Opinion
FBTCV186080863S
07-09-2019
John DOE et al. v. CT FERTILITY, P.C. et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendants CT Fertility, P.C. and Melvin H. Thornton, M.D. move to dismiss the complaint filed by Plaintiffs John Doe and Jane Doe. The complaint pleads twelve counts against CT Fertility, P.C. and twelve nearly identical counts against Dr. Thornton. All of the counts allege that the plaintiffs contracted with the defendants to assist the plaintiffs with conception through in vitro fertilization. They also allege that eggs were to be harvested from an anonymous egg donor no. 8470, fertilization of those eggs was to occur by intracytoplasmic sperm injection with John Doe’s sperm, the resulting embryos were to be frozen and then they were to be transferred to and implanted in Jane Doe. Although this series of events apparently was successful and resulted in the birth of Child no. 1 to the plaintiffs, they allege that when they returned to the defendants for assistance with conceiving their second child, the defendants committed medical negligence.
After the motion to dismiss was fully briefed and argued, the court (Bellis, J.) issued an order permitting the use of pseudonyms for the plaintiffs and requiring the sealing of previously filed pleadings that contained identifying information about the plaintiffs. No. 155.00. The original motion to dismiss and supporting memorandum appear on the docket as nos. 104.00 and 105.00 respectively, the redacted versions appear as nos. 140.00 and 141.00 respectively, the plaintiffs’ original objection and opposition memorandum appear as nos. 120.00 and 121.00 respectively, the redacted versions appear as nos. 133.00 and 131.00 respectively, the defendants’ reply memorandum appears as no. 122.00 and the redacted version appears as no. 152.00.
Specifically, the plaintiffs allege that after the birth of their second child, Child no. 2, they arranged for DNA testing. The results of that testing indicated that the two children are not full siblings and that plaintiff John Doe is not the biological father of Child no. 2. The plaintiffs claim, upon information and belief, that each of the defendants was negligent in one or more of the following respects: (1) they failed to properly harvest eggs from donor 8470; (2) they failed to properly perform intracytoplasmic sperm injection; (3) they failed to properly freeze the plaintiffs’ genetic material (embryos); and (4) they failed to properly transfer the correct genetic material (embryo) to plaintiff Jane Doe. The plaintiffs attached to their complaint a Certificate of Good Faith executed by their counsel and a document entitled "Physician’s Opinion Pursuant to CGS § 52-190(a)."
The defendants move to dismiss the complaint on the grounds that the opinion letter does not comply with the requirements of General Statutes § 52-190a because (1) the author of the opinion letter attached to the complaint is not a "similar health care provider" to either Dr. Thornton or CT Fertility, P.C., and (2) the letter does not describe a deviation from the standard of care. For the reasons that follow, the court grants the motion on the first of these two grounds, but denies the motion on the second of the grounds.
I. STANDARD FOR MOTION TO DISMISS
Section 52-190a specifically requires plaintiffs’ counsel to "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." Section 52-190a(a). The statute goes on to require counsel to attach a copy of the opinion, with the name and signature of the similar health care provider expunged, to the good faith certificate that must be attached to the complaint. Id. Subsection (c) of the statute provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
A motion to dismiss for failure to comply with Section 52-190a challenges the court’s personal jurisdiction over the defendants. Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). The Supreme Court in Morgan reasoned that the opinion letter was process, and that based on its precedents, the type of jurisdiction implicated by defective process was personal jurisdiction. Id. at 401-02, 21 A.3d 451. "[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The 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 and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Id. at 401, 21 A.3d 451.
Depending on the record before it, a trial court ruling on a motion to dismiss may decide that motion on the basis of: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed ... If the court decides the motion 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 ..." Town of Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265, 277-78, 105 A.3d 857 (2015). Here, the parties have not provided the court with any evidence beyond the complaint and its attachments.
