Opinion
No. CV 06 5005742
December 4, 2007
AMENDED MEMORANDUM OF DECISION RE MOTION TO DISMISS
This Amended Memorandum of Decision is filed to correct typographical and textual errors on the last page of the decision.
The plaintiff John Wilson has filed suit in his capacities as the Executor of the Estate of Corky E. Wilson and as the husband of the decedent. In these capacities he has filed a complaint containing four counts dated November 1, 2006. The First Count alleges medical negligence. The Third Count alleges wrongful death. The Second and Fourth Counts claim a loss of consortium. The defendant has moved to dismiss all of the plaintiff's claims for lack of subject matter jurisdiction. The defendant argues that Wilson failed to bring these claims within the time limits permitted by General Statutes § 52-584 and failed to comply with General Statutes § 52-190a(a). Additionally, the defendants claim that the loss of consortium counts are a derivative action and are contingent on the success of the medical claims of negligence and wrongful death, and therefore, the loss of consortium claims must also fail.
John Wilson was duly appointed as the Executor for the Estate of his wife Corky E. Wilson by the Probate Court for the District of Derby at Ansonia on April 13, 2006. The decedent's date of death was January 14, 2006.
The plaintiffs allege that the defendant initiated care of the decedent on November 4, 2003, when the decedent was recovering from surgery for rectal cancer. The defendant was to provide nursing treatment including the insertion and removal of gauze packing in the area of the treated perianal wound. They allege that the defendant failed to properly care for the decedent's wound and left gauze packing within a wound. The plaintiffs allege that as a result of this packing, the decedent developed an infection and underwent surgery on March 7, 2004, which was the date the gauze packing was discovered. The plaintiffs further allege that Corky E. Wilson died as a result of the infection from the gauze packing and the negligence of the defendant as set forth in the complaint.
I Standard of Law Re Motion to Dismiss
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997) [ 18 Conn. L. Rptr. 409]; Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). "In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).
"Jurisdiction of the [subject matter] is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [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.) Esposito v. Specyclski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 787 A.2d 760 (2001). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).
II Good Faith Certificate Third and Fourth Counts
Pursuant to General Statutes § 52-190a(a), the plaintiffs are required to provide a report from similar health care provider setting forth a reasonable good faith belief that injury or death resulted from the negligence of a health care provider in the care of treatment of the claimant. The plaintiffs provided a redacted report by a registered nurse stating "[T]here appears to be evidence of medical negligence, committed by the Defendant, Visiting Nurses Services of Connecticut in the treatment of the decedent Corky Wilson . . . The Defendant's employees negligently failed to remove all of the gauze from the decedent's wound resulting in the wound closing with the gauze remaining in the wound causing an infection and the need for further surgery and medical care."The defendant argues that the report fails to indicate that there is any evidence that the defendant's alleged medical negligence resulted in the decedent's death. Therefore, the claim of wrongful death and the claim for a loss of consortium due to wrongful death as a result of medical malpractice are not supported by the report of the health care provider. The defendant seeks a dismissal of the Third and Fourth Counts.
The court rejects the defendant's argument that the plaintiffs' report from a similar health care provider fails to indicate that there is any evidence that the defendant's alleged medical negligence resulted in the decedent's death, and therefore, the claim of wrongful death and the claim for a loss of consortium due to wrongful death as a result of medical malpractice are not supported by the report of the health care provider
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." On the other hand, "[w]hen the meaning of the statute is not plain and unambiguous, [our courts] [also] look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter for [interpretative guidance]." (Internal quotation marks omitted.) State v. Boyd, 272 Conn. 72, 76, 861 A.2d 1155 (2004); Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV05 5000482 S, (April 19, 2006, Matasavage, J.) 41 Conn. L. Rptr. 222; General Statutes § 1-2z.
"The requirements of the § 52-190a, as stated in subsection (a) do not appear to be ambiguous. Subsection (a) of the statute imposes the following requirements on medical malpractice complaints: (1) it must contain a certificate avowing that the plaintiff conducted a reasonable inquiry to determine that the plaintiff has grounds for a good faith belief that the plaintiff's cause of action exists: (2) to show good faith, the plaintiff must obtain a signed, written opinion in which a health care provider postulates that there appears to be evidence of medical negligence; and (3) the author must include a detailed basis for the formation of such opinion." Andrikis v. Phoenix Internal Medicine, supra.
