Opinion
No. CV 08-5018960 S
April 6, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#137)
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiff, Nancy Helfant, individually and as executrix of the estate of her late husband, Irwin Helfant, filed a complaint against the defendants, Middlesex Hospital, Middlesex Shoreline Medical Center, Yale New Haven Hospital, and the agents, servants and employees of these institutions, as well as John Lynch, Jr., M.D. and Henry Cabin, M.D., individually, on March 20, 2008. The complaint included, as attachments, a certificate of reasonable inquiry and a written opinion letter from a "similar health care provider." The plaintiff filed a revised complaint on November 12, 2008.
The opinion letter attached to the plaintiff's complaint, which is at issue in this motion to dismiss, provides:
"I have reviewed in detail, and on several occasions, medical records forwarded to me pertaining to the treatment of Irwin Helfant by John P. Lynch, M.D. and agents of Middlesex Hospital on 10/4/05 and by Henry S. Cabin, M.D. and agents of Yale-New Haven Hospital until his premature demise on 12/5/05.
"This patient was known to have a history of surgery for esophageal rupture. He presented to Middlesex Hospital Emergency Department with complaints on nausea and vomiting, chest and abdominal pain, shortness of breath, diaphoresis and anorexia. His lab values included normal cardiac enzymes but markedly elevated WBC with a left shift, elevated liver and kidney function tests and an abnormal chest x-ray, with a large area of consolidation.
"Despite the extremely high likelihood that the patient was infected from a repeat esophageal disruption, Doctor Lynch failed to make this diagnosis and transferred Mr. Helfant to Yale-New Haven Hospital's cardiac catheterization lab for further evaluation and intervention by Henry S. Cabin, M.D. and his Yale team, who again failed to appropriately diagnose and treat the patient.
"The communication between Doctors Lynch and Cabin and agents of their hospitals was frankly abysmal, and their actions and inactions in their `treatment' of this patient were distinctly substandard. More likely than not Mr. Helfant would have survived had he been properly diagnosed and treated.
"I am ready and willing to so testify."
The plaintiff alleges the following facts in count one of the revised complaint. On December 5, 2005, the plaintiff's decedent was admitted for treatment by Lynch at Middlesex Hospital Shoreline Medical Center, and subsequently transferred to Yale New Haven Hospital, where Cabin rendered care. The defendant hospitals caused the death of her decedent in that they failed to use the care and skill ordinarily used by hospitals in the state of Connecticut; that the agents, servants and employees of the defendants failed to diagnose properly and treat the plaintiff's decedent; that the same failed to take a proper medical history of the plaintiff's decedent; and that the same failed to monitor and conduct proper diagnostic testing of the plaintiff's decedent's condition.
The plaintiff alleges that the defendants Lynch and Cabin caused the death of her husband in that they failed to use the care and skill ordinarily used by physicians in the state of Connecticut; failed to diagnose properly and treat the plaintiff's decedent; failed to take a proper medical history of the plaintiff's decedent; and failed to conduct proper diagnostic testing of the plaintiff's decedent's condition. The plaintiff claims loss of companionship, support, love and consortium. Additionally, the plaintiff seeks to recover for pain and suffering, medical expenses and funeral and burial expenses.
On January 19, 2008, Cabin and Yale New Haven Hospital answered the plaintiff's original complaint. On November 26, 2008, Middlesex Hospital, Middlesex Hospital Shoreline Medical Center and Lynch ("defendant doctor") moved to dismiss the plaintiff's revised complaint on the grounds that the opinion letter submitted by the plaintiff did not comply with General Statutes § 52-190a, because it was not authored by a "similar health care provider," and that it was insufficiently detailed in that it did not provide for how the defendants deviated from the standard of care. The plaintiff filed an objection to the defendants' motion on September 9, 2009, and on October 5, 2009, this court, Wilson, J., entered an order sustaining the plaintiff's objection to the defendants' motion. Subsequently, on October 13, 2009, the defendants filed a motion to reargue their motion to dismiss, citing, inter alia, Bennett v. New Milford Hospital, 117 Conn.App. 535, 979 A.2d 1066, cert. granted 294 Conn. 916, 983 A.2d 849 (2009). This court granted the defendants' motion to reargue, vacated its order of October 5, 2009, and heard reargument on the defendants' motion to dismiss at short calendar on January 11, 2010.
