Opinion
No. CV-10-6014681S
August 25, 2011
RULING ON DEFENDANTS' MOTION TO DISMISS (# 101)
By way of a complaint dated September 16, 2010, the plaintiff Minnie Anderson (Anderson) brought this action against the defendants Hospital of Saint Raphael "(HSR" or "the hospital") and the Sister Anne Virginie Grimes Health Center (Grimes) alleging professional negligence (counts one and three) and negligent infliction of emotional distress (counts two and four). A certificate of good faith and a redacted opinion letter were attached to the complaint. On October 21, 2010, an appearance was filed on behalf of the defendants and on November 18, 2010, the defendants timely filed a motion to dismiss the complaint (#101) on the ground that the written opinion letter failed to comply with General Statutes § 52-190a(a), specifically in failing to "provide any information or description of the author's qualifications to render an opinion in this matter as a `similar health care provider' [and being] insufficiently detailed as to why there appears to be evidence of medical negligence." (Defendants' Memorandum of Law in Suppport of Motion to Dismiss, p. 1). On December 22, 2010, Anderson filed a memorandum in opposition to the motion to dismiss.
"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." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citation omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 11, 12 A.3d 865 (2011).
In her complaint, Anderson alleges the following facts which are common to all four counts. For a number of years, Anderson had gastrointestinal difficulties for which she had been treated. ¶ 4. On May 18, 2009 she was brought to the hospital by ambulance for severe abdominal pain and was admitted. ¶¶ 4, 5. After three or four days, she awakened in the intensive care unit where she was restrained to the bed and was feeling "very disoriented." ¶ 5. A "nurse on the ward . . . indicated to plaintiff's daughter" that Anderson had been "over-medicated." Id. Medical notes from unspecified dates indicated that Anderson "was receiving high doses of Demerol at home and . . . may have been withdrawing when she was admitted to Saint Raphael's." ¶ 12. A record dated May 21, 2009 indicated that Anderson "had a change in mental state believed to be caused by a drug overdose." ¶ 13. The hospital treated Anderson with two "powerful drugs, Dilaudid and Demerol." Id. Her medical chart contained an incorrect statement that she was schizophrenic despite a psychiatric assessment that did not contain a diagnosis. Id., ¶ 14. Anderson was diagnosed with an acute kidney injury on June 17, 2009, ¶ 11.
The HSR staff transferred Anderson to Grimes on an unspecified date because her legs were weak, she had difficulty walking and was wheelchair-bound. ¶ 6. On June 24, 2009 at 1:30 a.m., while she was still a patient at Grimes, Anderson asked for a nurse to assist her to the bathroom but she fell on her buttocks while attempting to hold on to an IV pole for support. ¶ 7. The staff at Grimes used a Hoyer lift to get Anderson back to bed. Id. During a therapy session the next day, Anderson was unable to move her legs and she was "rushed back to her room." ¶ 8. At that time, her daughter insisted that Anderson be transferred to Yale-New Haven Hospital where she underwent spinal surgery which revealed a compression fracture to her spine that the plaintiff alleges resulted from the fall at Grimes. ¶¶ 8, 10. Anderson was then sent to Gaylord Rehabilitation where she remained from July through October 2009 from which she transferred to another facility where she remains. Id., ¶ 10.
In the first count of her complaint, Anderson alleges that HSR, through the conduct of its "agents, servants and/or employees" acted in a manner that constituted "a breach of the standard of care" by failing to provider proper follow-up care, failing to properly diagnose her condition and instead continuing to "excessively medicate her" and in failing to "investigate the reason for [her] inability to walk." Count One, ¶ 19 a.-c. In the third count, Anderson alleges that Grimes likewise breached the standard of care in the same three ways, id., Count Three, ¶ 20 a., c., d., as well as in failing "to provide a bedpan for plaintiff's use . . ." Id., ¶ 20b. In counts two and four, Anderson alleges that the same conduct which forms the basis of her professional negligence claims against the defendants also resulted in the negligent infliction of emotional distress.
Count One, ¶ 19 alleges as follows:
The conduct of Saint Raphael's, through the aforesaid improper acts and/or inactions of its agents, servants and/or employees, clearly constituted a breach of the standard of care owed to the plaintiff and, therefore, amounted to negligence in one, some or all of the following ways:
a. Its agents failed to properly follow-up with the care being administered to the plaintiff although they were put on notice that was imminently necessary as it was clearly documented on June 19, 2009 that plaintiff does not use her call bell;
b. Its agents failed to utilize the necessary professional skill, competence and training sufficient to properly diagnose what was wrong with the patient and instead simply continued to excessively medicate her; and
c. Its agents completely failed to reasonably and prudently investigate the reason for plaintiff's inability to walk.
