Opinion
No. CV065000664S
May 31, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This is a medical malpractice case brought in six counts against Yale New Haven Hospital, Yale University, and a physician employee. Before the court is the defendants' motion to dismiss the complaint on the grounds that the plaintiff failed to comply with § 52-190a of the Connecticut General Statutes.
Although the defendants move to dismiss the entire complaint, this motion applies only to the first, third and fifth counts inasmuch as counts two, four and six are brought under the theory of failure to obtain informed consent.
Section 52-190a, as amended by P.A. 05-275, provides, in relevant part, that "[t]he complaint [alleging medical malpractice],. . . shall contain a certificate of the attorney or party filing the action. . . that. . . 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 or the claimant'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." In addition, subsection (e) states that "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."
The defendants claim that the mandatory opinion letter appended to the plaintiff's complaint does not provide a detailed basis for concluding that the elements of the cause of action in medical malpractice exist against each named defendant, does not support most of the allegations against the defendants, and does not mention the defendants Yale New Haven Hospital and Yale School of Medicine.
FACTS
The first count of the complaint, brought against Dr. Lawrence Moss, contains allegations that the doctor was negligent in failing to appropriately assess the plaintiff's condition, failing to have a pediatric neurosurgeon present during the surgery, failing to halt the operation until a pediatric neurosurgeon could assist him when he realized that the plaintiff's tumor was so close to the spinal column, using Surgicel to stop bleeding, leaving Surgicel in the operative site, failing to properly monitor the plaintiff, failing to consult with other health care providers, failing to request the assistance of other health care providers, failing to refer the plaintiff to other health care providers, failing to recognize the potential complications associated with using Surgicel in the place and manner in which he use it, and failing to properly supervise the delivery of care and treatment to the plaintiff during her post-operative care following the surgery.
The third count, brought against Yale New Haven Hospital, its employees, agents, and/or servants, including R. Lawrence Moss, M.D., contains the same allegations set forth in the first count. The fifth count, brought against Yale University, its agents, servants, and employees, contains the same allegations set forth in the first and third counts.
The opinion letter appended to the initial complaint dated December 27, 2005 indicates that the author is board certified in surgery and practices pediatric surgery and that he or she reviewed various documents including, but not limited to, the plaintiff's medical records and reports which appear to span a period of time from April 16, 2004 to September 17, 2004. The author indicates his/her opinion that, based on the documents, the physician breached the standard of care when he used Surgicel to control bleeding in the area of the neural foramina which swelled and compressed the spinal cord. The author adds the following: "in accordance with Connecticut General Statutes § 52-190a these opinions have been rendered in order to allow a lawsuit to be filed in good faith. These opinions are based on the records and reports described above and are as detailed as the records allow. Since no formal discovery has been done and the sworn testimony of those involved in the plaintiff's medical care has not yet been taken, these opinions are necessarily preliminary and may be modified, amended, and/or supplemented as additional information is obtained by formal discovery, through sworn testimony, and/or with the acquisition of additional medical records."
In their motion to dismiss filed on May 16, 2006, the defendants argue that the written opinion refers only to the physician defendant and does not support most of plaintiff's allegations against the other defendants. In her objection, the plaintiff counters that each claim of negligence alleged against Dr. Moss fairly grows out of the opinion that he used Surgicel improperly. Plaintiff asserts, moreover, that the statute does not require that the opinion letter serve as a template for the complaint. Although the author of the opinion did not specifically mention Yale New Haven Hospital or Yale University School of Medicine, plaintiff points out that Dr. Moss was at all relevant times, according to his attorney, an employee of both these defendants.
On September 6, the plaintiff filed an amended complaint. The third count of the amended complaint contains additional allegations of negligence against Yale New Haven Hospital. Appended to the amended complaint is a written opinion by a registered nurse. The author indicates that he/she reviewed various portions of the plaintiff's hospital record and, based on the materials reviewed, concludes that the nurses breached the standard of care by failing to properly monitor the condition of the plaintiff, failing to conduct sufficient neurological checks on her, and in failing to adequately chart the plaintiff's condition on the record.
On January 29, 2007, the plaintiff filed a supplemental memorandum in opposition to the motion to dismiss, alluding to the amended complaint and the written opinion supporting an independent basis for liability against Yale New Haven Hospital.
The defendants have not addressed the amendment or the additional opinion by way of motion, in any brief, or in oral argument. Accordingly, this court's decision concerns only the issues raised in the defendants' motion to dismiss dated May 16, 2006.
Discussion
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 787 A.2d 760 (2001). "Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong." (Internal citations omitted.) LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348.