The nurse health care provider's opinion submitted by the plaintiff sets forth the information required by § 52-190a. The nurse makes reference in her report to negligent medical care. The good faith certificate mentions the alleged negligent incident referred to, which is the failure to remove gauze from the wound. The wound then closed with this gauze remaining in the decedent's wound, which allegedly caused an infection and the need for further surgery and medical care. General Statutes § 52-190a(a) states that the certificate state that there is a "good faith belief that there has been negligence in the care or treatment of the claimant." It does not require that the certificate also state that the negligence caused the death of the decedent.
General statutes § 52-190a was promulgated to "discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710 (1990). "During the Senate hearings discussing P.A. 05-275, Senator Kissel remarked that requiring a plaintiff to obtain and file a detailed opinion supporting good faith would `help the defense counsel and their clients right into the ballpark, right at the inception of the medical malpractice case . . . [because it would allow] counsel and their clients [to] really narrow down exactly what was the basis for the determination of the basis for the plaintiff's claim that there was medical malpractice and why they had brought that case.' S. Proc., Pt. 2005 Sess., p. ___, remarks of Senator John A. Kissel.[fn 1] In Senator Kissel's view, part of the purpose of the act was to `[reform] the process . . . speed it up . . . [and] expedite it.' S. Proc., supra, p. ___. Additionally, during the House of Representatives proceedings, Representative Lawlor stated that the act `makes it much more difficult to bring a medical malpractice action in court . . . [because] [u]nder [the new] requirement, another medical provider would have to state, in explicit detail, his or her opinion that [there] is a meritorious claim.' H.R. Proc., Pt 2005 Sess., p. ___ remarks of Representative Michael P. Lawlor." Andrikis v. Phoenix Internal Medicine, supra.
The good faith certificate in the present case adequately informs the defendant and its counsel of the basis for the determination for the plaintiff's claim that there was medical malpractice and why they have brought this case.
The defendant additionally argues that the certificate of good faith inquiry is invalid as it was signed by plaintiff, John Wilson, Executor of the Estate of Corky Wilson and not by plaintiff's counsel. In support of this argument the defendant cites the decision of Judge Doherty in Kelly v. Soccarras, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 04 0412742 (Apr. 6, 2005, Doherty, J.), 39 Conn. L. Rptr. 49, which involved a ruling on a motion to strike. In Kelly, Judge Doherty granted a motion to strike a certificate that the plaintiff had signed. The defendants had argued that because the plaintiff was represented by counsel, the plaintiff was not the "party filing the action." Rather, the plaintiff was merely "a party." The party who filed the action was the plaintiff's attorney.
In determining whether the court has subject matter jurisdiction in this matter as it relates to the certificate, the court has reviewed the decision in Donovan v. Sowell, Superior Court, judicial district of Waterbury at Waterbury, No. CV 06-5000596 S (Jun. 21, 2006, Matasavage, J.), 41 Conn. L. Rptr. 609. In Donovan, Judge Matasavage thoroughly analyzes the implications of subject matter jurisdiction relating to General Statutes § 52-190a. While Donovan involved the plaintiff's failure to file a written opinion of a similar healthcare provider as evidence of their good faith belief that the defendant was medically negligent, Judge Matasavage's opinion interprets 52-190a(a) and 52- 190a(c). In doing so, Judge Matasavage quotes LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d (1990) for the proposition that despite any deficiency the plaintiffs may have in strictly complying with section 52-190a, the alleged deficiency does not deprive the court of subject matter jurisdiction.
The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence. In light of that purpose, the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court. The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support a cause of action. Viewed though that prism, the absence from the complaint of the statutorily required good faith certificate renders the complaint subject to a motion to strike pursuant to Practice Book § [10-39] for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment pursuant to Practice Book §§ [10-44 and 10-59]. (Citations omitted; internal quotation marks omitted.)
LeConche v. Elligers, supra, 215 Conn. 710-11.
