Opinion
FSTCV156025924S
03-18-2016
Kathleen A. Dinkel v. Western Connecticut Health Network, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS FILED ON BEHALF OF WESTERN CONNECTICUT HEALTH NETWORK. INC. AND NORWALK HOSPITAL ASSOCIATION (#107.00)
Hon. Charles T. Lee, J.
The plaintiff, Kathleen A. Dinkel, served a complaint against the defendants Western Connecticut Health Network, Inc. (WCHN), the Norwalk Hospital Association (collectively, the " hospital defendants"), Norwalk Radiology Consultants, P.C., and Dr. Avelino Maitem on or about July 15, 2015. The plaintiff alleges that on July 2, 2014 she was admitted to Norwalk Hospital for bariatric surgery incorporating various surgical procedures. The complaint further alleges that she suffered an anastomotic leak during surgery and was nevertheless released on July 8, 2014, only to be readmitted the next day in a septic state and required emergency surgery caused by the leakage. Subsequently, she required multiple surgical procedures and suffered pain, impairment, disfigurement, disability and loss of earning capacity. She claims that defendants caused her injuries, including specifically Dr. Maitem, who she claims was the radiologist with responsibility for the interpretation of her post-operative and who failed to diagnose the leak and advise the attending physician, which allowed the leak to develop serious complications.
The first count and second counts of the complaint are virtually identical and allege medical malpractice against WCHN and Norwalk Hospital respectively " through its agents, servants and/or its employees, including, but not limited to, the defendant Avelino Maitem, M.D., a radiologist." Pursuant to General Statutes § 52-190a(a), the plaintiff attached to the complaint a certificate of good faith and an opinion letter from a board certified radiologist, which stated in pertinent part,
Based upon my review of the plaintiff's upper GI fluoroscopies and abdominal/pelvic CT Scans and their corresponding interpretative reports, it is my opinion that Norwalk Radiology Consultants and/or Norwalk Hospital, through their agents, servants, and/or employees, including, but not limited to, Avelino Maitem, M.D., departed from the standard of care in their interpretation of the plaintiff's July 7, 2014 upper GI fluoroscopy. Said departures include, but are not limited to, failing to timely diagnose the plaintiff's anastomotic leak despite radiographic evidence of said leak, improperly interpreting the plaintiff's July 7, 2014 upper GI series, failing to timely advise the requesting attending physician of the radiographic evidence of said leak prior to the plaintiff's July 8, 2014 discharge from Norwalk Hospital, failing to timely recommend that the plaintiff undergo further diagnostic studies relative to said leak following her July 7, 2014 imaging study but prior to her discharge from Norwalk Hospital on or about July 8, 2014, improperly allowing the plaintiff's anastomotic leak to go undetected and cause her condition to significantly deteriorate.
On September 28, 2015, WCHN and Norwalk Hospital filed a motion (#107) to dismiss Paragraphs 5(a)-(k) of the first and second counts to the extent that they assert that the hospital is vicariously liable for the alleged conduct of any non-radiological agents and Paragraphs 5(g)-(k) to the extent they contain allegations of negligence outside of radiology and therefore exceed the scope of the opinion letter. The plaintiff filed an objection to the motion on October 28, 2015 (#120), and defendants filed a response on November 12, 2015 (#123). The court heard argument on November 23, 2015.
POSITIONS OF THE PARTIES
The hospital defendants argue that, because the plaintiff has attached an opinion letter from a " similar health care provider" only from a radiologist, she has fulfilled the requirements only as to Dr. Maitem. Because, the plaintiff also alleges that the hospital defendants are vicariously liable for the conduct of its unidentified agents but has not attached an opinion letter from a similar health care provider as to these unidentified agents, the defendants asserts that the motion to dismiss the first and second counts must be granted to the extent that it claims negligence on behalf of the hospital's unidentified non-radiological providers. The plaintiff counters that § 52-190a serves as a gatekeeping function to prevent plaintiffs from commencing frivolous medical malpractice lawsuits, but is not intended to produce unworkable results. Plaintiff is therefore not required to identify every non-radiological agent that may be involved in the malpractice claim at the pleading stage, and consequently attach an opinion letter from a similar health care provider for each identified agent. The hospital defendants also claim that the complaint alleges negligence outside of radiology and, therefore, those allegation must be dismissed because they exceed the scope of the attached opinion of the radiologist. Plaintiff disputes this contention, and maintains that Dr. Maitem was part of the team of plaintiff's caregivers and that the complaint's allegations as to negligence are within the scope of the opinion of the radiologist.
