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In Andrikis v. Phoenix Internal Medicine, No. CV 05-5000482 S (Superior Court, J.D., Waterbury, Apr. 19, 2006) [ 41 Conn. L. Rptr. 222], the court (Matasavage, J.) noted that "[t]he statutory language [of 52-190a as modified by P.A. 05-275], and the legislative intent indicate that the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action.
Summary of this case from Hernandez v. MossOpinion
No. CV 05-5000482 S
April 19, 2006
MEMORANDUM OF DECISION
This is a decision on a motion to dismiss filed by the defendants, Phoenix Internal Medicine Associates and Joseph DeLuca, M.D. Specifically, the defendants argue that the plaintiff failed to comply with the requirements of § 52-190a, as amended by P.A. 05-275, and as such, is grounds for dismissal. The defendants filed their motion to dismiss on December 19, 2005. On December 20, 2005, the plaintiff filed an objection and memorandum of law in opposition to the motion, and on December 28, 2005, the defendants filed a reply brief. The matter was heard on the short calendar on January 17, 2006.
On November 15, 2005, the plaintiff, Robin Andrikis, filed a three-count medical malpractice action against the defendants, Phoenix Internal Medicine Association (Phoenix) and Joseph DeLuca, a physician who is employed by Phoenix. The plaintiff attached a good faith certificate to the complaint pursuant to General Statutes § 52-190a. Counts one and three allege negligence against Phoenix, and count two alleges negligence against DeLuca. She further alleges the following facts.
On May 19, 2004, the plaintiff contacted Phoenix complaining of achiness in her upper arms, back and chest. She was given an appointment to see DeLuca, who is the partner of the plaintiff's regular physician. During her appointment, the plaintiff explained her symptoms to DeLuca and specifically asked if her pain could be head-related. DeLuca posited that her pain was due to lyme disease. The plaintiff's family history, however, contains one head-related death and head-related problems, but DeLuca did not perform any tests to determine whether the plaintiff's condition was, in fact, head-related. DeLuca instead prescribed Motrin and sent the plaintiff for blood work.
Two days later, on May 21, 2004, the plaintiff called Phoenix to learn the results of her blood work. A nurse employed by Phoenix, and acting within the scope of her duties, told the plaintiff that her tests were negative and that Phoenix was still waiting on the lyme disease test results. During this conversation, the plaintiff complained to the nurse that her achiness had gotten worse and that she was extremely tired. The nurse told the plaintiff that she would speak with DeLuca, however, after this conversation the plaintiff did not hear back from either Phoenix or DeLuca.
On May 22, 2004, the plaintiff's symptoms worsened. That afternoon, the plaintiff's friend called Phoenix and described the plaintiff's symptoms to a physician's assistant. The physician's assistant advised the friend to take the plaintiff to the hospital. Thereafter, the plaintiff's friend brought her to the hospital where an electrocardiogram (EKG) performed on the plaintiff's head showed irregular rhythms. An angioplasty was later performed, which showed a 100 percent blockage in the plaintiff's circumflex artery. A stent was inserted to remedy the problem. Enzyme tests confirmed that the plaintiff suffered a heart attack earlier that day.
The plaintiff alleges in count one that Phoenix was negligent because it employed DeLuca who, acting within the scope of his employment, was negligent in his treatment of the plaintiff in that: (1) he failed to ensure he was aware of the plaintiff's relevant family history; (2) he failed to perform an EKG, stress test or any other tests designed to determine whether the plaintiff suffered heart-related symptoms or was in danger of suffering a heart attack; (3) he failed to respond to the plaintiff's telephone call; and (4) he failed to properly diagnose the plaintiff's condition. In her second count, the plaintiff reasserts her negligence allegations and also asserts that DeLuca is personally liable to her. In her third count, the plaintiff alleges that Phoenix was further negligent in that after the plaintiff had called DeLuca on May 21, 2004, it failed to ensure a return phone call. The plaintiff alleges that she has suffered permanent heart damage, diminished life expectancy, pain and suffering, fear of future illness, emotional distress and has incurred expenses for treatment and prescriptions.
