Opinion
No. X10 UWY CV 07-5005843 S
January 23, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#110)
This is a medical malpractice action brought by the Plaintiff, Krista Wood, against the Defendants, Burton V. Caldwell, and his employer, Robert Lang, MD, PC.
The Defendant, Robert Lang, MD, PC, ("Lang PC") has filed a Motion to Dismiss because it claims that the written opinion letter attached to the complaint is inadequate under the statute as to it because the letter makes no mention of Robert Lang, MD, PC and therefore the Plaintiff has wholly failed to produce a letter, as required by General Statutes § 52-190a, that sets forth a detailed basis for the allegations of negligence asserted against Lang PC. Therefore, Lang PC argues that the case against it should be dismissed pursuant to General Statutes § 52-190a. The court heard oral argument on the motion on December 17, 2007.
General Statutes § 52-190a provides: "(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 . . . (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."
Attached to the complaint is an opinion by a board certified internist/endocrinologist "that there appears to be evidence of medical negligence on the part of Burton V. Caldwell, MD, in the care and treatment of Krista Wood on or about September 17, 2003 — March 9, 2005. Ms. Wood was referred to the Robert Lang, MD, PC, endocrinology group for assessment of her thyroid nodules. During the eighteen months of office visits, Dr. Burton Caldwell did not perform a needle biopsy of the enlarged nodules. This is negligence and a definite deviation from the accepted standard of care."
Lang PC claims that the opinion does not comply with the statutory requirements because the opinion letter does not disclose any assertion that Lang PC was medically negligent or that its actions proximately caused the injuries alleged in the complaint. The Plaintiff argues that she has complied with the requirements of the statute as to Lang PC because Lang PC is a corporate entity that can only act through its agents, servants and employees, such as the co-defendant Caldwell, and therefore the medical negligence detailed in the written opinion of the similar health care provider as to Dr. Caldwell satisfies the statute as to Defendant Lang PC.
The statute requires that there be two documents attached to the complaint in a medical malpractice case: (1) the certificate of the attorney filing the action that a reasonable inquiry has given rise to a good faith belief that grounds exist for an action against each named defendant; and to show the existence of such good faith, (2) a written and signed opinion of a similar health care provider that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. As the court noted in Andrikis v. Phoenix Internal Medicine, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV 05-5000482 S (Matasavage, J., Apr. 19, 2006) [41 Conn. L. Rptr. 222]: "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. General Statutes § 52-190a(a). Subsection (c), the remedy portion of the statute is clear, as far as it provides that the plaintiff's failure `to obtain and file the written opinion shall be grounds for dismissal.' General Statues § 52-190a(c)."
"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 and citations omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501 (2005).
Lang PC argues that the complaint does not merely sound in vicarious liability but contains direct claims of negligence against it, yet the letter attached to the complaint does not set forth any opinion that there was medical negligence on the part of Lang PC. It claims, not that the letter is inadequate as to it, but that the "Plaintiff has wholly failed to attach an opinion letter with respect to [it]." Lang PC is not claiming that the letter is simply insufficient, but that the opinion of a similar healthcare provider, as required by General Statutes § 52-190a, is totally lacking as to it. The failure to attach an opinion letter as required by the statute to the complaint in a medical malpractice case has been held to be grounds for dismissal of the action. See, Griffith v. Rockville General Hospital, Inc., Superior Court Judicial District of Tolland at Rockville, Docket No. CV07 5001815 S (Sferrazza, J., Dec. 18, 2007) [44 Conn. L. Rptr. 614] and Cockayne v. Pilon, Superior Court Judicial District of New Britain at New Britain, Docket No. HHB CV07 5004115 (Pittman, J., Dec. 10, 2007); but see, Donovan v. Sowell, Superior Court Judicial District of Waterbury at Waterbury, Docket No. CV 06-5000596 S (Matasavage, J., June 21, 2006) [41 Conn. L. Rptr. 609].
Since the argument posed by the Defendant Lang PC is so framed, the court need not decide whether the insufficiency of an opinion letter required by General Statutes § 52-190a is properly raised by a motion to strike rather than a motion to dismiss. See discussion in Shankar v. Midstate Medical Center, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV07-6001269S (Bellis, J., Nov. 28, 2007) [44 Conn. L. Rptr. 595].
