Opinion
No. CV09 5026925
January 8, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#102)
PROCEDURAL AND FACTUAL BACKGROUND
On February 20, 2009, the plaintiff, Yolanda Xicohtencatl, filed a single-count complaint alleging medical malpractice against the defendant, Yale New Haven Hospital. On March 6, 2009, the plaintiff filed an amended summons and complaint, in which she alleges the following facts. In January 2007, the plaintiff presented to Hill Health Center with complaints of a painful lump in her left breast. On or about September 30, 2007, the plaintiff presented to the defendant's emergency department and complained of a painful lump in what was described as her left axilla. The plaintiff was examined and evaluated by a physician's assistant. At the time of the examination, the plaintiff told the physician's assistant that the lump had been present for approximately six months and that she had most recently been seen by Hill Health Center two months earlier. The physician's assistant diagnosed the plaintiff as suffering from a left axillary lymph node infection and prescribed Keflex, an antibiotic. At discharge, the plaintiff was instructed to follow up with Hill Health Center in two weeks. In January 2008, an office biopsy revealed that the plaintiff suffered from left invasive lobular carcinoma, a type of breast cancer. On February 22, 2008, a sentinel node biopsy confirmed that diagnosis. On March 6, 2008, a needle core biopsy revealed infiltrating ductal carcinoma with lobular features, a type of breast cancer, in the plaintiff's right breast. Thereafter, the plaintiff underwent bilateral mastectomy with neoadjuvant therapy.
The only change made by the amended complaint was to change the return date from February 24, 2009 to March 3, 2009.
The plaintiff alleges that the defendant, acting through its agents, servants and employees, who acted within the scope of their authority, deviated from the applicable standard of care by failing to recognize the possibility of breast cancer based on the history provided by the patient and the physical examination recorded in the chart, by failing to conduct an adequate physical examination or to take an adequate history and by failing to order adequate diagnostic imaging so as to rule out breast cancer. As a result of the defendant's deviations from the standard of care, diagnosis and treatment of the plaintiff's disease was delayed by more than four months, permitting it to advance and spread, diminishing the plaintiff's chance of cure and reducing the chance of effective surgical and medical therapy. As a further consequence, the plaintiff has incurred medical expenses and suffered a reduction in life expectancy, capacity to enjoy life, capacity to carry out her regular activities, earnings and earning capacity.
The plaintiff submitted, along with her amended complaint, the written opinion letter of a board certified obstetrician and gynecologist who concluded that the defendant deviated from the applicable standard of care. The opinion letter states that the defendant's emergency department personnel failed to appreciate the possibility that the plaintiff's symptoms could represent cancer and that, at a minimum, the standard of care required a diagnostic mammogram. The letter further states that, given the plaintiff's history, the physical examination by the defendant's emergency department personnel was not sufficiently thorough nor was an accurate history taken.
In the written opinion letter submitted by the plaintiff, in describing his qualifications, the author states, "I am a board certified obstetrician and gynecologist. I have practiced 29 years and served as Chairman of my department. This position included responsibility for training and supervision of non-physician health care providers. In this capacity, as well as in the course of my practice, I have become familiar with the standards of care governing physician and non-physician personnel in the evaluation and treatment of patients such as [the plaintiff]."
On March 24, 2009, the defendant filed a motion to dismiss the plaintiff's complaint, pursuant to General Statutes § 52-190a(c), on the grounds that the written opinion letter submitted by the plaintiff with her complaint fails to satisfy the requirements in General Statutes § 52-190a(a) that such opinion must be written by a "similar health care provider" and must include a detailed basis for the formation of the author's opinion that there is evidence of negligence. A memorandum of law in support of the motion to dismiss accompanied the motion. On April 23, 2009, the plaintiff filed a memorandum of law in opposition to the motion to dismiss. The defendant filed a reply to the plaintiff's memorandum on May 1, 2009. After oral argument, on November 2, 2009, the court directed both parties to submit briefs regarding the applicability of Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009). On November 12, 2009, the defendant filed a supplemental brief in support of its motion to dismiss. The plaintiff filed her supplemental memorandum in opposition to the motion to dismiss on November 16, 2009.