Count Three, ¶ 20 alleges as follows:
The co-defendant's conduct, through its agents, servants and/or employees, and through the aforedescribed improper acts and/or inactions constituted a breach of the standard of care owed to the plaintiff and, therefore, amounted to negligence in one, some or all of the following ways:
a. Its agents failed to properly follow-up with the care being administered to the plaintiff although they were put on notice that was imminently necessary as it was clearly documented on June 19, 2009 that plaintiff does not use her call bell;
b. Its agents failed to provide a bedpan for plaintiff's use which would have prevented her from falling when attempting to go to the bathroom in the middle of the night.
c. Its agents failed to utilize the necessary professional skill, competence and training sufficient to properly diagnose what was wrong with the patient and instead simply continued to excessively medicate her; and
d. Its agents completely failed to reasonably and prudently investigate the reason for plaintiff's inability to walk.
I.
At oral argument, the court asked the defendants to address the applicability of Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011), to the second and fourth counts alleging negligent infliction of emotional distress. In Shortell, an informed consent action, the Supreme Court held "that if an expert is not required to establish the medical standard of care, an opinion letter is not required under [General Statutes] § 52-190a." Id., 393. In light of Shortell, the court must address the threshold question of whether Anderson's claims of negligent infliction of emotional distress against the defendants is premised on their breach of a medical standard of care or an ordinary standard of care.
Controlling law provides a three-part test to determine whether a cause of action, however labeled by a plaintiff, is one sounding in medical negligence. Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001), sets forth the test: "the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." See Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002); Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
The first prong of the test is satisfied because the defendants are being sued in their capacity as health care providers and medical professionals. The second and third prongs are interrelated in that they focus on whether the specific allegations of negligence are of "a specialized medical nature" which are substantially related to treatment and involve the exercise of medical judgment. Here, Anderson relies on all of her factual allegations regarding the defendants' care and treatment of her, or lack thereof, as the "conduct [which] involved an unreasonable risk of causing emotional distress." Counts two and four, ¶¶ 1-19. Her specific allegations of negligence against the defendants include failing to diagnose, provide proper follow-up care and investigate her medical condition, as well as a claim of over-medication, all of which involve the exercise of medical judgment related to her diagnosis and treatment. As a result, expert testimony regarding the breach of the standard of care is just as essential to the second and fourth counts as it is to the first and third counts and § 52-190a applies to the entire complaint. Shortell v. Cavanagh, supra, 300 Conn. 393.
II.
General Statutes § 52-190a(a) required Anderson to attach to her complaint "a written and signed opinion of a similar health care provider, as defined in Section 184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." See Morgan v. Hartford Hospital, 301 Conn. 388, 402 (2011). "The purpose of [§ 52-190a(a)] is to discourage frivolous lawsuits against health care providers . . . One of the mechanisms introduced in the amendments to the statute of 2005 was the written opinion requirement. The ultimate purpose of this requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care . . . The person rendering this opinion is not required by § 52-190a(a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff." (Citation omitted; emphasis supplied.) Wilcox v. Schwartz, 119 Conn.App. 808, 816, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).
Anderson concedes that General Statutes § 52-184c(b) provides the controlling definition of a similar health care provider against which the court must test the qualifications of the author of the opinion letter. "Given the legislature's specific articulations of who is a similar health care provider under § 52-184c(b)," Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 15, the definitional terms in the statute are significant and cannot be modified or expanded. Id., 16. A "similar health care provider" under § 52-184c(b) must meet two distinct requirements: (1) licensure in "this state or another state requiring the same or greater qualifications" and (2) training and experience "in the same discipline or school of practice [as the defendant health care provider] . . . as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." See note 3 supra. Section 52-190a "establishes objective criteria, not subject to the exercise of discretion, making the prelitigation requirements more definitive and uniform, and, therefore, not as dependent on an attorney or self-represented party's subjective assessment of an expert's opinion and qualifications. (Internal quotation mark omitted.) Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 21.
