Dixon v. Med Now Family Walk-In

Full title: VICTORIA MACK DIXON ET AL. v. MED NOW FAMILY WALK-IN AND INDUSTRIAL…

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Feb 25, 2010

2010 Ct. Sup. 5855 (Conn. Super. Ct. 2010)

49 CLR 407

Opinion

No. CV 08-5014898 S

February 25, 2010

MEMORANDUM OF DECISION

GILARDI, J.T.R.

This litigation is based on a medical malpractice claim arising out of events which occurred on April 7, 2006. The initial complaint, filed March 28, 2008, is based on the following facts:

On April 7, 2006, the plaintiff, Victoria Mack Dixon, ¹ went to Med Now Family Walk-In and Industrial Medical Center, P.C. (Med Now) and received treatment from Eileen T. Tarpey, an Advanced Practice Registered Nurse (APRN).² On the day in question, Victoria Dixon complained of an ongoing severe headache. She had been previously diagnosed with acute sinusitus at the Norwalk Medical Group on March 25, 2006 where they had prescribed an antibiotic. Tarpey noted the history and diagnosed Victoria Dixon with sinusitis. In fact, plaintiff was actually suffering from a subarachnoid hemorrhage with venous sinus thrombosis and intraventricular for hemorrhage, which ultimately led to a stroke, coma and numerous other injuries. It is alleged that the ultimate injuries suffered by Victoria Dixon could have been prevented had the defendants at Med-Now treated her properly by ordering proper tests, performing a detailed neurological examination and referring Victoria Dixon to an emergency room or arranging that she be evaluated by a physician.

1 Stephanie Mack Dixon was appointed power of attorney for Victoria Mack Dixon on July 24, 2006.

2 The plaintiff claims that it was unclear who treated Victoria Dixon because it appeared that the medical report had been written by several health care providers.

On May 15, 2008, the defendants filed a motion to dismiss on the ground that the plaintiff attached a letter from a board-certified internist rather than an APRN to the initial complaint. The court initially granted the defendants' motion to dismiss on September 9, 2008. The plaintiffs then filed a motion to reargue the ruling on September 26, 2008. The parties presented oral arguments before the court on October 27, 2008. The court denied the defendants' motion to dismiss without prejudice, and instructed the plaintiffs to file a letter from a similar health care provider. On March 24, 2009, the defendants filed a supplemental motion to dismiss, which the court also denied without prejudice on June 8, 2009. On April 30, 2009, the plaintiffs filed a request to amend the complaint, along with the amended complaint, which the court granted on May 19, 2009. The amended complaint was accompanied by letter from a nurse who is certified by American Nurses Credentialing Center (ANCC) as a family nurse practitioner, and who teaches graduate courses to prepare Advanced Practice Nurses (APNs).³ On May 6, 2009, the defendants filed a motion in opposition to the plaintiffs' request to file the amended complaint. On June 8, 2009, the defendants filed a second motion to dismiss, which this court denied on August 10, 2009. The current motion before the court is the defendants' motion to reargue (#140), which was filed on August 19, 2009. In deciding whether to grant the defendants' motion to reargue the motion to dismiss, the court must address: Whether the plaintiff may file an amended complaint with an opinion letter from a similar health care provider when the opinion letter attached to the original complaint was from a board-certified internist rather than an APRN.

3 "An Advanced Practice Nurse (APN) is a Registered Nurse (RN) who has completed an advanced nursing educational program and has achieved national certification from an approved certifying body . . . APNs and APRNs (Advanced Practice Registered Nurse[s]) are generally the legally recognized terms used by State Boards of Nursing." Andrea Easom, Which credentials should nursing adopt as standard? APN and APRN are the appropriate credentials, Nephrology Nursing Journal (Jan.-Feb. 2005).

"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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "When a [trial] 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 all the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).