II. THE SIMILAR HEALTH CARE PROVIDER REQUIREMENT
Section 52-190a(a) requires that the opinion letter attached to the complaint be authored by a "similar health care provider." The statute expressly refers to the definition of that term in Section 52-184c. That statute states in subsection (a) that "[t]he prevailing standard of care for a given health care provider shall be that level of care, skill and treatment which, in light or all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." It provides two different definitions for "similar health care provider." In subsection (b), the statute addresses the situation where the defendant is not certified by an American board as a specialist, is not trained and experienced in a medical specialty and does not hold himself out as a specialist. By contrast, if the defendant is certified as a specialist, is trained and experienced in a medical specialty or holds himself out as a specialist, the definition is provided in subsection (c). "Given the legislature’s specific articulations of who is a similar health care provider under § 52-184c(b) and (c), we have hewn very closely to that language and declined to modify or expand it in any way." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15-16, 12 A.3d 865 (2011) (holding that opinion letter must be authored by a similar health care provider under one of these two subsections and not by someone who does not fit these definitions, even if that person would likely qualify as an expert witness at trial under subsection (d) of Section 52-184(c).
The allegations of the plaintiffs’ complaint determine which subsection of Section 52-184c applies. Wilkins v. Connecticut Childbirth and Women’s Center, 314 Conn. 709, 730-31, 104 A.3d 671 (2014); Gonzales v. Langdon, 161 Conn.App. 497, 505, 128 A.3d 562 (2015). For example, in Gonzales, the complaint alleged that the defendant "holds himself out as a specialist in cosmetic surgery." Id. at 506, 128 A.3d 562. Based on that allegation, the court held that the plaintiff should have attached an opinion letter from a specialist in cosmetic surgery, not dermatology. Id., 128 A.3d 562.
The appellate courts have strictly enforced the requirement that the plaintiff attach an opinion letter from a "similar health care provider" as defined by the appropriate subsection of Section 52-184c. See, e.g., Bennett, supra, 300 Conn. at 7-8, 12 A.3d 865 (affirming dismissal where complaint alleged that defendant specialized in emergency medicine but the letter was authored by a board certified surgeon); Caron v. Connecticut Pathology Group, P.C., 187 Conn.App. 555, 565-69, 202 A.3d 1024, cert. denied, 331 Conn. 922 (2019) (affirming dismissal where complaint allegations were about interpreting slides but opinion letter was from clinical pathologist rather than anatomical pathologist, which was correct specialty); Labissoniere, supra, 182 Conn.App. at 455, 185 A.3d 680 (affirming dismissal where the complaint and affidavits established that the defendants were board certified in internal medicine, but the opinion letter was authored by a board certified surgeon). The one exception appears to be the situation where the health care provider writing the opinion has even more training and experience than the defendant does in the specialty at issue. Wilkins, supra, 104 A.3d at 726-27, 104 A.3d 671 (reversing dismissal where board certified obstetrician and gynecologist authored letter for complaint involving nurse midwives).
The plaintiffs cite Wilkins for the proposition that the "Connecticut Supreme Court disagrees with the proposition that the similar health care provider and the health care provider who is alleged to have been negligent must be members of the same profession." Memorandum in Opposition at 9-10. This court does not read Wilkins so broadly. Instead, the Supreme Court in Wilkins held that health care providers who had even more experience and training in the same specialty could author an opinion letter. The plaintiffs have not established that this standard would apply to their complaint and opinion letter.
Furthermore, the opinion letter must set forth enough information to enable a reader to determine whether the author has the qualifications to meet the criteria of the particular subsection of Section 52-184c that is supplying the definition of "similar health care provider." In Bell v. Hospital of St. Raphael, 133 Conn.App. 548, 559-61, 36 A.3d 297 (2012), the appellate court affirmed a dismissal where the letter identified the author as a registered nurse with a bachelor of science degree in nursing but did not provide "sufficient information" for the court to discern whether the author met the requirements of Section 52-184c(b). The court held that the letter did not disclose any information as to the licensing of the author or the training and experience of the author that would qualify him or her to opine as to the performance of the defendant’s emergency department. Id. at 560, 36 A.3d 297.
