Opinion
No. 09 5029649
April 8, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendants, Harborside Connecticut Limited Partnership d/b/a The Reservoir Care and Rehabilitation Center, Reservoir G.P., Inc. and Reservoir Limited Partnership (the "defendants") have moved to dismiss this case because the plaintiff's Amended Complaint of July 31, 2009 (the "Complaint") fails to comply with the requirements of Connecticut General Statutes § 52-190a.
The First and Third Counts of the Complaint are asserted against Harborside Healthcare-The Reservoir. The defendants assert that this is an entity which does not exist. Those counts contain the same allegations as Counts Five though Ten and will be treated similarly.
Procedural Background
The plaintiff filed a previous action, Durray et al. v. Harborside Healthcare, The Reservoir et al., CV-04-4001883, which was dismissed pursuant to the entry of a judgment of nonsuit on April 29, 2008 based on the plaintiff's failure to comply with a discovery order. The dismissal followed nineteen months in which the defendants sought discovery, the plaintiff was ordered to comply and failed to comply.
The plaintiff filed this action under Connecticut General Statutes § 52-592. The original complaint in this action contained no opinion as required by § 52-190a, the defendants moved to dismiss, and the plaintiff filed the present Complaint with an opinion attached.
The plaintiff brings this action on behalf of both of her late parents' estates. She alleges that her father, Thomas Lyle Sorensen, was a resident at the long-term care facility operated by the defendants beginning in April 2002. She further alleges that Mr. Sorensen sustained injuries and damages as a result of the defendants' negligence.
The plaintiff alleged that the defendants were negligent in one or more of the following ways:
a. They failed to initiate and properly monitor and supervise the amount of prednisone administered to said Plaintiff's decedent;
b. They failed to take prompt, reasonable and proper precautions to prevent the continuing prednisone misuse being administered;
c. They failed to properly control, provide and supervise the activities of said facility personnel;
d. They failed to provide that degree of care to the said Thomas Lyle Sorensen required by their own rules and regulations as well as those of the Joint Commission on Accreditation of Healthcare Organizations; and
e. They failed and neglected to properly and promptly assess, diagnose, test, evaluate and treat the medical condition of their patient through and including August 12, 2002, despite Plaintiff's decedent's deteriorating condition and ongoing complaints and concerns of family members.
Discussion of Law and Ruling
A motion to dismiss is the correct procedural vehicle for asserting the plaintiff's failure to comply with § 52-190a. Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).
In 2005, § 52-190a was amended by Section 2 of Public Act 05-275, "An Act Concerning Medical Malpractice." The amended version of § 52-190a provides, in pertinent part:
(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . 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 . . . that such reasonable inquiry . . . 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 . . . 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.
In this case, Counts Five, Seven and Nine sound in medical negligence. Therefore, the defendants argue that the plaintiff was obligated to obtain and attach to the complaint a report from a "similar health care provider" detailing the defendants' medical negligence.
In Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), the Appellate Court affirmed the dismissal of an action against an emergency room physician based on Connecticut General Statutes § 52-190a. The opinion letter attached to the complaint was written by a "practicing and board certified general surgeon with added qualifications in surgical critical care, and engaged in the practice of trauma surgery."
The Court in Bennett stated, "A plain reading of this subsection [52-190a(c)] indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Id. at 545.
The Bennett Court held that only a physician board certified in emergency medicine was qualified to author the opinion letter against the defendant and affirmed the dismissal of the action. The written opinion attached to the Complaint in this case does not detail any professional qualifications of its author and, therefore, cannot be deemed a "written and signed opinion of a similar health care provider" as contemplated by the statute. The complete failure to identify the type of health care provider who offers the opinion is particularly important in this case because there is more than one defendant, the defendants and Dr. William Geary, a board certified internist. The standard of care applicable to the defendants and allegations of their alleged breach of the standard of care are separate and unique. By attaching a written opinion from an author whose professional qualifications are completely unstated, the plaintiff has failed to offer specific detail to allow the defendants to know whether the author is a similar health care provider as required under § 52-190a.
In addition, the written opinion here makes no direct statement as to which defendant's conduct was "below a reasonable and acceptable medical standard for the community." The opinion mentions a non-defendant hospital and an individual physician who is also not a party to this action.
The opinion clearly fails to comply with the requirements of § 52-190a as interpreted by Bennett and Counts Five, Seven and Nine must be dismissed.
