Opinion
No. CV 10-6006126-S
January 28, 2011
MEMORANDUM OF DECISION MOTION TO DISMISS
On December 12, 2009, in his capacity as administrator of the estate of Katherine Barrett, the plaintiff, James Barrett, filed a two-count complaint against the defendants, Eastern Connecticut Health Network, Inc. (ECHN) and Manchester Memorial Hospital (MMH), alleging the following facts. On December 23, 2007, the defendants undertook the care, treatment, monitoring, diagnosing and supervision of the plaintiff's decedent, Katherine Barrett, after she suffered a cardiac event and lost consciousness. The decedent was evaluated in the emergency department of MMH by a physician's assistant, who was informed of the decedent's history of chest pain for several weeks. Despite the decedent's history and abnormal lab results, the physician's assistant diagnosed her as suffering from "syncope," meaning fainting, and discharged her on December 23, 2007, with instructions to follow up with her regular physician. Prior to being discharged, Dr. Alfred Caudullo reviewed the decedent's laboratory results and approved the assessment and care plan of the physician's assistant. The decedent scheduled an appointment with her regular physician for January 2, 2008. On January 1, 2008, however, the decedent suffered another cardiac event and lost consciousness in her home, and after briefly regaining consciousness, she suffered another cardiac event while being transported to MMH and her heartbeat could not be restored. Due to the negligence of the defendants "and their servants, agents, apparent agents and/or employees," Katherine Barrett "suffered serious, severe, painful, and permanent injuries all leading to her death . . ."
Count one and count two of the complaint consist of identical allegations, sounding in negligence, as well as a theory of respondeat superior. Count one pertains to ECHN, as owner of MMH, and count two pertains to MMH, as a subsidiary of ECHN.
On June 11, 2010, the defendants filed a motion to dismiss "the plaintiff's claims with respect to the care and treatment by Elizabeth Walsh, a Physician's Assistant, on the grounds that the plaintiff failed to comply with the requirements for filing a medical malpractice lawsuit set forth in Connecticut General Statutes Section 52-190a."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear [the] medical malpractice action. However, the legislature has provided that such a failure does render [the plaintiff's] complaint subject to dismissal pursuant to § 52-190a(c)." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). "[A]n action is subject to dismissal under [General Statutes § 52-190a(c)] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066, aff'd, 300 Conn. 1 (2011). "A motion to dismiss is the proper vehicle with which to challenge an absent or inadequate written opinion of a similar health care provider. See Bennett v. New Milford Hospital, Inc., [ supra, 117 Conn.App. 545 n. 6]; Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008)." Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) ( 50 Conn. L. Rptr. 199).
This decision was officially released as a slip opinion on January 5, 2011.
Sufficiency of opinion letter pursuant to General Statutes § 52-190a
The defendants argue that the plaintiff has failed to attach a written opinion from a similar health care provider as required by General Statutes § 52-190a, with respect to Elizabeth Walsh, the physician's assistant referred to in the complaint. Specifically, because the plaintiff has only attached opinions authored by a physician specializing in cardiology and a physician specializing in emergency medicine, the plaintiff's claims pertaining to the care and treatment by the physician's assistant should be dismissed because neither author qualifies as a similar health care provider. The plaintiff counters that while Walsh may have provided some care to the decedent under the direct guidance and supervision of an emergency room physician, she is not named as a defendant in this action. Rather the health care providers against whom this lawsuit is directed and the named defendants herein are institutions, and there is no Appellate Court authority as to the requirements of § 52-190a as it applies to institutional defendants.
General Statutes § 52-190a was amended in 2005 to include the requirement that a medical malpractice plaintiff attach to the initial pleading a "written and signed opinion of a similar health care provider." The Appellate Court acknowledged this revision in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 543, stating that, "the main difference between the 2005 revision and the present version of the statute are that the 2005 revision did not require the plaintiff to obtain a written opinion from a similar health care provider prior to filing the action or to attach a written opinion to the certificate. Nor, of course, did it contain a remedy for a plaintiff's failure to do so." "Section 52-190a(c) provides: `The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.' . . . A plain reading of this subsection indicates that the letter must comply with subsection (a) to avoid potential dismissal." Id., 545. A "similar health care provider" is defined by General Statutes § 52-184c(b) and (c).
General Statutes § 52-190a(a) provides in relevant part: "No civil action or apportionment complaint 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 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith . . ."
§ 52-184c(b) provides: "If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a `similar health care provider' is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
§ 52-184c(c) provides: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a `similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider.'"
