Opinion
No. X07 CV 06 5010472 S
August 5, 2008
MEMORANDUM OF DECISION
I
The plaintiff, James DeMaio, as executor of the estate of Charmaine DeMaio and in his individual capacity, brought the instant action alleging that the decedent died as a result of the negligence of the codefendants, three physicians, Lane Spero, M.D., Amed Khan, M.D. and Wayne Frederick, M.D., and John Dempsey Hospital (hospital). The plaintiff's complaint originally contained sixteen counts and essentially alleged that the physicians and the hospital's employees and agents failed to properly monitor and supervise the decedent's medical condition after major but uneventful back surgery. Thus, after being awake and alert after the surgery until 7:00 p.m. on April 22, 2005, the decedent was transferred to a recovery floor at 10:00 p.m. She was found unresponsive and without a pulse at 1:45 a.m. on April 23, 2005. Further medical treatment was unsuccessful and she was pronounced dead on April 25, 2005.
The instant action is filed pursuant to General Statutes § 52-555(a), which provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
In the original complaint, the plaintiff alleges that the autopsy concluded that the cause of death was a pulmonary embolus while in the plaintiff's memorandum of law in opposition to the motion to dismiss he argues that the autopsy report established that the cause of death was oxygen deprivation and he also states that the decedent "died as the result of unmonitored cardiac arrest."
The original complaint included a certificate of good faith, filed pursuant to General Statutes § 52-190a, in which the plaintiff's attorney certified that he "made a review of the facts and records giving rise to this action and that there are good faith grounds to demonstrate medical negligence as to each named defendant." Additionally, the plaintiff attached a copy of the written opinion of a physician who, like Spero, is an orthopedic surgeon. The original complaint has since been revised and amended and now alleges only two counts, one in negligence and one in loss of consortium, solely against the hospital.
General Statutes § 52-190a, in relevant part, 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 . . ."(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."
While the written opinion does not identify the author as an orthopedic surgeon, the plaintiff also attached a curriculum vitae that clearly indicates that the author is an orthopedic surgeon. Moreover, in the defendant's motion to dismiss, the hospital identifies the author as an orthopedic surgeon. Therefore, this court will utilize that reference.
The plaintiff withdrew the complaint against Spero on June 27, 2007, but has not withdrawn against Kahn and Frederick.
Pursuant to § 52-190a(c), the hospital moved to dismiss the action on December 24, 2007 on the grounds that the court is deprived of subject matter jurisdiction because the plaintiff's amended complaint, dated December 5, 2007, "fails to include a copy of a written opinion from a `similar healthcare provider' as required by Connecticut General Statutes § 52-190a." The hospital argues that, because the written opinion attached to the original complaint was authored by an orthopedic surgeon and because the amended complaint alleges negligence only against the hospital and not any orthopedic surgeon, the plaintiff failed to comply with the requirement of § 52-190a. The hospital further asserts that "[t]he essence of the plaintiff's claim is that the defendants were negligent during the time frame from the plaintiff's decedent's arrival on the surgical floor until the conclusion of the resuscitation efforts. None of the clinicians caring for the plaintiff's decedent at that time was an orthopedic surgeon." Indeed, at the hearing before this court on July 21, 2008, the hospital argued that the complaint should have been accompanied by written opinions from an anesthesiologist, a physician's assistant and a nurse.
The hospital filed a request to revise this version of the complaint to which the plaintiff has objected. The request has not been ruled upon as the parties have not filed a request for adjudication, but any potential revision to the December 5, 2007 amended complaint is irrelevant here.
II
"[T]he general purpose of § 52-190a is to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). Recently, in Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008), the Appellate Court discussed the 2005 statutory amendments to the act, P.A. 05-275, that added, "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." General Statutes § 52-190a(c). The plaintiffs in Rios failed to attach a written opinion to their complaint and the court held that "[t]he plain language of this new statutory subsection, which was not in effect at the time of LeConche and Gabrielle [v. Hospital of St. Raphael, 33 Conn.App. 378, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994)], expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a)." Rios v. CCMC Corp., supra, 106 Conn.App. 822.
