Opinion
No. CV08-5009513S
December 16, 2008
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS
I. BACKGROUND
Plaintiff brought this medical malpractice action by Writ, Summons and Complaint dated June 16, 2008, against Neil F. Peterson, M.D., Waterbury Anesthesiology Associates, and St. Mary's Hospital. The case was withdrawn as against Dr. Peterson. Pertinent to the remaining defendant, St. Mary's Hospital, and this motion, the Plaintiff alleges that St. Mary's Hospital
deviated from the standard of professional care in one or more of the following ways which, . . . was the proximate cause of the . . . losses, sustained by the plaintiff:
a. Defendant failed to administer antibiotics to plaintiff when treatment was rendered for the lacerations to his right arm;
b. Defendant failed to adequately and properly recognize and be familiar with the anatomy of the surgeries performed, though he reasonably should have;
c. Defendant failed to adequately and properly care for, treat, monitor and supervise the medical and surgical care of the plaintiff, though he reasonably should have.
Plaintiff attached to the complaint a document that provides:
CERTIFICATE OF REASONABLE INQUIRY CT Page 20017
Pursuant to General Statutes § 52-190a, I hereby certify that I have 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 plaintiff by St. Mary's Hospital and/or its employees/agents, on April 14, 2006. I reviewed the records, [sic] under the circumstances, antibiotics should have been administered when the plaintiff was treated in the Emergency Room for his arm lacerations. That reasonable inquiry has given rise to a good faith belief that grounds exist for an action against each named defendant.
Sincerely, [sic]
On August 22, 2008, St. Mary's Hospital moved to dismiss the complaint on the grounds of failure to comply with Connecticut General Statute § 52-190a. Specifically, defendant states: the plaintiff has not complied with Connecticut General Statutes § 52-190a because he has failed to attach (1) a sufficiently detailed written opinion letter by similar doctor; and (2) a certificate of good faith signed by his attorney, both of which are required by Connecticut General Statutes § 52-190a. This being the case, the defendant argues that this court lacks subject matter jurisdiction.
On September 30, 2008, plaintiff filed a response to the Motion to Dismiss and the defendant responded to same on December 3, 2008. On December 8, 2008, the parties argued the motion before the court at which time the court reserved decision.
II. LAW
Connecticut General Statutes § 52-190a, which applies to any action in which a claimant alleges that a health care provider was negligent, provides, in relevant part: "The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint 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 § 52-184c, . . . 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." The statute further provides, in subparagraph (c), that a claimant's failure to obtain and file the written opinion of a similar health care provider "shall be grounds for dismissal of the action." Connecticut General Statutes § 52-190a.
It is axiomatic that, since this statute is in derogation of common law, it must be strictly construed. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 37, 848 A.2d 418 (2004). A similar health care provider is defined in Connecticut General Statutes § 52-184c(c) as 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."
The plaintiff argues that an attack on the plaintiff's written, signed opinion of a similar health care provider is not grounds for a motion to dismiss. Rather, the plaintiff maintains that dismissal is only appropriate where the plaintiff fails to attach "any" good faith to his complaint. Furthermore, in recognition of his failure to comply with requirements of § 52-190a, the plaintiff has moved to amend the complaint to add his attorney's certificate of good faith.
The court rejects the plaintiff's position. In LeConche v. Elligers, 215 Conn. 701 (1990), our Supreme Court held that, with respect to a former version of § 52-190a, the absence of a good faith certificate was a mere insufficiency of the complaint rather than grounds for dismissal. Id., 711. Consequently, the defect was subject to a motion to strike and correctable through an appropriate amendment. Id. The Supreme Court based its ruling on the fact that the version of § 52-190a(a) in effect at the time of that decision did not "address the consequences of a failure to file a certificate." Id., 712. Applying "the established principle that every presumption is to be indulged in favor of jurisdiction," the Supreme Court regarded the omission as non-jurisdictional. Id., 709-10.
However, in 2005, the Legislature amended § 52-190a by adding the requirement that the signed opinion of a similar health care provider be submitted along with the good faith certificate and by stating explicitly in a new subsection (c) that the failure to obtain and file such document "shall be grounds for the dismissal of the action." Public Act 05-275, S.2. Clearly, specifying dismissal of the action was a response to LeConche v. Elligers, supra, and its progeny. The amendment clarifies that the purpose of § 52-190a(a) is not the erection of inconvenient procedural pitfalls for the pleader, but rather is to protect health care providers from even the mere exposure to suit unless the good faith belief that malpractice has occurred is documented by the submission of a signed opinion by a similar health care provider.
To permit a plaintiff to overcome a clear violation of § 52-190a(a) by amendment of a pending complaint thwarts the obvious purpose of § 52-190a(a) as explicated by Public Act 05-275, S.2. Such an interpretation reads out of the statute the language contained in subsection (a) that "[n]o civil action . . . shall be filed," and the language of subsection (c) that "failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." (Emphasis added.)
The phrases "shall be filed" and "obtain and file" are strong and unambiguous. In order to commence a medical malpractice action, the plaintiff must beforehand conduct the investigation required by subsection (a), obtain the written, signed opinion of a similar health care provider, and simultaneously file the good faith certificate and opinion with the original complaint.
