Opinion
No. CV 09-5008059 S
January 26, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101 FACTS PROCEDURAL HISTORY
On July 1, 2009, the plaintiffs, Patricia and Fred Murphy, commenced this medical malpractice action against the defendants, Kenneth Blau, M.D. (Blau), Women's Health Associates, P.C. (Health Associates) and Danbury Hospital (the Hospital). The plaintiffs' complaint alleges the following facts. Blau is an agent and/or employee of Health Associates. Danbury Hospital credentialed Blau to perform procedures at its facility. For a period of time prior to April 6, 2007, Patricia Murphy was treated by defendant Blau for pelvic relaxation and urinary stress incontinence. On April 6, 2007, Blau performed surgery on Patricia Murphy to correct her condition. Following the operation, Patricia Murphy complained of numerous ailments, including chronic and severe dyspareunia and pelvic pain, blood in her urine and during sexual intercourse, recurrent utero-vaginal prolapse and recurrent urinary stress incontinence. Blau, individually and as an agent and/or employee of Health Associates, was negligent in his treatment of Patricia Murphy in that he performed an unnecessary surgery while failing to communicate the risks of the procedure to the patient, and that he failed to adhere to the proper standard of care in his performance of the surgical procedure. The Hospital was negligent in credentialing Blau and granting the privileges to perform surgical procedures in its facility. The plaintiffs have suffered damages as a result of the defendants' negligence. Pursuant to General Statutes § 52-190a, the plaintiffs have attached two written opinion letters each authored by physicians who are board certified in obstetrics and gynecology. The plaintiffs initially failed to attach the good faith certificate also required by § 52-190a, but have amended their complaint to include this document.
Specifically, the counts of the plaintiffs' complaint are as follows. In counts one and two, Patricia Murphy alleges medical malpractice and lack of informed consent, respectively, against Blau. Count three includes allegations of loss of consortium by Fred Murphy against Blau. Counts four and five allege vicarious liability against Health Associates by Patricia and Fred Murphy, respectively. In counts six and seven, Patricia and Fred Murphy, respectively, allege negligent credentialing against the Hospital. While the counts of the complaint alleged against Danbury Hospital sound in "negligent credentialing," neither party to the present motion to dismiss has argued that the complaint need not comply with General Statutes § 52-190a. The court agrees with the categorization of these counts as claims of medical negligence, subject to the requirements of that statute. See Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). See also Neft v. Johnson Memorial Hospital, 93 Conn.App. 534, 889 A.2d 921 (2006) (expert testimony on the standard of care required in a cause of action for negligent credentialing; trial court categorized the plaintiff's claim as basic negligence, but the claim is actually "akin to one of professional negligence").
The complaint fails to explicitly state that the surgery was performed at the Hospital. It can be implied construing the complaint in the light most favorable to the plaintiff, and was presented as such at oral argument.
A request to amend the complaint to include a copy of the good faith certificate was filed by the plaintiffs pursuant to Practice Book § 10-60(a)(3) on October 20, 2009. As no objection was filed within fifteen days, the request is deemed to have the consent of the defendants.
On August 19, 2009, the Hospital filed the present motion to dismiss (#101) counts six and seven of the plaintiffs' complaint on the ground that the plaintiffs failed to append to their complaint the opinion of a similar healthcare provider pursuant to § 52-190a. The plaintiffs filed a memorandum of law in opposition dated September 22, 2009, to which the defendant filed a reply dated October 1, 2009. The matter was scheduled for argument at short calendar on October 5, 2009. At that time, the parties agreed to reclaim the motion to dismiss for argument at a later date in light of the impending decision by the Connecticut Appellate Court in Bennett v. New Milford Hospital, 117 Conn.App. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009). The matter was then heard at short calendar on October 19, 2009.
DISCUSSION I Whether a motion to dismiss is the proper means by which to challenge the sufficiency of a similar healthcare provider's written opinion letter required by General Statutes § 52-190"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." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegation 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 omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"[T]he general purpose of 52-190a is to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). General Statutes § 52-190a states, in relevant part: "[t]he 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 . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. The claimant or the claimant'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." Section 52-190a(a) requires that the plaintiff attach to the complaint both a good faith certificate completed by the attorney or party commencing the lawsuit and a signed opinion letter written by a similar healthcare provider to demonstrate that a basis exists for bringing the action against each named defendant. The failure to comply with the requirements of § 52-190a(a) renders a plaintiff's complaint subject to dismissal pursuant to § 52-190a(c): Votre v. County Obstetrics and Gynecology Group, P.C., supra, 113 Conn.App. 583. "A similar health care provider is defined in Connecticut General Statutes § 52-184c(c) as 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." Gowlis v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 08 5009513 (December 16, 2008, Alvord, J.).
The plaintiffs argue in opposition to the present motion to dismiss that the sufficiency of a written opinion letter in a medical malpractice case does not implicate subject matter jurisdiction, and therefore cannot be challenged on a motion to dismiss. In the Hospital's reply, it argues that our Appellate Court has addressed the appropriateness of a motion to dismiss to challenge an insufficient written opinion letter.
