Opinion
No. CV 065001779
June 1, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #s 113, 118, 130
Each of the three apportionment defendants has filed with this court a motion to dismiss the Apportionment Complaint for lack of subject matter jurisdiction. All three motions to dismiss were accompanied by the same three exhibits: a copy of the certificate of good faith by counsel for Continuum of Care, Inc. ("Continuum"), a copy of the similar health care provider letter, and a copy of the decision in Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) (41 Conn. L. Rptr. 504). On January 18, 2007, Continuum filed three memoranda of law, one in opposition to each apportionment defendant's motion to dismiss. On February 20, 2007, St. Raphael filed a reply memorandum of law in further support of its motion to dismiss. Oral argument was heard on March 6, 2007.
St. Raphael's motion to dismiss was filed on September 28, 2006, and was accompanied by a memorandum of law in support of the motion, and three exhibits. Norniella's motion entitled "supplement to motion to dismiss" was filed on October 26, 2006, and was accompanied by a memorandum of law containing four exhibits. On December 28, 2006, the Hispanic Clinic filed a motion to dismiss, accompanied by a memorandum of law, and three exhibits.
St. Raphael's motion is Docket No. 113; Norniella's motion is Docket No. 118; and the Hispanic Clinic's motion is Docket No. 130. Norniella's motion contained a copy of the similar health care provider letter addressing Norniella's liability, as well as a similar health care provider letter addressing the liability of another apportionment defendant.
Continuum's opposition to St. Raphael's motion is Docket No. 133; its opposition to Norniella's motion is Docket No. 135; and its opposition to the Hispanic Clinic's motion is Docket No. 137.
On September 6, 2006, Norniella filed a motion to dismiss the apportionment complaint (Docket No. 111), on the ground that the court lacked personal jurisdiction over Norniella, which was accompanied by a memorandum of law. Continuum filed a memorandum of law in opposition to this motion on September 29, 2006. (Docket No. 114). At oral argument, Norniella abandoned his personal jurisdiction claims.
Because the three motions to dismiss for a lack of subject matter jurisdiction are virtually identical, the court will address them together. The court will then address the additional issues raised in St. Raphael's reply memorandum of law.
I. ISSUE PRESENTED
Whether the court should grant the motions to dismiss, based on the lack of subject matter jurisdiction, due to the purported inadequacies of the Certificate of Good Faith. For the reasons articulated below, the apportionment defendants' motions to dismiss are denied.
II. FACTS
This case arises out of the death of Hiram Marrero, a psychiatric patient who was fatally shot by the New Haven police on December 16, 2004. On March 10, 2006, the plaintiff, Ruben Rodriguez, the administrator of Marrero's estate, filed a revised six-count complaint, naming as defendants New Haven police Officers Rahgue Tennant, David Runlett, and Robert Lawlor, the city of New Haven, Continuum, (the corporation that managed the facility in which Marrero lived, and where the incident occurred), and Thomas Kirk, the commissioner of the Connecticut Department of Mental Health and Addiction Services.
The revised complaint alleges that Marrero was a mentally disabled man residing in an extended living apartment facility for people with mental disorders in New Haven; and that on December 16, 2004, Marrero was involved in an altercation with a mental services provider. Following that altercation, the revised complaint alleges that Marrero grabbed a kitchen knife and exited his apartment through the backdoor. The revised complaint further states that shortly after Marrero exited his apartment, Officers Tennant, Runlett, and Lawlor confronted Marrero and ordered him to put the knife down; that Marrero first turned the knife towards himself, then "discarded" it and "crouched down, while moving his arms rapidly, with his back against the wall of the apartment building." At this time, Tennant, Runlett, and Lawlor shot and killed Marrero.
III. APPORTIONMENT COMPLAINT
On August 18, 2006, pursuant to General Statutes § 52-102b, Continuum filed a three-count apportionment complaint naming Robert Norniella, M.D., the Hispanic Clinic, and St. Raphael Hospital (St. Raphael) as defendants.
General Statutes § 52-102b(a) provides in relevant part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint."
