Opinion
DBDCV196030068S
07-29-2019
Linda EGAN, Administrator of the Estate of Mary Wojtulewicz v. SENIOR PHILANTHROPY OF DANBURY, LLC dba Western Rehabilitation Care Center et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
The defendants, Senior Philanthropy of Danbury, LLC d/b/a/ Western Rehabilitation Care Center; Traditions Senior Management, Inc.; and Eagle Lake Foundation, Inc. ("defendants") have moved to dismiss the entire complaint of the plaintiff, Linda Egan, Administrator of the Estate of Mary Wojtulewicz ("plaintiff"). The plaintiff filed a six-count complaint alleging in the first count wrongful death; in second count medical negligence; in third count patient’s bill of rights/compensatory damages, in the fourth count patient’s bill of rights/compensatory damages/wrongful death; in the fifth count patient’s bill of rights/punitive damages; and in the sixth count patient’s bill of rights/punitive damages/wrongful death. It is important to note that all defendants are institutions and not individual health care provider(s). Attached to the complaint are two similar health care provider’s opinions pursuant to General Statutes § 52-190a. The defendants allege that the opinion letters attached to the complaint fail to comply with the requirements of § 52-190a and § 52-184c, rendering service of process insufficient in accordance with § 52-190a(c). More specifically, defendants argue that the letter from a registered nurse fails to comply with the applicable statutory criteria for a similar health care provider, and the plaintiff’s two opinion letters are identical, suggesting that they may not, in fact, be the result of a good faith inquiry as to whether negligence exists, and therefore, the entire complaint must be dismissed. For the reasons stated below, the motion to dismiss the complaint is denied.
LEGAL REQUIREMENT
The law in this area is somewhat convoluted. The legislation starts with a simple proposition: to commence a medical malpractice action, plaintiff must first obtain an opinion from a qualified expert that malpractice has occurred and attach a copy to the complaint along with a good faith certificate as required by General Statutes § 52-190a. See Morgan v. Hartford Hospital, 301 Conn. 388, 396-97 (2011). "[T]he purpose of § 52-190a and its requirement of a good faith certificate was to prevent the filing of frivolous medical malpractice actions." Id. at 398 citing Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 31 (2011). Failure to comply with § 52-190a warrants dismissal of the action for lack of jurisdiction over the person: "Section 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52-190a(c) 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.’" Morgan, 301 Conn. at 397. In Morgan the Supreme Court held: "[t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ... [B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process ..." Id. at 401-02.
In Lucisano v. Bisson, 132 Conn.App. 459, 465 (2011), the Appellate Court extended previous case law concerning the contents of an opinion letter and held that § § 52-190a and 52-184c, when read together, require disclosure of the qualifications of the author as a "similar health care provider" in the opinion letter attached to the complaint: "The attached opinion letter in the present case does not provide adequate information that could be used to determine whether the author is a similar health care provider. Plaintiffs must include this information so that parties and courts are able to determine compliance with § 52-190a. It would be unworkable to hold, as the plaintiff urges, that § 52-190a does not require the inclusion of qualifying information of the author of the opinion letter. Because a common sense application of § § 52-190a and 52-184c requires inclusion of qualifying information in the opinion letter, we agree with the trial court’s rationale." (Footnotes omitted.)
The Lucisano Court extrapolated its holding from the Supreme Court’s opinion in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 25 (2011), that "[C.G.S.] § 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers." The Appellate Court explained its reasoning for requiring statement of qualifications in the opinion letter: "[W]e note that § 52-190a(c), as well as our Supreme Court’s decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. at 25 ... requires immediate dismissal of an action if the opinion letter is not by a similar health care provider. If qualifying information is needed at the time the complaint is served, then that information logically must appear in the opinion letter attached to the complaint." Lucisano, 132 Conn.App. at 467 n.5.
General Statutes § 52-184c defines "similar health care provider" for a health care provider like defendant, who is neither board certified, a specialist nor held out as a specialist, as follows: "(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
FACTUAL RECITATION
Attached to the complaint here were two opinion letters that opined that in their treatment of plaintiff, the defendants had deviated from applicable standards of care for the health care providers, as alleged in the complaint. One letter is from a physician which states in pertinent part:
I am a Board Certified in Internal Medicine (1976), Subspecialty of Rheumatology (1978), Added qualifications in Geriatric Medicine (1998, recertified to 2024) and I am trained and experienced in this specialty. I am familiar with the standard of care as it relates to the practice of long-term care in the year 2016 in Connecticut and in the United States. I am licensed by the states of New York (1974), Florida (1978), New Jersey (1990), and Nevada (1995). I am trained and experienced in long-term care and geriatric medicine and such training and experience is a result of the active involvement in the practice or teaching of this medicine within the five-year period before the incident giving rise to this claim.