"In order to determine whether to grant the [motion] to [d]ismiss, this court must first review the statutes in question." Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5001663 (January 25, 2007, Prestley, J.) [ 42 Conn. L. Rptr. 724]. "Effective October 1, 2005, a party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating `that there appears to be evidence of medical negligence . . . includ[ing] [the] detailed basis for the formation of such opinion.' General Statutes § 52-190a(a)." Robbins v. Physicians for Women's Health, LLC, Superior Court, judicial district of New London, Docket No. 5002633 (October 16, 2007, Hurley, J.T.R.) [ 44 Conn. L. Rptr. 315]. Subsection (c) of § 52-190a provides that "[t]he failure to obtain and file a written opinion required by subsection (a) [of § 52-190a] shall be grounds for the dismissal of the action." The Supreme Court has explained that "the 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).

"[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.'" General Statutes § 52-184c(c).

The plaintiffs' amended complaint of April 30, 2009 was accompanied by letter from a certified family nurse practitioner, who teaches graduate courses to prepare APNs. In their motion to reargue of August 19, 2009, the defendants claim that an amended complaint that includes a new expert report generated after the filing of the lawsuit violates General Statutes § 52-190a, because such opinion letters must be obtained pre-suit.⁴ The defendants have not raised the issue of whether the second letter writer is a "similar health care provider" pursuant to the statute. Rather, they simply argue that the plaintiffs' claim should be dismissed on the ground that § 52-190a precludes the plaintiffs from filing an amended complaint with a letter from a similar health care provider that was obtained after filing the lawsuit.

4 Practice Book § 10-59 provides that "[t]he plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day." While § 10-59 applies in most instances, in medical malpractice claims our Appellate Court has found that when a plaintiff fails to attach a certificate of good faith and a letter from a healthcare provider to the initial complaint, that plaintiff is not entitled to amendment as of right. See Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813 (2009) (granting the defendants' motion to dismiss because the plaintiff failed to attach a good faith certificate and letter from a similar health care provider to the original complaint); see also Rios v. CCM Corp., 106 Conn.App. 810, 943 A.2d 544 (2008) (same).

In support of their argument, the defendants cite to Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813 (2009) (granting the defendants' motion to dismiss because the plaintiff failed to attach a good faith certificate and letter from a similar health care provider to the original complaint), and Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5001663 (April 3, 2008, Pittman, J.) [ 45 Conn. L. Rptr. 294] (granting the defendants' motion to strike because the plaintiff failed to attach a good faith certificate and letter from a similar health care provider to the original complaint).⁵ Connecticut courts granted the defendants' motion to dismiss and motion to strike, respectively, in those cases because the plaintiffs failed to attach a certificate of good faith and a letter from any health care provider to their original complaints. Votre and Santorso, however, can be distinguished from the present case because the plaintiffs in this case did attach a certificate of good faith and a letter from a health care provider in the initial complaint, albeit not a similar health care provider.

5 The defendants could have also cited to Rios v. CCM Corp., 106 Conn.App. 810, 943 A.2d 544 (2008), in support of their argument, but did not do so.

In instances in which the plaintiff attaches a letter from a health care provider, even if it is not a "similar health care provider" for purposes of the statute, Connecticut courts have allowed the plaintiffs to amend their complaints in order to comply with the "similar health care provider" requirement of § 52-190a. In Sicignano v. Mid-Town Auto Body, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 6000611 (July 31, 2009, Tyma, J.), the apportionment defendant, Yale New Haven Hospital, Inc., asserted "that the written opinion of a `similar health care provider' filed by the apportionment plaintiffs with their apportionment complaint . . . as is required by § 52-190a, [was] insufficient in that it contain[ed] the opinion of an emergency room registered nurse and not an emergency room physician." Nevertheless, the court denied the defendants' motion to dismiss because "[g]iven the early stage of this litigation and the limited information presently available to the apportionment plaintiffs prior to discovery, the written opinion provided by the apportionment plaintiffs [was] sufficient to satisfy the requirements, spirit and intent of § 52-190a." Id. The court explained that "[i]t 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 [§] 52-190a as amended was intended to add a significant hurdle there is no indication of an intent to make the hurdle to filling a medical malpractice case insurmountable, or unnecessarily difficult." Sicignano v. Mid-Town Auto Body, Inc., supra, Superior Court, Docket No. CV 08 6000611.