In this case, the plaintiff is faulted not for failing to attach a written opinion, but, rather, for failing to attach a written opinion of a similar health care provider to those hospital employees who allegedly treated the plaintiff's decedent after her surgery. This argument, however, is based mainly on the allegations of the current amended complaint in which the sole defendant is the hospital. It ignores the initial complaint naming the orthopedic surgeon, Spero, as a codefendant along with the hospital and alleging that all codefendants failed to monitor and supervise adequately the decedent during her post-operative care. The written opinion, provided by an orthopedic surgeon, addresses this and there has been no argument that the opining surgeon was not a similar health care provider to Spero.
Additionally, "General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Esposito v. Simkins Industries, Inc., 286 Conn. 319, 327, 943 A.2d 456 (2008). The plain language of § 52-190a does not require a new written opinion with each amendment to a complaint; nor does it mandate a separate written opinion for each defendant. Rather, the statute only mandates that the initial complaint, or apportionment complaint, attach a written opinion upon filing. See General Statutes § 52-190a(a). The hospital's interpretation of the statute would require plaintiffs to identify every possible employee or agent of a hospital that could possibly be at fault and obtain a written opinion from a similar healthcare provider for each of them before filing an action. Such an outcome would create an unworkable result and an insurmountable barrier to plaintiffs bringing suit. "As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiffs who, the legislature determined, might otherwise institute meritless claims." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.).
It is noted, however, that § 52-190a(a) requires the plaintiffs attorney to state in the certificate of good faith that he or she has made a reasonable inquiry that "gave rise to a good faith belief that grounds exist for an action against each named defendant . . ." (Emphasis added.)
Furthermore, in a similar case, that is, a suit against a hospital alleging negligence by the hospital and its employees, the court stated: "At this stage of the litigation the plaintiff is presumed to have a basis for alleging negligence but not necessarily, particularly in the case of an institution like a hospital, a basis for alleging which agent of the hospital was responsible. Neither Section 52-190a or our rules of pleading require the plaintiff to identify every agent who acted on behalf of the Hospital. It is alleged that the plaintiff was under the care of the hospital, but it is premature to expect at this stage identification of exactly which agent or what aspect of care was responsible for not treating or not recognizing the high blood pressure condition. As Stamford Hospital indicates, it could be a nurse. On the other hand, it could be a physician's assistant or a physician. It would be unwieldy at best, not to say unnecessary and unhelpful to have a blizzard of opinion letters from a physician, a physician's assistant and a nurse all opining, probably hypothetically, about evidence of negligence. While Section 52-190a as amended was intended to add a significant hurdle there is no indication of an intent to make the hurdle to filing a medical malpractice case insurmountable, or unnecessarily difficult." Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.).
In Behling, the court concluded that the plaintiff complied with § 52-190a in providing a written opinion from an obstetrician-gynecologist because the complaint arose from the induction of labor, a cesarean section and events thereafter that occurred at the defendant-hospital. Id. The court noted that the individual defendant was an obstetrician/gynecologist and that the care provided by the doctor or by the hospital staff "arose, at least initially, from obstetrics and gynecological areas of medical practice." Id. Therefore, the court found that "the requirement that the opinion writer be a similar health care provider has been met." Id.
The court observed, "One must also recognize that the opinion writer required by § 52-190a is not performing the same role as an expert witness under § 52-184c. There is certainly an overlap, but the opinion writer has the role of a gatekeeper in providing the underpinning for the plaintiff's attorney's certificate of good faith by stating there appears to be evidence of medical negligence, while the expert witness is called upon to testify to a reasonable degree of medical probability that there has been a breach of the prevailing professional standard of care. This court believes the former standard is a lower standard permitting for instance a physician to find `evidence of medical negligence' in the conduct of certain health care providers without necessarily being sufficiently familiar with the standard of care applicable to each provider so as to be able to testify that such provider breached that standard." Id.