In Counts Six, Eight and Ten, the plaintiff asserts loss of consortium claims on behalf of Rose Sorensen. Those claims are derivative of the medical negligence claims set forth in Counts Five, Seven and Nine. Hobson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). Therefore, a spouse cannot maintain a loss of consortium action independent of the injured spouse's claim. Jacoby v. Brinckerhoff, 250 Conn. 86, 95, 735 A.2d 347 (1999).
For the foregoing reasons, the motion to dismiss the case against defendants, Harborside Connecticut Limited Partnership d/b/a The Reservoir Care and Rehabilitation Center, Reservoir G.P., Inc. and Reservoir Limited Partnership (Counts Five through Ten) is granted. As Counts One and Three are directed to a non-existent entity, those counts are also dismissed.
MEMORANDUM OF DECISION ON MOTION TO DISMISS BY WILLIAM GEARY, M.D.
The defendant, William Geary, M.D., has moved to dismiss this case because the plaintiff's Amended Complaint of July 31, 2009 (the "Complaint") fails to comply with the requirements of Connecticut General Statutes § 52-190a.
Procedural Background
The plaintiff filed a previous action, Durray et al. v. Harborside Healthcare, The Reservoir et al., CV-04-4001883, which was dismissed pursuant to the entry of a judgment of nonsuit on April 29, 2008 based on the plaintiffs' failure to comply with a discovery order. The dismissal followed nineteen months in which the defendants sought discovery, the plaintiffs were ordered to comply and failed to comply.
The plaintiff filed this action under Connecticut General Statutes § 52-592. The original complaint in this action contained no opinion as required by § 52-190a, the defendant, Dr. Geary, moved to dismiss, and the plaintiff filed the present Complaint with an opinion attached.
The Second Count of the Complaint alleges various failures of Dr. Geary with respect to the prescription of prednisone to the plaintiff's decedent. The Fourth Count alleges loss of consortium on behalf of the estate of the decedent's spouse.
Discussion of Law and Ruling
A motion to dismiss is the correct procedural vehicle for asserting the plaintiff's failure to comply with § 52-190a. Rios v. CCMC Corp, 106 Conn.App. 810, 822, 943 A.2d 544 (2008).
In 2005, § 52-190a was amended by Section 2 of Public Act 05-275, "An Act Concerning Medical Malpractice." The amended version of § 52-190a provides, in pertinent part:
(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . ., 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 . . . 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 . . . that such reasonable inquiry . . . 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 . . . 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.
In Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), the Appellate Court affirmed the dismissal of an action against an emergency room physician based on Connecticut General Statutes § 52-190a. The opinion letter attached to the complaint was written by a "practicing and board certified general surgeon with added qualifications in surgical critical care, and engaged in the practice of trauma surgery."
The Court in Bennett stated, "A plain reading of this subsection [52-190a(c)] indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Id. at 545.
The Bennett Court held that only a physician board certified in emergency medicine was qualified to author the opinion letter against the defendant and affirmed the dismissal of the action. The written opinion attached to the Complaint in this case does not detail any professional qualifications of its author and, therefore, cannot be deemed a "written and signed opinion of a similar health care provider" as contemplated by the statute. The complete failure to identify the type of health care provider who offers the opinion is particularly important in this case because there are two defendants, Dr. Geary, a board certified internist, and Harborside Healthcare-The Reservoir, a rehabilitation and long-term care center. The standard of care applicable to the defendants and allegations of their alleged breach of the standard of care are separate and unique. By attaching a written opinion from an author whose professional qualifications are completely unstated, the plaintiffs have failed to offer specific detail to allow Dr. Geary to know whether the author is a similar health care provider as required under § 52-190a.
In addition, the written opinion here fails to make any mention of Dr. Geary or to provide a detailed basis for an opinion against him. The opinion mentions a non-defendant hospital and an individual physician who is also not a party to this action. There is also no mention of a standard of care that was applicable to the defendant's involvement and no detail of the manner in which the defendant is alleged to have deviated from the standard of care. Instead, the opinion letter is a general recitation of the plaintiff's medical treatment.
The Fourth Count asserts loss of consortium claims on behalf of Rose Sorensen. That claim is derivative of the medical negligence claim set forth in Count Two. Hobson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). Therefore, a spouse cannot maintain a loss of consortium action independent of the injured spouse's claim. Jacoby v. Brinckerhoff, 250 Conn. 86, 95, 735 A.2d 347 (1999).
For the foregoing reasons, the motion to dismiss the case against defendant, William Geary, M.D. (Counts Two and Four), is granted.