Opinion
No. CV08-6000897S
September 16, 2008
MEMORANDUM OF DECISION
This is a medical malpractice action commenced by the plaintiff on January 4, 2008. On April 7, 2008, the defendants, Stephen Stein, M.D., John Deleon, M.D. and Diagnostic Radiology Associates, LLC, filed a motion to dismiss (#109.50). On June 4, 2008, the defendant, Mark Kraus, M.D. filed a motion to dismiss (#112). On June 11, 2008, the plaintiff filed a memorandum in opposition to both motions (#114). On June 26, 2008, the defendants, Stein, Deleon and Radiology Associates filed a reply (#115). The court heard argument on September 2, 2008.
Though the defendants have filed separate motions to dismiss, the basis of their motions are identical, and for the purpose of this decision, will be treated as one. Both motions claim that the "Good Faith Certificates" filed by the plaintiff as required by General Statutes § 52-190a are defective.
The defendants claim the good faith certificates attached to the complaint fail to comply with the § 52-190a in that 1) they are not signed by a similar health care provider, but appear to be prepared by plaintiff's counsel, 2) that they do not state in detail the ways in which the standard of care was deviated from by each defendant and 3) that this deviation was the proximate cause of the injuries to the plaintiff. The defendants allege that these failures deprive the court of subject matter jurisdiction and require the court to dismiss the action in accordance with § 52-190a(c).
DISCUSSION
"Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong . . . [O]nce the question of lack of jurisdiction is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding with the case." (Internal quotation marks omitted.) Esposito v. Specyaliski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of a complaint in their most favorable light . . . [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.) Id. "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotations marks omitted.) Loricco Powers Condominium Ass'n v. Pantini, 90 Conn.App. 43, 48, 876 A.2d 1211 (2005).
The plaintiff in this case filed three almost identical certificates entitled "PHYSICIANS OPINION," pursuant to General Statutes § 52-190a. The defendants argue that these certificates are insufficient because they were prepared by the plaintiff's attorney. They are typed with the same font size, the first and last paragraphs are identical, the reasons for the alleged malpractice in the certificates merely recite the allegations in the complaint, they are not on the physician's letterhead and are not signed by the physician. Thus, they do not comply with § 52-190a as amended by Public Act 05-275.
The court has considered and reviewed the myriad of decisions on this subject by numerous superior court judges. The court finds Doe v. Priority Care, Inc., 50 Conn.Sup. 385, 933 A.2d 755 (2007) and Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341) to be dispositive of the issues in this case. This court agrees with the finding of Judge Corradino in Doe v. Priority Care, Inc., that the 2005 amendment adding subsection (c) to § 52-190a does not mandate a dismissal of the action, but only sets up a grounds for dismissal. The court finds it has subject matter jurisdiction because in this case the plaintiff has filed the required certificates.
The more difficult question is the adequacy of the certificates and the lack of a signature on the certificates. Several superior courts have addressed issues similar to those before the court. In Walton v. Caffrey, supra, 43 Conn. L. Rptr. 341, Judge Gallagher dealt with an identical issue in this case. In Walton, the motion to dismiss was also on the ground that the appended written opinion was not actually drafted or typed by the similar medical care provider. The defendants argue that both the legislative history and the language of the statute require that the opinion must be in the health care provider's own words and not those of plaintiffs' counsel.
A review of the legislative history of Public Act 05-275 discloses that the intention of the legislature in enacting the legislation was to provide additional protection against the filing of frivolous lawsuits. Proposed Senate Bill 1052 came before the Judiciary Committee on April 8, 2005. Attorney Mike Neubert testified before the Committee on behalf of the Connecticut State Medical Society in connection with the proposed bill. With respect to the section requiring attaching the written opinion of the similar health care provider to the complaint, Attorney Neubert urged passage of the section.
In our view, . . . this requirement would help ensure that there's a reasonable basis for filing a medical malpractice action under the circumstances. It would help eliminate some of the more questionable and merit less claims filed under the present statutory scheme.
(Proceedings before Judiciary Committee, April 8, 2005, p. 151.)
Attorney Neubert indicated that section of the Bill was targeting
[t]hose cases where attorneys, based on their own judgment and may be in good faith have misread what an expert's told them, we don't know now what an expert's told them . . . Very often you hear what you want to hear as an attorney, or interpret what's been told to you as you want to interpret it . . . [I]f the doctor's not willing to sign on the dotted line, maybe that's a good indication that this isn't a good case to bring. We don't have that hammer, so to speak, over the plaintiff's counsel's head at this point. If part of what we're trying to do here is eliminate those cases which should not be in the system then I think this serves to do it.
(P. 165.)
Summarizing the provisions of the Bill, Senator McDonald stated:
In Section 2 of the bill, Mr. President, we have modified the good faith certificate issue. This is an issue that requires a plaintiff's attorney, under current law, to obtain a report from a qualified medical expert in a similar practice area, and to certify that based upon that inquiry, the attorney believes that there is a good faith basis to believe that the standard of care has been breached in a particular case. Mr. President, this makes substantial improvements over the current system because it would require that the report be in writing and presented in a detailed fashion, and a copy of that report, with the name of the doctor supplying it expunged, would be attached to the complaint as an exhibit. The failure to attach such an opinion would require the court to dismiss the case.
