Opinion
X06UWYCV156028101S
01-06-2016
Amy Recinos v. Brian McCarthy, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE Motion to Dismiss #142
Terence A. Zemetis, J.
I
ISSUE
Whether to dismiss certain paragraphs in counts two and four of the plaintiff's amended complaint on the ground they sound in medical malpractice and the plaintiff has not filed a signed opinion of a similar health care provider regarding those paragraphs as required by General Statutes § 52-190a? Counsel waived the hearing on this motion. Motion denied.
II
FACTS
On July 22, 2015, the plaintiff, Amy Recinos, filed an amended complaint against the defendants, Brian McCarthy, M.D., Litchfield Hills Orthopedic Associates, LLP, Richard Krinsky, D.O., Richard Krinsky, D.O., LLC, and Charlotte Hungerford Hospital (hospital). In count one, the plaintiff alleges medical negligence on the part of McCarthy and Litchfield Hills Orthopedic Associates based on McCarthy's failure to, inter alia, properly diagnose and treat or refer for treatment the plaintiff's " esophageal perforation" and " subcutaneous emphysema" following his performance on her of " a three level anterior cervical decompression, discectomy and fusion operation at the C4-C5, C5-C6, and C6-C7 cervical spine levels." In count two, the plaintiff brings a claim against the hospital, incorporating all of the allegations of count one, and further alleging that " McCarthy was acting as an authorized representative, agent, and/or employee of the Hospital, and was acting within the scope of his agency and in furtherance of the interest of the Hospital, " and that, " [a]s a result, the Hospital is liable for all injuries sustained by the plaintiff as a result of the negligence of McCarthy."
Amy Recinos's husband, Anthony Recinos, filed claims for loss of consortium as to all of the defendants. Those claims are derivative of his wife's malpractice, claims, and, consequently, their claims are identical. For the sake of clarity, the court will hereafter refer to Amy Recinos as the plaintiff in this decision.
In count three, the plaintiff alleges medical negligence on the part of Krinsky and Richard Krinsky, D.O., LLC based on Krinsky's failure to, inter alia, attribute the plaintiff's symptoms to the cervical fusion surgery, diagnose and treat her esophageal perforation, and " respond appropriately and promptly to [her] medical condition of subcutaneous emphysema." In count four, the plaintiff brings a claim against the hospital, incorporating all of the allegations of count one, and further alleging that " Krinsky was acting as an authorized representative, agent, and/or employee of the Hospital, and was acting within the scope of his agency and in furtherance of the interest of the Hospital, " and that, " [a]s a result, the Hospital is liable for all injuries sustained by the plaintiff as a result of the negligence of Krinsky." The plaintiff attached the opinions of similar healthcare providers with respect to McCarthy and Krinsky to its amended complaint.
On August 13, 2015, the hospital moved to dismiss paragraphs thirty-eight through forty-seven of the second count and paragraphs forty-one through fifty of the fourth count on the ground that they allege claims of negligence against the hospital and the plaintiff has not obtained an opinion letter of a similar healthcare provider regarding those claims. These respective sets of paragraphs in counts two and four contain virtually the same allegations regarding the hospital's employment of staff, the agency relationship the hospital has with its staff, representations the hospital has made regarding the care it would provide through its agents, standards the hospital are required to uphold regarding patient care through its agents, and systems the hospital had in place to ensure proper patient care. Additionally, paragraph forty-seven of count two contains the allegation, which paragraph fifty of count four also contains except it refers to Krinsky rather than McCarthy, that, " [a]s health care providers, the defendant Hospital and its staff, agents, apparent agents, and/or employees, including, but not limited to McCarthy, were required to provide to plaintiff that level of care, skill and treatment which, in light of all relevant surrounding circumstances, was recognized as acceptable and appropriate by reasonably prudent similar health care providers and they failed to do so."
The allegations in paragraphs thirty-eight through forty-seven are as follows (the allegations of paragraphs forty-one through fifty of count four are identical except that they refer to Krinsky instead of McCarthy):
The plaintiff filed a memorandum in opposition on September 11, 2015. On October 8, 2015, the hospital filed a reply memorandum. The court heard oral argument on the matter on October 26, 2015.
III
DISCUSSION
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo . . . When a . . . court decides a . . . 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 718, 104 A.3d 671 (2014).
[T]he purpose of § 52-190a and its requirement of a good faith certificate [i]s to prevent the filing of frivolous medical malpractice actions." Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.3d 451 (2011). " 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 . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Id., 401-02. " [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).