The decision in Donovan v. Sowell states that the dismissal of an action referenced in General Statutes 52-190a(c) is discretionary and is not mandatory. This court agrees. The court is aware that the plaintiffs have moved to cure any deficiency in the certificate of reasonable inquiry by filing a motion to amend the complaint. Said motion is dated August 29, 2007. Attached to the motion to amend is an amended certificate of reasonable inquiry, which is now signed by the plaintiffs' attorney, who filed the action in their behalf. While the court makes no ruling on this motion to amend the complaint, as it is not before the court, the plaintiff would have an opportunity to submit the revised/amended pleading and certificate if the defendant had filed a motion to strike instead of this motion to dismiss.
The good faith certificate in the present case adequately informs the defendant and its counsel of the basis for the determination for the plaintiff's claim that there was medical malpractice and why they have brought this case. The court is also of the opinion that the questions regarding the sufficiency of this subject certificate were more appropriately addressed by a motion to strike.
The court notes that Section 52-190a has since been amended by P.A. 07-65, effective Oct. 1, 2007. P.A. 07-65 reads in relevant parts, as follows:
Section 1. Section 52-190a of the general statutes is repealed and the following is substituted in lieu hereof:
(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 . . .
(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.
III Statutes of Limitations First and Second Counts CT Page 20592
The defendant initially claims that the plaintiffs' First and Second Counts claiming medical negligence and a loss of consortium are barred by the application of General Statutes § 52-584 which states:No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
The plaintiffs allege that, as a result of the retained packing gauze, the decedent developed an infection and underwent surgery on March 7, 2004, which was the date the retained gauze was discovered. Therefore, the discovery of injuries, being the infection and its sequelae from the alleged malpractice occurred on or before March 7, 2004. The plaintiffs brought their action by way of writ, summons and complaint dated November 1, 2006, bearing a return date of December 12, 2006. Pursuant to General Statutes § 52-593(a) the state marshal filed an affidavit that the writ, summons and complaint was delivered to him on November 3, 2006. Thereafter, on November 7, 2006, the marshal served said writ, summons, complaint and certificate of reasonable inquiry on the defendant's agent for service of process by in-hand service. The defendant argues, therefore, that the plaintiffs failed to commence an action claiming medical negligence within two years of the date when the injury is first sustained or discovered, or in the exercise of reasonable care should have been discovered, as required by General Statutes § 52-584.
The plaintiffs argue that the legislature has carved out certain situations in which the statute of limitations is tolled, and one such instance is where a party-plaintiff becomes deceased prior to the expiration of the statute of limitations period. General Statutes § 52-594 states:
If the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, has not elapsed at the time of the person's death, one year from the date of death shall be allowed to his executor or administrator to institute an action therefor. In computing the times limited in this chapter, one year shall be excluded from the computation in actions covered by the provisions of this section.
The decedent died on January 14, 2006. Therefore, the plaintiffs argue that they had one year from the decedent's date of death and the statute of limitations was, thus, extended from March 7, 2006 to January 14, 2007, and the present suit was timely commenced by the decedent's estate.
The purpose of the statute of limitations is well settled in our law. "There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose." (Internal quotation marks omitted.) Beebe v. Town of East Haddam, 48 Conn.App. 60, 67, 708 A.2d 231 (1998); Sanborn v. Greenwald, 39 Conn.App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). "[T]he policy of statutes of imitation includes promoting repose by giving security and stability to human affairs." (Internal quotation marks omitted.) Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 159, 464 A.2d 18 (1983). "[W]e will not deprive the defendants of the `finality, repose and avoidance of stale claims and stale evidence' for which the statute of limitations was designed. Connecticut Bank Trust Co., v. Winters, 225 Conn. 146, 157 n. 20, 622 A.2d 536 (1993)." McNeil v. Riccio, 45 Conn.App. 466, 473, 696 A.2d 1050 (1997).
General Statutes § 52-594 was not intended to shorten the statutory time limit, but to extend it in such cases where otherwise it would expire in less than one year after death. Section 52-594 provides that if the limit of time to bring the decedent's action has not elapsed at the time of the death, an action may be instituted within one year from the date of death. Girard v. Weiss, 43 Conn.App. 397, 418, 682 A.2d 1078 (1996).