The defendants submitted as an exhibit to their motion to dismiss an affidavit made by John Lynch, Jr., M.D. dated October 29, 2008.
The plaintiff submitted as an exhibit to her objection to the defendants' motion to dismiss an affidavit made by the opinion letter author, Robert Pieroni, M.D., of September 8, 2009 as well as his curriculum vitae.
DISCUSSION
"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). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint . . . including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). Nevertheless, "motions to dismiss are not limited to jurisdictional challenges." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813 (2009).
General Statutes § 52-190a prescribes two threshold requirements for medical malpractice plaintiffs. The threshold requirement at issue is set forth in § 52-190a(a), which provides that plaintiffs "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." Section 52-184c(c) states, in pertinent part: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, 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." (Internal quotation marks omitted.) General Statutes § 52-190a(c) states that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
Our Appellate Court has stated that "[a] plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action. However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 583-84. "Thus, an action [for medical malpractice] is subject to dismissal under subsection (c) [of § 52-190a] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 545.
Lynch, Middlesex Hospital and Middlesex Hospital Shoreline Medical Center have joined in the present motion to dismiss, but the arguments raised by the defendant doctor and the institutional defendants must be treated separately. The defendant doctor avers in his affidavit of October 29, 2008 that he is board certified in emergency medicine. He argues that the plaintiff's complaint must be dismissed pursuant to § 52-190a(c) because the author of the plaintiff's opinion letter is not a "similar health care provider" as defined by § 52-184c(c). The defendant doctor further contends that the letter is not sufficiently detailed to allege medical negligence, in that it neither states a standard of care nor illustrates how the defendant doctor breached that standard. Lastly, the defendant doctor argues that the letter is conclusory in its entirety.
The plaintiff counters that § 52-190a(c) provides for dismissal only where a plaintiff neglects to attach an opinion letter to a complaint. In addition, she argues that the opinion author is a similar health care provider because he has sufficient experience in the field of emergency medicine, which is unlike other medical specialties in that it is defined solely by the setting in which the care is rendered. The plaintiff further argues that the sufficiency of the detail of a medical opinion letter is not properly raised in a motion to dismiss; and that, if the court finds that it is, the letter is sufficiently detailed.
The plaintiff filed a supplemental objection to the defendants' motion to dismiss, in which she counters, inter alia, that the care rendered by the defendant doctor was outside of his specialty. Therefore, the plaintiff contends that the opinion letter author is a similar medical provider under § 52-184c(c), although the author is not board certified in emergency medicine. In reply, the defendants assert that Bennett still controls this issue, focusing on the defendant doctor's board certification relative to that of the opinion letter author. The defendants also argue in reply that the substance of the letter at issue is lacking, and that it is deficient as against the institutional defendants, Middlesex Hospital and Middlesex Hospital Shoreline Medical Center.
The plaintiff, in her supplemental objection to the defendants' motion to dismiss, also requested that the court hold its decision in abeyance until the Supreme Court releases their opinion in the certified appeal pending before it Bennett v. New Milford Hospital, 294 Conn. 916, 916 (2009). The court, however, is of the opinion that an abeyance is unnecessary to decide the issues raised by the present motion.
The Appellate Court's decision in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, is controlling as to the validity of the opinion letter as against the defendant doctor. In Bennett, the plaintiff proffered an opinion letter by a board certified general surgeon against a doctor who was board certified in emergency care. Id., 539. The defendant doctor moved to dismiss, on the basis that the author of the opinion letter was not a similar health care provider as defined by § 52-184c, and on the basis that the letter was insufficiently detailed. Id. In affirming the trial court's decision granting the defendant doctor's motion to dismiss, the Appellate Court held that the dismissal provided by § 52-190a(c) applies in situations where the opinion letter attached to the complaint is challenged because it is "[n]ot from a similar health care provider or does not give a detailed basis for the opinion." Id., 545. The court, applying the plain language of §§ 52-190a and 52-184c held that dismissal is proper where an opinion letter author is not a similar health care provider as defined in § 52-184c. Id.