The plaintiffs argue that dismissal is the inappropriate remedy, based on a 2007 Superior Court case, Vicenzi v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-07-5004413 (October 29, 2007, Roche, J.) . That court explicitly stated that at the time it was decided, there was no appellate authority interpreting the opinion letter requirement. In the meantime, as set forth above, the Supreme Court and the Appellate Court have repeatedly ruled that the opinion letter must come from a similar health care provider as that alleged in the complaint, and that there must be enough detail in the letter about the author’s qualifications for the court to discern whether it has been written by a similar health care provider. Moreover, they have made it clear that if these requirements are not met, the action must be dismissed for lack of personal jurisdiction.
The court now applies this law to the facts here. The complaint alleges the following facts that are relevant to determining who would be a "similar health care provider." The complaint alleges that CT Fertility "is a business organized primarily for the purpose of helping individuals conceive through Invitro Fertilization, (hereinafter, ‘IVF’) including but not limited to egg harvesting and withdrawal, fertilization of eggs through intracytoplasmic sperm injection, (hereinafter, ‘ICS’), freezing both unfertilized eggs and embryos and transferring embryos into the patient." Paragraph 3. It also alleges that Dr. Thornton was "acting Medical Director at CT Fertility and Senior Physician." Paragraph 4. The complaint also alleges that CT Fertility "held itself out as an expert in IVF and egg donation" and that CT Fertility "held Dr. Thorton (sic) out to be an expert in IVF, particularly donor egg programs." Paragraphs 8, 9.
The court relies upon the original complaint and attached opinion letter for its analysis. Although the court is aware that since the date of the argument, the plaintiffs have filed a new complaint using pseudonyms (no. 129.00) and a new good faith certificate and opinion letter (no. 130.00), the court notes that the new opinion letter differs from the original opinion letter in several respects beyond the use of pseudonyms for the plaintiffs and their family members. Because the plaintiffs have not sought leave to amend their complaint, good faith certificate and opinion letter beyond those changes required by the court’s order on the use of pseudonyms, the original complaint and opinion letter control this court’s analysis. Cf. Gonzales, supra, 161 Conn.App. at 519-22, 128 A.3d 562 (holding that trial court should have granted pending request for leave to amend complaint to attach new opinion letter).
The defendants argue that these allegations do not assert that either defendant is a board certified specialist, and that therefore, the operative subsection of Section 52-184c for the requirements of "similar health care provider" is subsection (b). That subsection defines a similar health care provider as "one who (1) is licensed by the appropriate regulatory agency of this state or another state requiring the same of 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."
The opinion letter, by contrast, introduces the author as a "Board Certified Reproductive Endocrinologist, in full-time practice and am licensed by the State of Connecticut or another state requiring the same or greater qualifications. I have been practicing in this specialty continuously for 21 years." Later in the letter, the author indicates that his or her opinions are based in part "on my education, training and experience as a physician," but he or she does not provide any detail as to that education, training and experience. There is no additional information in the opinion letter about the author. The court holds that while the letter might satisfy the first prong of Subsection (b), it does not satisfy the second prong.
Moreover, while it appears from the letter and the opposition memorandum that the plaintiffs are trying to satisfy the definition of Subsection (c), which addresses specialists, there is no allegation in the complaint that Dr. Thornton was a reproductive endocrinologist or that he was board certified in that specialty. Indeed, throughout their opposition memorandum, the plaintiffs refer to Dr. Thornton as a "reproductive endocrinologist" or "a reproductive endocrinology & infertility specialist," and they state "in the case at bar the scriber of the opinion letter is in fact certified by the same board as the defendant Dr. Thornton." Opposition Memorandum at 2, 14, 16 and 18. While this may be true, the problem for the plaintiffs is that they have not alleged any of this in their complaint nor have they made it clear in their opinion letter that the author and Dr. Thornton share the same specialty(ies). See, e.g, Wilkins, 314 Conn. at 730-31, 104 A.3d 671. Therefore, the court cannot determine if the author and Dr. Thornton are practicing in the "same specialty" for purposes of Subsection (c). Accordingly, based on the pleadings, Subsection (c) is not applicable. Because the complaint and the opinion letter are not aligned and because there is not sufficient information about the author to fulfill the requirements of either subsection of Section 52-184c, the complaint is dismissed as to Dr. Thornton.