The apportionment complaint was accompanied by a certificate signed by Continuum's attorney stating that she "made a reasonable inquiry" to determine whether there were grounds for a good faith belief that there was negligence in the care and treatment of Marrero, and by three letters purporting to be the written opinions of similar health care providers, as required by § 52-190a. None of the letters is signed or contains any indication of who authored them. Each letter addresses the liability and behavior of one of the apportionment defendants.
In count one of that complaint, Continuum alleges that Norniella is, or may be liable, pursuant to §§ 52-572h and 52-102b because prior to his death, Marrero was under the care of Norniella. In the second count of the apportionment complaint, Continuum alleges that the Clinic is, or may be liable, pursuant to §§ 52-572h and 52-102b, either through its own acts, or those of Norniella because at all relevant times, Marrero was under the care and treatment of the Hispanic Clinic and Marrero relied on it for the treatment of his psychiatric needs. In the third count of the apportionment complaint, Continuum alleges that St. Raphael is, or may be liable, pursuant to §§ 52-572h and 52-102b, because on December 10, 2004, Marrero was brought to St. Raphael where he was kept in the emergency room for four days and then released on December 14, 2004, to Continuum.
Following oral argument, but before the rendering of this decision, the Apportionment plaintiff filed an Amended Apportionment Complaint, which alleged the same facts outlined above, but which attached additional letters from the same health care providers, which letters provide greater details regarding the health care provider's qualifications. Counsel for the apportionment plaintiff opined that the filing of the amended pleading supports its position that the motions to dismiss should be denied because each health care provider "details his specific credentials to render the opinions he wrote." Letter from Attorney Christine Plourde, dated April 26, 2007.
On May 30, 2007, counsel for the plaintiff filed a Request for Leave to Amend Complaint, appending the more detailed letter regarding a health care provider's qualifications to the Amended Complaint.
IV. LEGAL DISCUSSION
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[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). "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, 211, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
Norniella, the Hispanic Clinic, and St. Raphael seek to dismiss the apportionment complaint on the ground that the court lacks subject matter jurisdiction to adjudicate the matter arguing that Continuum did not file a written opinion by a similar health care provider as required by §§ 52-190(a) and 52-190(c). Each apportionment defendant claims that Continuum's apportionment complaint does not comply with § 52-190(a) because, although it was filed with three letters that purport to be the written opinions of similar health care providers, the documents were not signed, and do not indicate who actually wrote them. The apportionment defendants also argue that, even if § 52-190a allows the name of the similar health care provider to be withheld, it requires some indication in the letter that the author is a similar health care provider.
General statutes § 52-190a provides in relevant part: "No civil action or apportionment complaint shall be filed . . . 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 . . . apportionment complaint shall contain a certificate of the attorney or party filing the action . . . that such 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 . . . 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."
And, General Statutes § 52-190a(c) provides: "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."
Continuum filed virtually the same memorandum of law in opposition to all three apportionment defendants' motions to dismiss. In those memoranda of law, Continuum argues that the apportionment complaint complied with § 52-190a, and, therefore, the court has subject matter jurisdiction. Specifically, Continuum argues that § 52-190a does not require that either the opinion itself specify that it was written by a similar health care provider, or that the author of the similar health care provider opinion disclose his identity or detail his credentials in that opinion. Continuum focuses on the portion of § 52-190a that provides: "The . . . 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." (Emphasis added.) As noted earlier in this decision, following the briefing and argument regarding this issue, Continuum filed a more detailed letter from health care providers, which provides their experience and qualifications.
There is no Supreme or Appellate Court authority, and only sparse Superior Court discussion, on the issue of whether, or to what extent, the identity of the author of the similar health care provider opinion is required. Those cases that have addressed the issue agree, and share the reasoning, that the statute is clear that the opinion letter of a similar health care provider does not have to be signed, or identify the similar health care provider. See Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.); Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (June 21, 2006, Matasavage, J.) (41 Conn. L. Rptr. 609, 611 n. 3) ("That portion of the statute is intended to place limits on the discoverability of the name of the health care provider that authored the written opinion. It is not contrary to the filing requirement because the statute specifically provides that the name and signature of the author of the written opinion shall be expunged from the copy of the written opinion that the plaintiff files with the court.")