In the present case, the complaint here arises, at least initially, from orthopedic surgery, and then the post-operative care and the subsequent events at the hospital. The written opinion comments on the care provided by the hospital. Specifically, the written opinion states: "For a 7.5 hour operation, I believe it is mandatory to monitor the patient for 24 hours after the procedure to prevent events like this from occurring. I believe all the physicians involved in her care including the hospital deviated in the standard of care in this matter." The opinion, like the complaint, is all-encompassing and reviews the post-surgery care delivered by the hospital as an institution. Moreover, the plaintiff attached a written opinion of a orthopedic surgeon similar to Spero under whose care the plaintiffs decedent remained while in the hospital. Thus, the written opinion satisfies the statute's threshold requirements and purpose, i.e., to discourage baseless suits; see LeConche v. Elligers, supra, 215 Corn. 710; and fulfills the requirement that the author of the written opinion be a similar healthcare provider. Accordingly, the motion to dismiss is denied.
In the initial complaint, fifth count, paragraph twenty-three, the plaintiff alleged that "Spero and/or his employees, agents, servants or directors" were negligent by failing to conform to the applicable standard of care "[b]y not adequately monitoring and supervising [the decedent's] period of postoperative recovery"; "[i]n that [Spero] failed to issue adequate orders for her care and treatment during that postoperative recovery period;" "[i]n that he failed to acknowledge and properly address [the decedent's] need for monitoring of her vital signs and close supervision during her postoperative recovery period;" "[i]n that he failed to properly acknowledge and address the true nature of [the decedent's] condition;" and, "in that he violated [certain sections] of the State of Connecticut Health Code."
In the plaintiff's memorandum in opposition to the motion to dismiss, he argues that the motion to dismiss is not the appropriate procedural device to challenge the qualifications of the author of the written opinion. "A number of superior court cases have addressed whether the proper vehicle for contesting the qualifications of the author or sufficiency of the contents of the written opinion is a motion to dismiss or a motion to strike. Several cases have held that dismissal is appropriate only when the plaintiff completely fails to attach a good faith certificate, written opinion or both, and a motion to strike is the appropriate pleading for addressing issues such as the author's qualifications of the sufficiency of the contents when the plaintiff has filed the good faith certificate with the attached written opinion." 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, 195).
Recently, our Appellate Court addressed the issue of whether a motion to strike or a motion to dismiss is the proper procedural vehicle to attack the failure to attach any opinion letter. See Rios v. CCMC Corp., supra, 106 Conn.App. 820-21. In Rios, the plaintiffs cited LeConche v. Elligers, supra, 215 Conn. 701 for their argument that a motion to dismiss is not proper vehicle to challenge the sufficiency of a good faith certificate. Id., 821. As mentioned above, the court noted that LeConche was decided prior to the 2005 legislative amendment, P.A. 05-275, which added, among other things, that "[t]he failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." Id., 821-22. The court affirmed the trial court's granting of a motion to dismiss because the plaintiffs failed to include any opinion of a similar health care provider. Id., 817-20.
In the present case, it is not the failure to include any opinion, but, rather, the issue is the author of the opinion. Therefore, Rios does not assist in resolving this dispute.
In Ellegard, the court found that "regardless of whether the sufficiency of the contents and qualifications of the author are raised in a motion to dismiss or a motion to strike, the written opinion attached to the plaintiff's complaint comports with the purpose and requirements of § 52-190a." Ellegard v. Hennessey, supra, 43 Conn. L. Rptr. 195. The same is true in this case. Because the court finds that the written opinion attached to the plaintiff's complaint serve the purpose and meet the requirements of § 52-190a, it is irrelevant whether the sufficiency of the contents of the written opinions and the qualifications of the author are raised in a motion to dismiss or a motion to strike.
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