Opinion
No. CV 08-5004961 S
August 11, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #104
I FACTS PROCEDURAL HISTORY
On June 9, 2008, the plaintiff, Anthony Cataldo, individually and as executor of the estate of Lisa Ann Cataldo, brought an action against the defendants, Keith A. Zuccala, M.D. (Zuccala), Danbury Hospital, Danbury Health Systems, Inc. and Danbury Office of Physician Services, P.C., alleging wrongful death as a result of medical malpractice and loss of consortium. Attached to the plaintiff's complaint are numerous documents, including a written opinion letter of a similar healthcare provider marked Exhibit F. The plaintiff alleges that the decedent's death occurred because of complications from an elective gastric bypass surgery performed by Zuccala, a general surgeon. The plaintiff further alleges that individually, and as an apparent agent, servant, employee and/or director of Danbury Hospital, Danbury Health Systems, Inc. and Danbury Office of Physician Services, P.C., Zuccala was negligent and careless in both electing to perform the surgery and failing to properly care for the decedent during her subsequent hospitalization in December of 2004. Specifically, the plaintiff alleges that Zuccala engaged in a continuous course of treatment of the decedent that began on or about June 22, 2004, prior to performing the bypass surgery on September 17, 2004. The decedent was discharged from Danbury Hospital on September 20, 2004, but returned to the hospital emergency room on September 27, 2004, complaining of abdominal pain and a fever. She was subsequently released after undergoing blood work. On December 15, 2004, the decedent contacted Zuccala's office complaining of various ailments, at which time Zuccala instructed her to go to the emergency room. After several tests, the decedent was admitted to Danbury Hospital that evening. As the decedent's condition worsened, Zuccala performed an exploratory laparotomy the next day to repair a perforated bowel. Despite the treatment provided, the decendent's condition continued to deteriorate and she died on December 25, 2004 from sepsis due to the perforated bowel.
The plaintiff filed a four-count complaint. In counts one and three, the plaintiff, as executor of the decedent's estate, alleges wrongful death due to the negligence and/or carelessness of Zuccala (count one) and Danbury Hospital, Danbury Health Systems, Inc. and Danbury Office of Physician Services, P.C. (count three). In counts two and four, the plaintiff, individually, alleges loss of consortium as against Zuccala (count two) and Danbury Hospital, Danbury Health Systems, Inc. and Danbury Office of Physicians Services, P.C. (count four). The plaintiff seeks monetary damages, court costs and such other relief as the court may deem appropriate.
On October 1, 2008, the defendants filed a motion to dismiss the complaint on three separate grounds: (1) the court lacks subject matter jurisdiction because General Statutes § 52-592, the accidental failure of suit statute, cannot save the original complaint that the court previously dismissed on the merits; (2) the applicable statute of limitations expired as to any claim that Zuccala negligently performed the September 17, 2004 gastric bypass surgery; and (3) the allegations of the complaint are not supported by the contents of the opinion letter, as required by General Statutes § 52-190a. The plaintiff filed a memorandum in opposition to the motion dated October 24, 2008, in which he argued: (1) the accidental failure of suit statute saves the original complaint because the court dismissed the prior case on jurisdictional grounds; (2) the cause of action is timely because Zuccala continuously treated the decedent from June 22, 2004, until her death on December 25, 2004; and (3) the attached opinion letter satisfies the requirements of § 52-190a. The defendants filed a reply memorandum on February 10, 2009. The matter was heard at short calendar on February 17, 2009. Thereafter, the court ordered further oral argument from the parties in light of the recent Appellate Court decision, Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911 (2009). That argument was held on July 20, 2009.
