Opinion
No. CV08 5021657S
March 12, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
The defendants, Yale New Haven Hospital (YNHH) and Robert Bell, M.D. (Bell), filed a motion to dismiss and a memorandum in support, arguing that the Court lacks subject matter jurisdiction because the plaintiffs failed to comply with Conn. Gen. Stat. § 52-190a by failing to attach the written opinion of a similar healthcare provider. The plaintiffs, Antonio and Juanita Rodriguez, filed leave to amend their complaint in order to attach a written opinion of a similar health care provider; and also filed an objection to the motion to dismiss. For reasons more fully set forth herein, the court grants the motion to dismiss the claims alleging medical negligence; and denies the motion to dismiss the claims alleging informed consent.
This action arises from the alleged negligent medical treatment of Antonio Rodriguez's left inguinal hernia by YNHH and Bell. On July 9, 2008, the plaintiffs filed an eight-count complaint against the defendants. In count one, Antonio Rodriguez alleges medical malpractice against YNHH. In count two, he alleges lack of informed consent against YNHH. In count three, he alleges medical malpractice against Bell. In count four, he alleges lack of informed consent against Bell. In count five, Juanita Rodriguez alleges medical malpractice against YNHH. In count six, she alleges lack of informed consent against Bell. Finally, in count seven she alleges medical malpractice against Bell. And, in count eight, she alleges lack of informed consent against Bell. Plaintiffs' counsel attached a Good Faith Certificate to the complaint.
The plaintiffs initially filed suit on June 29, 2004. On June 1, 2007, the court entered a judgment of dismissal because of the plaintiffs' failure to comply with the Docket Management program in neglecting to file a certificate of closed pleadings. The plaintiffs filed a motion to reopen judgment on May 5, 2008, which was denied as untimely on June 11, 2008.
On July 24, 2008, the defendants filed their motion to dismiss (#101). On October 14, 2008, the plaintiffs filed a motion for leave to amend their complaint (#103). On the same day the plaintiffs also filed an objection to the defendants' motion to dismiss (#104). On October 23, 2008, the defendants filed a reply to the plaintiffs' objection to the motion to dismiss (#106) and an objection to the plaintiffs' motion for leave to amend their complaint (#105) because they contend that the plaintiffs' motion attempts to cure a jurisdictional defect. This court sustained the defendants' objection to the motion for leave to amend on November 5, 2008. Oral argument on the motion to dismiss was heard on November 17, 2008, at which time the parties were ordered to submit supplemental briefs on the informed consent claims. On November 21 and 24, the plaintiffs and the defendants, respectively, filed supplemental briefs.
The plaintiffs subsequently filed a memorandum in support of their Objection on November 12, 2008 (#109). On November 14, 2008, defendants submitted a memorandum in response (#107).
"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." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). A party who files a medical malpractice action is required to file a written opinion from a similar health care provider stating "that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). "The failure to obtain and file the written opinion required by subsection (a) . . . shall be grounds for the dismissal of the action." General Statutes § 52-190a(c).
I.
Whether Failure to Attach the Written Opinion of a Similar Health Care Provider requires the Dismissal of the Medical Negligence Claims
The defendants argue that failure to attach an opinion of a similar health care provider deprives the court of subject matter jurisdiction. The plaintiffs contend that this action is governed by the Accidental Failure of Suit statute, § 52-592, because the previous action was dismissed due to non-compliance with the Docket Management Program. They argue that because this action was initially brought in 2004, before the amendment to § 52-190a requiring a written opinion went into effect, they should be able to amend their complaint to include a written opinion. Such amendment will remedy the defect upon which the defendants base their motion to dismiss. The defendants counter that, because the issue of subject matter jurisdiction has been raised, the plaintiffs should not be permitted to amend their complaint in an attempt to cure the jurisdictional defect.