It is my opinion that Western Rehabilitation Care Center and/or its agents/ apparent agents/ servants/ employees, deviated from the standard of care as it related to the provision of nursing care in the following ways:
1. Failure to develop, implement and revise as needed an appropriate fall risk and prevention care plan to appropriately address Mary Wojtulewicz’ fall risk, and with each fall to prevent further falls;
2. Failure to provide adequate supervision and assistance to Mary Wojtulewicz in light of repeat falls and her high risk of falls;
3. Failure to develop, implement and revise as needed an appropriate individualized toileting care plan;
4. Failure to provide reasonable care in light of all surrounding circumstances to prevent fall and injury to Mary Wojtulewicz;
5. Failure to provide adequate supervision and assistance to Mary Wojtulewicz on November 29, 2016, before, during, and after toileting; and
6. Failure to appropriately transfer Mary Wojtulewicz for toileting on November 29, 2016.
It is my opinion that these deviations proximately caused Mary Wojtulewicz to fall and suffer a fractured right femur, dislocated right hip, and a fractured left hip and need for surgery. As a result, Mary Wojtulewicz’ condition deteriorated, ultimately resulting in her death on December 9, 2016. The opinion stated herein is based upon my years of experience, education, training and the information available to me at this time. Should other information and evidence become available, I reserve the right to supplement and/or amend this opinion.
The other letter is from a Registered Nurse which states in pertinent part:
I am a Registered Nurse with training and experience practicing in a long-term care setting and as a Director of Nursing. I hold the following certifications: AANC Board Certified in Gerontology Nursing Practice and NADONA Certified Director of Nursing in Long-Term Care. I am familiar with the standard of care as it is related to the provision of nursing care in a long-term care setting in the year 2016 in the United States and Connecticut. I am trained and experienced in long-term care and such training and experience is a result of the active involvement in the practice or teaching of this medicine within the five-year period before the incident giving rise to this claim.
It is my opinion that Western Rehabilitation Care Center and/or its agents/apparent agents/servants/employees, deviated from the standard of care as it related to the provision of nursing care in the following ways:
1. Failure to develop, implement and revise as needed an appropriate fall risk and prevention care plan to appropriately address Mary Wojtulewicz’ fall risk, and with each fall to prevent further falls;
2. Failure to provide adequate supervision and assistance to Mary Wojtulewicz in light of repeat falls and her high risk of falls;
3. Failure to provide reasonable care in light of all surrounding circumstances to prevent fall and injury to Mary Wojtulewicz;
4. Failure to develop, implement, and revise as needed an appropriate and individualized toileting care plan;
5. Failure to provide adequate supervision and assistance to Mary Wojtulewicz on November 29, 2016. before, during and after toileting; and
6. Failure to appropriately transfer Mary Wojtulewicz for toileting on November 29, 2016.
It is my opinion that these deviations proximately caused Mary Wojtulewicz to fall and suffer a fractured right femur, dislocated right hip, and a fractured left hip. As a result of this fall and injuries, Mary Wojtulewicz’ physical condition deteriorated, ultimately resulting in her death on December 9, 2016. The opinion stated herein is based upon my years of experience, education, training and the information available to me at this time. Should other information and evidence become available, I reserve the right to supplement and/or amend this opinion.
DEFENDANT’S POSITION
The opinion letters do not comply with the requirements of General Statutes § 52-190a and with § 52-190a(c). The registered nurse’s letter fails to comply with the applicable statutory criteria for a similar health care provider, and the two opinion letters are identical, suggesting that they may not be the result of a good faith inquiry. It is not evident on the face of the letter if the nurse meets the qualifications for licensure in Connecticut. In each of the opinion letters, the authors offer a chronology of alleged events, the alleged deviations from the standard of care, and, with one or two minute exceptions, the chronologies of events; the opinions and specific alleged deviations, and the causation opinions in both letters, are exactly the same. Two medical professionals from very different credentialing and training backgrounds, provide verbatim recitations of Mary Wojtulewicz’s alleged course as a resident, and came to the exact same conclusion regarding the exact ways the defendants allegedly departed from the standard of nursing care in exactly the same words.