The plaintiff's prior cause of action against the above named defendants was dismissed for the plaintiff's failure to comply with § 52-190a, which requires that a written opinion letter by a similar health care professional be attached to the complaint at the time it is filed with the court. Cataldo v. Zuccala, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 06 5004649 (September 27, 2007, Eveleigh, J.) ( 44 Conn. L. Rptr. 300) ( Cataldo I). The original cause of action was commenced on or about November 6, 2006, and included as additional defendants: David Oleberg, M.D., Eric Jimenez, M.D. and Danbury Radiological Associates, P.C. Id. The plaintiff withdrew its claims against the Danbury Radiological Associates, P.C. on September 19, 2007. The matter was dismissed on September 27, 2007, and the plaintiff's former counsel filed a Notice of Appeal on October 15, 2007. (Complaint, Exhibit C.) The plaintiff withdrew the appeal on April 25, 2008. (Complaint, Exhibit D.)
Although this court did not order supplemental briefs in advance of the reargument on July 20, 2009, both parties submitted such briefs. In the plaintiff's brief, the plaintiff asserted for the first time that a motion to dismiss is not the proper vehicle by which to attack the applicability of the accidental failure of suit statute, General Statutes § 52-592. Our Appellate Court has stated that "although a motion to dismiss may not be the appropriate procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a court properly may consider a motion to dismiss in such circumstance when the plaintiff does not object to the use of the motion to dismiss . . ." (Citation omitted.) Labow v. Labow, 85 Conn.App. 746, 858 Conn. 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005) (finding the plaintiff's failure to object in a timely manner to constitute waiver of a challenge to the use of a motion to dismiss). In the present case, the plaintiff similarly failed to object to the defendants' use of a motion to dismiss as to this issue in a timely fashion.
II DISCUSSION
"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). "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 . . ." (Citation omitted; internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
Generally, a ruling on a motion to dismiss pertains to jurisdiction and is not a ruling on the merits of the action. Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999). In the recent Appellate Court decision, Votre v. County Obstetrics Gynecology Group, P.C., however, the court explained that "motions to dismiss are not limited to jurisdictional challenges. Rios v. CCMC Corp., supra, 106 Conn.App. 821 n. 8." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 582. "A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear [the plaintiff's] medical malpractice action. However, the legislature has provided that such a failure does render [the plaintiff's] complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Id., 583-84.
A ACCIDENTAL FAILURE OF SUIT GENERAL STATUTES § 52-592
The defendants first argue that the plaintiff's complaint should be dismissed because the dismissal of the original action was on the merits, and, therefore, the plaintiff's claim is barred by the doctrine of res judicata. In response, the plaintiff contends that since the original action was dismissed for want of jurisdiction, it falls within the purview of the accidental failure of suit statute, § 52-592, and, therefore, can be filed again. As noted above in footnote two, Cataldo I was dismissed by the court for the plaintiff's failure to attach a written opinion of an individual who qualified as a similar health care provider.
Section 52-592 states in relevant part: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment . . . (c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited." Thus, if the prior action was dismissed for lack of jurisdiction, as the plaintiff argues, the accidental failure of suit statute allows the plaintiff to refile the action. Conversely, if the prior dismissal was on the merits, as the defendants argue, the plaintiff's refiling is barred by the doctrine of res judicata.
The court first turns to the issue of whether § 52-592 applies to this type of action. In Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000587 (September 1, 2006, Alexander, J.) ( Plante I), Judge Alexander dismissed the wrongful death action without an opinion. The plaintiff then refiled the action, Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001512 (August 23, 2007, Pickard, J.) ( 44 Conn. L. Rptr. 99) ( Plante II). The defendants brought a motion for summary judgment, arguing that there were no genuine issues of material fact, and the defendants were entitled to judgment as a matter of law because: (1) the complaint was barred by the applicable statute of limitations period; and (2) the accidental failure of suit statute was inapplicable, as the prior dismissal was "on the merits." Id., 100. In denying summary judgment, the Plante II court explained that the purpose of a motion to dismiss is to address issues of jurisdiction, not to test the legal sufficiency of the complaint. Id., 101-02. The court stated that "the plaintiffs are pursuing this action after the granting of the defendants' motion to dismiss. The defendants cannot now attempt to garner the benefit of the granting of a motion to strike when that is not the vehicle they chose to use to dispose of the prior action." Id., 102.