In the present case, the plaintiff attached two opinion letters to the initial complaint, both authored by state licensed medical doctors, one specializing in emergency room medicine with board certification in emergency medicine and internal medicine, and the other specializing in cardiology with board certification in internal medicine. See complaint, exhibit B. The defendant argues that these opinion letters are insufficient under § 52-190a(a) because a medical doctor is not a "similar health care provider" to a physician's assistant.
In support of their argument, the defendants rely primarily on the decision of our Appellate Court in Bennett v. New Mitford Hospital, Inc., supra, 117 Conn.App. 535, recently affirmed by the Supreme Court; 300 Conn. 1 (2011); and the Superior Court decision in Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) ( 49 Conn. L. Rptr. 162). In Bennett, the defendant health care provider moved to dismiss the plaintiff's medical malpractice action on the ground that, inter alia, the plaintiff did not attach a written opinion letter from a "similar health care provider," pursuant to § 52-190a, because the defendant physician held himself out as a specialist in emergency medicine and the opinion letter author was a "board certified general surgeon." In affirming the Appellate Court's judgment, the Supreme Court held that "[b]ecause the plaintiff brought this action against the defendant in his capacity as a specialist in emergency medicine, we conclude that § 52-190a (a) required the plaintiff to supply an opinion letter authored by a similar health care provider as defined by § 52-184c(c). As a consequence of the plaintiff's failure to provide such an opinion letter, we conclude that the trial court, therefore, was required to dismiss this action pursuant to § 52-190a(c)." Bennett v. New Milford Hospital, Inc., 300 Conn. 1.
In applying the reasoning of the Appellate Court in Bennett, the court in Wightman v. Sposato, supra, Superior Court, Docket No. CV 09 5026454, granted a motion to dismiss the plaintiff's complaint with respect to the defendant physician's assistant. The court reasoned that the writer of the plaintiff's opinion letter, a board certified physician in emergency medicine and family practice, was not a sufficiently similar health care provider to the defendant, a physician's assistant, pursuant to § 52-184c(b). Id. "A board certified physician who specializes in emergency medicine has a different education, license and skill set than a physician's assistant, even though they may work in similar settings . . . Although this may seem to be a harsh result, the Appellate Court has concluded that an opinion must come from a `similar health care provider' as defined in §§ 52-184c(b) or (c) . . ." Id. See also Xicohtencatl v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.) ( 49 Conn. L. Rptr. 156) (granting defendant's motion to dismiss claim arising out of care and treatment by physician's assistant, holding that plaintiff's opinion letter, authored by board certified obstetrician and gynecologist, did not qualify as letter from "similar health care provider" pursuant to § 52-184c(b)); Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001512 (April 16, 2009, Pickard, J.) ( 47 Conn. L. Rptr. 581), aff'd, 300 Conn. 33 (2011) (retired nurse was not similar health care provider with respect to defendant hospital's board-certified psychiatrist and licensed social worker).
The plaintiff argues that the defendants herein are corporate entities and not individual employees of ECHN and MMH. The plaintiff further argues that because the named defendants are institutions, and his negligence claims stem from the alleged inadequate diagnosis and treatment of various employees of the defendants, that he has fulfilled his obligation under § 52-190a by providing an opinion from an emergency medicine physician.
As of this date, there is no appellate authority addressing the definition of "similar health care providers" in relation to institutional defendants. Although our Appellate Court addressed the meaning of the language "similar health care provider" in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 545, the court specifically limited its holding to apply to the defendant physician, and not to institutional defendants. "In resolving the issues presented in this appeal, we need not address medical malpractice claims against institutional defendants. We note, however, that there may be a gap in § 52-190a regarding such defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation." Id., 549 n. 10.
A number of Superior Court decisions, however, have addressed the meaning of the phrase "similar health care provider" as it pertains to institutional defendants. "[T]his court agrees with the reasoning of the majority of decisions, which hold that the written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution. The statute does not require the plaintiff to identify the name of each individual who acted on behalf of the corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiff who, the legislature determined, might otherwise institute meritless claims." (Internal quotation marks omitted.) Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (September 27, 2010, Swienton, J.) [ 50 Conn. L. Rptr. 641]. Further, in a case such as this one, it makes little sense to read into § 52-190a the suggestion that institutions such as ECHN or MMH would be held to the standard of care of a physician's assistant when physicians with specialized training have been involved in the care of the patient making a claim of institutional medical malpractice.