Similarly, in Crowell v. Pito, Superior Court, judicial district of New Britain, Docket No. CV 08 5008149 (January 7, 2009, Pittman, J.) [ 46 Conn. L. Rptr. 876], the court denied the defendants' motion to dismiss on the ground that the opinion letter was not from a similar health care provider. The court explained: "[A]t [the] early stage[s] of . . . litigation, before the opportunity for discovery and before the lines of authority and the relationships of the defendants to one another can be fully developed, that level of specificity may present an impossible obstacle for any plaintiff, and even more so, to the author to the medical opinion letter . . ." Crowell v. Pito, supra, Superior Court, Docket No. CV 08 5008149.

Both Sicignano and Crowell involved medical malpractice claims that allegedly took place in hospitals, where it was unclear exactly which health care providers treated the plaintiffs. In both of those cases, the plaintiffs attached letters from heath care providers to the initial complaints. The defendants argued that the complaints should be dismissed because the letters were not written by similar health care providers. The courts denied the defendants' motions to dismiss because they found that the attached letters, although not from similar health care providers, were sufficient to comply with the statute and could be remedied by amendment.

The cases above demonstrate that a grant or denial of a defendant's motion to dismiss or motion to strike depend upon whether the plaintiff attached a good faith certificate and a letter from a reasonably appropriate health care provider to the initial complaint. The plaintiffs in Votre and Santorso failed to attach a certificate of good faith and a letter from any health care provider to the original complaint. In those cases, the courts explained that a case must be dismissed or stricken when a plaintiff fails to attach a certificate of good faith and a letter from a similar health care provider to a complaint at the time that a case is initially filed. Conversely, in Sicignano and Crowell, the courts explained that in a case in which the true identity of the medical provider is ambiguous, a plaintiff may file an amended complaint to include a letter from a similar health care provider after the claim has been brought, as long as the plaintiffs, in good faith, included a letter from a health care provider who reasonably could have treated the plaintiff at the time the injury occurred. The courts found that the fact that the letters attached to the original complaints were written by non-similar health care providers did not warrant dismissal, and could be remedied by amendment.

It is the opinion of this court that the conclusions found in Sicignano and Crowell equally apply to the present case. Although the defendant medical center is not a hospital, as in Sicignano and Crowell, the identities of the treating medical personnel were ambiguous at the time that the plaintiffs filed the lawsuit. Similarly, in the present dispute it is unclear who was responsible for the treatment of Victoria Dixon on the day in question because it appeared that several different individuals had made notations on her medical chart. Further, the medical clinic is staffed by a number of medical personnel who possess different professional qualifications. It is reasonable that any number of medical professionals could have attended to Victoria Dixon on the day in question. The plaintiffs' counsel, operating under the information that they had at the time that they filed the lawsuit, made a good faith effort to obtain a letter from a similar health care provider. Apparently, the plaintiffs' counsel obtained a letter from a board-certified internist because they believed that a board-certified internist was responsible for treating Victoria Dixon on the day in question. The plaintiffs only became aware of the deficiency of the letter when they received responsive pleadings from the defendant. After this court ordered that the plaintiffs file an amended complaint with an opinion of a similar health care provider on October 29, 2008, the plaintiffs did so.

The defendants have not challenged the sufficiency of the new opinion letter attached to the plaintiffs' amended complaint. The defendants simply seek to reargue the motion to dismiss, which this court denied on August 10, 2009, on the ground that the letter attached to the amended complaint was obtained after the lawsuit was filed. As the courts explained in Sicignano and Crowell, in cases where the identity of a health care provider is ambiguous, a plaintiff may file an amended complaint with a letter from a similar health care provider as long as the original complaint included a letter that reasonably complied with the statute. This court stands by its decision of August 10, 2009, denying the defendants' motion to dismiss, and denies defendants' motion to reargue the matter.