The legislative hearings and debate surrounding adoption of the 2005 amendment make this purpose clear. On June 6, 2005, Senator McDonald stated, "The failure to attach such an opinion would require the court to dismiss the case." 48 S. Proc., Pt. 14, 2005 Sess. P. 4411. (Emphasis added.) At Judiciary Committee hearings on the proposed amendment, Attorney Michael Neubert testified that the pending change would provide "that failure to obtain and file the written opinion would be grounds for an immediate dismissal of the action." Conn. Joint Standing Committee Hearings, Judiciary Pt. 18, 2005 Sess. p. 5539. (Emphasis added.) On June 8, 2005, Representative Lawlor remarked that "[the amendment to § 52-190a] is making it a considerably more significant a hurdle to overcome in order to file a medical malpractice case." 48 A.R. Proc., Pt. 31, 2005 Sess., p. 9501. He added, "But this is for the initial benchmark of actually, filing the claim . . ." Id., p. 9502. Significantly, Senator Kissel characterized the purpose of the new amendments to § 52-190a as "[t]hat [which] will help the defense counsel and their clients . . . right at the inception of the medical malpractice case." 48 S. Proc., Pt 14, 2005 Sess. p. 4428. He further noted, "We get right out of the chute, because we're trying to speed it up. We're trying to expedite it." Id., p. 4429.
Defendant argues that the plaintiff has failed, broadly, in two respects, to comply with the statute's requirements. First, the plaintiff has not attached a certificate of good faith signed by his attorney. Second, although a redacted written opinion is supplied, it is not detailed. The redacted written opinion, apart from repeating the statutory language, reads, in full, as follows: "I have reviewed the records, under the circumstances, antibiotics should have been administered when the plaintiff was treated in the Emergency Room for his arm lacerations." (Complaint, written opinion, second of the three sentences forming the entirety of said opinion.) Plaintiff argues that this opinion is detailed enough, that "there is nothing in the statute to support the defendant's argument that the `sufficiency' of the opinion . . ., implicates the court's jurisdiction." Pl. Mem in Opposition p. 1. Indeed, there have been decisions in other cases where spare opinions were found to suffice. See, e.g., Ouellette v. Brook Hollow Health Care Center, Superior Court, judicial district of New Haven Docket No. CV 06-5002865 (February 16, 2007, Holden, J.) [42 Conn. L. Rptr. 863]. Of course, each case is fact specific. In that case, the written opinion at least described the qualifications of the author and mentioned the facts in the case that deviated from the acceptable standard of care. The written opinion in this case does not. In this case, it is clear that the written opinion is not sufficiently detailed. It is entirely conclusory and provides no illumination as to what is the standard of care, that the medical providers of the Hospital violated it and how or on what basis or when it was violated. It does not even reveal whether the writer is a health care provider, or what type. It does not comply with the requirements of the statute.
Further, contrary to plaintiff's argument, the court interprets Connecticut General Statutes § 52-190a to authorize a motion to dismiss for a similar health care provider's written opinion which is defective. The statute reads, in relevant part: "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." § 52-190a(c) The opinion required by subsection (a) is that of a similar health care provider. The fact that a one sentence opinion may be attached is not sufficient to withstand this Motion to Dismiss. It is the very type of action which the Legislature addressed in its amendment to the statute. The opinion attached to this complaint is effectively the same as no opinion at all for the purposes of conferring statutory jurisdiction upon the court.
There still remains to be resolved the issue of whether the defect can be cured by amendment, a position maintained by the plaintiff in his memorandum in opposition. Again, there is no appellate court decision on point, and the Superior Court judges are split on the issue of dismissal. Upon current study and close reflection, this court holds that the decisions requiring dismissal for failure to comply with the dictates of § 52-190a(a) are more persuasive, and more in line with the legislative purpose voiced above, see Matkin v. Schoenfeld, Superior Court, Waterbury J.D. CV 07-5005165 (November 14, 2007), Upson, J. [44 Conn. L. Rptr. 449]; and Landry v. Zborowski, Superior Court, Tolland J.D., CV 07 6000211 (October 26, 2007), Vachelli, J. [44 Conn. L. Rptr. 452], Griffith v. Rockville General Hospital, Inc., Superior Court, Tolland J.D., CV 07-5001815 (December 18, 2007) Sferrazza, J. [44 Conn. L. Rptr. 614]; Beaudette v. Ryan, Superior Court, Tolland J.D. CV 07 500 22 85 (October 17, 2008), Sferrazza, J. [46 Conn. L. Rptr. 508]; Cataldo v. Zuccala, Superior Court, Waterbury J.D., CV 06-5004649 (September 27, 2007, Eveleigh, J.); Figueroa v. Donahue, supra [44 Conn. L. Rptr. 300]; and Fyffe-Redman v. Rossi, Superior Court, Hartford J.D., CV 05-6000010 (June 7, 2006) Miller, J. [41 Conn. L. Rptr. 504]. Having concluded that the defect here involves the subject matter jurisdiction of the court, no amendment is available. Federal Deposit Ins. Corp. v. Peabody. N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). Otherwise, to allow an amendment to cure the defect "prior to ruling on the challenge to the court's subject matter jurisdiction [would be to act] inconsistently with the rule that, as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).
XII. CONCLUSION
Based upon the foregoing reasons, the Defendants' Motion To Dismiss is granted.