DISCUSSION
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a . . . 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 718, 104 A.3d 671 (2014).
General Statutes § 52-190a(a) provides that in a medical malpractice action: " 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." Subsection (c) then provides: " 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."
" Inasmuch as the legislative history indicates that a motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and that dismissal of a letter that does not comply with § 52-190a(c) is mandatory . . . the grant of a motion to dismiss . . . is the proper statutory remedy for deficiencies under § 52-190a . . ." (Citations omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011).
General Statutes § 52-184b(a) defines " health care provider" as " any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment." " The definition of 'health care provider' in § 52-184b(a) indicates that, by the use of the term 'health care provider' in § 52-190a(a), the legislature intended to include institutions within its requirements." Wilkins v. Connecticut Childbirth & Women's Center, supra, 314 Conn. 720-21. The author of an opinion letter must therefore demonstrate that he or she meets the qualifications of a similar health care provider to avoid dismissal under § 52-190a(c). Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561, 36 A.3d 297 (2012).
With regard to the purpose of the opinion letter, " [i]n 2005, the legislature amended § 52-190a(a) to include a provision requiring the plaintiff in a medical malpractice action to [show the existence of the claimant's good faith belief that grounds exist for an action by] obtain[ing] the written opinion of a similar health care provider that there appears to be evidence of medical negligence . . . The 2005 legislation was part of a comprehensive effort to control significant and continued increases in malpractice insurance premiums by reforming aspects of tort law, the insurance system and the public health regulatory system." (Citations omitted; internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center, supra, 314 Conn. 728.
In Gonzales v. Langdon, 161 Conn.App. 497, 518, 128 A.3d 562 (2015), the Appellate Court recently discussed the policies underlying § 52-190a(a): " Our Supreme Court has concluded that the purpose of § 52-190a(a) is to prevent frivolous medical malpractice actions by '[ensuring] that there is a reasonable basis for filing a medical malpractice case under the circumstances and . . . eliminat[ing] some of the more questionable and meritless cases . . .' Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 20."
Our courts have referred consistently to the requirements of § 52-190a(a) as serving a gatekeeper function. E.g., Marinara v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-13-6017968-S, (September 20, Zemetis, J.); Sinclair v. Ehrlich, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6010046-S (January 31, 2013, Markle, J.) .
ANALYSIS
As a threshold issue, the court does not have the authority to dismiss only part of an action pursuant to § 52-190a. As the court held in Andrade v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV-11-6021085-S (July 27, 2012, Tyma, J.) , " [§ ]52-190a(c) . . . plainly and unambiguously provides that such a failure is grounds for dismissal of the action, as opposed to parts of an action. The majority view of the judges of the Superior Court appears to be that § 52-190a " authorizes only dismissal of 'the action' not sections of it." Recinos v. McCarthy, Superior Court, judicial district of Waterbury, Docket No. X06U WYCV 156028101 (January 6, 2016, Zemetis, J.) ; DeJesus v. Connecticut Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) ; see e.g., Liu v. Yale Medical Group, No. CV-14-6050183-S (February 18, 2015, Wilson, J.) (§ 52-190a does not allow for partial dismissal of action); Hall v. New Milford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-1 3-6009330-S, (July 21, 2014, Danaher, J.) (same); Rulli v. Devanney, Superior Court, judicial district of Litchfield, Docket No. CV-11-6004971-S, (December 12, 2011, Pickard, J.) (same); but see Jansone v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV-12-6030589-S (October 25, 2012, Scholl, J.) (dismissing vicarious liability count against hospital " to the extent it raises claims of medical negligence against healthcare providers who practice in specialties other than general surgery, orthopedic surgery and/or anesthesiology" where " [n]one of the parties have argued that procedurally such an order is inappropriate"). Therefore, the court concludes, in line with the majority of Superior Court decisions, that it does not have the authority to dismiss only part of the plaintiff's vicarious liability actions in counts one and two under § 52-190a.
