Opinion
No. DBD-CV10-6002522-S
April 26, 2011
RULING ON MOTION TO DISMISS (#102.00)
The plaintiff, Frank Esposito III, commenced this medical malpractice action in three counts on February 4, 2010 against the defendants, Danbury Hospital, Associated Neurologists, P.C. and Jan Mashman. The operative complaint is plaintiff's amended complaint dated May 11, 2010. As to Danbury Hospital, Esposito alleges in the first count the following facts. Commencing November 13, 2007 through November 23, 2007, Danbury Hospital undertook the medical care and treatment of Esposito. While under such care, Esposito suffered progressive numbness, weakness and paralysis resulting in permanent quadriplegia, loss of bodily function, psychological injury and pain and suffering. The injuries were the result of the negligence of Danbury Hospital in that its servants, agents, apparent agents or employees failed to timely and adequately diagnose and treat an intra-medullary cervical spine tumor, failed to timely obtain a neurological consultation and diagnostic imaging studies, failed to provide emergency surgical treatment or refer Esposito to another facility for treatment, failed to provide physicians with the requisite knowledge and skill necessary to care for Esposito and failed to promulgate rules and regulations for the care and treatment of patients such as Esposito. The plaintiff appended to his complaint a certificate of good faith and, with regard to Danbury Hospital, a physician's opinion letter from a board certified neurosurgeon who routinely evaluates emergency department patients for matters of neurology and neurosurgery, including spinal cord tumors.
On March 29, 2010, Danbury Hospital filed the instant motion to dismiss on the grounds that Esposito failed to comply with the requirements of filing a medical malpractice lawsuit set forth in General Statutes § 52-190a which provides, in pertinent part, that the plaintiff shall append to his complaint a certificate of good faith together with a "written . . . opinion of a similar health care provider . . . that there appears to be evidence of medical negligence." "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." Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear [the] medical malpractice action. However, the legislature has provided that such a failure does render [the plaintiff's] complaint subject to dismissal pursuant to § 52-190a(c)." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). "[A]n action is subject to dismissal under [General Statutes § 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). "A motion to dismiss is the proper vehicle with which to challenge an absent or inadequate written opinion of a similar health care provider. See Bennett v. New Milford Hospital, Inc., [ supra, 117 Conn.App. 545 n. 6]; Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008)." Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) ( 50 Conn. L. Rptr. 199).
It is the contention of Danbury Hospital that Esposito was not seen by a neurologist or neurosurgeon on his initial visit but was evaluated by a physician assistant and discharged. The standard of care, as it pertains to Danbury Hospital, is one of emergency medicine, not neurosurgery. Therefore the opinion letter appended to Esposito's complaint is inadequate and dismissal of count one of the complaint as to Danbury Hospital is mandated by § 52-190a(c). In support of their argument, the defendants rely primarily on the decision of our Appellate Court in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, recently affirmed by the Supreme Court; 300 Conn. 1 (2011); and the Superior Court decisions in Xicohtencatl v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.) and Wilkins v. Connecticut Childbirth Women's Center, Superior Court, judicial district of Danbury, Docket No. CV 09 5007713 (January 7, 2010, Marano, J.) ( 49 Conn. L. Rptr. 655, 657).
Esposito argues that Bennett does not provide a standard for institutional defendants and that the Bennett court specifically recognized such. See Bennett v. New Milford Hospital, Inc., supra, 117 Conn. App at 549 n. 10. Esposito argues further that written opinion supplied in the instant case satisfies the requirements of § 52-190a under three separate lines of Superior Court decision as follows: (1) the author is qualified to speak concerning treatment of the condition which brings the plaintiff to the institution, see Griffin v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005220S (March 12, 2010, Gilardi, J.T.R.) [ 49 Conn. L. Rptr. 539]; (2) the author shares a medical specialty with an allegedly negligent agent or employee of the institution, See Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) ( 44 Conn. L. Rptr. 347); and (3) General Statutes Section 52-190a is satisfied as to a named individual defendant. See Murphy v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 09 5008059 (January 26, 2010, Marano, J.) ( 49 Conn. L. Rptr. 257).
As of this date, there is no appellate authority addressing the definition of "similar health care providers" in relation to institutional defendants. Although our Appellate Court addressed the meaning of the language "similar health care provider" in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 545, the court specifically limited its holding to apply to the defendant physician, and not to institutional defendants. "In resolving the issues presented in this appeal, we need not address medical malpractice claims against institutional defendants. We note, however, that there may be a gap in § 52-190a regarding such defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation." Id., 549 n. 10.
A number of Superior Court decisions, however, have addressed the meaning of the phrase "similar health care provider" as it pertains to institutional defendants. "[T]his court agrees with the reasoning of the majority of decisions, which hold that the written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution. The statute does not require the plaintiff to identify the name of each individual who acted on behalf of the corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiff who, the legislature determined, might otherwise institute meritless claims." (Internal quotation marks omitted.) Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (September 27, 2010, Swienton, J.) ( 50 Conn. L. Rptr. 641). See also Barrett v. Eastern Connecticut Health Network, Inc., Superior Court, judicial district of Hartford, Docket No. CV 10 6006126S (January 28, 2011, Peck, J.) [ 51 CLR. 404]; Matos v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 10 6012490S (February 3, 2011, Woods, J.).
The physician's opinion letter appended to Esposito's complaint in support of his claim against Danbury Hospital is authored by a board certified neurosurgeon who routinely evaluates emergency department patients for matters of neurology and neurosurgery and who is qualified to render an opinion as to neurological emergencies encountered in the emergency room. The court finds that Esposito has satisfied the requirements of General Statutes § 52-190a. For the foregoing reasons, Danbury Hospital's motion to Dismiss is DENIED.