To resolve this issue in the present case, the court engaged in a thorough reading of the decision rendered by Judge Eveleigh in Cataldo I. While addressing the plaintiff's failure to attach an opinion letter written by a sufficiently similar health care provider, Judge Eveleigh stated that "[t]he defect is jurisdictional in nature and may not be cured by amendment. The statute is clear that this defect may be grounds for a motion to dismiss." Id. The court further explained that including a "[written] opinion derived from a doctor who is not a similar healthcare provider . . . is effectively the same as no opinion at all for the purposes of conferring statutory jurisdiction upon the court." Id.
In addressing the dismissal of prior actions, whether they be for want of personal, subject matter or statutory jurisdiction, § 52-592(a) refers to matters that have been "dismissed for want of jurisdiction . . . or for any matter of form . . ." Because the prior dismissal was explicitly based on a lack of jurisdiction, it was therefore not a disposition on the merits of the action, and § 52-592 applies to allow this cause of action. This conclusion is so even though Votre states that a dismissal under § 52-190a(c) is not jurisdictional. The court in Cataldo I did not have the benefit of Votre's guidance and its decision to dismiss the matter on jurisdictional grounds was based on proper legal principles that existed as of that time. Therefore, at the time of the re-filing of this action, the plaintiff was justifiably entitled to rely on the articulated basis of the dismissal in Cataldo I for the purpose of invoking § 52-592.
As noted above, Cataldo I was appealed, but that appeal was subsequently withdrawn.
B STATUTE OF LIMITATIONS
The defendants next argue that the plaintiff's complaint should be dismissed for failure to comply with the two-year statute of limitations period contained in General Statutes § 52-584. A statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. An exception to this general rule exists when "a specific time limitation is contained within a statute that creates a right of action that did not exist at common law . . . Under such circumstances, the time limitation is a substantive and jurisdictional prerequisite . . ." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993). The defendants claim that the relevant exception applies in this case because the requirements of § 52-190a were created by statute in derogation of the common law. In response, the plaintiff argues that a right of action for medical malpractice was available at common law, and therefore the exception is inapplicable.
Section 52-190a states, in relevant part: "(a) No civil action . . . 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 . . . 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 . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . To show the existence of such good faith, the claimant or the claimant'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 . . . 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."
Medical malpractice "is not a cause of action unknown to the common law . . . [t]he cause of action . . . [is] not a statutorily created cause of action such as [a] CUTPA claim." (Citation omitted; internal quotation marks omitted.) Doolittle v. Stamford Hospital, Superior Court, judicial district of Stamford, Docket No. CV 06 5001214 (July 5, 2006, Jennings, J.). "Medical negligence existed as a cause of action at common law prior to 1818 and thus became incorporated into the Connecticut Constitution by the adoption of Article first, § 10. Such a claim could be brought under the cause of action then called trespass on the case. Golden v. Johnson Memorial Hospital, Inc., [ 66 Conn.App. 518, 785 A.2d 234 (2001)]." DeLude v. Young, Superior Court, judicial district of Tolland, Docket No. CV 07 5001903 (April 2, 2008, Vacchelli, J.) ( 45 Conn. L. Rptr. 289). "[T]raditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action." LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990); see also Rios v. CCMC Corp., 106 Conn.App. 810, 824, 943 A.2d 544 (2008).
Medical malpractice is a right of action with a long common-law history. DeLude v. Young, supra, 45 Conn. L. Rptr. 289. The threshold requirements implemented by § 52-190a do not confer the right to file a medical malpractice action, but rather establish threshold requirements for filing a viable action. Id. Accordingly, the exception to the general rule that a statute of limitations defense must be specially pleaded does not apply in the present case, and it is therefore procedurally improper for the defendants to raise this defense in a motion to dismiss.
Under § 52-584, any action for injury to person or property caused by negligence, misconduct, or malpractice must be brought "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, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." Id. The defendants argue that any allegations of negligence against Zuccala concerning his performance of the bypass surgery are untimely under the statutory period proscribed under § 52-584. In response, the plaintiff argues that Zuccala engaged in a continuous course of treatment of the decedent from June 22, 2004 until her death on December 25, 2004, thus tolling the statutory period. Because a motion to dismiss is not a proper means by which to challenge the timeliness of this action, the court need not, at this stage of the proceedings, address the issue of whether the continuous treatment doctrine applies in the present case. Accordingly, it declines to determine whether the plaintiff's complaint should be dismissed for failure to comply with the statutory period contained in § 52-584.
