Opinion
No. CV 09-5030767 S
February 8, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is a motion to dismiss made pursuant to Section 52-190a of the General Statutes. A discussion of the motion requires the court to set forth the allegations of the complaint. The defendant Dr. Longo treated the plaintiff from March 26 through April 4, 2007 in connection with the surgical extraction of teeth. Earlier in that year another dentist, referred to as John Diduca's restorative dentist referred Mr. Diduca to the defendant Dr. Longo. The complaint goes on to say in the negligence count:
6. At the time of the referral, the referring dentist provided a written referral form saying exactly which teeth should be extracted.
7. The referral form very specifically noted that the maxillary right and left canines, teeth numbers 6 and 11 should not be extracted.
8. It was particularly important not to extract these teeth because they were required for Mr. Diduca's dental plan and, if removed, would have to be replaced by dental implants and bone grafting.
9. Contrary to the specific instructions on the referral form, the defendant Longo extracted (Mr. Diduca's) right and left canines, teeth numbers 6 and 11.
10. There was no medical or dental reason to extract these two teeth.
11. No reasonable oral and maxillofacial surgeon would think there was a medical or dental reason to extract these two teeth.
12. Before the defendant Longo saw (Mr. Diduca) the referring dentist had endodontics performed on the two teeth. He also had (Mr. Diduca) see a periodontist for scaling and root planning of the teeth. He also fabricated a maxillary overdenture to fill over the teeth. All these measures were necessary preparation for the use of these teeth after placement of the dentures."
The complaint goes on to allege Dr. Longo did not review the referral form before the extraction performing the procedure "without considering whether it was necessary or appropriate."
Paragraph 19 goes on to state the injuries of Mr. Diduca which are set out in paragraphs 17 and 18 "were caused by the negligence and carelessness of the defendant" in the following respects:
a. in that he improperly removed the two teeth without any medical indication to do so;
b. in that he improperly removed the two teeth contrary to the instructions from the referring dentist;
c. in that he improperly removed the two teeth without reviewing the instructions from the referring dentist;
d. in that he improperly rushed through his procedures;
f. in that he improperly removed the two teeth without discussing his intention to do so with John, or obtaining John's consent; and
g. in that he improperly treated John's dental problems.
Interestingly, the complaint in the first paragraph notes that Marilyn Diduca is the Executrix of the estate of her late husband John Diduca bringing this action on behalf of herself and the estate. It also notes that subsequent to her appointment, the clerk "granted a 90 day extension of time to file this action." A copy of the petition is attached to the complaint. It states the petition was made pursuant to § 52-190a(b) "to allow the reasonable inquiry required by subsection (a) of Section 52-190a."
There are also loss of consortium counts, recklessness, and lack of informed consent counts. The motion was initially directed against all the counts.
The portion of Section 52-190a relevant to this case reads as follows:
(a) No civil action or appointment 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 plaintiff did attach a § 52-190a(a) opinion letter. A doctor who described himself as a "practicing dentist" indicated that after reviewing all the relevant records that the treatment provided by Dr. Longo "did not meet the appropriate standard of care," Later in the opinion letter this dentist states Dr. Longo violated the standard of care in several respects one of which was "2. Failure to follow the referral instructions:" "A. Dr. Kusovitsky was very specific in his referral to Dr. Longo about which teeth he wanted extracted. Dr. Longo failed to follow this prescription." He extracted teeth #6 and #11 according to the § 52-190a(a) opinion letter. The letter goes on to state that Dr. Kusovitsky "called Dr. Longo to discuss the error (according to Dr. Kusovitsky's treatment notes), and that Dr. Longo apologized and stated he was rushed and never looked at Dr. Kusovitsky's prescription." The letter also states since Dr. Longo's treatment "Mr. Diduca had a bone graft and four dental implants placed by Dr. Avrum Golstein to aid in the retention of his maxillary denture."
(1)
The court will discuss the viability of the first professional negligence count as it controls the way in which other counts at which this motion is now directed should be treated. The September 10, 2009 motion to dismiss was based on the argument that the opinion letter just referred to and quoted from did not meet the requirements of § 52-190a(a) because Dr. Longo was a board certified oral and maxillofacial surgeon and the writer of the opinion letter only described himself as a "practicing dentist." Therefore the statutory requirement set forth in § 52-190a(a) has not been met since the "expert opinion letter attached to the complaint is not authored by a similar health care provider as required by the statute . . ."
