Opinion
No. FST CV 07 5003252 S
October 18, 2007.
MEMORANDUM OF DECISION ON THE MOTION TO STRIKE OR DISMISS COUNT THREE
Before the court are defense motions in a medical negligence wrongful death matter which seek to dismiss and/or strike a third count due to issues raised regarding the sufficiency of the C.G.S. § 52-190a opinion letter tendered in support of the complaint.
On January 25, 2007, the plaintiffs, Francisco Maitan and Maura Maitan, commenced this action against the defendants, Stamford Health System, Inc., (corporate name of "Stamford Hospital"), Jose Rodriguez-Freire, M.D., Deborah H. Valentine, and Laurie J. Sills, the latter two said to be Stamford Hospital nurses. The plaintiffs allege that while their minor child was being transported on I-95 from Stamford Hospital to a psychiatric facility, he jumped out of the moving ambulance and sustained fatal injuries. The plaintiffs claim, among other things, that the defendants were careless and negligent in failing to warn emergency medical technicians of the child's mental condition, which failures resulted in his death. Further, negligence is alleged as to the ambulance company and its EMT personnel. Pursuant to General Statutes § 52-190a, the plaintiffs attached an attorney's certificate of reasonable inquiry to their complaint. The defendants filed a motion to dismiss or strike the third and fourth counts of the plaintiffs' complaint on the ground that the plaintiffs failed to attach a written opinion. The same day, in response to the defendants' motion, the plaintiffs filed a request to amend their complaint by attaching the opinion of a health care provider. The defendants objected and plaintiffs filed an objection to the defendants' motions. The matters were heard on the short calendar on June 11, 2007.
The plaintiffs also named Access Ambulance Company, Inc., and EMT's Jessica B. Crowley, and Izabela B. O'Malley, as defendants, but none of these additional defendants are parties to the motion to dismiss or the motion to strike. Hereinafter, all references to "the defendants" will include only Stamford Health System, Inc., Rodriguez-Freire, Valentine, and Sills.
This court, Nadeau, J., informed the parties during oral argument that it would only rule on the motion with respect to count three. The court instructed the defendants to reclaim the motion and file an appropriate memorandum with respect to the grounds for dismissal as to count four which had sounded in breach of contract against the hospital alone. Therefore, this memorandum only addresses the defendants' motion to dismiss, or in the alternative, to strike, count three of the plaintiffs' complaint.
"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. . . When a. . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
"[O]nce the question of lack of jurisdiction of a court is raised. . . [it] must be disposed of no matter in what form it is presented. . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The defendant moves to dismiss, and in the alternative, to strike, count three of the plaintiffs' complaint on the grounds that (1) the plaintiffs failed to file the opinion required by General Statutes § 52-190a and that (2) the opinion that they seek to attach by way of amendment is insufficient to meet the requirements of § 52-190a(a).
The first issue that the court must address is whether the plaintiffs' failure to attach the opinion of a health care provider as required by General Statutes § 52-190a divests this court of subject matter jurisdiction. Section 52-190a(a) provides in relevant part: "To show the existence of. . . 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. . ." Section 52-190a(c) provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal."
In the absence of binding appellate authority on this issue, the court has come to be persuaded by the analysis in Greer v. Norbert, Superior Court, judicial district of Hartford, Docket No. CV 06 05004859 (February 7, 2007, Rittenband, J.T.R.) (42 Conn. L. Rptr. 806). In Greer, the plaintiffs failed to attach an opinion letter of a health care provider to their complaint; the plaintiffs' attorney admitted in open court that while he had the opinion in writing at the time the complaint was filed, he simply forgot to file it. Id. The court carefully examined the language in subsection (c) of § 52-190a: "[T]he section says the failure to obtain and file the written opinion, [which] means that in order for this section to be applicable, the plaintiffs have to fail to obtain a written opinion and fail to file it." The court reasoned that because the plaintiffs had obtained the opinion letter at the time they filed the complaint, the complaint could not be dismissed under subsection (c). Further, the court also noted that subsection (c) states that the failure to comply "shall be grounds for dismissal." The court held that in absence of mandatory language such as "the action shall be dismissed," dismissal is discretionary.
The interpretation of the statute in Greer is consistent with the holding in Kirkpatrick v. New Britain General, Superior Court, judicial district of New Britain, Docket No. CV 06 4011523 (December 14, 2006, Pittman, J.) (42 Conn. L. Rptr. 519), a case that the defendants rely on for the proposition that the court must dismiss a complaint when there is no health care opinion attached. Even if the court were to construe Kirkpatrick as holding that noncompliance with 52-190a(c) warrants mandatory dismissal, the pivotal reason for the court's dismissal was that "the plaintiff did not obtain the written opinion prior to the filing of the complaint."
Furthermore, several Superior Court cases rely on the holding in LeConche v. Elligers, 215 Conn. 701 (1990), to support the position that the lack of an opinion letter does not automatically divest the court of subject matter jurisdiction. See Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5001663 (July 31, 2007, Prestley, J.); Greer v. Norbert, supra, 42 Conn. L. Rptr. 806.; Kiner v. Ward, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5000711 (January 8, 2007, Nadeau, J.). "Prior to § 52-190a being amended by P.A. 05-275 to incorporate the written opinion of a health care provider, the only document required to satisfy § 52-190a was that a good faith certificate be attached to the complaint. [In LeConche], [o]ur Supreme Court determined that the language of 52-190a, considered in light of its purposes, does not suggest that such a certificate is jurisdictional. . . If the absence of a good faith certificate does not deprive the court of subject matter jurisdiction, then the written opinion, on which a good faith certificate is based, should not automatically deprive the court of jurisdiction either." Santorso v. Bristol Hospital, Superior Court, supra, Docket No. CV 06 5001663.