In the present case, the defendant doctor seeks dismissal of the plaintiff's complaint because the author of the opinion letter required by § 52-190a is not board certified in the same specialty as the defendant. The letterhead upon which the plaintiff's health care provider's opinion letter is written provides that the author is board certified as an internist, a family practitioner, and as an allergist and immunologist. Nowhere in the record is there any indication that the opinion letter author is board certified in emergency medicine. In the present matter, since the defendant doctor is board certified in emergency medicine, §§ 52-190a(a) and 52-184c(c) require that a similar health care provider be board certified in emergency medicine.
Under the standard set forth in Bennett, and § 52-190a(a), the letter cannot be determined to have been authored by a similar health care provider. Construing the motion to dismiss in the light most favorable to the nonmoving party, the court finds that the opinion letter attached to the plaintiff's complaint fails to comply with the requirements of §§ 52-190a(a) and 52-184c(c). Furthermore, the plaintiff's contention that the care rendered by the defendant doctor was outside the scope of his specialty is unsupported. Therefore, the defendants' motion to dismiss pursuant to § 52-190a(c) inasmuch as it relates to the defendant doctor is granted.
The remaining issue is whether the opinion letter, although insufficient as to the individual defendant, remains sufficient as against the institutional defendants, Middlesex Hospital and Middlesex Hospital Shoreline Medical Center. The plaintiff's revised complaint alleges vicarious liability against the institutional defendants for the negligent conduct of Lynch as their agent.
Construing the plaintiff's revised complaint broadly, it is apparent that it fails to allege a cause of action for direct negligence against the institutional defendants. Paragraph eleven of count five of the plaintiff's revised complaint alleges the following negligent conduct of Middlesex Hospital: "a) . . . it failed to use the care and skill ordinarily used by physicians in the State of Connecticut. b) In that its agents, servants and/or employees failed to properly diagnose and treat the decedent while he was a patient in the defendants' hospitals. c) In that its agents, servants and/or employees failed to take a proper history of the decedent; d) In that its agents, servants and/or employees failed to properly diagnose the decedent's condition; e) In that its agents, servants and/or employees failed to conduct proper diagnostic testing of the decedent's condition; f) In that its agents, servants and/or employees failed to properly monitor the decedent's condition; g) In that its agents, servants and/or employees failed to use the proper treatment, care and skills ordinarily used by hospitals in the State of Connecticut."
Paragraph eleven of the seventh count of the plaintiff's revised complaint alleges the following negligent conduct of Lynch: "a) . . . he failed to use the care and skill ordinarily used by physicians in the State of Connecticut; b) In that he failed to properly diagnose and treat the decedent while he was a patient in the defendants' hospitals; c) In that he failed to take a proper history of the decedent; d) In that he failed to properly diagnose the decedent's condition; e) In that he failed to conduct proper diagnostic testing of the decedent's condition; f) In that he failed to properly monitor the decedent's condition; g) In that he failed to use proper treatment, care and skills ordinarily used by physicians in the State of Connecticut."
Construing the plaintiff's revised complaint broadly, the court reads these paragraphs to allege the same negligent conduct against both Lynch and Middlesex Hospital/Middlesex Shoreline Medical Center. Therefore, it is apparent that the plaintiff intended to rely solely on vicarious liability in her revised complaint.
In Bennett, the Appellate Court noted that "[i]n resolving the issues presented in this appeal, we need not address medical malpractice claims against institutional defendants. We note, however, that there may be a gap in § 52-190a regarding such defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation." CT Page 17329 Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 548 n. 10. Nevertheless, "[t]he majority of Superior Court decisions have held that where the counts sought to be dismissed contain allegations of the principal being vicariously liable for its agent, whether stated expressly or by incorporation of prior counts, if the opinion letter is sufficient as to the agent physician, it is also sufficient to satisfy § 52-190a(a) as to the principal non-individual defendants." Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.); Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) ( 44 Conn. L. Rptr. 347) ("[s]ince the written opinions of healthcare providers similar to that of [the defendant physicians] are attached to the complaint, it is sufficient to withstand a motion to dismiss as to the claim against the Hospital based on vicarious liability"); but see Cataldo v. Zuccala, Superior Court, complex litigation docket at Waterbury, Docket No. UWY X 02 CV 06 5004649 (September 27, 2007, Eveleigh, J.) ( 44 Conn. L. Rptr. 300) ("[a]n opinion derived from a doctor who is not a similar health care provider, and attached to the complaint, is effectively the same as no opinion at all for the purposes of conferring statutory jurisdiction upon the court").