DISCUSSION
General Statutes § 52-190a(a) requires a party bringing a medical malpractice action to file both a certificate of good faith and a written opinion letter from a similar health care provider that states "that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(c) provides: "The failure to obtain and file the written opinion required by subsection (a) [of § 52-190a] shall be grounds for the dismissal of the action." "The plain language of [ § 52-190a(c)] expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a)." (Emphasis added.) Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).
General Statutes § 52-190a(a) provides in relevant part: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 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 . . . shall contain a certificate of the attorney or party filing the action . . . 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 . . . to such certificate."
In Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), the Appellate Court clarified 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 . . . However, the legislature has provided that such a failure does render the 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." (Emphasis added.)
Although a written opinion letter was attached to the complaint, the defendant argues that it fails to comply with § 52-190a because the letter was not written by a similar health care provider since the author of the plaintiff's letter is a board certified obstetrician and gynecologist and not a physician's assistant trained and experienced in emergency medicine, as was the individual that treated the plaintiff at the defendant's emergency department. Additionally, the defendant argues that the plaintiff's complaint fails to comply with § 52-190a because the attached written opinion letter does not provide a sufficiently detailed basis for the author's opinion that there is evidence of negligence in that it fails to explain the causal connection between the defendant's alleged negligence and the plaintiff's injuries.
The plaintiff contends that the health care provider that authors the written opinion letter should generally be board certified in the same specialty as the health care provider whose alleged deviation from the standard of care is at issue but that such requirement does not apply where the defendant is a hospital because a hospital is board certified in nothing. In such cases, she further argues, the adequacy of the opinion letter is determined by its author's familiarity with the procedures involved and in this case, that the author of the letter is qualified to speak to the adequacy of a breast examination. Additionally, the plaintiff contends that the author need not be a specialist in emergency medicine because in the present case, the defendant was not providing emergency medicine; it was providing primary care. Finally, the plaintiff argues that a written opinion letter need not address causation but that the letter in the present case has nonetheless satisfied such a requirement, and therefore, the requirement of the author to provide a sufficiently detailed basis for his or her opinion, because the letter stated that "[a]t a bare minimum, the standard of care required a diagnostic mammogram to rule out the possibility of cancer."
The defendant counters that the fact the plaintiff only elected to bring the action against the defendant, a hospital, does not allow the plaintiff to avoid submitting a written opinion letter authored by a similar health care provider as the individual who provided the medical treatment at issue, in this case, a physician's assistant.
In Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, the Appellate Court resolved the issue of whether the dismissal remedy in § 52-190a(c) is applicable where the written opinion letter is submitted by the plaintiff but is deemed deficient. "A plain reading of [ § 52-190a(c)] indicates that the [written opinion] letter must comply with subsection (a) [of § 52-190a] to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) [of § 52-190a] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Id., 545. "In establishing the requirements of the prelitigation opinion letter, § 52-190a(a) specifically requires that the opinion be authored by a similar health care provider as defined in § 52-184c." Id., 542.
General Statutes § 52-184c(c) provides in relevant part: "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 . . ." General Statutes § 52-184c(b) provides: "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." (Emphasis added.)