This court adopts the persuasive reasoning of Greer and Santorso, which held that the failure to file an opinion letter does not absolutely divest a court of subject matter over the complaint and thus the court will allow the plaintiffs' amendment to cure the failure to file the opinion letter with the complaint. The present case is factually analogous to Greer. In the present case, the plaintiffs' attorney has submitted a sworn affidavit in which he attests to the fact that he received two written opinions from health care experts, one on January 8, 2007, and one on January 16, 2007. In addition, the plaintiffs' attorney also attests and reiterated during oral argument, that the failure to attach the opinion letter was inadvertent. As noted, the court feels compelled by Greer to hold that dismissal under § 52-190a(c) is not required in these circumstances because, as in Greer, the plaintiffs here obtained but merely failed to file the opinion letter.
The second ground for the defendants' motion to dismiss or strike count three is that the opinion letter, eleven pages long, does not satisfy the requirements of § 52-190a(a). Specifically, the defendants assert that because the opinion was written by an emergency medical technician (EMT), while the defendants are a psychiatrist and nurses, the opinion letter does not satisfy § 52-190a because it was not written by a similar health care provider.
Section 52-190a(a) provides in relevant part that "the claimant or the claimant's attorney. . . shall obtain a written and signed opinion of a similar health provider, as defined in section 52-184c. . ." Section 52-184c establishes the criteria for standards of care in negligence actions against a health care provider and also sets for the qualifications for the designation of expert witnesses. Section 52-184c(d) provides in relevant part that "[a]ny health care provider may testify as an expert in any action if he: (1) is a `similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine."
In Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV06 5001692 (March 12, 2007, Adams, J.), the court held that an opinion letter from a board certified obstetrician and gynecologist was enough to satisfy the similar health care provider requirement in a suit against two defendants, a hospital and a obstetrician/gynecologist. The court determined that the opinion letter from a gynecologist met the requirements of similar health care provider under § 52-190a because "the care and treatment provided the plaintiff, whether by [the gynecologist defendant], arose, at least initially, from obstetrics and gynecological areas of medical practice." Id. "It would be unwieldy at best. . . 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." Id. See also Ellegard v. Hennessy, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) [43 Conn. L. Rptr. 195].
Defendants argue that the opinion letter, written by EMTs, does not satisfy the similar health care provider requirement because the letter states, "in-hospital procedures and policies aren't within our area-of-expertise." As Behling made clear, however, § 52-190a does not require that an opinion be prepared by someone with the precise, admissible in evidence, knowledge of another health professional's standard of care. The opinion letter written by the EMTs, while opining as to the negligence of the EMT workers, also makes statements regarding possible-to-likely negligence resulting from breaches in notification or advisement procedures, clearly references to the movants. That is, the allegations regarding the decedents' transport and the role these defendants played in the transport and the notice that they allegedly failed to provide to the EMTs are clearly referenced in the opinion letter. It is a commonplace in such trials to permit all sorts of participants in certain care endeavors to describe the fashion of performing a task so as to pre-or post-corroborate the expert who testifies that such a method is the standard of care. Thus, EMTs cannot be ignored in this medical setting and their input is not insufficient in this preliminary legal setting. It is along this line of reasoning that one sees a decision allowing a letter from a obstetrical-gynecologist suffice to support the claim against a general surgeon because the writer also performed such procedures. (See, Ellegard v. Hennessey, infra.) Therefore, the letter submitted by the plaintiffs satisfies the requirement in § 52-190a and the court must refuse to strike or dismiss the plaintiffs' third count.
The defendants cast their last argument in terms of the opinion letter being "devoid of any reference to medical negligence by the defendants." In dealing with arguments that attack the sufficiency of an opinion letter, the trial courts have held that "[t]here is no requirement in the statute that the opinion address each and every allegation of medical negligence contained in a plaintiff's complaint." Ellegard v. Hennessey, supra, Superior Court, Docket No. X03 CV 06 5008281. See also Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) [43 Conn. L. Rptr. 341]. "Because the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint. . ." Ellegard v. Hennessey, supra, Superior Court, Docket No. X03 CV 06 5008281. "The requirement that the good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery." Walton v. Caffrey, supra, Superior Court, Docket No. CV 06 5000857. Upon a reading of the discussion of transportation and advisement issues in the eleven pages submitted behind the complaint, no reasonable review would conclude that, as defendants claim, they are "devoid of any reference to medical negligence by the defendants."
The rationale expressed in Walton and Ellegard comports with the policy enunciated by this court in Kiner v. Ward, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 06 5000711 (January 8, 2007, Nadeau, J.): "Surely, the rationale behind the requirement of such letters is closer to insuring an absence of frivolity and/or lay mistakes than to the other end of the spectrum, which is that the letter tightly frames under pain of exclusion, all of the evidence."
The submitted letter(s) are sufficient.
The motions to dismiss or strike count three are denied.