Opinion
No. X10 UWY CV 06-5004889 S
October 17, 2007.
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
This is a medical malpractice action brought by the Plaintiff, Michael J. Guido, Administrator of the Estate of Laurie E. Guido, against the Defendants, Richard A. Hughes, M.D. and his employer, Norwalk Anesthesiology, P.C.; Ralph L. Crum, M.D., and The Norwalk Hospital Association.
The Defendant, Norwalk Hospital, has filed a Motion to Dismiss because it claims that no good faith certificate, including the written opinion of a similar healthcare provider, as required by General Statutes § 52-190a, has been filed by the Plaintiff as to it. The Hospital claims that this is a jurisdictional flaw in the complaint requiring dismissal.
General Statutes § 52-190a provides:
(a) 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 . . . (c) 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.
In this case the certificate signed by the Plaintiff's attorney, and attached to the complaint, states that "a reasonable inquiry has been made, as permitted by the circumstances, and this inquiry has given rise to a good faith belief on my part that grounds exist for an action against each named defendant . . ." Also attached to the complaint is an opinion by a board certified anesthesiologist that there is evidence of medical negligence, in the management, care, and treatment of the Plaintiff's decedent by Dr. Hughes, and an opinion by a board certified surgeon that there is evidence of medical negligence on the part of Dr. Crum, in his medical and surgical management, care, and treatment of the Plaintiff's decedent.
Norwalk Hospital claims that a good faith certificate from a similar healthcare provider is conspicuously absent as to Norwalk Hospital and therefore the case must be dismissed as to it. The Plaintiff argues that it has complied with the requirements of the statute as to the Hospital.
As the Hospital notes, "[w]hen reviewing a motion to dismiss the court must consider the allegations of the complaint in the most favorable light to the Plaintiff." Memorandum of Law in Support of Motion to Dismiss, p. 3. "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 . . ." (Internal quotation marks and citations omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501 (2005).
The statute requires that there be two documents attached to the complaint in a medical malpractice case: (1) the certificate of the attorney filing the action that a reasonable inquiry has given rise to a good faith belief that grounds exist for an action against each named defendant; and to show the existence of such good faith, (2) a written and signed opinion of a similar health care provider that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. As the court noted in Andrikis v. Phoenix Internal Medicine, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV 05-5000482 S (Matasavage, J., Apr. 19, 2006): "The requirements of § 52-190a, as stated in subsection (a) do not appear to be ambiguous. Subsection (a) of the statute imposes the following requirements on medical malpractice complaints: (1) it must contain a certificate avowing that the plaintiff conducted a reasonable inquiry to determine that the plaintiff has grounds for a good faith belief that the plaintiff's cause of action exists; (2) to show good faith, the plaintiff must obtain a signed, written opinion in which a health care provider postulates that there appears to be evidence of medical negligence; and (3) the author must include a detailed basis for the formation of such opinion. General Statutes § 52-190a(a). Subsection (c), the remedy portion of the statute, is clear, as far as it provides that the plaintiff's failure `to obtain and file the written opinion shall be grounds for dismissal.' General Statues § 52-190a(c)."
Here the certificate by the Plaintiff's attorney states that there is a good faith belief that grounds exist for an action against "each named defendant." Thus the certificate includes Norwalk Hospital. Yet the opinions attached to the certificate, on which the attorney's belief is based, reference only the alleged negligent acts of the Defendants, Dr. Hughes and Dr. Crum, and make no specific reference to Norwalk Hospital. Nevertheless, the Plaintiff claims that this is sufficient since the complaint alleges that Dr. Hughes is Norwalk Hospital's agent or employee.