The Appellate Court has stated that "[t]he plain language of this new statutory subsection [§ 52-190a(c)] . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § CT Page 4976 52-190a(a)." Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008). The Appellate Court in Rios failed to explicitly address, however, whether failure to attach the opinion implicates subject matter jurisdiction. As a result, there remains a split of authority as to whether failure to comply with some or all of the requirements of § 52-190a require that the action be dismissed for lack of subject matter jurisdiction.
Some courts have concluded that subject matter jurisdiction is not implicated by the failure to comply with the mandates of § 52-190a. See, e.g. Doe v. Priority Care, 50 Conn.Sup. 385, 933 A.2d 755 (2007); and Donovan v. Sowell, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 06500596 (June 21, 2006) (41 Conn. L. Rptr 609). Other courts conclude that the court lacks subject matter jurisdiction when the plaintiff fails to comply with § 52-190a requirements. See, e.g. Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 065002163 (June 7, 2006, Shortall, J.) ( 41 Conn. L. Rptr. 504). While the appellate court decision in Rios did not resolve the subject matter jurisdiction issue, some post- Rios trial court decisions have interpreted that case as standing for the proposition that failure to comply with § 52-190a requires dismissal of the action for lack of subject matter jurisdiction. See, e.g. Williams v. Hartford Hospital, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 075008598 (January 23, 2009, Domnarski, J.) (Dismissed claims for lack of subject matter jurisdiction against two defendants because of plaintiff did not file an opinion letter from a similar healthcare provider). But, see, Saphia Carlin v. Wiseman, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 065007567 (September 23, 2008, Rittenband, J.T.R.) (Without addressing the Rios decision, the court concluded that it had discretion in determining whether to grant the defendant's motion to strike the medical malpractice count, even though the pro se plaintiff had failed to attach a Good Faith Certificate and an opinion letter of a similar health care provider).
Post- Rios, there is still a significant split of authority over what "compliance" with § 52-190a means. Many courts have construed compliance to be more general. See, e.g. Dellacruz v. Negbenebor, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 075007236 (August 18, 2008, Frankel, J.) ("In this case, the challenge raised is not of a failure to provide an opinion but of its sufficiency . . . `Nothing in the plain language of the statute or its legislative history indicates that an insufficient opinion is grounds for dismissal of the action.' Ellegard v. Hennessey, Superior court, judicial district of New Britain, Docket No. CV 065001158 (September 22, 2006, Robinson, R., J.)"). Other courts have held that a careful examination of the sufficiency of the compliance is required in order to decide whether or not subject matter jurisdiction exists. See, e.g. Wilcox v. Schwartz, Superior Court, judicial district of New Haven, Docket No. CV 085021389 (December 29, 2008, Blue, J.) ("The plain language of § 52-190a . . . lead to the conclusion that [it] requires dismissal of a negligence action against a health care provider not just when no written opinion of a similar health care provider is attached to the complaint but when the opinion attached fails to comport with statutory requirements [including a detailed basis for the formation of . . . opinion]").
The court in Clarke v. Yale University, Superior Court, judicial district of New Haven at New Haven, Docket NO. CV 085018172 (October 1, 2008, Cosgrove, J.) concluded that dismissal of the pro se plaintiff's medical negligence action was required because he had failed to attach a Good Faith certificate and opinion letter of a similar health care provider to his complaint. The Clark court reasoned that "[o]ur legislature has passed a statute which sets forth requirements . . . [the plaintiff having a good faith basis for the allegations of negligence; a certificate of good faith; a written and signed opinion of a similar health care provider] . . . [B]ased upon the language of the statute [the court] grants the defendant's motion to dismiss." Id.