(Senate Proceedings on Substitute for S.D. Number 102, An Act Concerning Medical Malpractice, Favorable Report of the Committees on Judiciary, Insurance, Public Health, Legislative Management, and Appropriations, pp. 121-22, June 6, 2005.)
Here, the plaintiff has attached a written document which purports to be the report of a board-certified physician. The fact that it is not in the doctor's handwriting or typed by the doctor on his or her letterhead, is in this court's opinion, of no consequence. It is a written report of a similar health care provider which states his or her opinions and the bases for them. The legislative requirement is fulfilled. Nothing in the legislative history of the statute as amended by the public act prohibits the plaintiff's attorney from putting the words to paper so long as the opinion expressed is that of the similar health care provider. The motions to dismiss are denied on this ground.
The defendants next contend that the complaint should be dismissed because the attached opinion is not sufficiently detailed. They argue that they contain no temporal references to the alleged deviations from the standard of care by the defendants, and they do not provide a sufficiently detailed basis for the physician's conclusions. They argue that opinion fails to apprise the defendants and their counsel as to the basis for the plaintiff's claim that there was medical malpractice. They contend that it mirrors the complaint. The plaintiff counters that any insufficiency in the opinion would not deprive the court of subject matter jurisdiction. A number of superior courts have addressed the issue of whether the sufficiency or adequacy of the opinion appended to the complaint is properly raised by a motion to dismiss. Discussing the plain language of the statute as well as the legislative purpose in enacting P.A. 05-275, these courts have held that a motion to dismiss is not the proper vehicle to attack the sufficiency of the opinion. See, e.g., 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); Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) ( 42 Conn. L. Rptr. 163); Lawlor v. Hagstrom, Superior Court, judicial district of Hartford, Docket No. CV 06 5002094 (December 29, 2006, Wiese, J.)
The language of § 52-190a does not specify the amount of detail required. In Ellegard v. Hennessey, Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. X03 CV 06 5008281, (Mar. 28, 2007, Langenbach, J.) [ 43 Conn. L. Rptr. 195], the court recognized that "[b]ecause the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint." In Ranney v. New Britain General Hosp., Superior Court, judicial district of New Britain, Docket No. CV06 5000954 (September 18, 2006, Pittman, J.), the court observed
[T]he statute [does not] 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 merit less claims.
The author of the opinion appended to the complaint in this case listed the medical records that he/she reviewed. Based upon that review, he/she listed several reasons why the author believes that the defendants deviated from the standard of care. In appending the opinion to the complaint, the plaintiff has apprised the defendants and their attorneys of the reasons for bringing the lawsuit.
The requirement that the 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. Moreover, the court finds the reasoning of the court in Ranney compelling. Although the detail should be such that cogent reasons underlying the author's opinion that a deviation from the standard of care occurred are set forth, it need not be such that plaintiffs are virtually precluded from bringing malpractice cases. The concern of the legislature was to prevent only frivolous lawsuits; those without merit. It is inconceivable that the intent was to divest the court of subject-matter jurisdiction based on one's subjective determination that the reasons supporting the opinion were not sufficiently detailed.
"The United States Supreme Court has recognized that embedded in the First Amendment right to petition the government for a redress of grievances, is entitlement to seek recompense from the courts." (Internal citations omitted; internal quotation marks omitted.) Lombardi Rest Home, Inc. v. Richter, 63 Conn.App. 646, 653, 778 A.2d 230 (2001). It seems to this court that the action urged by the defendants would contravene this constitutional guarantee. The court finds that the question of the sufficiency of the detail in the opinion does not implicate subject-matter jurisdiction, and that in any case, the detail in the opinion is sufficient to survive either a motion to dismiss or a motion to strike. As indicated above, the court finds that a challenge to the sufficiency of the opinion does not implicate subject-matter jurisdiction. A motion to strike is the appropriate vehicle to address this issue.
The defendants' last argument is that the certificate must provide a nexus between the alleged medical malpractice and the resulting injury. They argue that the good faith certificate must state an opinion that the alleged medical malpractice was the proximate cause of the injury. This court does not agree. The court has not been able to find any authority to support this argument. In this court's opinion to require the plaintiff to provide the nexus at this stage of the proceedings would require a very narrow reading of § 52-190a. It is clear from the legislative history that the changes to § 52-190a were not meant to eliminate all of these actions but to weed out the frivolous ones. To require such information at this stage of the proceedings before any of the discovery has been completed would, in this court's opinion, place too onerous a burden on the plaintiff. In addition, as in any negligence action, the issue of proximate cause is a question of fact reserved for the ultimate fact finder.
Fore the aforesaid reasons, the motions to dismiss are denied.