In support of their motion to dismiss, the institutional defendants argue that the opinion letter submitted by the plaintiff is deficient as against the individual defendant because it was not authored by a similar health care provider, and, therefore, the court must also dismiss the plaintiff's vicarious liability claims against the institutional defendants. The defendants also argue that the substance of the opinion letter submitted by the plaintiff is insufficient in that it fails to identify individual agents or servants of the defendants, fails to allege a standard of care and fails to allege specific instances of negligence.
Because the court finds that the opinion letter submitted by the plaintiff was not authored by a "similar health care provider" as to the institutional defendants, it need not reach the issue of whether the substance letter is sufficient. See Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 545 ("[t]hus, an action is subject to dismissal under subsection (c) [of § 52-190a] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion" [emphasis added]).
The plaintiff contends that the institutional defendants are vicariously liable for the negligent acts of their agents, servants and employees, including Lynch. The plaintiff, in her original objection, maintains that § 52-190a does not require the plaintiff to submit opinion letters to match each individual agent, servant or employee of the defendants who treated the plaintiff's decedent.
"From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that, under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." (Citations omitted; internal quotation marks omitted.) Cataldo v. Zuccala, Superior Court, judicial district of Danbury, Docket No. CV 08 5004961 (August 11, 2009, Shaban, J.).
In Ribeiro v. Elfenbein, supra, Superior Court, Docket No. 09 5006155, the plaintiff brought an action for medical malpractice against an individual physician and three institutional defendants. One institution, Danbury Hospital, filed a motion to dismiss on the basis that the opinion letter submitted by the plaintiff did not comply with § 52-190a, in that it was not drafted by a similar health care provider. The court, Shaban, J., first analyzed whether the opinion letter author was a "similar heath care provider" to the individual physician defendant, a board certified surgeon. The court found the opinion letter to be deficient because it was not authored by a similar health care provider as required by § 52-184c.
After finding the opinion letter submitted by the plaintiff deficient, the court turned to the issue of whether the letter was sufficient as against the institutional defendant. The court determined that the complaint alleged both direct negligence and vicarious liability against the institutional defendant. The court reasoned that the opinion letter did not give notice to the defendant "as to whom the allegations of the breach of the standard of care may apply," nor did it "set forth any information by which it could be determined that the author is a similar health care provider as defined in § 52-184c and as required by § 52-190a." In granting the institutional defendant's motion to dismiss, the court concluded that: "Even viewing the allegations of the complaint in the light most favorable to the non-movant plaintiff, where the opinion letter is insufficient as to the physician, then it is also insufficient as to [the institutional defendant] where vicarious liability is alleged because the physician was its agent, servant and/or employee." See also Morgan v. Hartford Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 07 5009731 (May 21, 2009, Shapiro, J.) [ 47 Conn. L. Rptr. 870] (granting individual and institutional defendants' joint motion to dismiss on the grounds that the § 52-190a opinion letter author was not a similar health care provider).
In light of Ribeiro, the institutional defendants' argument in the present case that the plaintiff's cause of action against them must be dismissed because it relies on vicarious liability is persuasive. The opinion letter submitted by the plaintiff identifies the institutional defendants, references the agents of these defendants, and opines that the institutions' agents' failure to communicate led to substandard treatment. The opinion letter in the present case goes beyond the extent of the negligence alleged in the plaintiff's revised complaint, specifically alleging this act of direct negligence on the part of the institutional defendants. Nevertheless, construing the plaintiff's revised complaint in her favor, it is clear that it only alleges a cause of action based on the theory of vicarious liability. Since the opinion letter submitted by the plaintiff is deficient as offered against Lynch individually per Bennett, it must follow that it is also deficient as against Middlesex Hospital and Middlesex Shoreline Medical Center as Lynch's principals.
CONCLUSION
Accordingly, for the foregoing reasons, the defendants' motion to dismiss is granted.