Opinion
No. CV08 50 167 66 S
March 9, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The present action is one for injuries and wrongful death as the result of claimed failure of the defendant hospital to render appropriate care while Michael Ahearn was a patient in the emergency room. Kelly Scheurich, Mr. Ahearn's sister, was appointed Administrator of Mr. Ahearn's estate on May 10, 2006, and this case commenced by service of the summons and complaint upon Bridgeport Hospital, and the matter returned to court.
On July 11, 2008, counsel appeared for the defendant. On August 11, 2008, the defendant filed this motion to dismiss with memorandum of law, and on August 15, 2008, filed interrogatories and requests for production addressed to "Kelly Scheurich, Administrator of the Estate of Michael Ahearn."
SUMMONS MISNOMER
The defendant's motion to dismiss claims the plaintiff does not have standing, and therefore the court lacks subject matter jurisdiction, because, although she is listed by name as the "plaintiff" on the Writ of Summons, she failed to include the term "administrator."
In support of the plaintiff's opposition to the motion to dismiss, the plaintiff submitted two sworn affidavits, dated February 18, 2009, stating that the omission of the word "administrator" was inadvertent. One affidavit is by Sarah Nielsen, a litigation assistant, who typed the writ of summons. The other affidavit is by John D. Josel, the attorney of record in the present case.
"The broad policies set forth in Practice Book § 9-19 and § 9-20 favor the saving of actions where there has been mistakes in the naming of a party plaintiff." Estate of Smith v. Kenneth Otto Builders, LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5010481 (November 26, 2008, Wagner, J.T.R.); see also Estate of Olsen v. Circa Builders, Inc., Superior Court, judicial district of Hartford, Docket No. CV 01 810306 (March 21, 2002, Wagner J.T.R.) (31 Conn. L. Rptr. 649) (holding that "a fair reading of the summons and complaint reveals no uncertainty as to the plaintiff in this case" where summons lists plaintiff as "Olsen, James, Estate of," complaint states "plaintiff, James Olsen" and "Leona Olsen, Executrix of the Estate of James Olsen," and also probate court certificate showing that Leona Olsen appointed executrix); Estate of Bakula v. Herman, Superior Court, judicial district of Litchfield, Docket No. 03992 (February 27, 1987, Aronson, J.) (13 CLT 14) (noting that "[t]he writ, summons and complaint should be read together to determine the identity and capacity of a party" where summons and writ have various names but body of complaint makes clear that plaintiff is duly appointed administratrix in decedent's estate); Vasel v. Vasel; Superior Court, judicial district of Hartford, Docket No. CV 950556058 (September 17, 1996, Wagner, J.) (17 Conn. L. Rptr. 548) (holding that fair reading of complaint indicates that action instituted by named executrix of estate rather than by estate itself).
The defendant cites to Estate of Glorioso v. Burlington Police Department, Superior Court, complex litigation docket of Waterbury, Docket No. X01 CV 020168481 (September 9, 2003, Sheedy, J.), to support the allegation that the failure to name the estate properly as the plaintiff in the summons affects subject matter jurisdiction of the court. In Glorioso, the plaintiff was named as the executor of the estate and also wanted to bring individual consortium claims, which she could only bring as an individually named plaintiff. The court granted the motion to dismiss the consortium claims. The plaintiff in the present case does not intend to sue in multiple capacities, but rather, the plaintiff is only the executor suing on behalf of the estate, which the complaint makes clear. Accordingly, the necessity for clarification as to the named parties was far greater in Glorioso than in the present case.
In the instant case, the defendant does not dispute that the person named on the summons is, and was when the suit was commenced, the duly appointed administrator of the estate, or that this status was alleged in the complaint. The Supreme Court and Appellate Court have held that errors in the summons, including incorrectly ranting or describing a part are circumstantial defects and do not implicate the court's subject matter jurisdiction. Andover Ltd. Partnership I v. Board of Tax Review of Town of West Hartford, 232 Conn. 392, 396-401, 655 A.2d 759 (1995); Lostritto v. Community Action of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004); Rock Rimmon Grange No. 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415, 885 A.2d 768 (2005).
In Andover Ltd. Partnership I v. Board of Tax Review of Town of West Hartford, supra, 232 Conn. 392, where the summons named the Board of Tax Review and not the Town, the Supreme Court was impressed by the fact that the plaintiff intended to bring the action against the town, the town had actual notice of the action and knew it was the intended defendant, and that the record showed that the town responded accordingly and was not prejudiced by the naming of the board as the defendant in the plaintiff's citation. The court stated:
We, therefore, have refused to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiff's cause or action if the pleadings were technically imperfect. As Professor Edward L. Stephenson points out, remedial statutes such as [General Statutes] § 52-123 were intended to soften the otherwise harsh consequences of strict construction under the common law: "Over-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . . . which, in substance, told the courts to be reasonable in their search for technical perfection." 1 E. Stephenson, supra, § 35, p. 137.
In sum, we decline to interpret § 52-123 in so strict a manner as to deny the plaintiff the pursuit of its complaint.
Andover Ltd. Partnership I v. Board of Tax Review of Town of West Hartford, supra, 232 Conn. 396.
The Supreme Court also noted that, "because the language of § 52-123 — `[n]o writ . . . shall be set aside . . . for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court' — is mandatory rather than directory, the plaintiff was entitled to correct its error by amendment." Id., 401.
In the instant case, it is clear that, like in Andover, the plaintiff intended to bring the action against the defendant hospital, the defendant had actual notice of the action, knew it was the intended defendant, and suffered no prejudice, having filed, within just six weeks after appearing by counsel, pleadings and discovery requests directed at and to the plaintiff administrator concerning the deceased.