The issue of whether a motion to dismiss is the proper vehicle by which to address the sufficiency of the physician's opinion letter was most recently addressed by the Connecticut appellate courts in Bennett v. New Milford, supra, 117 Conn.App. 545. In Bennett, our Appellate Court relied on the Connecticut Supreme Court's decision in Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009), and explained "[a]lthough Dias does not explicitly address the issue of whether an inadequate opinion letter would subject an action to dismissal, the court appears to have answered that question in the affirmative by reason of the fact that the court reached the merits of the defendant's claim." Bennett v. New Milford Hospital, supra, 117 Conn.App. 545 n. 6. Additionally, in Votre v. County Obstetrics and Gynecology Group, P.C., supra, 113 Conn.App. 583, the court stated that "motions to dismiss are not limited to jurisdictional challenges. Rios v. CCMC Corp., supra, 106 Conn.App. 821 n. 8." The Votre court further explained that "[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 plaintiff's] 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). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Furthermore, a significant majority of Superior Court decisions have also reached the merits of defendants challenging the sufficiency of the opinion letter through a motion to dismiss.
See Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026452 (December 4, 2009, Wilson, J.); Jaboin v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5023443 (September 11, 2009, Bellis, J.) [ 48 Conn. L. Rptr. 469]; Cataldo v. Zuccala, Superior Court, judicial district of Danbury, Docket No. CV 085004961 (August 11, 2009, Shaban, J.); Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 07 6001269 (November 28, 2007, Bellis, J.) [ 44 Conn. L. Rptr. 595]; Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.).
Accordingly, this court finds that a motion to dismiss is a proper means by which to challenge the sufficiency of the physicians' opinion letters filed with the plaintiffs' complaint pursuant to § 52-190a.
II Sufficiency of the written opinion letter
"[Section] 52-190a(a) requires a plaintiff bringing a negligence claim against a health care provider to attach a certificate of good faith from their attorney and an opinion from a `similar healthcare provider' to their complaint. The statute also requires an opinion to include a `detailed basis' as to why there appears to be evidence of medical negligence." Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.). In its motion to dismiss, the Hospital argues that to comply with § 52-190a(a), the plaintiffs were required to file a separate opinion letter from a similar healthcare provider to support the allegations of negligence directly asserted against it. Specifically, the Hospital argues that the opinion letters provided are written by board certified obstetricians/gynecologists, and "[do] not present any basis for the opinion that there is negligence as to Danbury Hospital in it[s] credentialing of Dr. Blau . . . and does not even mention Danbury Hospital . . ." Motion to Dismiss, page 9. Additionally, the Hospital argues that the opinion letter authors fail to state a detailed basis for their opinions as to the Hospital. In opposition, the plaintiffs argue that the opinion letter one is authored by a similar healthcare provider and is sufficiently detailed.
A Whether the opinion letters attached to the plaintiffs' complaint are authored by a "similar healthcare provider" as to the Hospital CT Page 3740
The plaintiffs have attached to their complaint two written opinion letters from individuals which they contend qualify as "similar healthcare providers" as required by General Statutes § 52-190a. Both opinion letters are written by physicians who are board certified in obstetrics and gynecology.To date, there is no available appellate authority addressing the definition of a "similar healthcare provider" as it relates to institutional defendants. Our Appellate Court recently addressed the meaning of the phrase "similar healthcare provider" in Bennett v. New Milford Hospital, supra, 117 Conn.App. 545, however that decision provides little guidance for the present case because the court explicitly stated that its analysis pertained to the defendant physician, not the institutional defendants. The court explained that in considering the motion before it "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 fn.10. A number of Superior Court decisions, however, have held that if the opinion letter submitted pursuant to § 52-190a as to the defendant physician is deemed to be authored by a sufficiently similar healthcare provider, the requirements of § 52-190a in that respect have been met as to the non-institutional defendants as well.
Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) ( 44 Conn. L. Rptr. 347); Shankar v. Midstate Medical Center, supra, 44 Conn. L. Rptr. 595; Cataldo v. Zuccala, supra, Superior Court, Docket No. CV 08 5004961.
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), the court held that because the opinion letter was authored by a sufficiently similar healthcare provider as the defendant physician, it fulfilled the requirements of § 52-190a as to the defendant hospital as well. Specifically, the court stated that the plain language of § 52-190a does not "mandate a separate written opinion for each defendant. Rather, the statute only mandates that the initial complaint . . . attach a written opinion upon filing . . . 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." (Citations omitted.) Id. See also Skankar v. Midstate Medical Center, supra, 44 Conn. L. Rptr. 595; Guido v. Hughes, supra, 44 Conn. L. Rptr. 347; Hernandez v. Moss, supra, Superior Court, Docket No. CV 06 5000664.
In the present case, the defendant physician, Dr. Blau, is board certified in the same area of specialty as the authors of the written opinion letter. Accordingly, because the opinion letters are authored by a sufficiently similar healthcare provider as to Dr. Blau, they are sufficient to withstand a motion to dismiss brought by the Hospital on this basis.
