Opinion
DBDCV186025335S
03-06-2019
Kristian BEST, Administratrix of the Estate of Rohan K. Williams v. CCWC PROFESSIONAL PRACTICE GROUP, LLC dba Connecticut Childbirth and Women’s Center
UNPUBLISHED OPINION
OPINION
Kowalski, J.
The issue presented is whether the claims and allegations against Erin Zaffis, a registered nurse and an agent of the defendant in this medical malpractice action, should be dismissed because the plaintiffs did not furnish an adequate opinion letter from a similar health care provider as required by General Statutes § 52-190a. Because the opinion letter is sufficient as to the certified nurse-midwife, another of the agents of the defendant alleged to have been involved the same procedure or course of treatment, it is sufficient as to all of the agents involved the same procedure or course of treatment, including Zaffis. Therefore, the motion to dismiss is denied.
I. BACKGROUND
This medical malpractice action arises out of the death of infant, Rohan K. Williams (decedent), who died on July 16, 2017. On February 13, 2018, the plaintiff, Kristian Best (Best), in both her individual capacity and as administratrix of the decedent’s estate, brought this action against the defendant, CCWC Professional Practice Group LLC d/b/a Connecticut Childbirth and Women’s Center. The plaintiffs’ complaint alleges that the medical malpractice action arises out of the negligence by the defendant in the care and treatment rendered to the decedent and Best. In addition to the complaint, the plaintiffs attached an opinion letter authored by a health care provider, who is board certified as a certified nurse-midwife by the American College of Nurse-Midwives.
On April 2, 2018, the defendant filed a motion to dismiss any allegations and claims directed toward the care provided by Erin Zaffis, a registered nurse, as alleged within the plaintiffs’ complaint claiming lack of personal jurisdiction. Specifically, the defendant contends that the plaintiffs did not provide an opinion letter from a similar health care provider and, therefore, any claims or allegations directly toward Zaffis must be dismissed. On June 1, 2018, the plaintiffs filed an objection to the defendant’s motion to dismiss on the ground that Connecticut courts have routinely found that a proper physician’s opinion letter against at least one alleged agent, servant, and/or employee of an institutional health care provider is sufficient to satisfy the threshold requirement of General Statutes § 52-190a. On September 18, 2018, the defendant filed a reply. The court heard the parties’ arguments at short calendar on November 26, 2018.
II. DISCUSSION
Practice Book § 10-30(a) provides: "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." "[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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"[A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and ... dismissal of a letter that does not comply with § 52-190a(c) is mandatory ..." (Citations omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). "[A]n action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 12 A.3d 865 (2011).
As a preliminary matter, the court notes that the defendant is seeking dismissal of "any allegations and claims directed towards" Zaffis. In Dinkel v. Western Connecticut Health Network, Inc., the court cited to several Superior Court decisions supporting its conclusion that the court did not have the authority to dismiss only part of the plaintiff’s vicarious liability actions under General Statutes § 52-190a. Dinkel v. Western Connecticut Health Network, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-15-6025924-S (March 18, 2016, Lee, J.) ("[a]s a threshold issue, the court does not have the authority to dismiss only part of an action pursuant to § 52-190a"). This court agrees with Dinkel and the cases cited therein that this court does not have the authority to dismiss parts of counts under § 52-190a. Nevertheless, the court will consider the substance of the defendant’s motion to dismiss.
In its motion to dismiss, the defendant argues that the plaintiffs have failed to attach a written opinion authored by a similar health care provider regarding the allegations directed toward Zaffis. The defendant argues further that, even if the nurse-midwife was deemed to be a similar health care provider, the author of the opinion letter does not set forth any allegations of negligence regarding the care provided by Zaffis. The plaintiffs argue, in contrast, that the opinion letter appropriately serves the legislative purpose of § 52-190a by ensuring that the plaintiffs have made a reasonable inquiry into their claims and that there is merit to the case. The plaintiffs also argue that it is well established that, in a situation involving an institutional health care provider, a valid § 52-190a letter against at least one alleged agent, servant, and/or employee is sufficient to maintain an action against the defendant.
