Opinion
MMXCV176019276
10-31-2018
Anthony Bondi et al. v. Middlesex Hospital
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Domnarski, Edward S., J.
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
Domnarski, J.
The first count of the plaintiffs’ complaint alleges medical malpractice against the defendant Middlesex Hospital (Middlesex). Middlesex has moved to dismiss this count on the often-argued grounds that the plaintiffs’ opinion letter does not comply with General Statutes § 52-190a. Middlesex maintains that the opinion letter is insufficiently detailed and is not from a similar heath care provider.
Section 52-190a provides in relevant part:
I.
DISCUSSION
"[T]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process, which implicates personal jurisdiction over the defendant." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 351, 63 A.3d 940 (2013). Thus, "a motion to dismiss ... is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Id., 349. "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Weinstein & Wisser v. Cornelius, 151 Conn.App. 174, 182, 94 A.3d 700 (2014).
"When a ... court decides a ... 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.) Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 718, 104 A.3d 671 (2014).
In summary, the plaintiff, Anthony J. Bondi (plaintiff), alleges that he was injured during an occupational therapy session, conducted at the Middlesex Hospital Rehabilitation Center located in Old Saybrook, Connecticut, while he was under the direction of two licensed occupational therapists employed by Middlesex. He was injured when an electrically powered treatment table, which is operated by a control bar near the floor, moved in a downward direction, pressed down on his legs, and crushed his ankle. The plaintiff alleges that he was seated next to the treatment table and one of the occupational therapists asked him to move closer to the table. When he moved closer to the table, his foot rested on the control bar which caused the downward movement of the table.
A. "Detailed Basis" Requirement
The plaintiff attached to his complaint an opinion letter from a licensed occupational therapist. In the section entitled "Breach of the Standard of Care" the author states: "The staff had a duty to be aware of how the treatment table worked and should have prevented Mr. Bondi from becoming entangled in the device." The author proceeded to state ten more reasons why the standard of care was breached. Middlesex maintains that the letter is deficient since it does not identify the prevailing standard of care, or the manner in which it was breached.
Our Supreme Court has stated "that a written opinion satisfies the ‘detailed basis’ requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider’s opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider’s opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider’s conclusion concerning the breach of the standard of care. This level of detail is sufficient because it satisfies the requirement of § 52-190a(a) that the written opinion shall include both the opinion of the similar health care provider that ‘there appears to be evidence of medical negligence’ and a ‘detailed basis for the formation of such opinion,’ that is, a statement setting forth the facts then known to the health care provider on which that opinion of medical negligence is predicated. General Statutes § 52-190a(a)." (Footnote omitted.) Wilcox v. Schwartz, 303 Conn. 630, 643-44, 37 A.3d 133 (2012).
In Wilcox, the plaintiff’s expert stated there was medical negligence because Schwartz, the defendant surgeon, "failed to prevent injury to ... Wilcox’s biliary structures during laparoscopic [gallbladder] surgery ..." Wilcox v. Schwartz, supra, 303 Conn. 635. The defendants moved to dismiss the complaint on the ground that the letter was not detailed enough to satisfy the requirements of § 52-190a. Id. The Court disagreed with the defendants and stated that the opinion addressed the standard of care and stated how the defendant breached the standard. Id., 645. The Court noted: "the written opinion sets forth the author’s professional medical judgment that, consistent with the allegations of the complaint, the applicable standard of care required Schwartz to protect the biliary structures during surgery and that his failure to do so constituted a breach of that standard of care. This explanation, although concise, constitutes a sufficiently clear and detailed explication of what Schwartz did or failed to do in breaching the applicable standard of care." Id., 645-46.
"First, we disagree with the defendants that the written opinion in the present case fails to identify the applicable standard of care and a breach of that standard of care. As we previously stated, the opinion provides that the standard of care required Schwartz to protect Wilcox’s biliary structures during the laparoscopic gallbladder surgery and that his failure to do so caused injury to those structures. Although the defendants may disagree with the standard of care identified in the written opinion and with the author’s assertion that Schwartz had deviated from it, that disagreement does not render the opinion insufficient under § 52-190a(a) when the information contained therein was sufficient to place the defendants on notice of the nature of the alleged medical negligence." Wilcox v. Schwartz, supra, 303 Conn. 647-48.
In this case, the opinion author stated that the Middlesex occupational therapists had a duty to prevent the plaintiff from becoming "entangled" in the treatment table. This statement is sufficient to establish the standard of care. The opinion letter also describes how this "entanglement" caused injury to the plaintiff. Although Middlesex may disagree with the opinion, it does place Middlesex on notice as to the plaintiff’s claim of medical negligence. The subject opinion letter is sufficiently detailed to comply with § 52-190a(a).
B. Similar Health Care Provider
The plaintiff has alleged that licensed occupational therapists employed by Middlesex caused him injury in the course of the occupational therapy they rendered to him. The plaintiff’s opinion letter states that the author is a licensed occupational therapist who has engaged in the clinical practice or training of others in the field of occupational therapy for over 30 years. Specifically, the letter states that the author has taught occupational therapy students since 1995, and has held the position of Professor of Occupational Therapy since 2005. The letter also states that the author has been practicing as an occupational therapist in an outpatient setting since 2006.