Zuccala performed the decedent's bypass surgery on September 17, 2004. The defendants were served in the original action on November 8, 2006.
C FAILURE TO COMPLY WITH § 52-190a
Lastly, the defendants argue that the plaintiff's complaint should be dismissed because the level of detail contained in the written physician's opinion letter attached to the complaint is insufficient to satisfy the requirements of § 52-190a. Specifically, the defendants argue that the court should dismiss any negligence claims in the complaint that are not supported by the language of the opinion letter. In response, the plaintiff argues that the opinion letter sufficiently complies with the requirements of § 52-190a to support the allegations of medical malpractice against all four defendants.
"Section 52-190a(a) requires a plaintiff bringing a personal injury claim sounding in negligence against a health care provider to make `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 . . .' " Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 581. See also Rios v. CCMC Corp., supra, 106 Conn.App. 810. "The plaintiff must attach to her initial pleading both `a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant' and 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 . . .' General Statutes § 52-190a(a)." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 581. "[T]he language and history of § 52-190a(a) indicate that the statute was intended to bar meritless medical malpractice actions." Dias v. Grady, 292 Conn. 350, 359 (2009). "[T]he [2005] amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint. See P.A. 05-275, § 2(c), now codified as General Statutes § 52-190a(c)." Id., 358. Thus, to comply with § 52-190a(a), a plaintiff must: (1) append to the complaint a good faith certificate of the attorney or party initiating the cause of action; and (2) obtain a written opinion letter from a "similar health care provider," as defined in § 52-184c, and attach it to the complaint. Id. See also Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 581; Rios v. CCMC Corp., supra, 106 Conn.App. 817.
"The language of § 52-190a does not specify the amount of detail required," in the opinion letter to satisfy the requirements of the statute. Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341). Other than whether the issue of causation must be recited in the opinion letter, as addressed in Dias v. Grady, supra, 292 Conn. 350, to date there is no appellate authority specifically addressing the level of detail required to render the written opinion letter sufficient under § 52-190a. While there is a split in Superior Court decisions concerning the level of detail necessary, a majority of those decisions have held that the opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence. Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.). Section 52-190a "[n]either explicitly nor implicitly . . . require[s] the letter of opinion accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter of opinion." DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) ( 43 Conn. L. Rptr. 420). Additionally, there is no requirement for separate opinion letters pertaining to each named defendant in the same cause of action. DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 06 5010472 (August 5, 2008, Berger, J.) ( 46 Conn. L. Rptr. 121); see also Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) ( 43 Conn. L. Rptr. 195). Specifically, a number of Superior Court decisions have held that an opinion letter from a doctor is sufficient to cover the liability of a hospital. Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) ( 44 Conn. L. Rptr. 347); see also Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 07 6001269 (November 28, 2007, Bellis, J.) ( 44 Conn. L. Rptr. 595).
COUNTS ONE AND TWO
Counts one and two of the plaintiff's complaint allege wrongful death and loss of consortium, respectively, due to the negligence and carelessness of Zuccala, a board certified surgeon. The opinion letter amended to the complaint includes information describing the qualifications of the author, the relevant standard of care, specific potential instances of malpractice by Zuccala, causation and the basis of his or her opinions. After reciting the details of the decedent's treatment, the author stated, "[i]t is my considered medical opinion that the care provided to Ms. Lisa Ann Cataldo by Dr. Keith Zuccala fell below acceptable standards of practice for the reasons enumerated herein. Further it is my considered medical opinion that said deviations were the direct and proximate cause of Ms. Cataldo's death." (Opinion Letter, Exhibit F to plaintiff's complaint.)