In the specific context of Connecticut medical malpractice actions, "[t]he plain language of [Connecticut General Statutes § 52-190a(c)] ... 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., 106 Conn.App. 810, 822, 943 A.2d 544 (2008). "[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court. The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401-02, 21 A.3d 451 (2011).
Section 52-184c(b)(1) requires that the opinion letter author be licensed either by the appropriate regulatory agency of the State of Connecticut or by "another state requiring the same or greater qualifications." The opinion letter does not state whether the author is licensed as a registered nurse in the State of Connecticut, nor does the opinion letter indicate in which state he/she she is licensed, or that the qualifications for the licensing are greater than, or the same as those required by Connecticut. The letter does not satisfy the first element of § 52-184c(b). Second, the personal qualifications of this author are irrelevant under the statutory provisions. While the author lists various certifications, personal credentials are inconsequential, and courts agree that the statute requires "that an opinion letter contain information showing that its author is a similar health care provider." Bell v. Hosp. of St. Raphael, 133 Conn.App. 548, 561 (2012); The author of the opinion letter fails to set forth his or her qualifications in compliance with the foregoing statutory provisions. Finally, and because the allegations lack specificity regarding the particular health care provider(s) whose care is being disputed, defendants challenge the similar health care provider opinion letter by a registered nurse to the extent that same is offered to support claims against any health care provider possessing a greater level of qualification than that required for a registered nurse, including medical doctors and advanced practice registered nurses.
Comparison of the two similar opinion letters, from authors trained in two different fields, revealed that with the exception of a few minor differences, the two letters are exactly the same. Defendants recognize the Connecticut case law permitting plaintiffs’ attorneys to author similar health care provider opinion letters, so long as the letters reflect the opinions of qualified similar health care providers. Because the letters are essentially "copied and pasted" from one to the other, defendants challenge whether these letters do indeed reflect reasonable opinions, of two similar health care providers in entirely separate fields from one another, resulting from a good faith inquiry. The entire letter by a registered nurse is practically identical to the letter supposedly authored by a board-certified physician the Court dismiss plaintiff’s complaint for failure to append sufficient similar health care provider opinion letters.
In the event that the Court does not find dismissal appropriate, defendants request that the court conduct an in camera review of the original versions of each opinion letters, in order to determine whether same satisfy the spirit and letter of § 52-190a. "The trial court has the discretion as to whether to grant or deny request for in camera review." Derose v. Marrakech, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6017554-S, 2011 Conn.Super. LEXIS 2469 at *16 .
The defendants herein respectfully move the court to dismiss the complaint, in its entirety, based upon a lack of personal jurisdiction for insufficient service of process, or in the alternative the Court conduct an in camera review and examination of the similar health care provider opinion letters to evaluate the sufficiency of same under § 52-190a and, if the Court finds same insufficiency, dismiss the action in its entirety.
PLAINTIFF’S POSITION
The Defendant is an institution, not an individual health care provider, and the majority of superior courts hold 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." Carlson v. Countryside Manor Healthcare Fac., 2018 Conn.Super. LEXIS 943 *5-6 (collecting cases). § 52-190a "does not require the plaintiff to identify the name of each individual who acted on behalf of the corporate defendant, ... 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." Strickland v. Bristol Hosp. 50 Conn.L.Rptr. 641, 2010 Conn.Super. LEXIS 2477. Further, dismissal under § 52-190a implicates personal jurisdiction, and is an all-or-nothing proposition. A Court cannot dismiss "part of action" against an institutional defendant. § 52-190a(c) permits "dismissal of the action." Most courts hold that this language does not permit partial dismissal. See Dinkel v. WCHN, 2016 Conn.Super. LEXIS 602 . "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 vicariously liability actions ..." § 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." Andrade v. St. Vincent’s Med. Center, 54 Conn.L.Rptr. 359, 360, 2012 Conn.Super. LEXIS 187. Without more, the mere similarity of opinion letters alone, should not be a sufficient basis to dismiss a medical malpractice action.