In the good faith certificate attached to the complaint, the author noted that the plaintiff had nonspecific symptoms as well as a very compelling medical history. Thus, the author opined that the performance of an EKG was indicated and that "the physician was negligent in failing to perform an EKG, assuming the patient did specifically mention `chest pain' or `chest discomfort' as a symptom." The author further stated: "My feeling is that failure to order the EKG based upon the patient's own concerns was not in and of itself negligent. However, this was very poor judgment on the part of the physician. Since an EKG is a harmless and relatively inexpensive test which consumes little time, acknowledging the patient's concerns with performance of the EKG would have been wise. Failure to properly acknowledge patient concerns does not constitute negligence, but it is certainly not good practice." Additionally, with regard to DeLuca's alleged failure to speak directly with the plaintiff when she called on May 22, 2004, and his prescribing medication for symptoms without examining her, the author submitted that, in his opinion, DeLuca's actions were not negligent, but rather, these actions also exhibited poor judgment.
The defendants filed a motion to dismiss on the ground that the plaintiff's certificate is inadequate and thus she failed to comply with the requirements of Public Acts 2005, No. 05-275, § 2(a) ( P.A. 05-257).
I.
"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.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 501. "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Lawton v. Weiner, CT Page 7290 91 Conn.App. 698, 714, 882 A.2d 151 (2005).
II.
Prior to its amendment, § 52-190a provided in relevant part: "(a) No civil action shall be filed to recover damages resulting from personal injury . . . in which it is alleged that such injury . . . 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. For the purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion . . . that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith."
Relying on this version of the statute, our courts have stated: "The general purpose of § 52-190a is to discourage the filing of baseless lawsuits against health care providers." (Internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 383, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). "The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence . . . The purpose is . . . served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading [necessarily] akin to an essential allegation to support a cause of action." LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990). Our courts have also stated: "The lack of a certificate of good faith is not a jurisdictional defect and thus does not deprive the court of subject matter jurisdiction . . . Our cases explain that the failure to attach a certificate of good faith pursuant to § 52-190a subjects the case to a motion to strike the complaint pursuant to Practice Book § 152(1) [now § 10-39] for failure to state a claim upon which relief can be granted, but that the defect is curable by a timely amendment filed pursuant to Practice Book § 157 [now § 10-44] or Practice Book § 175 [now § 10-59]." (Citation omitted; internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, supra, 384.
In contrast, § 52-190a as amended by P.A. 05-275, now provides in relevant part: "(a) No civil action . . . shall be filed to recover damages resulting from personal injury in which it is alleged that such injury . . . 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 . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate . . . The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith . . .
"(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." (Emphasis added.) Public Act 05-275 became effective on October 1, 2005, and its interpretation is one of first impression.
In their memorandum of law, the defendants concede that the plaintiff's complaint "contains the requisite written opinion." The defendants argue, however, that the opinion does not support the allegations and, therefore, it does not meet the legislature's clear mandate, expressed in P.A. 05-275, that a written opinion must specifically support all of the plaintiff's allegations. The defendants further argue that the opinion's failure to support the underlying allegations requires dismissal of the case. The plaintiff counters that P.A. 05-275 provides grounds for dismissal only when a plaintiff fails to obtain and file a written opinion, which is not so in this case. The plaintiff argues that the sufficiency of an opinion is properly raised after discovery, and that it is "premature to hypertechnically analyze" the attached opinion. The plaintiff further argues that the attached opinion supports her allegations and that P.A. 05-275 does not require that an opinion cover every allegation of negligence contained in the complaint.
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." On the other hand, "[w]hen the meaning of the statute is not plain and unambiguous, [our courts] [also] look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter for [interpretative guidance]." (Internal quotation marks omitted.) State v. Boyd, 272 Conn. 72, 76, 861 A.2d 1155 (2004). In the present case, grounds to dismiss pursuant to the plain language of subsection (c) do not exist because the plaintiff obtained and filed a written opinion in accordance with the language of that section. Pursuant to the plain language of the statute, the failure to obtain and file a written opinion presents grounds for dismissal and the plaintiff has acted in accordance with this procedural requirement.
The requirements of the § 52-190a, as stated in subsection (a) do not appear to be ambiguous. Subsection (a) of the statute imposes the following requirements on medical malpractice complaints: (1) it must contain a certificate avowing that the plaintiff conducted a reasonable inquiry to determine that the plaintiff has grounds for a good faith belief that the plaintiff's cause of action exists: (2) to show good faith, the plaintiff must obtain a signed, written opinion in which a health care provider postulates that there appears to be evidence of medical negligence; and (3) the author must include a detailed basis for the formation of such opinion. General Statutes § 52-190a(a). Subsection (c), the remedy portion of the statute is clear, as far as it provides that the plaintiff's failure "to obtain and file the written opinion shall be grounds for dismissal." General Statues § 52-190a(c). The statute does not, however, address the remedy for inadequate or insufficiently detailed opinions. Accordingly, the court may consult extratextual sources.