While the opinion letter author does discuss evidence of proximate causation in the present case, the Connecticut Supreme Court has recently held that an opinion letter may be deemed sufficient under the requirements of § 52-190a despite the failure to address proximate causation. Dias v. Grady, supra, 292 Conn. 350. Specifically, the court explained "a requirement that the plaintiff attach a written opinion of a similar health care provider that there appears to be evidence of proximate causation would, in many cases, be an insurmountable obstacle to bringing an action." Id., 359.
The qualifications of the author are set forth in the letter as follows: "I graduated from medical school . . . in May of 1978. I completed my residency in general and peripheral vascular surgery . . . in 1984, where bariatric (obesity) surgery was an integral part of my training. I was in private practice . . . from 1984 to 2005 . . . I am board certified in surgery by the American Board of Surgery. I am a Fellow of the American College of Surgeons and a member of the American Society for Bariatric Surgery. I have performed approximately 3,000 bariatric surgery procedures of various types, including approximately 1250 open gastric bypasses and 1,000 laparoscopic gastric bypasses . . ." (Opinion Letter, p. 1.)
Addressing the standard of care applicable to Zuccala as a general surgeon, the author stated, "[t]he Standard of Care in bariatric surgery requires a fundamental understanding of the ramifications of the altered anatomy of a Roux-en-Y configuration. Specifically, the bypassed stomach created a blind end and a similar blind end can exist where the biliopancreatic limb attaches to the Roux limb. Any obstruction distal to this point will result in dilation of the portions of the anatomy, which cannot vent through the mouth by vomiting. Hence, it is necessary to relieve any such obstruction emergently and prior to perforation of the distal stomach or the blind end of the biliopancreatic limb. Once perforation occurs, SIRS and sepsis rapidly ensue with severe pathophysiologic consequences to the patient and increased likelihood of death." (Opinion Letter, p. 1.)
The author of the opinion letter also addressed specific errors of Dr. Zuccala, stating "[i]n this case, Dr. Zuccala did not recognize the significance of the CT findings on the evening of December 15, 2004 and delayed re-evaluation of the obstruction until the following morning. By that time the abdominal X-rays revealed that perforation had occurred since the CT scan the evening before." (Opinion Letter, p. 1.) As to the issue of causation, the author explains, "this failure to adhere to the Standard of Care was a direct and proximate cause of the perforation of the blind end of the biliopancreatic limb, peritonitis, SIRS, sepsis and death of Ms. Lisa Cataldo." (Opinion Letter, p. 1.) As to his or her opinions, the author explained that they "are stated to a reasonable medical probability and are based on the medical records that I have been provided to date." (Opinion Letter, p. 3.) Reading the motion to dismiss in the light most favorable to the non-pleader, the court finds that the opinion letter attached to the plaintiff's complaint sufficiently complies with the requirements of § 52-190a as to counts one and two alleged against Zuccala individually as it is authored by a similar health care provider as defined in § 52-184c, states that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such an opinion.
COUNTS THREE AND FOUR
Counts three and four of the plaintiff's complaint allege wrongful death and loss of consortium, respectively, due to the negligence and carelessness of defendants Danbury Hospital, Danbury Health Systems, Inc. and Danbury Office of Physician Services, P.C. Specifically, the counts contain both direct allegations of negligence against the non-individual defendants and allegations of vicarious liability against them for the actions of Zuccala as their agent. There is a split in Superior Court authority concerning the treatment of non-individual defendants on a motion to dismiss where the complaint contains allegations of both direct negligence and vicarious liability.
Count three of the plaintiff's complaint alleges wrongful death due to the negligence and/or carelessness of Zuccala as "a servant, agent, apparent agent and/or employee of and acting in furtherance of co-defendants DANBURY HOSPITAL, and DANBURY HEALTH SYSTEMS, INC." Complaint at page 12, paragraph 6. Count three further alleges that Zuccala, "was an employee, agent, apparent agent, servant, partner, director and/or member of and acting in furtherance of defendant DANBURY OFFICE OF PHYSICIANS SERVICES, P.C." Complaint at page 12, paragraph seven. Count four, which alleges loss of consortium as against the three non-individual defendants, incorporates the allegations of count three into count four.