Many Connecticut courts, pre- Rios and post- Rios, distinguish between situations in which there is no good faith certificate or opinion letter, and cases in which there is a challenge to the sufficiency or adequacy of the good faith certificate or written opinion. See, Paskiewicz v. Lawson, Superior Court, judicial district of New Britain, Docket No. CV 08 50064328 (August 1, 2008, Gilligan, J.) ( 46 Conn. L. Rptr. 60) (Internal quotation marks omitted.) ("There may be some differences of opinion on the question of whether the lack of a written opinion by a similar health care provider deprives the court of subject matter jurisdiction. However, there is no issue of subject matter jurisdiction . . . where the opinion was supplied with an amended complaint made as of right in compliance with Practice Book § 10-59"). See also Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001608 (October 2, 2006, Adams, J.); Grammond v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5000533 (August 16, 2006, Lewis, J.T.R.) ( 41 Conn. L. Rptr. 852, 853) ("it does not matter whether the failure to attach the healthcare provider's opinion letter is, or is not, a jurisdictional defect because the plaintiff cured any defect by amending the complaint as of right within thirty days of the return date. The amended complaint took effect `ab initio' and the written opinion letter was thus effective from the date of filing of the action."). This court concurs with this reasoning.
In fact, this court has previously distinguished medical malpractice cases lacking a written opinion from those in which the adequacy of the written opinion or the author of the opinion is challenged. See, Rocci v MidState Medical Center, et al., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 085017069 (March 31, 2008, Robinson, J.) (Court dismissed plaintiff's medical negligence claim against MidState Medical Center because the plaintiff failed to attach a written opinion to his complaint); Vaneck v. Burzin et al, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 075013797 (February 24, 2009, Robinson, J.) (Notwithstanding the pro se plaintiff's claims that he was not alleging medical malpractice, the court dismissed the medical negligence claims against the defendants because the plaintiff failed to file a Good Faith Certificate or a written opinion); and Rodriguez v. Norniella, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 065001779 (June 1, 2007, Robinson, A., J.) [ 46 Conn. L. Rptr. 40] (Court denied the defendants' motions to dismiss the medical negligence claims which were supported by written opinions even though each of the defendants challenged the sufficiency of the written opinions).
Plaintiff filed a Motion to Open, which was denied by the court on February 10, 2009, because "[t]he court properly granted Midstate and [co-defendant] Jack's motions to dismiss and rendered judgments in their favor." Rocci v MidState Medical Center, et al, Superior Court, judicial District of New Haven at New Haven, Docket No. CV 085017069 (February 10, 2009, Robinson, J.).
In the present case, the plaintiffs were required to attach the written opinion of a similar healthcare provider pursuant to § 52-190a. Even though they had time to do so after the defendants filed the motion to dismiss, the plaintiffs failed to amend their complaint as of right pursuant to § 10-59. The plaintiffs did not request leave to amend their complaint, pursuant to § 10-60, until October 14, 2008, almost three months later. This is too late to comply with the mandates of the Good Faith Certificate Statute. This court finds that the plaintiffs' failure to attach an opinion of a similar health care provider requires the dismissal of the plaintiffs' medical malpractice claims. Accordingly, the defendants' motion to dismiss the plaintiffs' claims of medical negligence is granted.
The plaintiffs have not cited any legal support for their argument, that they should be permitted to amend their complaint because the 2004 action was commenced prior to the amendment to § 52-190a and because this present action is brought under the Accidental Failure of Suit statute, § 52-592. The parties do not fully address this issue in their briefs. The defendants claim, in a footnote, that § 52-190a "contains no exception for civil actions filed pursuant to . . . § 52-592." This court agrees. The plaintiffs' motion to reopen judgment on the 2004 suit was denied, effectively terminating the prior action. The present action is therefore, a new action, which must comply with the requirements of the operative version of C.G.S. § 52-190a.
As noted earlier in this Memorandum of Decision, this court agrees with the reasoning of the trial court in Paskiewicz v. Larson, supra, 46 Conn. L. Rptr. 60, that where an opinion is supplied with an amended complaint as of right pursuant to § 10-59, the requirements of § 52-190a are met.