In Bennett, the estate of the decedent brought a medical malpractice action against a hospital and the physician that treated the decedent in the hospital's emergency department. The defendants moved to dismiss pursuant to § 52-190a(c) on the ground that the plaintiff did not comply with § 52-190a(a), specifically claiming that the author of the opinion letter attached to the plaintiff's good faith certificate was not a similar health care provider and that the opinion failed to provide a detailed basis for its formation. According to the complaint, the defendant physician specialized in emergency medicine but the author of the written opinion letter submitted by the plaintiff was not board certified in emergency medicine. The court determined that based on "the plain language of §§ 52-190a(a) and 52-184c(c), a `similar health care provider' with respect to [the defendant physician] would be one who is trained and experienced in emergency medicine and is certified in emergency medicine. Accordingly, before bringing an action alleging medical negligence on [the part of the defendant physician] the plaintiff or his attorney must obtain and file a written and signed opinion from such a physician that there appears to be evidence of such negligence. Because the plaintiff's expert is not certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c(c)." Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 546-47. "On the basis of the foregoing, because the opinion letter submitted by the plaintiff was not authored by a similar health care provider, the court properly dismissed the counts against" the defendant physician. Id., 550.
The decedent suffered a diabetic seizure while operating his motor vehicle, consequently colliding with a concrete wall, and was taken to the defendants' emergency department for treatment. The defendants did not discover that the decedent had suffered fractures to his spine and legs during the initial treatment of the decedent and only learned of the fractures upon further testing advised by the decedent's primary care physician. The plaintiff alleged that as a consequence of the significant pain that the decedent suffered due to the untreated fractures, he sustained myocardial ischemia and died.
Unlike Bennett, the plaintiff's complaint in the present case did not allege that the individual whose negligence was at issue, here the physician's assistant, was board certified in a medical specialty, trained and experienced in a specialty or holding himself out as a specialist, nor did the defendant submit an affidavit or any other type of undisputed evidence that the physician's assistant was certified as a specialist, trained and experienced in a specialty or holding himself out as a specialist.
The defendant states, however, in its memorandum of law in support of its motion to dismiss, reply to the plaintiff's memorandum in opposition to the motion to dismiss and supplemental brief in support of its motion to dismiss that the physician's assistant is trained and experienced or, alternatively, specializes, in emergency medicine.
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
Allegations in the defendant's memoranda, unlike an affidavit or other types of undisputed evidence, are not sufficient to serve as undisputed facts, which would controvert the complaint, nor to create a factual dispute, which would require an evidentiary hearing. Since the complaint did not allege that the physician's assistant was board certified in a medical specialty, trained and experienced in a specialty or holding himself out as a specialist and the defendant did not submit an affidavit or any other type of undisputed evidence to the contrary, the court must take the facts to be those alleged in the complaint and construe them in the light most favorable to the plaintiff. Accordingly, in order to determine whether the author of the written opinion letter is a similar health care provider to the physician's assistant in the present case, § 52-184c(b), which provides the definition of "similar health care provider" when the allegedly negligent health care provider is not board certified in a medical specialty, not trained and experienced in a medical specialty and not holding himself out as a specialist, would apply.
Although there is a paucity of case law interpreting § 52-184c(b), the Superior Court has decided at least one case involving a defendant health care provider who was within the definition of § 52-184c(b) rather than § 52-184c(c). In Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001512 (April 16, 2009, Pickard, J.) (appeal pending), the court granted a motion to dismiss, inter alia, on the ground that the opinion writer, a registered nurse, was insufficiently similar to one of the defendants, a licensed social worker. The Plante court held that the nurse did not meet any of the requirements of § 52-184c(b) with respect to the social worker: "[The] [n]urse . . . is not licensed as a social worker, nor was she trained in the same discipline, nor was she active in the practice or teaching of crisis work within the five-year period before the incident." Id. The court concluded: "No persuasive argument can be made that [the] [n]urse is a similar health care provider with respect to [the defendant social worker]." Id.
The court's application of § 52-184c(b) in Plante supports the conclusion that the plaintiff's opinion writer, a physician who is board certified in obstetrics and gynecology, is not trained in the same discipline or school of practice as the alleged agent of the defendant, who is a physician's assistant. Although arguably, a physician and a physician's assistant are closer professionally than the nurse and social worker in Plante, § 52-184c(b) requires a written opinion from a comparable physician's assistant, not from a physician. Accordingly, the plaintiff has failed to meet the requirement of § 52-190a(a) by submitting a written opinion letter of a similar health care provider as defined by § 52-184c(b).