"From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the facts that, under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out the tortuous conduct of his employee when that conduct occurs during the course of the employee's employment. Matthiessen v. Vanech, 266 Conn. 822, 839, [ 836 A.2d 394] (2003)." Guido v. Hughes, supra, 44 Conn. L. Rptr. 347; see also Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 151, 801 A.2d 775 (2002). The majority of Superior Court decisions have held that where the counts sought to be dismissed contain allegations of the principal being vicariously liable for its agent, whether stated expressly or by incorporation of prior counts, if the opinion letter is sufficient as to the agent physician, it is also sufficient to satisfy § 52-190a as to the principal non-individual defendants.
The majority line of cases follows the reasoning in Ranney v. New Britain General Hospital, Superior Court, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.), in determining whether the opinion letter is sufficient as to non-individual defendants under § 52-190a. In Ranney, the plaintiff brought a cause of action alleging medical negligence in the delivery of her child against a number of physicians alleged to be agents, servants and employees of the hospital, the medical center that employed the physicians and the defendant hospital. The hospital moved to dismiss the allegations against it, arguing that the opinion letter, authored by a physician board certified in obstetrics and gynecology, was insufficient to meet the requirements of § 52-190a. The court held that the opinion letter sufficiently satisfied § 52-190a, stating "[t]he statute does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions." Id. The court went on to explain "[t]he fact that the complaint in this case contains more detail about the identity of the hospital's employees or agents than does the written opinion does not make the written opinion insufficient for the purposes for which the legislation was passed." Id.
In Hernandez v. Moss, supra, Docket No. CV 06 5000664, the court relied on Ranney in denying the defendants' motion to dismiss the complaint on the ground that because the opinion letter was sufficient as to the doctor, it was also sufficient to satisfy § 52-190a with respect to the vicarious liability of the defendant hospital. Section 52-190a 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." Id. In Shankar v. Midstate Medical Center, supra, 44 Conn. L. Rptr. 595, the court addressed issues similar to those faced in Hernandez. There, the defendants claimed that "because the complaint fails to specifically identify the `other servants, actual or apparent agents and/or employees' of [the hospital] besides [the physician] . . . it cannot begin an investigation." Id. The court denied the motion to dismiss, stating "[t]he defendants are importing into § 52-190a a requirement that simply does not exist. There is no requirement in the statute that the plaintiff in the complaint or . . . in the written opinion letter, must identify each agent, servant, or employee of the institutional defendant." Id. See also Gurath v. Lee, Superior Court, judicial district of New Britain, Docket No. CV 08 6001313 (April 15, 2009, Trombley, J.) [ 47 Conn. L. Rptr. 562].
Similarly, in Guido, the defendant hospital moved to dismiss the complaint arguing that the language of the opinion letter was insufficient as to the counts alleged against it. Guido v. Hughes, supra, 44 Conn. L. Rptr. 347. The court, citing Hernandez, denied the motion and explained, "[s]ince the written opinions of healthcare providers similar to that of [the defendant physicians] are attached to the complaint, it is sufficient to withstand a motion to dismiss as to the claim against the Hospital based on vicarious liability." Guido v. Hughes, supra, 44 Conn. L. Rptr. 347. Recently, in Draper v. Danbury Health Systems, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 08 5008854 (October 14, 2008, Scholl, J.) ( 46 Conn. L. Rptr. 462), the defendants brought a motion to dismiss the case on the grounds that, inter alia, the opinion letter contained insufficient language to satisfy the requirements of § 52-190a. There, the plaintiff filed suit against the same non-individual defendants appearing in the present action alleging medical negligence and vicarious liability. In denying the motion to dismiss, the court determined that the language of the opinion letter satisfied the statutory requirements in that it identified the qualifications of the author, referred to particular instances of misconduct and made reference to the non-individual defendants, even if those references did not explicitly name particular persons responsible for the misconduct. Id. The court explained, "[b]ecause 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 a 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." (Citations omitted.) Id. See also Maitan v. Access Ambulance Co., Superior Court, judicial district of Stamford, Docket No. CV 07 5003252 (October 18, 2007, Nadeau, J.) ( 44 Conn. L. Rptr. 436); Walton v. Caffrey, supra, 43 Conn. L. Rptr. 343; Ellegard v. Hennessey, supra, 43 Conn. L. Rptr. 195.