The plaintiff argues that the requirements of § 52-190a(a) do not apply since the claim here of extraction of the wrong teeth by the defendant despite the referral instructions of another dentist lies in ordinary or common negligence not medical malpractice. Trimel v. Lawrence Memorial Hospital, 61 Conn.App. 353 (2001), is relied upon which upheld the trial court's granting of a motion for summary judgment. The court reasoned that "the defendants' decision to allow the plaintiff to move herself, unassisted, from the wheelchair to an exercise mat during the therapy session involved the use of medical judgment, thereby rendering the plaintiff's claim as one of medical malpractice rather than ordinary negligence and thus requiring the filing of a certificate of good faith" under § 52a-190a(a). The CT Page 4655 Trimel court went on to say that "the 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 the medical diagnosis or treatment and involved the exercise of medical judgment," id. Page 358. Boone v. William Backus Hospital, 272 Conn. 551 (2005), is cited for its definition of medical malpractice not revolving around a § 52-190a(a) issue but on whether expert testimony was necessary and particularly whether, in that case, the alleged malpractice was of such a nature that expert testimony was not required, id. pp. 562 et seq.
(2)
Trimel and especially Boone offer insight on what the court considers the difficult problem presented by this motion to dismiss but are not directly on point in trying to resolve it. In other words of course Trimel can be read as saying where a claim lies in medical malpractice a § 52-190a(a) opinion letter is required. But interestingly the statute itself does not mention the concept of "medical malpractice" — the statute refers to an action in tort or contract in which harm resulted from the "negligence of a health care provider." It then notes that "reasonable inquiry" must be made to determine if there is a "good faith belief that there has been negligence in the care or treatment of the claimant." The show of good faith the statute requires the opinion of a similar health care provider. In other words malpractice is by definition professional negligence, the negligence of a health care provider. What qualifies the definition for the purposes of the statute and what underlines the legislature's intention in passing it, is the reasonable inquiry aspect of the language which mandates an opinion letter from another expert and thus defines the nature of reasonable inquiry. From that perspective semantic inquiries over the definition of medical malpractice while important in a case like Trimel are not controlling when the issue presented goes beyond deciding whether medical malpractice is involved — if it is not of course the statute's requirements do not apply. But that is not, at least for the court, the decisive question here.
Thus in LeConche v. Elligers, 215 Conn. 701, 711 (1990), the court said the § 52-190a(a) certificate "serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence." In Bruttomesso v. Northeastern Conn. Sexual Assault Crises Services, Inc., 242 Conn. 1, 15 (1997), the court said: "The purpose of the legislation is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider."
In other words it is certainly not necessary to accomplish the legislative purposes to secure expert testimony when the negligence of the health care provider does not lie in medical malpractice. But how is it necessary or how does it fulfill any rational aim at discouraging frivolous lawsuits to require, at the risk of dismissal, opinion letters under the statute in that category of malpractice case, even if it is defined as such, where expert testimony is not needed at trial. If it is not needed at trial, what is the point of inventing a filtering process before trial.
This category of cases has been long recognized by our court. In Tait and Prescott's Handbook of Connecticut Evidence at § 7.5.4(b), page 412 it says:
The Appellate Court has listed three exceptions to the requirement of obtaining expert testimony to prove a medical malpractice case: first, if the negligence is gross; second, where the medical condition is obvious; and third, if the evidence of injury creates a probability so strong that a lay juror can form a reasonable belief. Poulin v. Yasner, 64 Conn.App. 730, 747 (2001). The Supreme Court has characterized the exception as one where the professional negligence is egregious, namely, "so gross as to be clear to even a lay person." Boone v. William W. Backus Hospital, 272 Conn. 551, 567-69 . . .
cf Gannon v. Kresge Co., 114 Conn. 36, 38 (1931) (miscarriage).
This is a generally recognized principle. In the 61 Am.Jur.2d article on "Physicians, Surgeons" at Sec. 323 pp. 437-39, it notes that "Not all medical malpractice cases are so technical that they require expert testimony; there are exceptions to the requirement of expert testimony if the negligence of the physician is so grossly apparent or the treatment is such a common occurrence that a layperson would have no difficulty in appraising it. Allowing a jury to make its own inferences from the proven facts may be permissible when a physician has committed a blunder so egregious that a layperson is capable of comprehending its enormity." See for example Gallant v. U.S., 392 F.Sup.2d 1077 (Dist.Ct. Alaska, 2005), where in footnote 35 the court said: "The classic example where expert testimony is not needed concerns the surgeon who amputates the wrong leg. Clary Ins. v. Doyle, 620 P.2d 194, 201 (Alaska, 1980) (citing W. Presser Law of Torts § 32 at 165 (4th ed. 1971).