Further, the hospital defendants have not argued that the opinion letter attached to the complaint is insufficient as to Dr. Maitem. In fact, the defendants state that they " do not contest that the claims against Dr. Maitem, a radiologist, and WCHN and Norwalk Hospital, to the extent that they may be liable for the acts of Dr. Maitem, meet the jurisdictional threshold." Memorandum of Law in Support of Motion to Dismiss at 10 (#107.00). Instead, they argue that the plaintiff must identify and attach an opinion letter as to each additional non-radiological agent for whom the hospitals might be vicariously liable, whereas the plaintiff asserts that only one opinion letter is sufficient to avoid dismissal of a claim against the hospitals through all potential agents.
Both parties acknowledge, at least tacitly, the lack of appellate authority on the issue. However, Superior Court decisions consistently have held that Section 52-190a " does not require the plaintiff to identify the name of each individual who acted on behalf of the 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. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiff who, the legislature determined, might otherwise institute meritless claims." (Internal quotation marks omitted.) Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV-09-5014599-S (September 27, 2010, Swienton, J.) ; Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV-06-5000954-S, (September 18, 2006, Pittman, J.) (same).
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. E.g., deWeaver v. Greenwich Hospital, Superior Court, judicial district of Stamford, Docket No. FST-CV-13-6019495-S (November 25, 2014, Adams, J.T.R.) ; 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.); Cataldo v. Zuccala, Superior Court, judicial district of Danbury, Docket No. CV-08-5004961-S, (August 11, 2009, Shaban, J.); Strickland v. Bristol Hospital, Inc., supra, Superior Court, Docket No. CV-09-5014599-S; Tutillo v. Day Kimball Hospital, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-06-5009722S (November 26, 2007, Langenbach, J.) .
The court notes that 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, supra, Superior Court, judicial district of Hartford, Docket No. CV-12-6030589-S (October 25, 2012, Scholl, J.) (54 Conn. L. Rptr. 881, 883, *11). Yet, " Jansone v. Hartford Hospital, appears to be the lone superior court decision that suggests that separate letters must address the actions of agents and employees described in medical malpractice complaints." Kos v. Lawrence & Memorial Hospital, Superior Court, judicial district of New London, Docket No. CV-13-6019304-S (July 8, 2014, Moukawsher, J.) . The hospital defendants additionally cite to Ottowell v. Griffin Hospital, Superior Court, judicial district of Ansonia-Milford (December 1, 2014, Stevens, J.) . However, in that case, the court granted the motion to dismiss because plaintiff did not identify an individual practitioner or even an area of practice in the complaint and only submitted an opinion letter stating that the hospital's agents had been negligent in their treatment of plaintiff. That is not the case here where Dr. Maitem is identified and the opinion letter is authored by a health care provider similar to him. Accordingly, the court does not find the decision in Ottowell to be relevant to the present case.
The court agrees with the logic of the majority of Superior Court cases that have concluded that as long as an opinion letter from a similar health care provider is sufficient as to one agent, it is sufficient as to the unknown or unnamed agents of the institution, who are likely to practice in fields different from the identified caregiver. Although the obligations of the pleading stage are not to be taken lightly, a plaintiff in a medical malpractice action may be unaware of all of an institution's agents involved in his or her procedure, and may not be able to obtain names and specialties until discovery. The plaintiff therefore should not be required to identify all of the agents for whom the institution may be held vicariously liable in the initial pleading and all fields in which they practice. The purpose of § 52-190a is to prevent frivolous lawsuits, and, as the hospital defendants concede, the opinion letter is sufficient at least as to Dr. Maintem. Accordingly, the action is not frivolous, and dismissal is not warranted.
CONCLUSION
For the foregoing reasons, the motion to dismiss of the hospital defendants is denied.