Plaintiff’s original opinion letters are signed by similar health care providers and plaintiff attached two redacted similar health care opinion letters in compliance with § 52-190a. The reason the opinion letters are similar is because they were drafted by Plaintiff’s counsel with the input of each expert. Every court to consider whether § 52-190a permits a plaintiff’s attorney to draft opinion letters has held that it does. See Scofield v. Quinn, 146 Conn.L.Rptr. 319, 2008 Conn.Super. LEXIS 2333. The Scofield court denied defendant’s motion to dismiss, holding "the fact that [the opinion letters] are not in the doctor’s handwriting or typed by the doctor on his or her letterhead, is in this court’s opinion, of no consequence ... Nothing in the legislative history of the statute [ ] prohibits the plaintiff’s attorney from putting the words to paper so long as the opinion expressed is that of the similar health care provider." Id. at *6.
The defendants’ sole challenge to the registered nurse’s opinion letter is that it does not expressly declare whether he/she is licensed in Connecticut or another state requiring the same or greater qualifications. Nothing in the text of § 52-190a requires listing the qualifications of the opinion holder. The only statutory requirement relating to the contents of the opinion letter, is that it must contain a "detailed basis" for the formation of the opinion. § 52-190a. With respect to the qualifications of the opinion provider, the statute requires only that the person be "selected" in accordance with § 52-184c. It does not require a listing of those qualifications within the opinion letter. Although no Supreme Court decision, the Appellate Court has held that although § 52-190a is silent on qualifications, "the only plausible application of the plain language of § 52-190a and § 52-184c requires disclosure of qualifications in the opinion letter." See Lucisano v. Bisson, 132 Conn.App. 459, 466 (2011). Here, the registered nurse’s letter reveals sufficient compliance with § 52-184c(b). The board-certified registered nurse is trained and experienced in gerontological long-term care nursing. Nor is there a question that such experience is the result of the active involvement of teaching or practicing long-term care within 5 years before the tort occurred.
Defendants argue that it cannot discern whether the registered nurse is licensed in Connecticut or another state requiring the same or greater qualifications. The opinion letter demonstrates sufficient information for Defendant to glean this information. To become a Registered Nurse in Connecticut one must (1) Complete an approved Nursing Program; and (2) Pass the NCLEX-RN exam. See § 20-93; see also Department of Public Health, RN Licensure by Examination. It is apparent from the opinion letter that the registered nurse is AANC board-certified in gerontology nursing practice. The requirements for this AANC board-certification in the U.S. are: 1) hold a current, active RN license in a State or territory of the U.S; 2) have at least two years of full-time work experience as a Registered Nurse; 3) have a minimum of two thousand hours of clinical practice in gerontological nursing within the past three years; 4) have completed thirty hours of continuing education in gerontological nursing within the past three years; 5) pass the Board Certification Exam. By noting this board certification, it is clear that the registered nurse is a current and actively licensed registered nurse. As to registered nursing, all 50 states require at least the same qualifications as Connecticut. All fifty (50) states require at least passage of the NCI-EX-RN exam, and completion of an approved nursing program. By listing his/her AANC Board-Certification in Gerontology Nursing Care, he/she necessarily is licensed by a state requiring the same or greater qualifications than Connecticut. The opinion letter is sufficient under § 52-184c(b).
Defendant argues that § 52-184c(b) applies because the complaint does not expressly state that any of the individual agents alleged to be negligent are specialists. It would be unreasonable to burden plaintiff and the opinion letter with alleging that individual health care providers are specialists, when plaintiff can’t even determine the identity of the agents pre-suit. The absence of a reference to the credentials of individual agents here should not lead this court to automatically conclude none are subject to § 52-184c(c) if the opinion letter is sufficient as to specialists. That would be contrary to construing the Complaint in the light most favorable to the plaintiff as this court must do, and would instead be drawing an inference against the plaintiff. Wilkins v. Conn. Childbirth & Women’s Ctr., 314 Conn. 709 at 718. (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 ...). A majority of courts hold that an opinion letter sufficient to one individual health care provider is sufficient as to all others when the named defendant is an institution.