The foregoing discussion underlines, at least for the court, that the legislative purpose behind § 52-190a(a) to weed out frivolous cases, is not advanced by some requirement of securing an expert opinion in the type of cases just discussed. If the factual allegations are established, medical malpractice can be established without the need for an expert opinion so how does it make sense to require an expert opinion before suit can be brought. An opinion by the average intelligent laymen would serve just as well. Neither is violence done to the language of § 52-190a(a). In Trimel itself definitions of medical malpractice were read into a statute that did not use the term. As noted the statute talks generally about harm resulting by the negligence of a health care provider and negligence not only in "treatment" but in "care." The court never dealt with the particular problem raised by the type of case in the medical malpractice genre because it was not before the court.
Other states seem to support the view this court takes that under § 52-190a an expert opinion is not required in the limited category of medical malpractice cases just discussed. For example New Jersey had provided the following statute and it was applied to medical malpractice cases. It said:
N.J.S.A. 2A:53A-27 states:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
The statute was amended in 2004 to explicitly mention medical malpractice cases.
The New Jersey Supreme Court reviewed and interpreted this statute in Hubbard v. Reed, 168 N.J. 387, 774 A.2d 495 (2001). There the plaintiff filed a dental malpractice action against a dentist who extracted the wrong teeth. A motion to dismiss was filed by the defendant dentist because an affidavit of merit was not filed by the plaintiff pursuant to the statute. The plaintiff responded to the effect "that when negligence is so apparent that expert testimony will not be needed at trial, the purpose of the statute — to reduce frivolous lawsuits — would not be furthered by requiring an affidavit of merit." In New Jersey law this type of professional negligence is called "common negligence." The court held that under the statute, as it interpreted it, the affidavit requirement was not necessary:
Because we do not believe that the Legislature intended to burden a plaintiff with the affidavit requirement when expert testimony is not required at trial to establish the defendant's negligence, we hold that an affidavit need not be provided in common knowledge cases when an expert will not be called to testify "that the care, skill or knowledge . . . [of the defendant] fell outside acceptable professional or occupation standards or treatment practices. N.J.S.A. 2A:53A-27." 168 N.J. at page 390.
The Hubbard court noted that the "affidavit of merit statute, on its face, applies to `any action' involving professional malpractice N.J.S.A. 2A-53A-27. No express exception is made for common knowledge cases, nor does the legislative history specifically address the question. The court in reaching its decision that no affidavit is needed in so-called common knowledge cases reasoned that: "If jurors, using ordinary understanding and experience without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of the plaintiff's complaint. Although the Appellate Division points out that questions relating to evidence at trial and to the basis for the affidavit are quite different, 331 N.J. Super at 293, broadly speaking, an affidavit serves little purpose when a plaintiff intends to rely on common knowledge at trial. Put another way, in a common knowledge case an expert is no more qualified to attest to the merit of a plaintiff's claim than a non-expert," 168 N.J. at page 395.
The New Jersey court realized of course, it was involved in the task of statutory interpretation and reaching its conclusion quoted from an earlier New Jersey case which stated that "where a statute or ordinance does not expressly address a specific situation, the court will interpret it `consonant' with the probable intent of the draftsman had he (sic) anticipated the matter at hand," 168 N.J. at page 396.
In any event for the foregoing reasons the court denies the motion to dismiss as to all counts noting that the motion as it was directed at the informed consent allegations was withdrawn.
Furthermore the court agrees with the position taken by the court in Palanque v. Lambert-Woolley, 168 N.J. 398, 774 A.2d 501 (2001), decided by the New Jersey Supreme Court the same day it decided Hubbard. There it said:
If, at some later point, an expert for defendant provides evidence refuting plaintiff's common knowledge case, plaintiffs will be permitted to respond with expert testimony for rebuttal purposes. See Tousignant v. St. Louis County, 615 N.W.2d 53, 60 (Minn. 2000) (stating that plaintiff was not required to file expert affidavit in common knowledge case even though "expert testimony may . . . at some point be necessary to refute evidence presented by respondents at trial"). An expert will not be permitted to testify in plaintiff's case-in-chief.
Id. at 168 N.J. page 407-08.
Consistency requires these positions if a § 52-190a(a) opinion letter is not required in cases of this type.
In any event, as indicated, the motion to dismiss is denied.
Part of the problem in this case is that count one of the complaint at paragraphs 10 and 11 and perhaps subsections (a) and perhaps (g) of paragraph 19 could be read as making a claim going beyond a "common negligence" claim. At oral argument plaintiff's counsel, however, explicitly limited himself to such a claim and the defendants protected by the just quoted language from Palanque.