl., passim. Conn. Gen. Stat. § 54-56d governs the competency restoration process for defendants charged with criminal offenses. Under § 54-56d, if the court finds there is probable cause to believe the defendant committed the charge for which the defendant is charged and is not competent to stand trial but is restorable to competency, after a competency hearing the court can order the defendant committed to treatment facility. Conn. Gen. Stat. § 54-56d(h). Under this statute, DeNunzio’s commitment to Whiting remains subject to the criminal court’s order and it is the criminal court that has jurisdiction to order continued commitment or release. Conn. Gen. Stat. § 54-56d(j), (k), (l), (m), (o). Plaintiffs cannot collaterally attack that court order in this proceeding. Schoenhorn v. Moss, 347 Conn. 501, 509 (2023); Valvo v. Freedom of Info. Comm’n, 294 Conn. 534, 543-44 (2010). In short, although plaintiffs have requested non- monetary relief – release from Whiting – they have not pleaded a cause of action for that remedy.4 4 If plaintiffs assumed that the remedy for false imprisonment is release, they are incorrect. False imprisonment “is categorized as an intentional tort for which the remedy at common law was an action for trespass.” Nodoushani v. Southern Conn. State Univ., 152 Conn. App. 84, 92 (2014) (cleaned up). 14 IV. CONCLUSION Plaintiff Kistler is not legally authorized to bring this action in DeNunzio’s name, and she lacks standing to bring this action in her own name because the alleged improper conduct and corresponding harms are personal to DeNunzio, not to her. In addition, plaintiffs’ claims must be dismissed because they sound in medical malpractice, but plaintiffs have failed to comply with the requirement of Conn. Gen. Stat. § 52-190a. But even if these claims do not sound in malpractice, they nevertheless must be dismissed because they are barred by the doctrine of sovereign immunity. For these reasons, the Court must dismiss the Complaint. RESPECTFULLY SUBMITTED, THE DEFENDANT, WHITING FORENSIC HOSPITAL WILLIAM TONG ATTORNEY GENERAL BY: /s/441241___________________________ Shawn L. Rutchick Assistant Attorney General 165 Capitol Avenue Hartford, CT 06106 Ph: (860) 808-5210 Fax: (860)808-5385 Shawn.Rutchick@ct.gov 15 CERTIFICATE OF SERVICE I hereby certify that on April 12, 2024, a copy of the foregoing was sent by first class, postage prepaid mail to the following: Sharon Kistler 45 Terrace Ave Riverside, CT 06878 Douglas DeNunzio 38A Putnam Green Greenwich, CT 06830 /s/ 441241 Shawn L. Rutchick Assistant Attorney General 16