The complaint alleges that: "At all times relevant to this action, all staff members and employees of defendant Hospital, including but not limited to, physicians and nurses participating in the care and treatment rendered to Laurie E. Guido (including, but not limited to, defendants Hughes and Crum . . .), were acting within the scope of their authority, agency and/or employment and in furtherance of the interest of said Hospital" (paragraph 59) and "[i]n order to provide appropriate care and treatment to its patients, the defendant Hospital was required to allow services to be rendered only by the hospital employees and agents (said agents including but not limited to defendants Hughes and Crum . . .)." (Paragraph 60.) These allegations are sufficient to impose liability on the Hospital for the actions of the Defendants, Dr. Hughes and Dr. Crum. "From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that, under the common-law principle of respondent superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." Matthiessen v. Vanech, 266 Conn. 822, 839 (2003). In the medical malpractice area it has been held that a corporate entity can be held liable for the medical malpractice of its employees. Ali v. Community Health Care Plan Inc., 261 Conn. 143 (2002). Since the written opinions of healthcare providers similar to Dr. Hughes and Dr. Crum are attached to the complaint, it is sufficient to withstand a motion to dismiss as to the claims against the Hospital based on vicarious liability. In a case similar to this, where the opinion attached to the complaint referenced only the alleged negligence of the individual physician employee of the Hospital Defendant, and not the Hospital, the court held that such an opinion was sufficient to withstand a motion to dismiss. Hernandez v. Moss, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV065000664S (Gallagher, J., May 31, 2007). The court in Hernandez noted that "the letter need not be a template for the complaint." A review of the allegations of the complaint here, and the opinion letters attached to the complaint, reveal that they are sufficient to withstand the Hospital's motion to dismiss.
The Hospital argues, however, that certain allegations of the complaint are directed toward other unnamed employees, agents and officers and directors of the Hospital based on a direct, rather than a vicarious liability theory, and there is no support for such claims in the opinions attached to the complaint. The court in Hernandez stated: "As the court in Ranney noted, the statute does not require the opinion to name each actor of the corporate defendant. Neither does it require the author of the opinion, a similar medical care provider, to express opinions concerning vicarious liability. The doctrine of respondeat superior is a legal construct pursuant to which a defendant could be held liable for the negligent acts of its employee . . ." (Citation omitted.) In Ranney v. New Britain General Hospital, Superior Court, Judicial District of New Britain at New Britain, Docket No. HHB CV06 5000954 (Sep. 18, 2006), Judge Pittman stated: "The statute does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in the 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 plaintiffs who, the legislature determined, might otherwise institute meritless claims."
In any event, what in essence the Hospital is asking the court to do is dismiss this case as to it where some, but not all, the allegations of the complaint against the Hospital are supported by the opinions submitted pursuant to General Statutes § 52-190a(a). This the court cannot do. Although the statutory language indicates that the absence of the opinion required by subsection (a) may be grounds for dismissal of the action, "[w]hen a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged . . . In ruling on 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, and construe them in a manner most favorable to the pleader . . . If a court has jurisdiction to grant any one of the claims for relief set out in a plaintiff's complaint, the action should not be dismissed for lack of jurisdiction." Montanaro v. Aspetuck Land Trust, 103 Conn.App. 237, 242 (2007). Since the court has determined that the opinions submitted, as well as the allegations of the complaint, support a claim against the Hospital, dismissal of the action as to it is inappropriate.
In addition, as the court stated in Andrikis: "The statutory language, and the legislative intent indicate that the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action."
Lastly, this court agrees with the court in Donovan v. Sowell, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV 06-5000596 S (Matasavage, J., June 21, 2006) [41 Conn. L. Rptr. 609], which stated:
The language that the legislature used in subsection (a) suggests that the legislature intended the filing of the written opinion to serve as a sort of "jurisdictional" hurdle that a plaintiff must pass in order to maintain a medical malpractice action. The type of jurisdiction that the legislature had in mind, however, is not obvious from a preliminary reading of the text of the statute. As this court previously stated, "[s]ubsection (c), the remedy portion of the statute, is clear, as far as it provides that the plaintiff's failure `to obtain and file the written opinion shall be grounds for dismissal.' General Statutes § 52-190a(c)." . . . It does not state, however, that a plaintiff's failure to comply with these requirements deprives the court of subject matter jurisdiction, or, as the plaintiffs point out, that dismissal is mandatory. In other words, the language the legislature used in subsection (c) is not the type of mandatory language that can only be read as implicating the court's subject matter jurisdiction.
Therefore, for the reasons stated above, the Motion to Dismiss is denied.