Opinion
CV186032912S
09-06-2018
Thomas DUROCHER v. BACKUS CORP. dba William Backus Hospital
UNPUBLISHED OPINION
Calmar, J.
(Motion to Dismiss, # 101, Short Calendar, May 21, 2018)
The defendant moves to dismiss on the ground that, pursuant to General Statutes § 52-190a, the complaint does not include a written opinion letter of a similar health care provider as to all of the defendants.
On January 8, 2018, the plaintiffs, Thomas and Amy Durocher, filed a twelve-count complaint sounding in medical negligence (counts one through six) and loss of consortium (counts seven through twelve) against the defendants William Backus Hospital; Backus Corporation d/b/a William Backus Hospital; Backus Health Care, Inc.; Hartford Healthcare Corporation; David. E. Coletti, M.D.; and Cynthia Eddy. The plaintiffs allege the following facts. Coletti is a physician who is licensed to practice medicine in Connecticut. Eddy is a nurse in Backus Hospital’s Department of Surgery. Coletti and Eddy were acting as employees, servants, and/or agents of William Backus Hospital, Backus Corporation, Backus Health Care, Inc., and/or Hartford Healthcare Corporation (collectively, the institutional defendants). Further, each institutional defendant acted by and through its agents, servants, workers, employees, and/or representatives, who were acting within the scope of their employment and offered and provided medical care, treatment, and advice.
On September 24, 2015, Thomas Durocher (Durocher) was admitted to Backus Hospital and was under the care of all of the defendants for complaints of abdominal pain. Coletti scheduled Durocher for a surgical procedure, and prescribed hydromorphone (Dilaudid IV) for pain management. The defendants requested, authorized, and ultimately administered an excessive and contraindicated dose of Dilaudid IV to Durocher. Durocher was then found unresponsive. The defendants administered Narcan without effect, and Durocher was not immediately intubated. Durocher suffered respiratory depression and hypoxia, which led to a brain injury. In turn, Durocher’s wife, Amy Durocher, is deprived of her spouse’s consortium.
Pursuant to General Statutes § 52-190a(a), the plaintiffs filed a good faith certificate and a medical opinion letter stating that there appears to be evidence of medical negligence. As to the author’s credentials and qualifications, the letter states that the author is licensed to practice medicine in Massachusetts, is board certified in general surgery with added qualifications in surgical critical care, and is familiar with the accepted standard of care in surgery and intensive care medicine for physicians. The author’s current employment was redacted.
Before the court is a motion to dismiss all of the plaintiffs’ claims against the institutional defendants and Eddy (collectively, the defendants), filed on February 16, 2018, on the ground that the plaintiffs have failed to comply with § 52-190a(a). Coletti is not a party to the motion, and the defendants do not move to dismiss the plaintiffs’ claims against Coletti. The plaintiffs filed an objection to the motion to dismiss on March 22, 2018. The defendants subsequently filed a reply brief on May 3, 2018, to which the plaintiffs filed an objection on May 8, 2018. The matter was heard at short calendar on May 21, 2018.
For clarity, the defendants move to dismiss counts one, two, three, four, and six, which sound in medical negligence, as well as counts seven, eight, nine, ten, and twelve, which sound in loss of consortium. The defendants do not move to dismiss counts five and eleven as against Coletti.
"[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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
Section 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 ... 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."
"[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." Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). "[A]n action is subject to dismissal under [§ 52-190a](c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 12 A.3d 865 (2011). "Section 52-190a does not define ‘similar health care provider,’ but the text explicitly refers to the definition in [General Statutes] § 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).
In the present case, the defendants do not move to dismiss the plaintiffs’ claims against Coletti, and conceded at short calendar arguments that the opinion letter was sufficient as to Coletti. The defendants also concede that they are not moving to dismiss the plaintiff’s vicarious liability claims as to the conduct of Coletti. Defs.’ Mem. 5. Instead, the defendants characterize their motion as a motion to dismiss the "direct claims" of medical negligence and derivative loss of consortium claims against the defendants. The defendants ask the court to construe the complaint as making two sets of claims against the defendants: claims for vicarious liability for the conduct of Coletti as a general surgeon, and "direct claims" against the defendants for the alleged medical negligence of its staff other than Coletti. Defs.’ Mem. The defendants argue that, as to Eddy and the other hospital staff, the attached opinion letter does not meet the criteria set forth in § 52-184c(b) because the author does not have experience or training as a nurse or other hospital staff. Accordingly, the defendants argue that the plaintiffs’ claims against the defendants must be dismissed pursuant to § 52-190a(c). The plaintiffs argue that they have fully complied with § 52-190a(a) because a majority of Superior Court cases hold that an opinion letter that satisfies the statutory requirements as to one agent of a medical institution is sufficient to support a complaint against all of its agents.
Specifically, the defendants argue that, because Eddy and the hospital staff members are not specialists, and because the plaintiffs did not allege that Eddy or the hospital staff members are or held themselves out as specialists, § 52-184c(b) applies. Section 52-184c(b) states in relevant part: "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."
Our Supreme Court has recognized "the practical reality that medical malpractice can be committed only through the acts or omissions of people, specifically, medical professionals. Thus, 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." Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 722, 104 A.3d 671 (2014). "Whether or not the statute requires an opinion letter as to each of the agents or employees the plaintiff is seeking to have a medical institution held vicariously liable has not been addressed by the appellate courts. However, the great majority of Superior Court decisions have held that an opinion letter that satisfies the requirements of § 52-190a as to at least one agent of a medical institution is sufficient to support a complaint against all agents who potentially acted on behalf of an institution with respect to the alleged malpractice." See Carlson v. Countryside Manor Healthcare Facility, Inc., Superior Court, judicial district of New Britain, Docket No. CV-17-6039750-S (May 15, 2018, Swienton, J.) and cases cited therein.