The "similar health care provider" requirement also applies to institutions such as CT Fertility. Wilkins, supra, 314 Conn. at 719-24, 104 A.3d 671; Labossoniere v. Gaylord Hospital, Inc., 182 Conn.App. 445, 449 n.4, 185 A.3d 680 (2018). Our Supreme Court observed in Wilkins that "when a medical malpractice action is brought against an institution, the malpractice necessarily is committed by the institution’s officers, employees or agents. Accordingly, the ‘defendant health care provider’ for purposes of § 52-184c is the person who allegedly committed the medical malpractice, not the person or institution that ultimately may be held liable for that malpractice." 314 Conn. at 722, 104 A.3d 671. While it is possible that the same author could provide opinions about both Dr. Thornton and CT Fertility if Dr. Thornton was the person who committed all of the medical negligence at issue, it appears that the complaint and the opinion letter are attributing some of the negligence to "staff" other than Dr. Thornton. Again, the letter does not provide the necessary detail as to the author’s qualifications as a "similar health care provider" to CT Fertility and its functions as alleged in the complaint.
The plaintiffs argue that the opinion letter is sufficient as to CT Fertility because it is vicariously liable for Dr. Thornton’s acts or omissions under the theory of respondeat superior. Opposition Memorandum at 15-16. Once again, the problem with this argument is that that is not how the complaint is plead. There are no allegations of respondeat superior in the complaint. Instead, the claims are against CT Fertility for its own acts or omissions and for the acts or omissions of unnamed "agents and employees." Paragraph 22. Each of the allegations of negligence refer to "CT Fertility and its agents and/or employees" failing to properly do some act. Id. Indeed, for each cause of action, the first count is against CT Fertility and the second count is against Dr. Thornton. The plaintiffs have not satisfied either definition of similar health care provider in Section 52-184c for CT Fertility, and the court dismisses the complaint as to that entity.
In their opposition memorandum, the plaintiffs argue that there is an exception to the opinion letter requirement if there is gross negligence. Opposition Memorandum at 11-12. However, at oral argument, the plaintiffs’ counsel stated that they were not pressing that argument. Accordingly, the court will not address whether the complaint alleges gross negligence and whether an insufficient opinion letter could be excused on that basis.
Our Supreme Court has held that "[e]xpert opinion may also be excused in those cases where the professional negligence is so gross as to be clear even to a lay person." Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 813, 945 A.2d 955 (2008). It subsequently held that if expert testimony is not required at trial to establish the medical standard of care, it is not necessary to provide an opinion letter under Section 52-190a. Shortell v. Cavanagh, 300 Conn. 383, 393, 15 A.3d 1042 (2011) (ruling on informed consent claims).
III. THE DETAILED BASIS REQUIREMENT
The Defendants also move to dismiss on the grounds that the opinion letter does not describe a deviation from the standard of care. They point out that Section 52-190a(a) requires an opinion "that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Emphasis added.) In Dias v. Grady, our Supreme Court interpreted the term "medical negligence." 292 Corm. 350, 972 A.2d 715 (2009) (affirming the denial of a motion to dismiss). The court concluded that "the phrase ‘medical negligence, ’ as used in § 52-190a(a), means breach of the standard of care." Id. at 359, 972 A.2d 715. Therefore, the opinion letter must state some breach of the standard of care and a "detailed basis" for that opinion.