The plaintiff argues that the requirement that the author of the opinion letter must be board certified in the same specialty as the health care provider whose alleged negligence is at issue does not apply when the defendant is a hospital because a "hospital is board certified in nothing." The complaint stated that "[a]t all times material hereto . . . the defendant . . . acted through its agents, servants and employees, who acted within the scope of their authority, actual or apparent."
This argument is unpersuasive as it fails to recognize the principles of agency. "The majority of Superior Court decisions have held that where the counts sought to be dismissed contain allegations of the principal being vicariously liable for its agent . . . if the opinion letter is sufficient as to the agent . . . it is also sufficient to satisfy § 52-190a as to the principal non-individual defendants." Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.).
Also, the plaintiff's argument that the author of the opinion letter need not be a specialist in emergency medicine because the defendant was providing primary care to the plaintiff at the time of the alleged negligence is irrelevant because the sufficiency of the author is based upon a determination of whether the author is a "similar health care provider" under § 52-184c(b) and not under § 52-184c(c).
Alternatively, the defendant in the present case has argued that the written opinion letter submitted by the plaintiff does not meet the requirement of § 52-190a(a) to provide a sufficiently detailed basis for the formation of the author's opinion that there appears to be evidence of medical negligence by the defendant. The defendant goes further, arguing that the written opinion letter in the present case does not satisfy § 52-190a(a) because it fails to explain the "causal connection" between the defendant's alleged negligence and the plaintiff's injuries.
In Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009), the Supreme Court addressed the issue of whether the author of a written opinion letter must address causation. The defendants in Dias "contend that, because § 52-190a requires plaintiffs to provide a written opinion of a similar health care provider that there appears to be evidence of medical negligence, and because proof of proximate cause is an element of medical negligence, the statute clearly and unambiguously provides that the written opinion must state that the defendant's breach of the standard of care caused the plaintiffs injuries." Id., 353-54. The Supreme Court disagreed and concluded "that the phrase `medical negligence,' as used in § 52-190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence." Id., 359. "[R]equiring a similar health care provider to give an opinion as to causation at the prediscovery stage of litigation pursuant to § 52-190a when a similar health care provider is not required to give such an opinion at trial pursuant to § 52-184c would bar some plaintiffs who could prevail at trial from ever filing a complaint. Because this would be a bizarre result, [the Supreme Court] reject[s] this claim." Id., 361.
In Dias v. Grady, the plaintiffs alleged that defendant Grady, an obstetrician and gynecologist, negligently performed a laparoscopic hysterectomy on plaintiff Lori Dias. "The defendants then filed a motion to dismiss the complaint on the ground that the written opinion did not state that Grady's deviation from the standard of care was the proximate cause of Dias' injuries." Dias v. Grady, supra, 292 Conn. 352.
General Statutes § 52-184c(a) provides: "In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."
General Statutes § 524 84c(d) provides: "Any health care provider may testify as an expert in any action if he: (1) is a `similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge 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."
"The language of § 52-190a does not specify the amount of detail required in the opinion letter to satisfy the requirements of the statute . . . Other than whether the issue of causation must be recited in the opinion letter, as addressed in Dias v. Grady, supra, 292 Conn. 350, to date there is no appellate authority specifically addressing the level of detail required to render the written opinion letter sufficient under § 52-190a. While there is a split in Superior Court decisions concerning the level of detail necessary, a majority of those decisions have held that the opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence." (Citation omitted; internal quotation marks omitted.) Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.).