The Appellate Court has also held that the erroneous naming of a plaintiff in the required process without prejudice to a party is a circumstantial error and cannot defeat the plaintiff's cause of action. Western Boot Clothing Co. v. L'Enfance Magique, 81 Conn.App. 486, 491-92, 840 A.2d 574, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004).
PHYSICIAN'S OPINION LETTER CT Page 4591
The defendant claims the court lacks subject matter jurisdiction for alleged failures to comply with requirement of a physician's opinion pursuant to General Statutes § 52-190a. No appellate court has yet to rule on this issue, but Superior Court decisions have held that § 52-190a does not implicate subject matter jurisdiction and that dismissal authority under § 52-190a(c) is discretionary, not mandatory. Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 065000596 (June 21, 2006, Matasavage, J.) (41 Conn. L. Rptr. 609); Greer v. Norbert, Superior Court, judicial district of Hartford, Docket No. CV 06 5004859 (February 7, 2007, Rittenband, J.T.R.) (42 Conn. L. Rptr. 806); Guido v. Hughes, Superior Court, judicial district of Waterbury, Docket No. CV 065004889 (October 17, 2007, Scholl, J.) (44 Conn. L. Rptr. 347).
The defendant claims that the opinion letter provided is not from a similar health care provider, but that it is drafted by a physician board-certified in emergency medicine, yet it is unclear from the complaint against whom the allegations of negligence are made, and that the plaintiff's claim of negligence is institutional in scope rather than at the direct conduct of any treatment provider. Although the appellate courts have not addressed the issue of what type of opinion letter is sufficient in claims against hospitals or medical institutions for negligence of one or more of their agents, servants or employees, several judges of the Superior Court have discussed the issue in actions in which the medical malpractice of a hospital or similar entity is alleged. See, e.g., Derosa v. Warner, Superior Court, judicial district of New Haven, Docket No. CV 08 5020564 (December 8, 2008, Zoarski, J.T.R.) (holding that "in an action in which the alleged medical malpractice of a hospital or similar entity is premised on the conduct of its individual physicians, a written opinion that only addresses the negligence of the physicians is sufficient to withstand a motion to dismiss"); Draper v. Danbury Health Systems, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 08 5008854 (October 14, 2008, Scholl, J.) (46 Conn. L. Rptr. 462) (denying motion to dismiss because court could not conclude based on information before it that writer of opinion was not similar health care provider); Jarett v. Midstate Radiology, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5003115 (November 26, 2008, Fischer, J.) (denying motion to dismiss because not proper vehicle to contest sufficiency of opinion letter, no requirement that opinion letter actually "written" by similar health care provider, and no requirement that opinion show "causation"); Mersereau v. Connecticut, Superior Court, judicial district of Hartford, Docket No. CV 08 5017933 (September 5, 2008, Dubay, J.) (denying motion to dismiss because "prior to discovery, it cannot be found that the plaintiff failed to make a reasonable effort to provide a sufficiently detailed opinion from a similar healthcare provider"); 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) (holding that letter from orthopedic surgeon sufficient as to nursing staff of defendant hospital); Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 076001269 (November 28, 2007, Bellis, J.) (44 Conn. L. Rptr. 595) (holding opinion letter sufficient because no requirement in statute that plaintiff "in the complaint or in the certificate of good faith, or the similar health care provider, in the written opinion letter, must identify each agent, servant, or employee of an institutional defendant"); Maitan v. Access Ambulance Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 075003252 (October 18, 2007, Nadeau, J.) (44 Conn. L. Rptr. 436) (holding that opinion letter written by EMTs sufficient even though in-hospital procedures and policies not within their area of expertise); 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) (holding that opinion letter by obstetrician-gynecologist sufficient regarding alleged medical malpractice of nurse midwife); Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) (holding that obstetrician/gynecologist proper opinion writer in case arising out of induction of labor and cesarian section, as against hospital and individual physician); Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.) (holding that 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").
Accordingly, the opinion letter in the present case is sufficient.
The defendant also claims that the opinion letter does not satisfy the requirements of § 52-190a because it is insufficiently detailed. A motion to dismiss is not the proper vehicle for a defendant to contest the sufficiency of the opinion of a similar healthcare provider. See Scofield v. Quinn, Superior Court, judicial district of Waterbury, Docket No. CV 086000897 (September 16, 2008, Brunetti, J.) (46 Conn. L. Rptr. 319); Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012152 (July 30, 2008, Berger, J.); Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007); Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV06 5000857 (May 4, 2007, Gallagher, J.) (43 Conn. L. Rptr. 341); Torres v. Carrese, Superior Court, judicial district of New Haven, Docket No. CV 06 5006514 (April 16, 2007, Jones, J.) (43 Conn. L. Rptr. 270); Ouellette v. Brook Hollow Healthcare Center, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, Holden, J.) (42 Conn. L. Rptr. 863); Peloso v. Walgreen Eastern Co., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5002136 (February 16, 2007, Holden, J.) (42 Conn. L. Rptr. 838); Tutillo v. Day Kimball Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5009722 (November 26, 2007, Langenbach, J.) [44 Conn. L. Rptr. 570]; Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) (42 Conn. L. Rptr. 163); Lapointe v. Sokolowski, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 054005150 (October 10, 2006, Robinson, J.); Ellagard v. Hennessey, Superior Court, judicial district of New Britain, Docket No. CV 06 5001158 (September 22, 2006, Robinson, J.); Donovan v. Sowell, supra, 41 Conn. L. Rptr. 609; 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).
For all of the aforementioned reasons, the motion to dismiss is denied.