Middlesex claims that the opinion letter is not from a similar health care provider as their employee. Middlesex acknowledges that its occupational therapist is not board certified or a specialist, consequently General Statutes § 52-184c(c) does not apply. Middlesex does claim that its occupational therapist is also a certified lymphedema specialist, thus, they maintain, under § 52-184c(b), the plaintiff’s opinion author must be an occupational therapist who is also a certified lymphedema therapist in order to qualify as a similar health care provider.
General Statutes § 52-184c(c) provides: "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.’ "
General Statutes § 52-184c(b) provides: "(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."
"Section 52-190a does not define ‘similar health care provider,’ but the text explicitly refers to the definition in § 52-184c. We must, therefore, read § 52-190a together with § 52-184c, which defines ‘similar health care provider.’ " (Footnote omitted.) Lucisano v. Bisson, 132 Conn.App. 459, 465, 34 A.3d 983 (2011). Our Supreme Court construes "§ 52-184c(b) as establishing the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and § 52-184c(c) as establishing those qualifications when the defendant is board certified, ‘trained and experienced in a medical specialty, or holds himself out as a specialist ...’ " Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 23, 12 A.3d 865 (2011).
"[I]t is appropriate to look to the allegations of the plaintiff’s complaint to frame the requirements for who constitutes a similar health care provider for purposes of the good faith opinion certification." Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 730-31. Here, the plaintiff has alleged that the Middlesex employees were licensed occupational therapists.
In connection with a motion to dismiss, affidavits may be submitted by a defendant to dispute allegations contained in the complaint. See Labissoniere v. Gaylord Hospital, 182 Conn.App. 445, 453-54, 185 A.3d 680 (2018) ("[a]lthough the plaintiffs alleged in their amended complaint that the physicians were board certified in internal medicine, it was not improper for the court to consider the [physicians’] affidavits in deciding the amended motions because the affidavits provided independent evidence of the physicians’ medical specialty").
In support of its claim that the opinion author is not a similar health care provider, Middlesex has submitted a curriculum vitae from an unidentified individual that Middlesex represents is a "defendant practitioner." The document is not signed under an oath attesting to its veracity.
Furthermore, there is no affidavit from any person connected with Middlesex which attests to the accuracy of the document, or that it relates to an individual involved in the plaintiff’s treatment. Putting aside the deficiency in the form of the submission, Middlesex has failed to establish that the plaintiff’s opinion author is not a similar health care provider.
Section 52-184c(b) requires that the similar health care provider be licensed, and be trained and experienced in the same discipline or school of practice as the defendant. Here, the discipline or school of practice is occupational therapy. It appears the defendant practitioner, a licensed occupational therapist, was also certified in 2006 as a Lymphedema Therapist from the Norton School of Lymphatic Therapy. Middlesex has not submitted any evidence to establish that lymphedema therapy is a separate discipline or school of practice that is not included within occupational therapy.
General Statutes § 52-184b(a) defines a health care provider as a "person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment." (Emphasis added.) Occupational therapists are required to be licensed. See General Statutes § 20-74a(2). Middlesex does not claim that lymphedema therapists are licensed by the State of Connecticut.
With their opposition memorandum, the plaintiffs submitted information from the American Occupational Therapy Association website concerning Board Certification and Specialty Certification. It is noteworthy that there is no board certification or specialty certification for the area of lymphedema treatment.
It is undisputed that § 52-184c(b) is concerned with a health care provider who is a non-specialist. Middlesex concedes that § 52-184c(b) is the operative provision, but nevertheless appears to conflate the standards for specialist and non-specialist providers. Although Middlesex refers to the defendant provider as a "certified lymphedema specialist," Middlesex has neither argued nor demonstrated that its occupational therapists are specialists within the meaning of § 52-184c(c). Nor has Middlesex demonstrated that lymphedema therapy requires a separate license or is a different school or discipline from occupational therapy. See § 52-184c(b). To the contrary, the curriculum vitae states that the purported defendant practitioner received a master of science in occupational therapy, and is licensed by the state of Connecticut as an occupational therapist, consistent with the allegations in the plaintiff’s complaint.
If the defendant practitioner were licensed in another, additional, medical discipline, an opinion writer might, under certain circumstances, be required to have that additional license, but that is not the case here. Middlesex has not cited any authority which mandates that an opinion writer, who is a non-specialist health care provider, must have the same treatment certificates as the non-specialist defendant. Section 52-184c pertains to health care providers who may, or may not, be "certified by the appropriate American board." It does not pertain to, or mention, health care providers who hold certificates from educational institutions.
In this case, consistent with § 52-184c(b), the opinion letter states that the author is licensed by the state in occupational therapy, has training and experience in occupational therapy, and that such training and experience is the result of active involvement in the practice and teaching of occupational therapy within the five-year period before the incident. Accordingly, the author qualifies as a similar health care provider.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.
(a) No civil action or apportionment complaint 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ...
(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.