During the Senate hearings discussing P.A. 05-275, Senator Kissel remarked that requiring a plaintiff to obtain and file a detailed opinion supporting good faith would "help the defense counsel and their clients right into the ballpark, right at the inception of the medical malpractice case . . . [because it would allow] . . . counsel and their clients [to] really narrow down exactly what was the basis for the determination of the basis for the plaintiff's claim that there was medical malpractice and why they had brought that case." ___ S. Proc., Pt. ___ 2005 Sess., p. ___, remarks of Senator John A. Kissel. In Senator Kissel's view, part of the purpose of the act was to "[reform] the process . . . speed it up . . . [and] expedite it." ___ S. Proc., supra, p. ___. Additionally, during the House of Representatives proceedings, Representative Lawlor stated that the act "makes it much more difficult to bring a medical malpractice action in court . . . [because] [u]nder [the new] requirement, another medical provider would have to state, in explicit detail, his or her opinion that [there] is a meritorious claim." ___ H.R. Proc., Pt ___ 2005 Sess., p. ___, remarks of Representative Michael P. Lawlor. Representative Lawlor further stated that the amended statute now requires that the "entirety of the [good faith] decision would be attached to the complaint with the name and address of the physician providing the decision . . . expunged for the purpose of the claim . . . [T]he identity of [the person submitting the opinion] would be discoverable and would be certainly . . . known if it ever came to a trial and that person testified. So [the opinion is a] sort of threshold opinion that in fact [the case] . . . is [actually] medical malpractice . . . [It] is for [an] initial benchmark of actually filing the claim and . . . physicians would be reluctant to render an opinion that another physician had in fact engaged in malpractice . . . [because of] the likelihood that there would be some backlash against that physician from other physicians when it comes to referrals, etc." ___ H.R. Proc., supra, p. ___.
Available at: http://search.cga.state.ct.us/; document name: 2005STR00606-R00-TRN.HTM.
Available at: http://search.cga.state.ct.us/; document name: 2005HTR00608-R00-RTN.HTM.
The statutory language, and the legislative intent indicate that the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action. Because this court "cannot read something into [this] statute . . . nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature"; (internal quotation marks omitted) Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 416-17, 880 A.2d 882 (2005); this court should not interpret the amended statute, in accordance with the defendants' view, that it creates a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion. See Greco v. United Technology Corp., 277 Conn. 337, 349, 890 A.2d 1289 (2006) (fact that legislature did provide for preemption strongly evidenced that legislature did not intend preemption).
Additionally, "[t]he legislature is presumed to be aware of the interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation." (Internal quotation marks omitted.) Commission on Human Rights Opportunities v. Sullivan Associates, 250 Conn. 763, 783, 739 A.2d 238 (1999). Before § 52-190a was amended, our case law had determined that the proper vehicle contesting a plaintiff's failure to file a good faith certificate was a motion to strike. See King v. Sultar, supra, 253 Conn. 449 n. 9. A motion to strike was also the proper vehicle for contesting the sufficiency of such certificates. See, e.g., Kelly v. Soccarras, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412742 (April 6, 2005, Doherty, J.) ( 39 Conn. L. Rptr. 49, 50); Tallis v. Mabri Convalescent Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0284239 (October 22, 2004, Wiese, J.) ( 38 Conn. L. Rptr. 135, 136); Parent v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV ___ 0117971 (April 24, 1995, Sullivan, J.).
Moreover, by obtaining and filing an opinion that contain statements that the plaintiff's claim appears to be based on evidence of medical negligence, the plaintiff has, at the very least, attempted to comply with the amended statute. Thus, her actions have served the purposes of the amended statute, which are to narrow down and provide the defendants with details as to the basis for her claim. See ___ S. Proc., supra, p. ___; ___ H.R. Proc., supra, p. ___. The plaintiff's actions also serve the purpose of the good faith certificate in that she has "in fact made a reasonable precomplaint inquiry giving [her] a good faith belief in the defendant's negligence." LeConche v. Elligers, supra, 215 Conn. 711.
See footnote 1 of this opinion.
See footnote 2 of this opinion.
Therefore, for the foregoing reasons, the motion to dismiss is denied.