Opinion
No. CV07-501 14 25 S
May 5, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
FACTS
The plaintiffs, Barbara and Charles Pitcher, allege medical malpractice against the defendant, Milton F. Armm, M.D., a medical doctor specializing in the field of urology. On October 27, 2005 the defendant performed surgery on the plaintiff Barbara Pitcher, and following the surgery, it is alleged that she experienced severe and excruciating pain, fatigue, weakness, and had difficulty in walking and ambulating. These post-surgery difficulties are alleged to be due to injuries to her obturator and femoral nerves caused by a breach of the applicable standard of care. The plaintiffs allege that the injuries sustained by Barbara Pitcher continue to the current day and that they have diminished her physical comfort, mobility, and ability to earn an income. It is also claimed that there has been a loss of marital consortium between Barbara and Charles Pitcher, and that the plaintiffs have incurred significant expenses for treating Barbara Pitcher's injuries.
DISCUSSION
The defendant has moved to dismiss this medical malpractice action on the grounds that this court lacks subject matter jurisdiction. This lack of jurisdiction, according to the defendant, is due to the plaintiffs' alleged failure to comply with Connecticut General Statutes § 52-190a because the opinion letter upon which plaintiff's counsel relied for a good faith belief of negligence in care or treatment does not state the qualifications of its author.
Section 52-190a states, in pertinent part, that "No civil action . . . to recover damages . . . 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 . . . has made 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 . . . shall contain a certificate of the attorney . . . 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 attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate."
The definition of "similar health care provider" in section 52-184c is defined as: "(b) 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.
"c. 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.'"
The defendant claims that the court lacks jurisdiction because the letter provided by the plaintiffs did not include a description of the qualifications of the letter's author. Nothing in the statute's language, as recently amended, requires the qualifications of the author to be stated in the opinion letter. The statute does provide that the claimant's attorney "shall retain the original opinion and shall attach a copy of the written opinion, with the name and signature of the similar health care provider expunged . . ." General Statutes § 52-190a(a). In fact, the plaintiffs' attorney attached to the complaint the appropriate certificate that stated: "This is to certify, pursuant to Connecticut General Statutes § 52-190a(a), that the undersigned attorney has made 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 and treatment of the plaintiff Barbara Pitcher and that grounds exist for the foregoing action against the named defendant. See, the signed written opinion of the healthcare provide[r] attached as Exhibit `A.'" Consistent with the statement in the certificate, the letter by the similar healthcare provider was attached to the complaint and, as permitted by § 52-190a, the name and signature of the author was expunged.
The certification provided by the plaintiff satisfies the requirements of the statute, as well as the legislative intent behind the statute. See S chachter v. Evanko, Superior Court, judicial district of New Haven, Docket No. CV 06 5007552 (September 24, 2007, Holden, J.) ( 44 Conn. L. Rptr. 210, 211) (stating that "[t]he statute was designed to put the defendant on notice and facilitate discovery"); Quellete v. Brook Hollow Health Care, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, Holden, J.) ( 42 Conn. L. Rptr. 863); Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 222). "[T]he judge has discretion as to whether the action should be dismissed for failure to supply an opinion of sufficient detail, but that does not implicate subject matter jurisdiction." Doe v. Priority Care, Inc., 50 Conn.Sup. 385, 388, 933 A.2d 755 (2007). "[W]hat we are dealing with is the power of a trial court to render a discretionary dismissal." Id., 396. Superior Courts have "repeatedly held that the attachment of a written opinion of a health care provider to the complaint is sufficient to clear the jurisdictional hurdle, notwithstanding the possibility that its content does not conform to the specific requirements of the statute." Robbins v. Physicians for Women's Health, LLC, Superior Court, judicial district of New London, Docket No. CV 06 5002633 (October 16, 2007, Hurley, J.T.R.) ( 44 Conn. L. Rptr. 315, 316).
Practice Book § 10-31 states that a motion to dismiss is proper when a party asserts that the court is without subject matter jurisdiction. See St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, CT Page 7375 511, 849 A.2d 791 (2004).
In this matter before the court, including the complaint with attorney's certificate and signed written opinion letter of health care provider, the documents reflect the plaintiffs' compliance with the statutory requirements. Such adherence to the statutory requirements demonstrate that jurisdiction is proper. For the foregoing reasons, the motion to dismiss is denied.