"Section 52-190a does not define similar health care provider, but the text explicitly refers to the definition in § 52-184c. We must, therefore, read § 52-190a together with § 52-184c, which defines similar health care provider ... Read in conjunction with one another, § § 52-190a and 52-184c provide a plain and unambiguous definition of similar health care provider." (Footnote omitted; internal quotation marks omitted.) Lucisano v. Bisson, 132 Conn.App. 459, 465, 34 A.3d 983 (2011).
Section 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." (Internal quotation marks omitted.)
Section 52-184c(c) provides: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a similar health care provider is one who: (1) is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a similar health care provider." (Internal quotation marks omitted.)
"Our precedent indicates that under § 52-184c(c), it is not enough that an authoring health care provider has familiarity with or knowledge of the relevant standard of care ... [a] similar health care provider must be trained and experienced in the same specialty and certified by the appropriate American board in the same specialty ... A similar health care provider does not have to be certified by the same board as the defendant health care provider, but rather [must be board certified in] the same specialty ... [A] medical professional who is board certified in the same specialty but has greater training and experience, satisfies the purpose of the requirement of the opinion letter." (Internal quotation marks omitted.) Gonzales v. Langdon, 161 Conn.App. 497, 505-06, 128 A.3d 562 (2015).
"In situations where an institution is being sued for the medical malpractice of its employee, agent or servant, the plaintiff must provide a written opinion letter of a similar health care provider under the statute [General Statutes § 52-190a] to the individual employee, agent or servant in order to pursue the institution vicariously ... When the written opinion is not sufficient under § 52-190a as to those individual employees for whom the institutional defendant would be vicariously liable, then the written opinion is not sufficient against the institutional defendant." (Citation omitted.) Bavedas v. Middlesex Health System, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6009536-S (March 20, 2013, Hiller, J.) .
"[W]hen a medical malpractice action is brought against an institution, the malpractice necessarily is committed by the institution’s officers, employees or agents. Accordingly, the defendant health care provider for purposes of § 52-184c is the person who allegedly committed the medical malpractice, not the person or institution that ultimately may be held liable for that malpractice." Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 722, 104 A.3d 671 (2014).
Presently, there is a split of authority on what satisfies the requirements of § 52-190a. The great majority of Superior Court decisions have held that an opinion letter that satisfies the requirements of § 52-190a as to at least one agent of a medical institution is sufficient to support a complaint against all agents who potentially acted on behalf of an institution with respect to the alleged malpractice. See, e.g., Carlson v. Countryside Manor Healthcare Facility, Inc., Superior Court, judicial district of New Britain, Docket No. CV-17-6039750-S (May 15, 2018, Swienton, J.); Dinkel v. Western Connecticut Health Network, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-15-6025924-S (March 18, 2016, Lee, J.) (62 Conn.L.Rptr. 2); deWeaver v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6019495-S (November 25, 2014, Adams, J.T.R.) (59 Conn.L.Rptr. 441); Isbell v. Lawrence & Memorial Hospital, Inc., Superior Court, judicial district of New London, Docket No. CV-13-6017593-S (October 22, 2014, Cole-Chu, J.); Martin v. Keggi, Superior Court, judicial district of Waterbury, Docket No. CV-12-6013037-S (March 5, 2013, Roche, J.); Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV-09-5014599-S (September 27, 2010, Swienton, J.) ; Cataldo v. Zuccala, Superior Court, judicial district of Danbury, Docket No. CV-08-5004961-S (August 11, 2009, Shaban, J.); Tutillo v. Day Kimball Hospital, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-06-5009722-S (November 26, 2007, Langenbach, J.) (44 Conn.L.Rptr. 570).
On the other hand, one Superior Court decision has reached a contrary conclusion, holding that "in order to support a claim of malpractice against the Hospital the plaintiff must have attached to their complaint opinion letters as to its agents or employees the plaintiff is seeking to have the Hospital held vicariously liable for or an opinion regarding the Hospital’s actions as an institution." Jansone v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV-12-6030589-S (October 25, 2012, Scholl, J.) .
This court agrees with the line of Superior Court cases holding that an opinion letter that is sufficient to satisfy § 52-190a as to one agent is sufficient as to any defendant whose malpractice is alleged to have involved the same procedure or course of treatment. See Durocher v. Backus Corp., Superior Court, judicial district of New London, Docket No. CV-18-6032912-S (September 6, 2018, Calmar, J.) (67 Conn.L.Rptr. 68); Capasso v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV-14-6049445-S (February 4, 2015, Nazzaro, J.); deWeaver v. Greenwich Hospital, Superior Court, supra, Docket No. CV-13-6019495-S.