General Statutes § 52-190a provides:
The hospital argues that the court lacks personal jurisdiction over it regarding the allegations in paragraphs thirty-eight through forty-seven, second count, and paragraphs forty-one through fifty, fourth count, because, " despite the fact the plaintiffs' expert only identified areas of concern against Dr. McCarthy and Dr. Krinsky, the plaintiff has nonetheless alleged nine (9) additional allegations of negligence against the Hospital--specifically paragraph 38 through 47 of the second count and paragraphs 41 through 50 of the fourth count--which are wholly unsupported by expert opinion." The plaintiff responds that, because the opinion letters are sufficient as to the negligence of McCarthy and Krinsky, they will also support vicarious liability actions against the hospital regarding the negligence of McCarthy and Krinsky; that counts two and four only allege vicarious liability against the hospital; and that the allegation in the paragraphs the hospital wants dismissed " are not claims of direct negligence against the defendant hospital, but rather material facts that support plaintiffs' claims that the Hospital oversaw and directed the care provided to patients by its agents and/or employees, including Drs. McCarthy and Krinsky."
As a threshold issue, the court does not have the authority to dismiss only part of an action pursuant to § 52-190a. As the court held in Andrade v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV-11-60241085-S (July 27, 2012, Tyma, J.) (54 Conn. L. Rptr. 359, 360, *6), " [§ ]52-190a(c) . . . plainly and unambiguously provides that such a failure is grounds for dismissal of the action, as opposed to parts of an action." " [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 . . . (Emphasis added.) Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 545. The majority view of the judges of the Superior Court appears to be that § 52-190a " authorizes only dismissal of 'the action' not sections of it." DeJesus v. Connecticut Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) (43 Conn. L. Rptr. 420, 422, *7); see e.g., Liu v. Yale Medical Group, No. CV-14-6050 183-S (February 18, 2015, Wilson, J) (60 Conn. L. Rptr. 48, 54, *27) (§ 52-190a does not allow for partial dismissal of action); Hall v. New Milford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-13-6009330-S, (July 21, 2014, Danaher, J.) (same); Rulli v. Devanney, Superior Court, judicial district of Litchfield, Docket No. CV-11-6004971-S, (December 12, 2011, Pickard, J.) (same); but see Jansone v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV-12-6030589-S (October 25, 2012, Scholl, J.) (54 Conn. L. Rptr. 881, 884, *12) (dismissing vicarious liability count against hospital " to the extent it raises claims of medical negligence against healthcare providers who practice in specialties other than general surgery, orthopedic surgery and/or anesthesiology" where " [n]one of the parties have argued that procedurally such an order is inappropriate"). Therefore, the court concludes, in line with the majority of Superior Court decisions, that it does not have the authority to dismiss only part of the plaintiff's vicarious liability actions in counts two and four under § 52-190a.
Additionally, the opinion letters provided are sufficient to support the vicarious liability actions alleged. Pursuant to § 52-190a(a), a party or attorney must " obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, " in actions " in which it is alleged that such injury or death resulted from the negligence of a health care provider." With respect to allegations against medical institutions, in Wilkins v. Connecticut Childbirth & Women's Center, supra, 314 Conn. 722, our Supreme Court, after reasoning that " medical malpractice can be committed only through the acts or omissions of people, specifically, medical professionals, " held 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." In the present case, the plaintiff has brought actions against the hospital in counts two and four. Those counts sound in vicarious liability based mainly on but not limited to the alleged negligence of the hospital's agent physicians McCarthy and Krinsky. Because the written opinion letters are sufficient as to McCarthy and Krinsky, the physicians who allegedly committed the medical malpractice, they are, therefore, also sufficient under Wilkins to support the claims against the hospital in counts two and four.
General Statues § 52-184c(b) & (c) defines " similar health care provider" as follows:
" The majority of Superior Court decisions have held that where the counts sought to be dismissed contain allegations of the principal being vicariously liable for its agent, whether stated expressly or by incorporation of prior counts, if the opinion letter is sufficient as to the agent physician, it is also sufficient to satisfy § 52-190a as to the principal non-individual defendants." (Internal quotation marks omitted.) Doyle v. Danbury Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-15-5007545-S, (June 30, 2015, Danaher, J.). Section 52-190a " 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. 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, plaintiff's would likely face insurmountable barriers to commencing and maintaining medical malpractice actions . . . 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." (Internal quotation marks omitted.) Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV-06-5000664-S, (May 31, 2007, Gallagher, J.). As the court in Isbell v Lawrence & Memorial Hospital, Inc., Superior Court, Docket No. CV-13-6017593-S (October 22, 2014, Cole-Chu, J.) , stated, " 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. While [§ ]52-190a as amended was intended to add a significant hurdle there is no indication of an intent to make the hurdle to filing a medical malpractice case insurmountable, or unnecessarily difficult." Thus, although § 52-190a requires an opinion letter for the agent health care provider on whose negligence the vicariously liable medical malpractice action against an institutional defendant is based, a letter is not required for every agent of the institution who might have been or who is alleged to have been negligent.