Neither the language of § 52-190a, nor the holding of any case, mandates that the similar health care provider opinion letter state in the letter itself that its author is a similar health care provider. Although the apportionment defendants correctly point out that one of the main goals of § 52-190a is to prevent frivolous lawsuits, § 52-190a achieves this goal by relying on the complainant's attorney's good faith efforts, as evidenced through the certification requirement, and enforced through the possibility of "appropriate sanctions" against the signing attorney. See § 52-190a ("If the court determines, after the completion of discovery, that such certificate was not made in good faith . . . 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 . . . including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the . . . apportionment complainant's attorney submitted the certificate.")
See LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990).
Courts have consistently held that challenges to the sufficiency of a good faith certificate, or similar health care provider letter, are appropriate only after the completion of discovery. See LeConche v. Elligers, supra, 215 Conn. 708; Lyon v. Yeager, Superior Court, judicial district of Windam, Docket No. CV 06 5000150 (February 20, 2007, Martin, J.) (holding that the defendant has to wait until after the completion of discovery to attack the sufficiency of the plaintiff's good faith certificate, including the similar health care provider opinion).
In support of their motions to dismiss, the apportionment defendants cite to only one case, Fyffe-Redman v. Rossi, supra, 41 Conn. L. Rptr. 504. That decision, however, did not address the present issue, but instead involved a situation where the plaintiff failed to attach a certificate of good faith, or a similar health care provider opinion letter, to her complaint. The court in Fyffe-Redman granted the motions to dismiss because the plaintiff's amended complaint was not properly filed, and it did not include a letter from a similar health care provider, but merely copies of medical records. Id. In ruling this way the court stated that: "The language of the new § 52-190a could not be clearer. Subsection (a) states that the certificate of good faith `shall' be part of the complaint, and further states that the supporting opinion `shall' be attached to the certificate of good faith, with the name and signature of the author expunged." Id. That decision said nothing about whether the author of the similar health care provider letter needs to state that he is a similar health care provider in the letter, and the court has found no authority for such a proposition.
St. Raphael's Additional Arguments
In its reply memorandum, St. Raphael has argued additionally that the opinion letter was not issued by a "similar health care provider" as defined in § 52-184c, and, therefore, the complaint was deficient under § 52-190a. St. Raphael specifically asserts that the apportionment complaint should be dismissed because the pertinent opinion letter does not indicate it was "authored by a health care provider licensed or trained in the same specialty," emergency medicine. St. Raphael further argues that, because its actions as a provider of emergency medicine are at issue, the opinion letter by a psychiatrist does not meet the requirement of being a similar health care provider.
The definition of "health care provider" as used in General Statutes § 52-184b, is outlined in General Statutes § 52-184b(a), which provides: " `health care provider' means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment." St. Raphaels is raising the issue of suitability of qualifications of the good-faith medical provider, prematurely. Courts have consistently held that a challenge to the status of a similar health care provider is not a jurisdictional issue, but rather one that should be addressed after discovery begins. See Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) (42 Conn. L. Rptr. 163); Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) (41 Conn. L. Rptr. 222); and Peloso v. Walgreen Eastern Co., Inc., Superior Court, judicial District of New Haven, Docket No. CV 06 5002136 (February 16, 2007, Holden, J.) ("Nothing in the statute or the legislative history, however, suggests the status of the expert as a `similar health care provider' was meant to be a jurisdictional prerequisite. The very provision in § 52-190a(a) that the expert's identifying information be expunged, along with the provision that `[s]uch written opinion shall not be subject to discovery by any party except for challenging the validity of the certificate' presupposes at least some discovery before the expert's `similar health care provider' status is to be challenged.")
V. CONCLUSION
For the forgoing reasons, the apportionment defendants' motions to dismiss based on the lack of subject matter jurisdiction are hereby denied.