Opinion
No. CV 06-5003390-S
May 17, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This is a medical malpractice action brought by the administratrix of the estate of Sigfredo Cruz, Jr. a fifteen-year-old boy. The defendants The Connecticut Children's Medical Center, CCMC Faculty Practice Plan, Inc. and CCMC Corporation have filed a motion to dismiss portions of the complaint for lack of subject matter jurisdiction. The defendants allege a failure on the part of the plaintiffs to meet the prerequisite elements of the good faith statute, subsection 52-190a(a) of the Conn. Gen. Stat. which reads as follows:
To show the existence of such good faith, the claimant . . . shall obtain a written and signed opinion of a similar health care provider, as defined in § 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.
To accommodate their argument the defendants divide up the treatment of the decedent into three parts: 1. treatment of the decedent prior to December 13, 2006, (sic) 2. emergency room care on December 13, 2003 and 3. treatment of Mr. Cruz in the intensive care unit (ICU) on December 14, 2003. The defendants agree that the plaintiff has appended letters from two attesting physicians, but claim that neither physician is critical of the care of Mr. Cruz prior to December 13, 2003. The defendants, therefore claim that paragraphs four through fifteen of the general allegations and paragraphs forty-six (a)-(g) of count two must be dismissed from the complaint. Additionally, they claim that the opinions of the attesting physicians do not support the allegations of negligence contained in paragraphs forty-seven (a)-(c), (f), (l)-(x) and (u)-(bbb) of count one and thereafter repeated in paragraphs forty-six (h)and(bb)-(hh) of count two of the complaint.
The defendants have filed a memorandum of law containing a very detailed statutory interpretation of that portion of § 52-190a(a) pertaining to the filing of the medical opinions. The defendants conclude that the medical opinions required by that section should cover all allegations of negligence in the complaint and further they rely upon § 52-190a(c) which reads as follows:
the failure to obtain and file a written opinion required by subsection(a) of this section shall be grounds for the dismissal of the action
for the proposition that failure to file a written opinion covering each allegation of negligence entitles them to a dismissal of each such allegation of negligence.
The plaintiffs contend that by attaching the letters of opinion from two highly qualified similar health care providers giving detailed reasons as to why they feel that there appears to be evidence of medical negligence as well as filing a certificate of good faith, they have clearly complied with the letter of Conn. Gen. Stat. § 52-190a(a). Plaintiffs also contend that they have satisfied the spirit and intent of the good faith requirements of Conn. Gen. Stat. § 52-190a which is to prevent the filing of baseless law suits. Further, the plaintiffs maintain that the motion to dismiss seeks an unwarranted expansion and misconstruction of Conn. Gen. Stat. 52-190a in that its meaning is plain and unambiguous. They maintain that there is no basis for the defendants' claim, that the written opinion letter would have to provide the detailed basis for any and all allegations of negligent conduct to be alleged in the complaint and that any allegations of negligence not mentioned in the opinion letter are subject to dismissal under subsection (c) of the statute. The Court is in agreement with the plaintiff.
On pages eleven and twelve of their memorandum the defendants state "Second, by adding language to the statute requiring that the detailed written opinion be attached to the good faith certificate to support the allegations of malpractice, the legislature intended to address the problem of inadequate notice given to the defendant health care providers at the outset of the litigation. Rather than wait until the plaintiff's experts have been disclosed and deposed, the statute requires that the plaintiff provide an expert's opinion containing a detailed basis for the formation of such opinion as a prerequisite to filing suit."
In the opinion of this Court this is a clear misunderstanding of the purpose of the opinion letter referred to in § 190a(a). The purpose is stated right in the statute, "To show the existence of such good faith." It is not concerned with notice to the defendants. Its purpose is to give the Court assurance that plaintiffs have made a reasonable inquiry and, that there are grounds for a good faith belief that there has been negligence in the care and treatment of the claimant. It simply requires that a similar health care provider is to provide the Court with a written opinion that there appears to be evidence of medical negligence and give his/her reasons therefor. It has nothing whatever to do with adequate notice to the defendants. All detailed notice to the defendants must appear in the complaint. It has nothing to do with disclosure and deposition of expert witnesses.
It is the complaint which notifies the defendants of the details of the allegations of negligence being brought against them. There is nothing in the statute, and the cited legislative history or in pertinent case law indicating that this statute was intended to affect, let alone control, what allegations could be included in a medical malpractice complaint. The clear focus of the statute is to stop baseless cases from being filed or at least litigated.
The defendant's interpretation of the function of the opinion letter could prevent the plaintiff from using further evidence of malpractice brought about through the use of discovery.
As pointed out by the plaintiffs, the defendants seek an unwarranted expansion and misconstruction of Conn. Gen. Stat. § 52-190a(a). They urge the Court to dismiss any allegations of negligence in plaintiff's complaint not identified as such within the terms of the opinion letters of similar health care providers. The rational for this request is that § 52-190a should be read as requiring that such opinion letters detail all claims of negligence which are to be included in the complaint not just a negligent act or acts warranting the filing of the law suit.
Nothing in the statute supports this contention. As pointed out above whatever is to occur within the law suit should continue to be governed by the existing rules of practice and relevant case law. These rules encourage plaintiffs to include within their complaints all claims which may conceivably and reasonably arise from the operative factual scenario, but also allow plaintiffs the benefit of discovery before having to disclose experts and what their testimony will support at trial within a reasonable time prior to trial and in response to interrogatory requests pursuant to subdivision(1)(A)of Rule 13-4(4) in a timely fashion.
The defendants urge this Court to presume that subsection (c) of 52-190a can and does mandate dismissal of specific allegations of a complaint if they are not specifically supported by the opinion letter, and that the Court lacks jurisdiction over such allegations. In actual fact, subsection(c) says absolutely nothing about such a partial dismissal, i.e. one which applies to some allegations of the complaint but not others. Conn. Gen. Stat. § 52-190a(c) mentions dismissal on the basis of insufficient compliance with the opinion letter requirement i.e. "obtain and file" same. The statute authorizes only dismissal of "the action" not sections of it.
Conn. Gen. Stat. § 52-190a, as amended intended to discourage/prevent the filing of baseless/frivolous medical malpractice law suits. Neither explicitly nor implicitly does it require the letter of opinion accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter of opinion.
In this case plaintiff has presented letters of opinion from qualified, similar health care providers as required by the statute. These letters provide a detailed explanation for the practitioners' opinions that there was negligent treatment of the plaintiff's decedent by defendants, and show that filing of a law suit against the defendants is warranted. Thus, plaintiff has satisfied both the letter and the spirit of the statute.
The motion to dismiss is denied.