These Superior Court decisions hold that "[§ ]152-190a does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion ... The fact that [a] complaint ... contains more detail about the identity of the hospital’s employees or agents than does the written opinion does not make the written opinion insufficient for the purposes for which the legislation was passed ... It would be unwieldy at best, not to say unnecessary and unhelpful, to have a blizzard of opinion letters from a physician, a physician’s assistant and a nurse all opining, probably hypothetically, about evidence of negligence ... Thus ... a letter is not required for every agent of the institution who might have been or who is alleged to have been negligent." (Citations omitted; internal quotation marks omitted.) Recinos v. McCarthy, Superior Court, judicial district of Waterbury, Docket No. X06-CV-15-6028101-S (January 6, 2016, Zemetis, J.) (61 Conn.L.Rptr. 567, 569). Further, the court need not "scrutinize individual paragraphs within counts to determine whether they give rise to distinct causes of action which require separate opinion letters under § 52-190a." Martin v. Keggi, Superior Court, judicial district of Waterbury, Docket No. CV-12-6013037-S (March 5, 2013, Roche, J.). This line of reasoning is particularly applicable where "[t]he allegations against [both defendants] stem from the same course of treatment or procedure, specifically their alleged failure to recognize, recommend, and perform the proper procedure on the plaintiff." (Internal quotation marks omitted.) Capasso v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV-14-6049445-S (February 4, 2015, Nazzaro, J.).
In the present case, the defendants move to dismiss on grounds similar to those advanced by the defendants in deWeaver v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6019495-S (November 25, 2014, Adams, J.T.R.) (59 Conn.L.Rptr. 441, 442). In de Weaver, the plaintiff filed a medical malpractice action against an Advanced Practice Registered Nurse (APRN), a board certified diagnostic radiologist, and a number of institutional defendants. Id. The plaintiff submitted a medical opinion letter from a board certified radiologist. Id. The defendants conceded that the opinion letter was sufficient as against the radiologist, but argued, inter alia, that the claims against the APRN should be dismissed because the opinion letter was not written by a similar healthcare provider. Id., 443. Additionally, the defendants argued that the plaintiff’s vicarious liability claims against the institutional defendants based on the actions of the APRN should likewise be dismissed. Id.
Citing to § 52-184c(b) and (c), the court in deWeaver found that the opinion letter lacked information as to the author’s training and experience in nursing, or whether the author is certified in nursing by the appropriate American board. Id., 444. Nevertheless, the court held that "an opinion letter that is sufficient to satisfy § 52-190a as to one defendant is sufficient as to any defendant whose malpractice is alleged to have involved the same procedure or course of treatment ... [T]he allegations against both [the APRN] and [the radiologist] stem from the same course of treatment or procedure, specifically their alleged failure to recognize, recommend, and perform the proper procedure on the plaintiff. Therefore, no additional opinion letter was required to support a claim against [the APRN] ..." (Footnote omitted.) Id., 444-45. Moreover, as to the vicarious liability claims, the court concluded that "the plaintiff’s opinion letter, concededly authored by a similar health care provider to the [radiologist], is sufficient to maintain the plaintiff’s medical malpractice claims against the institutional defendants premised on their vicarious liability for the actions of [the APRN] ... That is, the conduct by [the APRN] ... for which the plaintiff seeks to hold the institutional defendants liable involved the same procedure that forms the basis of the plaintiff’s claims against [the radiologist], for whom a valid opinion letter was attached." Id., 445. The court thus concluded, "[b]ecause the plaintiff’s letter is concededly sufficient as to [the radiologist], the defendants’ motion to dismiss the plaintiff’s claims against the institutional defendants premised on their liability for the actions of [the APRN] ... is denied." Id.
This court agrees with the line of Superior Court cases holding that "[a]n opinion letter ... that is sufficient to satisfy § 52-190a as to one defendant is sufficient as to any defendant whose malpractice is alleged to have involved the same procedure or course of treatment." (Internal quotation marks omitted.) Capasso v. Yale-New Haven Hospital, Inc., supra, Superior Court, Docket No. CV-14-6049445-S. A letter is not required for every agent of the institutional defendants who might have been or is alleged to have been negligent. See Recinos v. McCarthy, supra, 61 Conn.L.Rptr. 569. In the present case, as in de Weaver, the defendants concede that the attached opinion letter is sufficient as to Coletti. Further, as in de Weaver, the allegations against Eddy, the hospital staff, and Coletti all stem from the same course of treatment or procedure (namely, administering an excessive, contraindicated dose of Dilaudid IV and failing to intubate the plaintiff upon finding him unresponsive). Thus, because the letter is sufficient as to Coletti, no additional opinion letter is required at this time to support the plaintiffs’ claims against Eddy or the hospital staff.
Moreover, as to the plaintiffs’ vicarious liability claims, the plaintiffs seek to hold the institutional defendants vicariously liable for the same conduct that forms the basis of the plaintiff’s claims against Coletti, for whom a valid opinion letter was attached. Again, as in deWeaver, because the plaintiffs’ letter is concededly sufficient as to Coletti, it is sufficient as to the institutional defendants based on their liability for the actions of Eddy and the other hospital staff.
Accordingly, because the opinion letter is sufficient as to Coletti, it is sufficient as to all of the defendants. Because the plaintiffs have complied with the statutory requirements set forth in § 52-190a(a), the defendants’ motion to dismiss is denied.