"It is wholly consistent with the statute’s purpose to allow an opinion letter to be provided from a medical professional whose qualifications in a specialty exceed those of the medical professional alleged to be negligent." Id. at 735. The opinion letter of the board-certified internal medicine physician with qualifications in geriatric medicine clearly reveals that he/she is licensed in multiple states, and is "familiar with the standard of care as it is related to the practice of long term care" in Connecticut in 2016, that he/she is "trained and experienced in long term care and geriatric medicine," and has been actively "practicing or teaching" long-term care medicine within the past five years; it also notes qualifications in geriatric medicine. If the court finds the complaint alleges non-specialist violations of the standard of care, and that § 52-184c(b) applies then the opinion letter is still sufficient. The qualifications listed in § 52-184c(b) are apparent from the face of the opinion letter. This is an action against an institution. § 52-190a requires that a plaintiff perform a "reasonable inquiry as permitted by the circumstances." Circumstances here do not permit plaintiff to identify the specific individuals who were allegedly negligent. When this happens the just result is not dismissal, nor is it to require plaintiff or the opinion providers to pick one agent whom they are unsure committed the alleged negligence and sue them just to make sure the opinion letter is sufficient as to someone. We don’t know exactly what agents committed the negligence. What we do know is that a board-certified registered nurse who is a certified director of nursing trained and experienced in long-term care, and a board-certified physician with qualifications in geriatric medicine and with training and experience in long-term care both agree that the agents of defendants committed negligence, plaintiff is just not sure which agents.
Even if this Court is inclined to dismiss the action because the opinion letters are not sufficient under § 52-184c(b) or § 52-184c(c), the action still cannot be dismissed because under § 52-190a, no opinion letter is required for negligent acts of a certified nursing assistant, as they are not licensed in Connecticut. Because they are not health care providers, a § 52-190a opinion letter is not necessary as they work at the direction and under the supervision of licensed nurses, are not licensed, but instead are given a "registration."
An action is classified as medical malpractice only when three criteria are satisfied "(1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254 (2002). "Malpractice presupposes some improper conduct in the treatment or operative skill or ... the failure to exercise requisite medical skill." Id. (Emphasis in original.) While many of the allegations of negligence involve medical care, the plaintiff also alleges several acts of negligence related to the failure to employ sufficient levels of qualified staffing, which is a corporate decision, not arising from the patient-physician relationship. The allegations of negligence do not satisfy either the second or third prongs of the Gold criteria, and thus do not sound in medical malpractice. For all the reasons set forth above, any of which alone defeats defendants’ motion, the motion to dismiss should be denied.
COURT ANALYSIS
The registered nurse’s letter states: "I am a Registered Nurse with training and experience practicing in a long term care setting and as a Director of Nursing. I hold the following certifications: AANC Board Certified in Gerontology Nursing Practice and NADONA Certified Director of Nursing in Long Term Care. I am familiar with the standard of care as it is related to the provision of nursing care in a long term care setting in the year 2016 in the United States and Connecticut. I am trained and experienced in long term care and such training and experience is a result of the active involvement in the practice or teaching of this medicine within the five-year period before the incident giving rise to this claim."
The physician’s letter states: "I am a Board Certified in Internal Medicine (1976), Subspecialty of Rheumatology (1978), Added qualifications in Geriatric Medicine (1998, recertified to 2024) and I am trained and experienced in this specialty. I am familiar with the standard of care as it relates to the practice of long term care in the year 2016 in Connecticut and in the United States. I am licensed by the states of New York (1974), Florida (1978), New Jersey (1990), and Nevada (1995). I am trained and experienced in long term care and geriatric medicine and such training and experience is a result of the active involvement in the practice or teaching of this medicine within the five-year period before the incident giving rise to this claim."
After a review of all documents submitted by the parties and review of the applicable General Statutes, the court finds the following. The plain language of § 52-184c requires the author of an opinion letter to qualify as a "similar health care provider" to have "active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." The qualifying language in each of the opinion letters is sufficient to satisfy the statutory requirements for compliance with § 52-184. The court can conclude on the face of both opinion letters that the each of the authors are "a similar health care provider" within the meaning of § 52-184c(b) and thus that the opinion letters satisfies the requirements of § 52-190a, necessary to maintain jurisdiction over defendants.
Finally, the Connecticut case law permits a plaintiff’s attorney to author similar health care provider opinion letters, so long as the letters reflect the opinions of qualified similar health care providers. The mere allegation that the letters are essentially "copied and pasted" from one to the other, does not lead this court to believe, nor is there any evidence to demonstrate that, as the defendants allege, that these letters may not actually reflect the reasonable opinions of two similar health care providers in entirely separate fields from one another due to their similarity, necessitating further inquiry.
The motion to dismiss is DENIED.