B Whether the written opinion letters contain a "detailed basis" for the stated opinions
To date, there is no appellate authority on the level of detail required in the written opinion letter. The issue has been addressed, however, by a number of Superior Court decisions. Section 52-190a "[n]either explicitly nor implicitly . . . require[s] the letter of opinion accompanying the good faith certificate to identity 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." DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) ( 43 Conn. L. Rptr. 420). "The statutory language does not expressly mandate that the opinion letter specifically reference the conduct of each of the defendants . . ." Jaboin v. Bridgeport Hospital, supra, Superior Court, Docket No. CV 09 5023443. See also DeMaio v. John Dempsey Hospital, supra, 46 Conn. L. Rptr. 121; Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) ( 43 Conn. L. Rptr. 195). "The requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery." Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV06 5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341). The plaintiffs have attached to their complaint two written opinion letters from individuals whom they contend qualify as "similar healthcare providers" as required by General Statutes § 52-190a. The first opinion states only, "Danbury Hospital may have independent liability for the poor surgical results suffered by the patient for negligent decision to allow Dr. Blau privileges to do the operation without adequate demonstration of his capability, qualifications, and credentials — a claim for negligent credentialing. That appears to be the case at this point, but further investigation of the hospital's internal communications would be necessary." Opinion letter one, ¶ 5. The first opinion letter also states that the surgery was performed at the Hospital. As it relates to the alleged negligence of the Hospital, the second opinion letter states only "[t]he procedure was performed at Danbury Hospital."
In the affidavit attached to the plaintiffs' objection to the present motion to dismiss, the author of opinion letter one states, inter alia:
The plaintiffs filed with their memorandum in opposition to the present motion to dismiss an affidavit of Dr. Manley, the author of opinion letter one. In the recent case of Jaboin v. Bridgeport Hospital, the court (Bellis, J.) addressed the possibility of considering an affidavit explaining an existing opinion letter. "Practice Book § 10-31(b) provides that `[a]ny adverse party who objects to [a motion to dismiss] shall . . . file and serve in accordance with Secs. 10-12 though 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.' Therefore, when responding to a motion to dismiss, our rules of practice expressly authorize the filing of an affidavit to explain facts that are unclear from in the record . . . [and] it would appear that the court has the authority to consider it. Moreover, our Appellate Court has recently taken the position that since a plaintiff's failure to adhere to § 52-190a does not divest the court of subject matter jurisdiction, a court has discretion to allow a plaintiff to attach an opinion letter after the complaint has been filed. The Appellate Court has stated that `[g]iven the fallibility existing in the legal profession . . . it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss.' Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. at 585, 966 A.2d 813. If the Appellate Court has given a trial court the authority to allow a plaintiff to amend the complaint to add an opinion letter, it seems reasonable that the court could consider an affidavit that explains the existing opinion letter." Jaboin v. Bridgeport Hospital, supra, Superior Court, Docket No. CV 09 5023443.
4. I have reviewed the medical records in this case and I wrote a report detailing, in my opinion, the deviations in the standard of care relating to the care and treatment of Patricia Murphy.
5. Among those deviations was the negligent credentialing of Dr. Blau by Danbury Hospital to perform the subject surgical procedures upon Mrs. Murphy at the hospital surgical facilities, as more fully set forth in my report, a copy of which was attached to the original complaint in this matter.
6. As set forth in my attached c.v., from 2003-2005, I served as Chief of OB/Gyn at the Mid-Atlantic Permanente Medical Group (M.A.P.M.G.) MAPMG is a health maintenance organization . . .
7. My job responsibilities in that capacity included credentialing OB/Gyn MAPMG physicians for new hire and for leaning competence in new or complicated procedures.
8. As further reflected in my c.v., from 1996-2006, I served on the Gynecology Advisory Committee of the Greater Baltimore Medical Center . . .
9. My job responsibilities in that capacity also included credentialing physicians for certain complicated and new surgical privileges.
10. Based on those experiences, I am familiar with the protocols and standards of care in credentialing decisions. When any physicians under my credentialing authority sought new surgical privileges, I would perform a due diligence review of their training, education and experience in the surgical procedures for which they sought credentialing. I would also personally "scrub in" with them to observe their surgical capabilities and technique.
11. Standards for the granting of surgical privileges for pelvic organ prolapsed and incontinence surgeries should be set forth in departmental policies and procedures, and enforced by the department chairperson, or their designee.
12. Based on my review of the medical records in this case there appears to be a case that the Danbury Hospital has independent liability for the poor surgical results suffered by Mrs. Murphy for its negligent decision to allow Dr. Blau privileges to perform the operation without demonstrations of his capability, qualifications, and credentials, although further investigation and discovery of the hospital's internal communication would be necessary to render a final opinion.
The court finds that the first written opinion letter attached to the original complaint, combined with the affidavit explaining that letter accompanying the memorandum of law in opposition to the present motion to dismiss, provides a sufficient level of detail to satisfy § 52-190a(a).
Accordingly, for the reasons stated, the Hospital's motion to dismiss counts six and seven is denied.