Opinion
FSTCV156025204S
10-07-2015
Soltani Einollah v. Evan K. Krakovitz, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#111.00)
Hon. Charles T. Lee, J.
The plaintiff, Einollah Soltani, filed a complaint against the defendants Evan Krakovitz, M.D. and Greenwich Hospital on April 30, 2015. The plaintiff alleges that he came under the care of Dr. Krakovitz for an elective rectal polypectomy surgical procedure in May 2013, and, following the procedure, began to develop signs and symptoms of various ailments consistent with rectal perforation. According to the plaintiff, these injuries were a result of the failure of Dr. Krakovitz to exercise reasonable care, including the failure to timely diagnose and treat the perforation and resulting conditions.
The first count of the complaint alleges medical malpractice against Dr. Krakovitz, and the second count alleges the same against Greenwich Hospital, " through its agents, servants and/or its employees, including, but not limited to Evan K. Krakovitz, M.D." Pursuant to General Statutes § 52-190a(a), the plaintiff attached a certificate of good faith and an opinion letter from a board certified physician in general surgery and colon and rectal surgery to the complaint.
On July 9, 2015, Greenwich Hospital filed a motion to dismiss the second count to the extent that it asserts that the hospital is vicariously liable for the alleged conduct of any unnamed agents (#111.00). The plaintiff filed an opposition to the motion on August 4 (#118.00), and Greenwich Hospital filed a reply on August 20 (#121.00). The court heard argument on August 24, 2015.
POSITIONS OF THE PARTIES
Greenwich Hospital argues that, because the plaintiff has attached an opinion letter from a " similar health care provider" only from a colorectal surgeon, he has fulfilled the requirements only as to Dr. Krakovitz. Because, the plaintiff also alleges that the hospital is 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 defendant asserts that the motion to dismiss the second count must be granted to the extent that it claims negligence on behalf of the hospital's unidentified agents. The plaintiff counters that § 52-190a serves as a gatekeeping function to prevent plaintiff's from commencing frivolous medical malpractice lawsuits, but is not intended to produce unworkable results. Defendant is therefore not required to identify every 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.
DISCUSSION
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, 314 Conn. 709, 720-21, 104 A.3d 671 (2014). 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 (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[iag] 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, 2013, Zemetis, J.); Sinclair v. Ehrlich, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6010046-S (January 31, 2013, Markle, J.) .
ANALYSIS
Greenwich Hospital has not argued that the opinion letter attached to the complaint is insufficient as to Dr. Krakovitz. In fact, the defendant states that plaintiff has " cleared a threshold to state a claim against Dr. Krakovitz." (#121.00). Instead, it argues that the plaintiff must identify and attach an opinion letter as to each agent for whom the hospital might be vicariously liable, whereas the plaintiff asserts only one opinion letter is sufficient to avoid dismissal of a claim against the hospital through all potential agents.
Both parties acknowledge 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.) (59 Conn. L. Rptr. 441, 443); 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-08-500491-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.) (44 Conn. L. Rptr. 570, 572).
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, Superior Court, judicial district of Hartford, Docket No. CV-12-6030589-S (October 25, 2012, Scholl, J.) (54 Conn. L. Rptr. 881, 883). 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.) . Greenwich Hospital additionally cites to Durazzo v. Haven Pediatric Dentistry, Superior Court, judicial district of New Haven, Docket No. CV-14-6044549-S (May 8, 2015, Wilson, J.), and Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. CV-07-5003920-S (September 19, 2007, Pittman, J.) . In both cases, the motion to dismiss was granted as to the individual as well as the institution, so they do not appear directly relevant here.
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. 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. The purpose of § 52-190a is to prevent frivolous lawsuits, and, as Greenwich Hospital concedes, the opinion letter is sufficient at least as to Dr. Krakovitz. By this account the action is not frivolous and dismissal is not warranted.
CONCLUSION
For the foregoing reasons, the motion to dismiss of defendant Greenwich Hospital is denied.