"The general purpose of 52-190a "is to discourage the filing of baseless lawsuits against health care providers." 215 Conn. supra at 710. Prior to the amendment by P.A. 05-275, "General Statutes 52-190a require[d] a plaintiff in a medical malpractice action to file a certificate of good faith evidencing that he or she has made a reasonable inquiry to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." (Internal quotation marks omitted.) Yale University School of Medicine v. McCarthy, 26 Conn.App. 497, 501, 602 A.2d 1040 (1992). However, the failure to attach the required good faith certificate did not implicate subject matter jurisdiction. "The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence. In light of that purpose, the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court. The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support cause of action. Viewed through that prism, the absence from the complaint of the statutorily required good faith certificate renders the complaint subject to motion to strike. . . for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment. . ." Id.
By contrast, the statute as amended provides that the failure to obtain and attach a written expert opinion by a similar medical provider subjects the plaintiff's complaint to dismissal for failure to follow its requirements.
To date, the appellate courts have addressed neither the amount of detail required by the statute nor the "grounds for dismissal" provision. The Superior Court decisions have been virtually unanimous in holding that a claim of insufficiency does not implicate subject matter jurisdiction. In Andrikis v. Phoenix Internal Medicine, No. CV 05-5000482 S (Superior Court, J.D., Waterbury, Apr. 19, 2006) [ 41 Conn. L. Rptr. 222], the court (Matasavage, J.) noted that "[t]he statutory language [of 52-190a as modified by P.A. 05-275], and the legislative intent indicate that the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action. Because this court cannot read something into [this] statute. . . nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature,. . . this court should not interpret the amended statute, in accordance with the defendants' view, that it creates a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion." (Internal citations omitted; internal quotation marks omitted.)
In Ranney v. New Britain General Hosp., No. HHB CV06 5000954 (Sep. 18, 2006), the court (Pittman, J.), addressed an issue similar to that in the instant case. The plaintiff sued two physicians, the medical center that employed them, and New Britain General Hospital. With respect to the hospital, the plaintiff alleges that the hospital, acting through its agents, servants, and employees, failed to properly monitor and manage the plaintiff's mother's labor and failed to intervene to perform a timely cesarean section which resulted in the oxygen deprivation that caused the plaintiff's permanent brain injuries. The author of the written opinion appended to the complaint, a physician, criticized the care of not only the medical staff but also the nursing staff. The defendant hospital moved to dismiss the complaint against it on the grounds that the complaint failed to state a sufficiently detailed claim for medical negligence on the part of the hospital. Specifically, the hospital contended that the opinion failed to note how each of the agents, servants, and employees named in paragraph 1 of the complaint participated in the care of and decisions regarding the plaintiff. Judge Pittman, denying the motion, stated: "It might certainly be the case that a written opinion appended to a medical malpractice complaint could be so cursory or so disjointed that it would fail to constitute a proper opinion of negligence at all. It might be that a totally illogical or incomprehensible opinion appended to a malpractice complaint would fail to qualify as a proper written opinion at all. However, in this case, the court finds that the written opinion contains sufficient detail to survive either a motion to dismiss or a motion to strike for insufficiency. The statute 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. Nor does the statute presuppose that the opinion expressed in the 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 plaintiffs who, the legislature determined, might otherwise institute meritless claims. The fact that the complaint in this case 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."
Section 52-190a, as amended, requires that the opinion appended to the complaint state that there appears to be evidence of medical negligence and include a detailed basis for the formation of the opinion. Clearly, the opinion letter here sets out a detailed basis for the formation of the author's opinion. The plaintiff is quite correct in her assertion that the letter need not be a template for the complaint. Moreover, to interpret section 52-190a as the defendant urges would require the plaintiff to have complete knowledge of all the circumstances of the case before any discovery is done. Such an interpretation would seriously interfere with one's constitutional right to redress for injuries caused by medical malpractice. "Statutes are to be read as contemplating sensible, not bizarre, results. Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 427, 572 A.2d 951 (1990).
As the court in Ranney noted, the statute does not require the opinion to name each actor of the corporate defendant. Neither does it require the author of the opinion, a similar medical care provider, to express opinions concerning vicarious liability. The doctrine of respondeat superior is a legal construct pursuant to which a defendant could be held liable for the negligent acts of its employee. See Ali v. Community v. Health Care Plan, Inc., 261 Conn. 143, 151, 801 A.2d 775 (2002).
Conclusion
With respect to the defendant Dr. Moss, the written opinion is sufficient to satisfy the statute. As such, the opinion survives not only a motion to dismiss but would also survive a motion to strike. Similarly, the opinion is sufficient to satisfy the statute with respect to the vicarious liability of Yale New Have Hospital and Yale School of Medicine.
Accordingly, the defendants' motion to dismiss is denied.