Three years later, in Wilcox v. Schwartz, 303 Conn. 630, 37 A.3d 133 (2012), our Supreme Court elaborated on what is meant by "detailed basis." The court began its analysis by noting that the text of Section 52-190a(a) "offers no specific guidance with respect to the level of detail that a written opinion must contain." Id. at 639, 37 A.3d 133. After reviewing the legislative history of the amendment that added the opinion letter requirement, the court set forth what is necessary to satisfy the "detailed basis" requirement:
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.Id. at 643-44, 37 A.3d 133. The court went on to state that this interpretation struck "an appropriate balance" between the need for enough specificity to support a good faith belief in the existence of medical negligence and the fact that the plaintiff typically would not have engaged in discovery at the time the opinion letter was written. Id. at 644, 37 A.3d 133.
The Wilcox court held that the specific opinion letter before it met the standard it articulated and that the trial court should not have dismissed the case. Id. at 645, 37 A.3d 133. It specifically held that an opinion letter could pass muster if the similar health care provider was "able to determine that there appears to be evidence of a breach of the standard of care," even if that provider "is unable to identify the specific negligent act or omission involved." Id., 37 A.3d 133. The court went on to reject the defendants’ arguments that the opinion must state the precise manner in which the standard of care was breached. "[A]t least in a case like the present one, in which a similar health care provider opines that, in essence, the injury would not have occurred in the absence of medical negligence, § 52-190a(a) does not require such specificity." Id. at 648-49, 37 A.3d 133.
The court spoke approvingly of the following excerpts from the opinion letter: "[t]he written opinion provides that its author had ‘conclude[d] ... to a reasonable degree of medical probability’ that, on the basis of his ‘education, training and experience as a physician, and [an] examination of ... Wilcox’s medical records, ‘ Schwartz had ‘deviat[ed] from the applicable [standard] of care’ and, therefore, was ‘negligent’ in his treatment of Wilcox in ‘fail[ing] to prevent injury to ... Wilcox’s biliary structures during laparoscopic [gallbladder] surgery ...’" Id. at 645, 37 A.3d 133.
Applying this law to the opinion letter attached to this complaint, the court holds that the opinion letter satisfies the standards laid out in Wilcox, and that dismissal is not appropriate on this basis. The opinion letter states that "there are deviations from the applicable standards of practice pertaining to the care and treatment of Jane and John Doe, and the resultant embryos and pregnancies achieved through IVF treatments at CT Fertility and Dr. Thornton who was the Medical Director at the time." It also states that "I can further conclude that the care and treatment provided by CT Fertility staff was negligent and not provided in a manner consistent with the standards of care that existed among fertility specialist medical doctors at the time ..." It also states: "[s]pecifically, Dr. Thornton and CT Fertility failed to fertilize their chosen Donor’s eggs with sperm provided by John Doe and/or failed to transfer the correct embryos into Jane Doe, which caused significant injury to John and Jane Doe and failed to accurately execute insemination of their chosen donor’s eggs with sperm from John Doe or to transfer the correct embryos linked to sperm from John Doe the day of embryo transfer on September 15, 2017 and embryo transfer on December 15, 2017." The court finds that these statements satisfy Section 52-190a(a) and the standards laid out in Wilcox, and denies the motion to dismiss on that basis.
The defendants claim that the author of the opinion letter did not even review the medical records. Memorandum in Support at 16. This does not appear to be the case. Although the author does not list the medical records among the three enumerated categories of information at the outset of the letter, later on in the letter, the author expressly states: "[m]y opinions are based on my education, training and experience as a physician, and my examination of the medical records from CT Fertility ..."
CONCLUSION
For the foregoing reasons, the court dismisses the complaint for lack of personal jurisdiction because the opinion letter does not satisfy the similar health care provider requirement. As to the alternative basis for the motion to dismiss, however, the court holds that the letter satisfies the requirements for setting forth a deviation from the standard of care.