General Statutes § 52-184c(b) provides: "If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a `similar health care provider' is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
As a number of Superior Court opinions have concluded, there is no explicit language in § 52-190a(a) that mandates inclusion of the author's credentials within the opinion letter. See, e.g., Crowell v. Pito, Superior Court, judicial district of New Britain, Docket No. 08-5008149 (January 7, 2009, Pittman, J.) [ 46 Conn. L. Rptr. 876]; Pitcher v. Armm, Superior Court, judicial district of Fairfield, Docket No. 07-5011425 (May 5, 2008, Hiller, J.); Rodriguez v. Norniella, Superior Court, judicial district of New Haven, Docket No. 06-5001779 (June 1, 2007, Robinson, J.) [ 46 Conn. L. Rptr. 40]. However, the court cannot fulfill its obligation to determine that the letter was authored by a "similar health care provider" without that information.
Turning to the letter filed in this case, in its body the author uses the initials "RN" and in its signature line the author specifies the following credentials: "BSN, RNC, MA, CLNC." From this, it may be inferred that the author is a registered nurse with a bachelor's degree in nursing. Beyond this inference, there is nothing in the opinion letter from which the court can determine the author's qualifications. See Bell v. Hospital of St. Raphael, judicial district of New Haven, Docket No. 09-5032167 (May 25, 2010, Lager, J.) and cases cited therein. For example, the letter does not state whether or where the author is licensed. The letter does not set forth the author's training or experience in the practice of nursing care in fields relevant to the opinion rendered regarding the breach of the standard of care by nurses practicing in an acute care hospital and a skilled nursing facility nor does it state the author's training and experience in the practice of nursing generally. The letter does not indicate that the author had been actively involved "in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim," General Statutes § 52-184c(b)(2), that is, from at least May 2004 through May 2009.
"In the opinion letter appended to the complaint, the initials "BSN, RNC, MA, CLNC" were redacted. Following oral argument, the plaintiff filed a copy of the last page of the letter with the redactions removed.
In an effort to remedy these defects, counsel filed an affidavit on July 29, 2011, appended to the plaintiff's response to the defendants' court-ordered supplemental submission, detailing the credentials of the author of the opinion letter. Although the court cannot fathom why counsel did not file this affidavit along with the original objection to the motion to dismiss as permitted by Practice Book § 10-31(b), it contains relevant facts not apparent on the record and the court will exercise its discretion to consider it. See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 8, n. 8, quoting Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 540, n. 4, 979 A.2d 1066 (2009).
The affidavit indicates that the author of the opinion letter is licensed in New York. The court has compared the licensure requirements of Connecticut and New York and concludes they are substantially the same. General Statutes § 20-93; New York Consolidated Laws, chap. 16, § 6506. Both states require a degree or diploma in professional nursing and satisfactory completion of an examination. Both states, by regulation, specify the nature of the requisite degree program. Regulations of Connecticut Agencies, § 20-90-52; 8 New York Code, Rules and Regulations § 64.1. Both states similarly define the practice of nursing by a registered nurse. General Statutes § 20-87a(a); New York Consolidated Laws, chap. 16, § 6502. Thus, the court concludes that the author of the opinion letter meets the requirements of § 52-184c(b)(1).
The affidavit also provides relevant information about the author's training and experience. Specifically, it indicates that she has worked as a "Senior Staff R.N. at New York Presbyterian, Weil [sic] Cornell Medical Center" since 2000 and before that she worked as a staff R.N. at another hospital. In both positions, her work included quality care and patient satisfaction, and in her present position she "is required to assign admissions, as well as assess potential discharges." The affidavit further indicates that the author presently "is an adjunct Clinical Instructor — Teaching Fundamentals, Critical Care and Senior Leadership of nursing students at New York University in Emergency Room, Long-Term Care and Acute Care Facilities" and that she has a master's degree in nursing education in addition to her bachelor's degree in nursing. These facts allow the court to conclude that the author of the opinion letter meets the requirements of § 52-184c(b)(2).
In their sur-reply brief dated August 2, 2011, pp. 4-5, the defendants maintain that there is insufficient information for the court to determine that the training and experience of the author of the opinion letter suffices to provide a basis for opining about the standard of care of a skilled nursing facility like Grimes. Connecticut relies on the federal definition of a skilled nursing facility found in 42 U.S.C. 1395i-3(a). Under federal law, a skilled nursing facility must provide "the services of a registered professional nurse at least 8 consecutive hours a day, 7 days a week." 42 U.S.C. 1395i-3(b)(C)(i). Thus, a registered nurse can opine on the standard of nursing care for a skilled nursing facility.
