Opinion
No. CV 07-5011282-S
January 20, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Defendants have moved to dismiss this medical malpractice action because the author of the written opinion appended to the complaint does not qualify as a similar health care provider, and the letter fails to establish any causal link between the alleged deviations from the standard of care and the plaintiff's decedent's death.
This action arises out of the alleged medical treatment, or lack thereof, provided to the decedent by the defendants Eastern Connecticut Health Network, Inc. (ECHN) and John Schiefferdecker, M.D. The appended letter was submitted on The Institute of Living, Hartford Hospital letterhead, along with the name of its author, Sergio Mejia, M.D.
In the complaint, the plaintiff alleges the following facts.
On June 4, 2005, the decedent was admitted to Rockville General Hospital in an unresponsive state. The decedent was comatose and "assessed with metabolic encephalopathy due to metabolic acidosis and hyperosinolarity provoked by diabetes mellitus, diabetic ketoacidosis." The decedent "had a long history of substance abuse, depression and phychiatric care, which the defendants knew or reasonably should have known of." The deceased "had a history, known to the staff of the [d]efendant ECHN and known or should have known to the [d]efendant Schifferdecker, of going into the `sharps container,' where needles are discarded and taking dirty and discarded needles." Schifferdecker "recognized the need for a psychiatric consult, but neglected to order one." On June 13, 2005, at approximately 1:15 a.m., the decedent was found in asystole sitting on the toilet and was pronounced dead at approximately 1:30 a.m. A syringe "was found on the floor near the deceased, which contained an orange liquid substance." The decedent "expired through sudden death associated with foreign body granultomatous inflammation of heart and lungs, which findings are commonly seen with intravenous narcotism."
On August 10, 2007 Schifferdecker filed this motion to dismiss the second count of the complaint. On December 27, 2007, ECHN also filed a motion to dismiss the entire action.
I.
Schifferdecker argues that he is board certified in family medicine and the letter appended to the complaint is written by Mejia, a psychiatrist, who, according to Schifferdecker, does not qualify as a similar health care provider under General Statues § 52-184(c).
Section 52-184c(c) defines a similar health care provider as 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 the condition shall be considered a `similar health care provider.'" (Emphasis added.) " Public Act 05-275 also added subsection (c) to § 52-190a, which provides that `[t]he failure to obtain and file the written opinion required by subsection (a) shall be grounds for the dismissal of the action.'" Tutillo v. Day Kimball Hospital, supra, Superior Court, Docket No., CV 06-5009722.
"The opinion writer required by § 52-190a is not performing the same role as an expert witness under § 52-184c. There is certainly an overlap, but the opinion writer has the role of a gatekeeper in providing the underpinning for the plaintiff's attorney's certificate of good faith by stating there appears to be evidence of medical negligence, while the expert witness is called upon to testify to a reasonable degree of medical probability that there has been a breach of the prevailing professional standard of care." Behling v. Aronow, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No., CV 06-5001692 (March 12, 2007, Adams, J.).
Although Mejia, a psychiatrist, is not board certified in Schiffendecker's specialty of family medicine, Mejia's opinion in this case reveals that he reviewed the decedent's medical records. This review resulted in the conclusions that (1) the patient's belongings should have been throughly and repeatedly searched to make sure she was not in possession at any time of any item(s) with which should could harm herself, (2) the decedent was a high risk patient and her mental status should have been assessed daily, (3) a psychiatric consultation should have been obtained and (4) the staff should have been particularly "watchful" of the patient as her condition improved given her medical history. Mejia indicated that there was no evidence in the record that any of these actions were taken by the defendants. He, therefore, concluded that the defendants violated the applicable standard of care.
All of the plaintiff's negligence claims are derived from the same deviations from the standard of care identified by Mejia in his written opinion. These negligence claims are all centered around the decedent's mental status and history of psychiatric health issues. They are in the realm of psychiatry, not Schifferdecker's specialty of family medicine. Therefore, pursuant to § 52-184c(c) Schifferdecker was "providing treatment or diagnosis for a condition which is not within his specialty." As a result, § 52-184c(c) demands the conclusion that Mejia, "a specialist trained in the treatment or diagnosis" for psychiatric health issues "be . . . considered a `similar health care provider'" to Schifferdecker. It is concluded that Mejia qualifies as a similar health care provider to Schifferdecker pursuant to § 52-184c(c), and, therefore, the plaintiff has satisfied the requirement of § 52-190a.
II
ECHN further argues that the term "medical negligence" in § 52-190a indicates that the statute requires the opinion letter to include an opinion as to causation.
In his opinion letter regarding these defendants, Mejia sets forth the defendants' acts, or lack thereof, which he believes are below the standard of care. He does not specifically state that any of these acts or omissions were the cause of the decedent's injuries and death.
In Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No., X07 CV 07-5012152 (July 30, 2008, Berger, J.), the court considered whether § 52-190a required the attesting physician offering the opinion to state that the alleged deviation from the standard of care caused the resulting injuries. The court found "[t]there is simply no requirement in § 52-190a to provide such information . . . [T]he requirement that a 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." Recently, in Draper v Danbury Health Systems, Inc., Superior Court, Judicial District of Waterbury, Docket No., CV 08-50008854 (October 14, 2008, Scholl, J.) [46 Conn. L. Rptr. 462], the court adopted the same position as Nelson and further concluded that "the opinions of the similar health care provider . . . is sufficient [if] it refers to negligence." Id.
In the present case, Mejia's specific references to the defendants' failure to meet the applicable standard of care is sufficient to satisfy the requirements of § 52-190a. In citing defendant's violations of the standard of care, Mejia identified their negligence, and although he did not opine that these alleged deviations resulted in the decedent's injuries. His stated conclusions were sufficient following the reasoning in Nelson and Draper.
ECHN further argues that § 52-190a requires the qualifications of the "similar health care provider" be set forth in the written expert opinion and failure to do so should result in the court's granting of the motion to dismiss.
Section 52-190a provides that the claimant's attorney shall attach to the good faith certificate a copy of the written opinion, with the name and signature of the similar health care provider expunged. Several Superior Court cases have "denied motions to dismiss based upon a claim of insufficiency for the lack of a description of the qualifications or credentials of the author of the opinion letter." Tutillo v. Day Kimball Hospital, supra, Superior Court, Docket No., CV 06-5009722. Rodriguez v. Norniella, Superior Court, Judicial District of New Haven, Docket No., CV 06-5001779 (June 1, 2007, Robinson, J.) [46 Conn. L. Rptr. 40]; Vicenzi v. Abbott Terrace Health Care, Inc., Superior Court, Judicial District of Waterbury, Docket No., CV 07-5004413 (October 29, 2007, Roche, J.).
Defendants' motions to dismiss are denied.