In the present case, the plaintiff has provided sufficient opinion letters as to the agent physicians who allegedly committed the medical malpractice, McCarthy and Krinsky. These opinion letters are, therefore, also sufficient to support the vicarious liability counts against the hospital that is based on the conduct of those physicians. This is so notwithstanding that the vicarious liability counts also contain references to unnamed agents and employees of the hospital for whom the plaintiff has not provided a written opinion letter.
IV
CONCLUSION
For the foregoing reasons, Charlotte Hungerford Hospital's motion to dismiss is denied. The court does not have the authority to dismiss individual paragraphs under § 52-190a and the plaintiff's opinion letters are sufficient under § 52-190a to support the vicarious liability causes of action alleged in counts two and four.
38. At all times mentioned herein, defendant Hospital employed full-time staff, including physicians, aides, technicians and nurses, to assist members of its medical staff in rendering medical care and treatment, to recommend appropriate medical care and treatment based upon their examination of patients at the hospital, to implement appropriate care and treatment and to maintain supervision of patients admitted to said hospital when the treating physician was not present. 39. At all times mentioned herein, agents, staff members and employees of defendant Hospital, including but not limited to physicians, including but not limited to defendant McCarthy, participated in the care and treatment rendered to plaintiff were acting as authorized representatives and/or actual and/or apparent agents of defendant Hospital, and acted within the scope of their authority, agency and/or employment in the furtherance of the interest of said Hospital. 40. At all times relevant to this action, defendant, through its officers, executives, administrators, employees, agents, and medical staff, was responsible for establishing, implementing, and enforcing rules, regulations, by-laws, protocols guidelines and standards of care regarding the treatment of patients at the Hospital, the training, supervision and monitoring of employees and staff practice of orthopaedic surgery and the professional competence and skill of employees and staff. 41. In order to provide appropriate care and treatment to its patients, the defendant Hospital was required to allow services to be rendered only by those hospital employees and agents who had appropriate skill, training, and expertise, and that all physicians who were granted hospital privileges were properly trained, educated and qualified to provide appropriate care. 42. In order to provide proper care and treatment to its patients, the defendant Hospital established a system of administration and oversight including administrators, executives, and other staff, and created written guidelines, protocols and standards of care regarding the proper treatment of patients, the training of personnel, and the maintenance of hospital records. 43. Furthermore, in order to ensure that its patients received proper care and treatment, the defendant Hospital was required to train, supervise, oversee and direct its employees and agents and to ensure that all patient care complied with the applicable standards of care, guidelines, policies, protocols and rules and regulations. 44. At all times relevant to this action, defendant represented that it would provide to its patients appropriately trained and experienced personnel, facilities and equipment to meet the requirements for the treatment and care of the patients admitted to the Hospital. 45. At all times mentioned herein, defendant Hospital, acting through its officers, executives, administrators, employees, and medical staff, supervised the admission of orthopaedic surgical patients to said Hospital and controlled and limited, as it deemed medically appropriate, the care and treatment of such patients, such patients' continuing need for treatment and hospitalization, and the standard of medical practice followed with respect to such patients by physicians, including the standards for orthopaedic surgery and for the post-operative care of patients undergoing such surgeries. 46. On March 27, 2013 and thereafter, defendant engaged, agreed, undertook and held itself out as having, and as being ready, willing and able to provide for the care and treatment of patients received by it, all reasonably necessary, fit, and proper facilities, and also an adequate number of reasonably competent administrators, physicians and surgeons to meet the requirements of the treatment and care of the patients received by it, having due regard to the state and condition of health and infirmity of such patients, actual or reasonably to be anticipated, and having due regard to the quality and quantity of staff, servants, employees, provisions, facilities, care, diligence, and supervision provided and furnished generally by similar hospital. 47. As health care providers, the defendant Hospital and its staff, agents, apparent agents, and/or employees, including, but not limited to McCarthy, were required to provide to plaintiff that level of care, skill and treatment which, in light of all relevant surrounding circumstances, was recognized as acceptable and appropriate by reasonably prudent similar health care providers and they failed to do so.
(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney's fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate. (b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods. (c) 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.
(b) 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. (c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a 'similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a 'similar health care provider.'