The scope of practice of a registered nurse includes "the process of diagnosing human responses to actual or potential health problems . . . collaborating in the implementation of the total health care regimen, and executing the medical regimen under the direction of a licensed physician . . . or advanced practice registered nurse." General Statutes § 20-87a(a). These practice areas subsume some of the areas of negligence alleged in the complaint. The first ground of the motion to dismiss fails because the author of the opinion letter is a similar health care provider within the meaning of General Statutes § 52-184c(b).
III.
The defendants also moved to dismiss on the ground that the opinion letter does not contain sufficient detail to satisfy the requirements of § 52-190a(a). The "ultimate purpose" of providing an opinion letter "is to demonstrate the existence of the claimant's good faith . . ." Wilcox v. Schwartz, supra, 119 Conn.App. 816. An opinion letter must be sufficiently detailed "to notify the reader that a similar health care provider is of the opinion" that there is evidence of medical negligence, that is, evidence of the breach of the applicable standard of care. Id., 815. The opinion letter need not be exhaustive as long as it "sufficiently addresses the allegations of negligence pleaded in the complaint." Id., 816.
The defendants maintain the opinion letter does not meet the standard set forth in Wilcox because it is entirely conclusively and devoid of any specific details as to which defendant or defendant's agent breached an applicable standard of care or the manner of the breach. The defendants suggest that while the letter may be advisory, raising questions to be explored or investigated, it fails to provide sufficient notice of medical negligence, that is, it fails to provide sufficient notice that these defendants did not provide "that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." General Statutes § 52-184c(a).
In Wilcox, the appellate court looked at "the structure" of the opinion letter and concluded that "it revealed the author's statement of the prevailing standard of care," in that case "protecting the biliary structures during laparoscopic gallbladder surgery." Id., 815. The complaint specifically alleged that the defendant surgeon breached the standard of care in that regard. Id., 811. The court concluded that the opinion letter was sufficiently detailed "to notify the reader that a similar health care provider is of the opinion that the medical negligence consisted of a failure to protect Wilcox's bile ducts from injury during surgery." Id., 815-16.
Anderson argues that the court also should look at "the structure" of the opinion letter to infer a statement of the prevailing standard of care in the absence of any specific statement in the opinion letter regarding the prevailing standard of care in 2009. In addressing this issue, the court will not focus on whether there may be different standards of care that apply to the two distinct institutional defendants in this case, an acute care hospital and a skilled nursing facility, but rather will limit its consideration to statements in the letter from which a breach of a nursing standard of care could be inferred. See Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 151, 801 A.2d 775 (2002). The court will not consider statements in the opinion letter pertaining to over-medication and renal failure which are beyond the scope of the practice of a registered nurse. See General Statutes § 20-87a(a).
The absence of any statement in the letter that the author is familiar with the prevailing standard of nursing care for the treatment of a patient similarly situated to Anderson in 2009 is troubling. If that were the letter's sole defect, it might not be fatal. But there is simply nothing in the letter which apprises the defendants of the exact nature of their alleged nursing malpractice. The letter is replete with generalizations; it is disjointed, confusing and conclusory. For example, in the section of the letter captioned "Deviation from the standard of care by nursing and medical team" the author states "I do believe as an RN, pt. was not closely monitored for fall injury and medical condition deteriorated." With respect to the fall on June 24, 2009, the author writes: "This fall could have been prevented had the RN got some more help, maybe providing a bedpan instead." In the section of the letter captioned "Bottom line opinion-" the author states "the nurses as well as the medical doctors failed to provide the adequate and follow up care much needed for Ms. Anderson."
"[M]alpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . ." (Internal quotation marks omitted, citation omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). In amending § 52-190a in 2005, see P.A. 05-275, the legislature sought to allay legitimate concerns on the part of health care providers that the pre-suit opinion underlying counsel's good faith certificate may be misinterpreted or misunderstood by plaintiff's counsel resulting in the filing of "questionable or meritless cases." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 20 (quoting the testimony of Attorney Michael D. Neubert, representing the Connecticut Medical Society, before the judiciary committee). The requirement that a plaintiff provide a written opinion letter that "includes a detailed basis for the formation of such opinion" permits some determination, on the part of the defendant health care provider, that there is a prima facie claim of negligence. The opinion letter in this case does not permit that determination. Accordingly, the court concludes that the opinion letter does not satisfy the requirement of § 52-190a(a) to provide a "detailed basis for the formation" of the author's opinion that there is evidence of medical negligence.
"[T]he legislative history of § 52-190a(c) indicates that the legislature adopted that section to make clear that dismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)." Id., 300 Conn. 28. Having concluded that the opinion letter is insufficiently detailed, the motion to dismiss is granted.