A significant minority of Superior Court decisions have held that for the complaint to survive a motion to dismiss allegations of negligence against the non-individual defendants, the language of the opinion letter must contain some probability of malpractice/misconduct by those defendants. Specifically, in the cases where direct allegations of negligence are present, the opinion letter must contain language beyond the alleged existence of an agency relationship. Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. CV 07 5003920 (September 19, 2007, Pittman, J.) ( 44 Conn. L. Rptr. 243) (when an "opinion letter does not differentiate between the failures of the defendant physician and those of the hospital group," it may be insufficient under § 52-190a). Moreover, when the author of the opinion letter is of a different specialty than the physician defendant, the opinion letter has been held to be insufficient.
See Gowlis v. Saint Mary's Hospilal, Superior Court, judicial district of Waterbury, Docket No. CV 08 5009513 (December 16, 2008, Alvord, J.) (where the opinion letter is "entirely conclusory and provides no illumination as to what is the standard of care, that the medical providers of the Hospital violated it and how or on what basis or when it was violated," it is insufficient); see also Delude v. Young, supra, 45 Conn. L. Rptr. 289.
See Miller v. Rockville General Hospital, Superior Court, judicial district of Tolland, Docket No. CV 07 5001172 (April 9, 2007, Sferrazza, J.) ( 43 Conn. L. Rptr. 694) (neurosurgeon not a "similar health care provider" within the meaning of § 52-190a where the defendant is an orthopedic surgeon); Morgan v. Hartford Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 07 5009731 (May 21, 2009, Shapiro, J.) [ 47 Conn. L. Rptr. 870] (opinion letter insufficient where author's specialty is different from the specialty of the defendant physician).
This court finds the reasoning of the majority position in this context to be persuasive under the circumstances of the present case. Accordingly, if the opinion letter is sufficient as to the physician, then it is also sufficient where it is alleged that the non-individual defendant is vicariously liable because the physician was an employee, servant, agent, apparent agent or acted in some similar capacity for such defendant.
In the present case, counts three and four each allege both direct negligence and vicarious liability against the non-individual defendants. As discussed above, the opinion letter in the present case is sufficient to satisfy the requirements of § 52-190a as to defendant Zuccala in that it: (1) states that the author is a sufficiently similar health care provider; (2) states the applicable standard of care; (3) points to specific instances of acts and/or omissions where Zuccala was negligent; and (4) discusses causation. Thus, the factual scenario in this case is most similar to those decisions following Ranney. While the opinion letter fails to address the negligence of non-individual defendants specifically, the court must view the allegations of the complaint in the light most favorable to the non-movant plaintiff. Those allegations, read in conjunction with the opinion letter, compel the conclusion that the opinion letter is sufficient as to the non-individual defendants as the plaintiff has alleged Zuccala was an employee, agent, apparent agent, servant, partner, director and/or member of each. Accordingly, because the opinion letter is sufficient as to Zuccala, it is necessarily sufficient to survive a motion to dismiss counts three and four alleging vicarious liability on the part of the non-individual defendants for Zuccala's acts and/or omissions as their employee, agent, apparent agent, servant, partner director and/or member.
The opinion letter does state that the plaintiff was "presented to the Danbury Hospital emergency room on December 15, 2004 . . . She was evaluated by the surgical service and by Dr. Zuccala personally at approximately 1700h." Opinion Letter, page 2.
III CONCLUSION
For the reasons discussed above, the defendants' motion to dismiss is denied because: (1) the prior action was dismissed on jurisdictional grounds and not on the merits, and therefore the accidental failure of suit statute, § 52-592 is applicable; (2) under the circumstances of this case, a motion to dismiss is not the proper procedural vehicle by which to address the statute of limitations argument; and (3) the contents of the opinion letter are sufficient to comply with the spirit and intent of § 52-190a.