It is true that the opinion letter attached to the complaint here references only the alleged negligent acts of the Defendant, Dr. Caldwell, and makes no specific reference to Lang PC, except to the fact that the Plaintiff was referred to the Lang PC endocrinology group. Nevertheless, the Plaintiff claims that this is sufficient since Count Two of the complaint, which is directed to the Defendant Lang PC, alleges that "[a]t all times mentioned herein, the co-Defendant, Burton V. Caldwell, was a servant, agent, apparent agent and/or employee, of the Defendant, Robert Lang, MD, PC." (Complaint, Count Two, Paragraph 2.) It is further alleged that "the Defendant, Robert Lang, MD, PC and its servants, agents, apparent agents and/or employees, undertook the care, treatment, monitoring, diagnosing and supervision of the plaintiff, Krista Wood," and that "[w]hile under the care, treatment, monitoring, diagnosing and supervision of the Defendant, Robert Lang, MD, PC and its servants, agents, apparent agents and/or employees, the plaintiff, Krista Wood, suffered serious, severe, painful and permanent injuries" and that "[s]aid injuries sustained by the plaintiff, Krista Wood, were caused by the failure of the Defendant, Robert Lang, MD, PC and its servants, agents, apparent agents and/or employees, to exercise reasonable care under all of the circumstances then and there present." (Complaint, Count Two, paragraphs, 3, 4, 5.) A plain reading of these allegations are sufficient to state a claim against Lang PC for the actions of the Defendant, Dr. Caldwell. Allegations that a "servant, agent, apparent agent and/or employee" during the period of his agency, committed malpractice, is sufficient to support a claim of malpractice against the employer. "From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that, under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." (Footnote and citations omitted.) Matthiessen v. Vanech, 266 Conn. 822, 839 (2003). In the medical malpractice area a corporate entity can be held liable for the medical malpractice of its employees. See, Ali v. Community Health Care Plan Inc., 261 Conn. 143, 151-2 (2002). Since the written opinion of a healthcare provider similar to Dr. Caldwell is attached to the complaint, and the complaint alleges Dr. Caldwell was the agent of Robert Lang, MD, PC, the complaint with its attached opinion is sufficient to withstand a motion to dismiss as to the claims against Lang PC. As the court held in Sarfatti v. Hoffman, Superior Court Judicial District of New Britain at New Britain, Docket No. CV 06 5000903 S (Robinson, J., Aug. 18, 2006), "[i]f a health care provider's statement demonstrates that grounds exist for an action against a defendant without specifically naming such defendant, the statement establishes the requisite foundation for the attorney's certificate and, therefore, comports with the statutory requirements." (Footnote omitted.)
Lang PC claims that the complaint also alleges liability on Lang PC's part based on its own negligence as well as on the basis of vicarious liability for Caldwell's alleged negligence, and that the opinion letter does not support those claims. This argument fails for two reasons. First, in a case similar to this, where the opinion attached to the complaint referenced only the alleged negligence of the individual physician employee of the Hospital Defendant, and not the Hospital, the court held that such an opinion was sufficient to withstand a motion to dismiss. Hernandez v. Moss, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV065000664S (Gallagher, J., May 31, 2007). The court in Hernandez noted that "the letter need not be a template for the complaint." The court in Hernandez further stated: ". . . the statute does not require the opinion to name each actor of the corporate defendant. Neither does it require the author of the opinion, a similar medical care provider, to express opinions concerning vicarious liability. The doctrine of respondeat superior is a legal construct pursuant to which a defendant could be held liable for the negligent acts of its employee . . ." (Citation omitted.) Second, what in essence Lang PC is asking the court to do is dismiss this case as to it where some, but not all, the allegations of the complaint against it are supported by the opinion submitted pursuant to General Statutes § 52-190a(a). This the court cannot do. Although the statutory language indicates that the absence of the opinion required by subsection (a) may be grounds for dismissal of the action, "[w]hen a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged . . . In ruling on 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, and construe them in a manner most favorable to the pleader . . . If a court has jurisdiction to grant any one of the claims for relief set out in a plaintiff's complaint, the action should not be dismissed for lack of jurisdiction." Montanaro v. Aspetuck Land Trust, 103 Conn.App. 237, 242 (2007). Since the court has determined that the opinion submitted, as well as the allegations of the complaint, support a claim against Lang PC, dismissal of the action as to it is inappropriate. The fact that not all the allegations of the complaint against Lang PC may be supported by the opinion letter does not deprive the court of jurisdiction. "[T]rial courts have held that [t]here is no requirement in the statute that the opinion address each and every allegation of medical negligence contained in a plaintiff's complaint . . . Because the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint . . . The requirement that the 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." (Internal quotation marks and citations omitted.) Maitan v. Access Ambulance Co., Superior Court Judicial District of Stamford-Norwalk at Stamford, Docket No. FST CV 07 5003252 S (Nadeau, J., Oct. 18, 2007) [44 Conn. L. Rptr. 436].
Therefore, for the reasons stated above, the Motion to Dismiss is denied.
The court notes that it recently reached a similar conclusion in Guido v. Hughes, Superior Court, judicial district of Waterbury at Waterbury, Docket NO. X10 UWY CV 06-5004889 S (Oct. 17, 2007) [44 Conn. L. Rptr. 347].