In the present case, the plaintiffs’ complaint alleges that the medical malpractice arose out of the treatment of the decedent and Best during the labor and delivery care. The plaintiff alleges that a certified nurse-midwife, a student nurse, and a registered nurse, Zaffis, engaged in the same course of treatment during the labor and delivery care of the decedent and Best. Based on the allegations in the complaint, the defendant health care providers for purposes of § 52-184c are, but are not limited to, the defendant’s nurse-midwife, the defendant’s student nurse, and Zaffis as they were identified by the plaintiffs as allegedly committing the medical malpractice. Therefore, an opinion letter that is sufficient to satisfy § 52-190a(a) as to either the defendant’s nurse-midwife, the defendant’s student nurse, or Zaffis is sufficient as to any defendant whose malpractice is alleged to have involved the same procedure or course of treatment during the labor and delivery care of the decedent and Best.
"[A] written opinion satisfies the detailed basis requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider’s opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider’s opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider’s conclusion concerning the breach of the standard of care." (Internal quotation marks omitted.) Wilcox v. Schwartz, 303 Conn. 630, 643, 37 A.3d 133 (2012).
In its complaint, the plaintiffs attached a written opinion letter authored by a certified nurse-midwife. Therefore, in order to satisfy § 52-190a(a), the opinion letter must be sufficient as to the defendant’s certified nurse-midwife in accordance with § 52-184c(c).
The written opinion letter provides that the author is board certified by the American College of Nurse-Midwives and has been a part of the clinical faculty of a university school of nursing. The written opinion also provides that the author has forty-four years of nursing experience and thirty-one years of labor and delivery experience. The opinion letter states that the author’s practice as a certified midwife includes proficiency in labor and delivery care by nurses and nurse-midwives. Further, the opinion letter states that the author is familiar with the standard of care that existed in 2017 for nurses specializing in midwifery practice that includes the standard of care for treating mothers during their labor period. The author goes on to state that she reviewed the autopsy report and medical records of the decedent in addition to the medical reports of Best. The author also states that "[b]ased upon the above and my training, knowledge, and experience, it is my opinion that the defendant, Connecticut Childbirth and Women’s Center, through its nurse-midwives and student nurse-midwives, departed from the standard of care in their care and treatment of infant-plaintiff decedent’s mother, Kristian Best." Lastly, the author describes the said departures from the standard of care via, inter alia, the failure of the nurse-midwives and student nurse-midwives in properly monitoring the decedent and Best’s heart rate during the labor period.
The level of detail provided in the plaintiffs’ written opinion is sufficient to satisfy the requirement of § 52-190a(a) because the letter provides the basis for the author’s knowledge of the standard of care, the fact that the standard of care was breached through the defendant’s nurse-midwives and student nurse-midwives, and the factual basis for the author’s conclusion that the failure of the defendant’s nurse-midwives and student nurse-midwives to properly monitor the decedent and Best’s heart rate during the labor period, inter alia, constituted a departure of the applicable standard of care. See Wilcox v. Schwartz, supra, 303 Conn. 643. Therefore, it is clear that the author is a similar health care provider to the defendant’s certified nurse-midwife.
The plaintiffs’ allegations against the defendant stem from the same course of treatment or procedure, which is the labor and delivery care of the decedent and Best. The plaintiffs allege that the malpractice of the certified nurse-midwife, student nurse, and Zaffis were alleged to have involved the same course of treatment during the labor and delivery care. Because the plaintiffs’ letter is sufficient as to the certified nurse-midwife, it is sufficient as to all of the defendants involved in the same procedure or course of treatment, which includes Zaffis. Therefore, the defendant’s motion to dismiss any allegations and claims directed toward the care provided by Erin Zaffis, as alleged within the plaintiffs’ complaint is denied.
III. CONCLUSION
The plaintiffs have complied with the statutory requirements set forth in § 52-190a(a). The defendant’s motion to dismiss (# 107.00) is, therefore, denied.