Opinion
No. CV07-5009783S
December 6, 2007
MEMORANDUM OF DECISION MOTION TO DISMISS #103
Facts
Kenneth Boykin, the pro se plaintiff, alleges the following facts in his complaint. Thomas Rutherford diagnosed Macie Boykin, the plaintiff's mother, with cervical cancer. Rutherford performed surgery and reported that the surgery was successful, and the cancer was gone. Boykin scheduled follow-up appointments with Rutherford and saw him three or four times, approximately every four to six weeks. Following the onset of pain, Boykin scheduled a special appointment with Rutherford at which he found that Boykin's cancer had returned and spread to her gallbladder and rectum. Rutherford performed a second surgery, which included a hysterectomy and removal of Boykin's gallbladder and part of her rectum, after which she required a bag to remove bodily waste. Approximately one month later, Rutherford performed a third, reconstructive surgery after which Boykin was unable to walk.
Between the second and third surgeries, Boykin recovered at the Haven House. At some point she went to the hospital for a procedure after a line came out of her arm. Afterward, she could not return to the Haven House because her room was given to someone else, but the doctor permitted her to return home. There, a visiting nurse came to change the waste bags. Boykin returned to the hospital after experiencing pain but no diagnosis was given, and she was sent home.
Some time later, Boykin returned to the hospital due to an infection related to the waste bag. An unspecified doctor discovered a blood clot and surgically installed a filter in her leg. Boykin died the following day, April 9, 2004. An autopsy revealed the cause of death to be sepsis.
The plaintiff alleges that Rutherford was negligent for failing to perform a hysterectomy during the initial surgery to treat Boykin's cancer. The plaintiff also alleges that Rutherford failed to see Boykin often enough following the initial surgery, and if he had, he would have discovered the cancer before it spread to her gallbladder and rectum. The plaintiff alleges that Rutherford should not have performed the reconstructive surgery because Boykin was too "weak." Finally, plaintiff alleges that the visiting nurse failed to prevent the infection from Boykin's waste bag.
This suit commenced on March 5, 2007, with service of process on the defendants Yale-New Haven Hospital and Rutherford; the return date was April 3, 2007. On May 1, 2007, the defendants filed a motion to dismiss on the grounds that the plaintiff lacks standing to pursue a wrongful death claim because he is not the administrator of Boykin's estate, and because the plaintiff failed to file a certificate of good faith and medical opinion in compliance with General Statutes 52-190a(a). The plaintiff filed a response on May 8, 2007, stating that he did not understand the statutory requirements and requesting additional time to file the certificate. Additionally, the plaintiff noted that he planned to open the estate of Boykin upon his release from prison, but would do so immediately if necessary to pursue this claim.
The state marshal was unable to serve Dr. Shah and service has not taken place. It is also unclear from the complaint who Shah is and what his or her role was in Boykin's care.
Discussion A. Standing
The defendant first argues that the plaintiff lacks standing to bring a wrongful death action because he is not the administrator or executor of Boykin's estate. "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005).
Wrongful death is a statutory cause of action in Connecticut: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of." (Emphasis added.) General Statutes § 52-555. This statute "creates a cause of action that may be maintained only by an executor or administrator of an estate . . . Death, at common law, is not a recoverable element of damage . . . It is only by reason of statute that a death action is maintainable in Connecticut . . . [Section 52-555] provides for the bringing of such an action by either an executor or an administrator; it does not confer on anyone else . . . any right to bring such an action individually . . .
"[S]tanding to bring a wrongful death action is thus conferred only upon either an executor or an administrator." (Citations omitted; internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600-01, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). See also Keogh v. Bridgeport, 187 Conn. 53, 58, 444 A.2d 225 (1982) ("[A] wrongful death action survives death and is maintainable by the administratrix or executrix of the deceased's estate, and not by his dependents.").
In the present case, the plaintiff has failed to demonstrate that he is the executor or administrator of Boykin's estate. The defendants provided a copy of Boykin's Certificate of Death and an affidavit by Lynn A. Granatie who contacted the Probate Court for the City of New Haven; she was unable to obtain a file for Boykin's estate as it did not exist. Additionally, the plaintiff admits in his opposition memorandum that he is not the executor or administrator of his mother's estate. Because the plaintiff is not the executor or administrator of Boykin's estate, he lacks standing to pursue a wrongful death action. Therefore, the court grants the defendant's motion to dismiss for lack of subject matter jurisdiction.
B. Certificate of Good Faith
The defendant also argues that the court lacks subject matter jurisdiction because the plaintiff failed to file a certificate of good faith and a written opinion of a similar health care provider, which are statutorily required for medical malpractice actions. The plaintiff responds that he did not understand the statutory requirements and asks for leave to amend his complaint and obtain the necessary documents.
This court need not consider the defendant's motion to dismiss on this ground because the claim that the plaintiff lacks standing is dispositive. Nevertheless, the following discussion is provided for further explanation.
As of October 1, 2005, a party filing a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider which 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(a). Further, "[t]he failure to obtain and file the written opinion required by subsection (a) of [52-190a] shall be grounds for the dismissal of the action." General Statutes § 52-190a(c); Oram v. DeCholnoky, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV05 4005513 (March 10, 2006, Shay, J.) (41 Conn. L. Rptr. 46). Prior to the 2005 amendments, which added the written opinion requirement as well as subsection (c), the Supreme Court held that the failure to include a good faith certificate with the complaint was not an issue of subject matter jurisdiction. LeConche v. Elligers, 215 Conn. 701, 702-03, 579 A.2d 1 (1990). The court found that the legislature did not intend to make the good faith certificate a jurisdictional requirement. Id., 709-10.
The addition of subsection (c), however, has raised the issue of whether the legislature now intends the good faith certificate and written opinion of a similar health care provider to be a jurisdictional requirement. No appellate authority exists, and there is a split of authority on this issue in the Superior Court. This court has previously held that the statute is a jurisdictional hurdle, and therefore it must grant a motion to dismiss if the plaintiff fails to file a certificate of good faith and a medical opinion. "A motion to dismiss is the proper procedural vehicle to challenge the court's jurisdiction under § 52-190a(c) because a failure to comply with the requirements of § 52-190a deprives the court of subject matter jurisdiction . . . 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." (Citation omitted; internal quotation marks omitted.) Votre v. County Obstetrics Gynecology Group, Superior Court, judicial district of New Haven, Docket No. CV 06 5005430 (May 24, 2007, Holden, J.) (granting a motion to dismiss for failure to provide a certificate of good faith and a written opinion of a similar healthcare provider in a medical malpractice action). See also Mastrone v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 5000477 (May 23, 2006, Rodriguez, J.) (41 Conn. L. Rptr. 375) ("[F]ailure to attach the required opinion implicates the court's subject matter jurisdiction."); Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) (41 Conn. L. Rptr. 504) ("[T]he language of § 52-190a(c) makes it clear that a failure to comply with the written opinion requirement deprives the court of subject matter jurisdiction and that this issue can appropriately be addressed through a motion to dismiss.").
In the present case, the plaintiff failed to file a certificate of good faith or a written opinion from a similar health care provider. The plaintiff acknowledges this shortcoming in his opposition memorandum and cites his confusion over the statutory language. "[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 861, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005).
CONCLUSION
Based upon the foregoing, the defendant's motion to dismiss for lack of subject matter jurisdiction is granted.