A similar view was taken by the court in DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 06 5010472 (August 5, 2008, Berger, J.) ( 46 Conn. L. Rptr. 121). "At this stage of the litigation the plaintiff is presumed to have a basis for alleging negligence but not necessarily, particularly in the case of an institution like a hospital, a basis for alleging which agent of the hospital was responsible. Neither § 52-190a or our rules of pleading require the plaintiff to identify every agent who acted on behalf of the Hospital. It is alleged that the plaintiff was under the care of the hospital, but it is premature to expect at this stage identification of exactly which agent or what aspect of care was responsible for not treating or not recognizing the [defendant's condition] . . . It would be unwieldy at best, not to say unnecessary and unhelpful to have a blizzard of opinion letters from a physician, a physician's assistant and a nurse all opining, probably hypothetically, about evidence of negligence. While § 52-190a as amended was intended to add a significant hurdle there is no indication of an intent to make the hurdle to filing a medical malpractice case insurmountable, or unnecessarily difficult." Id. See Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.); Ortiz v. Mabri Convalescent Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 09 5005414 (January 15, 2010, Matasavage, J.) ( 49 Conn. L. Rptr. 244); Ogden v. Marlborough Health Care Center, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014553 (May 26, 2010, Swienton, J.); Murphy v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 09 5008059 (January 26, 2010, Marano, J.) ( 49 Conn. L. Rptr. 257).
In the present case, the plaintiff's complaint names only two defendants, both of which are institutions. The defendant challenges the sufficiency of the plaintiff's opinion letters with respect to claims made concerning the care and treatment by a physician's assistant, but the sufficiency of the letters is not challenged with respect to any other hospital employee. One of the opinion letters provided by the plaintiff is written by a "state-licensed medical doctor specializing in emergency room medicine with board-certification in both Emergency Medicine and Internal Medicine." The author states that after review of the pertinent records, in his or her opinion, "there is evidence of medical negligence in the care and management of Katherine Barrett on the part of the Emergency Room health care providers at Manchester Memorial Hospital on December 23, 2007, acting through its nurses, staff agent and employees, including, but not limited to Elizabeth Walsh, PA-C, and Alfred Caudullo, DO . . ." Additionally, in paragraphs 25-27 of the complaint, the plaintiff clearly frames his allegations against the defendants in their capacities as institutional health care providers, acting through their agents and employees.
As mentioned previously, the plaintiff also attached a second opinion letter authored by "a state-licensed medical doctor specializing in cardiology with board certification in internal medicine, and subspecialty certification in cardiovascular disease." This opinion, however, will focus on the first letter, authored by a state licensed medical doctor specializing in emergency room medicine.
The opinion letter of the emergency room medical specialist supports the plaintiff's claim that the author's credentials are more than sufficient to satisfy the requirements of 52-190a(a) for a similar health care provider with respect to Caudullo. It is unclear from the record thus far whether Caudullo is a specialist or holds himself out as such, and it is therefore also unclear whether the opinion letter author must meet the requirements of a similar health care provider pursuant to §§ 52-184c(b) or 52-184c(c). In any event, because the defendants do not challenge the opinion letter as to Caudullo, and various Superior Court decisions have held that an opinion letter is sufficient for a medical institution if it is sufficient for at least one agent or employee of the medical institution, this written opinion appended to the plaintiff's complaint is sufficient to satisfy the requirements of § 52-190a.
Timing of motion to dismiss
In opposition to the motion to dismiss, the plaintiff further argues that the defendants are precluded from challenging the sufficiency of the physicians' opinion letters because they have waived their right to file a motion to dismiss under the order of pleadings requirements of Practice Book §§ 10-6 and 10-7 by subsequently filing a request to revise on April 15, 2010. Additionally, the defendants filed their motion to dismiss well beyond the thirty-day time period required by Practice Book §§ 10-30 through 10-32. The defendants counter that they have not waived their right to file a motion to dismiss because the Practice Book rules concerning the order and timing of pleadings do not apply to such non-jurisdictional motions to dismiss.
Our Appellate Court has held that a defendant in a medical malpractice action may waive the statutory requirements of § 52-190a(a). Votre v. County Obstetrics Gynecology Group, P. C., supra, 113 Conn.App. 586. In the present case, the defendants filed their appearance on December 29, 2009 and did not file the motion to dismiss until June 11, 2010. Because the court finds that the opinion letter provided by the plaintiff is sufficient under the requirements of § 52-190a(a), it does not address whether waiting a period of over five months to file such a motion to dismiss constitutes a waiver by the defendants.
CONCLUSION
For all the foregoing reasons, the defendant's motion to dismiss is hereby denied.