The purpose of § 52-594 is to give the decedent's representative one full year in which to take out administration, learn of the existence of the claim and bring suit. Because of its remedial purpose, a representative also has available all of the time that a decedent himself would have had if he survived. The statute does not reduce the time within which an action might have been brought had the plaintiff survived. It adds one year from the date of death to the time otherwise allowable. Thus, if the decedent might have filed suit eight months after his death, his representative might file suit one year and eight months after his death. (Internal citations omitted.) 2 E. Stephenson, Connecticut Civil Procedure (3rd Ed. 1991) § 134 pp. 165-66.
Clearly, the legislature wished to extend the statute of limitations on an action the decedent might have had for a one-year period from the date of death irrespective of the fact that the statute might have run within that year if the decedent had lived. In other words, "the executor or an administrator has all the time which the decedent, if living, would have within which to bring the action, but if less than a year remained to the decedent, his representative has a full year." Leach v. Cheney, 90 Conn. 611, 613, 614 (1916); see also Fenton Adm. v. United Technologies Corp., d/b/a/ Sikorsky Aircraft Corp., et al., 204 F.Sup.2d 367 (interpreting § 52-594 to extend an administratrix's time to file an action only up to one year from the date of the decedent's death).
The court concludes that because the decedent's death occurred when less than a year remained on the applicable two-year statute of limitations, § 52-594 would extend the statute of imitations for a period of one year from the decedent's death, which occurred on January 14, 2006.
However, the defendant in its reply memorandum of law now claims that § 52-594 is not applicable because the plaintiffs' claims for medical negligence and loss of consortium in the First and Second Counts are barred by the application of General Statutes § 52-555, the statutes of limitations for wrongful death, which states in relevant part:
(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.
The defendant claims that the only action available to the plaintiffs is one for wrongful death, and a loss of consortium due to wrongful death, which is what is alleged in the plaintiffs' Third and Fourth Counts. The defendant does not claim that the plaintiffs' wrongful death and loss of consortium claims in the Third Count and Fourth Count were not timely brought. Rather, the defendant asserts that the First and Second Counts should be dismissed, as the only theory of recovery available to the plaintiffs for the decedent's death is pursuant to the wrongful death statute. Thus, the First and Second Counts sounding in negligence are the same tort as the wrongful death alleged in the Third and Fourth Counts should be subject to the limitation of action in § 52-555 and not § 52-584. "The right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent . . . [T]he cause of action . . . is a continuance of that which the decedent could have asserted had he lived . . . Our wrongful death statute adds to that cause of action, as an element of damage, the death itself, which was not recognized as an element of damage at common law." (Internal citations and internal quotation marks omitted.) Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957). "[W]here damages for death itself are claimed in an action based on our wrongful death statute, recovery of any ante-mortem damages flowing from the same tort must be had, if at all, in one and the same action. In other words, there cannot be a recovery of damages for death itself under the wrongful death statute in one action and a recovery of ante-mortem damages, flowing from the same tort, in another action brought under [the survival of action statute]." Id.
While the defendant's claim may have merit, the question should be determined by a motion to strike addressed to the sufficiency to the pleadings in the First and Second Counts, as well as, whether the time limitations specified in Section 52-555 are applicable.
"[A] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993); see Practice Book § 10-50. This is because a motion to strike challenges only the legal sufficiency of the complaint and "might . . . deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense." Forbes v. Ballaro, supra, 239. An exception to this general rule exists, however, when "a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Id., 239-40. "Because 52-555 creates liability where none formerly existed at common law; Ecker v. West Hartford, 205 Conn. 219, 233, 530 A.2d 1056 (1987) . . . it is undisputed that the defendants properly raised the limitation period of § 52-555 in a motion to strike."(Internal quotation marks omitted.) Greco v. United Technologies Corporation, 277 Conn. 337, 364 n. 12, 890 A.2d 1269 (2006).
IV Conclusion
For the reasons set forth herein, the court denies the motion to dismiss the First, Second, Third and Fourth Counts of the plaintiffs' complaint dated November 1, 2006.