The Superior Court has granted a motion to dismiss a plaintiff's complaint in a medical malpractice action on the ground that a written opinion letter lacks sufficient detail where the letter does not provide any indication of the standard of care or the violation of the standard of care. For example, in Landry v. Zborowski, Superior Court, judicial district of Tolland, Docket No. CV 07 6000211 (August 21, 2007, Vacchelli, J.) ( 44 Conn. L. Rptr. 56, 57), the court granted the defendants' motion to dismiss the medical malpractice counts of the complaint on the ground that the written opinion letter was insufficient under the requirements of § 52-190a because "the written opinion [was] not sufficiently detailed." The written opinion letter read as follows: "Based upon my review of the records, [the defendant surgeon] and his staff violated the applicable standard of care during the care and treatment of [the plaintiff]. Therefore you have a good faith basis for bringing a malpractice claim against [the defendant surgeon] and his staff." Id. In granting the motion to dismiss, the court reasoned that the written opinion letter was "entirely conclusory and provide[d] no illumination as to . . . the standard of care, who violated it and how or on what basis or when it was violated. It [did] not even reveal whether the writer [was] a health care provider, or what type." Id.
The Superior Court has found a written opinion letter to be sufficiently detailed where the letter identifies the standard of care and describes how the defendant violated it. In Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.), the Superior Court held that the written opinion letter was sufficiently detailed under § 52-190a. Here, the letter identified the manner in which the defendant violated the standard of care. The author of the opinion letter identified his or her school of practice and board certification and indicated "that he or she reviewed various documents including, but not limited to, the plaintiff's medical records and reports . . . The author indicate[d] his/her opinion that, based on the documents, the physician breached the standard of care when he used Surgicel to control bleeding in the area of the neural foramina which swelled and compressed the spinal cord." Id. The court denied the defendants' motion to dismiss, reasoning that § 52-190a "requires that the opinion appended to the complaint state that there appears to be evidence of medical negligence and include a detailed basis for the formation of the opinion. Clearly the opinion letter here sets out a detailed basis for the formation of the author's opinion." Id.
In the present case, the written opinion letter is sufficiently detailed. The letter sets forth the author's qualifications, including his or her board certification, school of practice and job responsibilities. The author concluded, after reviewing the plaintiff's medical records, "that the Yale New Haven [e]mergency [d]epartment deviated from the applicable standard of care in several important respects. First, the [emergency department] personnel failed to appreciate the possibility that an enlarged, tender axial node from which the patient had suffered for at least several months could represent cancer rather than a simple infection. At a bare minimum, the standard of care required a diagnostic mammogram to rule out the possibility of cancer. Given the patient's previous history and subsequent course, it is likely that the mammogram would have yielded results consistent with cancer or at least sufficiently suspicious to have warranted further studies that would have demonstrated the same. Furthermore, given the patient's history, it appears likely that the physical examination was not sufficiently thorough, nor was an accurate history taken. These deviations from the standard of care led to a delay in prognosis that in turn reduced the patient's chance of cure and reduced her likely survival."
The present case is analogous to Hernandez. The opinion letter here sets out a detailed basis for the formation of the author's opinion that there is evidence of negligence by identifying and detailing the applicable standard of care and how it was violated by the defendant. The written opinion letter states that the standard of care, based on the plaintiff's previous history and symptoms, required a diagnostic mammogram and the defendant deviated from and violated that standard of care by failing to perform the mammogram. While the author of the written opinion letter is not a "similar health care provider" to the physician's assistant who treated the plaintiff at the defendant's emergency department, the written opinion letter is sufficiently detailed.
CONCLUSION
Accordingly, for the foregoing reasons this court concludes that the author of the opinion letter submitted by the plaintiff is not a similar health care provider to the physician's assistant whose negligence is at issue. Therefore, the defendants' motion to dismiss the plaintiff's complaint pursuant to § 52-190a(c), is granted because the plaintiff has failed to meet the requirement in § 52-190a(a) to submit a written opinion letter authored by a "similar health care provider" as defined in § 52-184c(b).