This court does and, indeed, need not reach the issue of whether failure to attach a written opinion implicates subject matter jurisdiction, because it finds that the particular facts in this case establish that the plaintiff failed to comply with the mandates of § 52-190a. The purpose of § 52-190a is to "discourage the filing of baseless lawsuits against health care providers." Wilson v. Visiting Nurses, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 065005742 (December 4, 2007, Arnold, J.). The attachment of a Good Faith certificate along with written opinions provide the necessary, preliminary evidence upon which a court can conclude that the mandates of § 52-190a have been met. A lack of a Good Faith Certificate, or written opinion clearly demonstrates that the plaintiff has failed to meet the basic requirements of the statute. This failure, in this court's opinion, is the only one which requires dismissal of the action, without further evidence.
II. Whether Plaintiffs' Counts Alleging Lack of Informed Consent are Subject to § 52-190a
The defendants make several arguments in support of their position that the counts of the complaint alleging lack of informed consent should also be dismissed because of the plaintiffs' failure to attach the opinion letter. The essence of the defendants' argument is that because this action "sounds in medical malpractice," the failure to attach the letter is grounds for dismissal of the entire complaint. Furthermore, the defendants assert that the plain language and rationale underlying the statute support this result. The plaintiffs argue that a physician's letter is not required for an informed consent claim because medical negligence and lack of informed consent are two separate claims that are measured by differing standards of care (the former by an expert standard and the latter a lay one).
Several courts differentiate claims of negligent treatment from claims of lack of informed consent. See Landry v. Zborowski, Superior Court, judicial district of Tolland, Docket No. CV 07 6000211 (October 26, 2007, Vacchelli, J.) ( 44 Conn. L. Rptr. 452, 454); Pafka v. Gibson, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 05 5008249 (August 6, 2007, Langenbach, J.) ( 43 Conn. L. Rptr. 871, 873); Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001000 (October 25, 2006, Hiller, J.) ( 42 Conn. L. Rptr. 244, 246). "A claim against a physician for negligence based on lack of informed consent is separate from a claim based on negligence in medical treatment, because it is based on information communicated by the physician to the patient before the procedure or treatment . . . The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks is not merely linguistic. It reflects, instead, the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care." (Citations omitted; internal quotation marks omitted.) Pafka v. Gibson, supra, 43 Conn. L. Rptr. 872-73. Furthermore, "[a] claim for failure to obtain informed consent is measured by an objective lay standard . . . The typical basis for claiming a lack of informed consent is a failure to make a sufficient disclosure of the risks or alternatives to a certain medical procedure or treatment . . . actions seeking relief for the failure to obtain informed consent do not require expert testimony, they are judged by a lay standard and they do not require proof of the applicable standard of care through expert testimony." (Citations omitted; internal quotation marks omitted.) Id., 873.
At least one trial court decision lends support to the defendants' position. See Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 695). In Bruno the court found that "where a patient seeks recovery against a physician based upon a lack of informed consent, he is bringing a malpractice action . . . [t]he fact that the physician's duty of disclosure is measured by a lay, as opposed to a professional, standard does not affect the substantive nature of the cause of action . . ." (Citation omitted; internal quotation marks omitted.) Id., 697. The court therefore, dismissed the count of the plaintiff's complaint alleging failure to obtain consent.
The majority view supports the conclusion "§ 52-190a, as amended . . . is not applicable to claims alleging merely a negligent failure to obtain informed consent." Stevens v. Spector, supra, 42 Conn. L. Rptr. 246. This court agrees with the majority position. Therefore, the defendants' motion to dismiss claims based upon the alleged lack of informed consent is denied.
III Conclusion
The court dismisses the plaintiff's claims of medical negligence in counts one, three, five, and seven because the plaintiffs failed to comply with § 52-190a by attaching written opinion(s) of similar health care provider(s). The court denies the defendants' motion to dismiss counts two, four, six and eight, the claims of lack of informed consent.