Opinion
CV166027957
10-10-2017
Doris Kimball v. Bride Brook Health Rehabilitation Center et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
Timothy D. Bates, J.
The issue presented is whether the court should dismiss the plaintiff's complaint on the ground that the plaintiff's purported letters from similar health care providers attached to the complaint fail to satisfy the requirements of General Statutes § 52-190a and General Statutes § 52-184c because the letters do not provide sufficient information to support a conclusion that the authors are similar healthcare providers.
FACTS
On September 15, 2016, the plaintiff, Doris Kimball, filed a two-count medical malpractice action against the defendants, Bride Brook Health and Rehabilitation Center, SSC Niantic Operating Company, LLC, and Bride Brook Nursing and Rehabilitation Center, Inc. The complaint alleges the following facts. Beginning on June 19, 2014, through June 23, 2014, the plaintiff received care and/or treatment from a nursing home facility run by the defendants. The plaintiff was eighty-six years old when she was transferred to the care of the defendants from a hospital because she was in need of twenty-four-hour care while receiving evaluation and rehabilitation. The defendants, through their agents and/or employees, assessed the plaintiff's condition and adopted a care plan with a risk evaluation that found her to be at " high risk" for falling. On June 23, 2014, one of the defendants' agents/employees was assisting the plaintiff to use the restroom but turned her attention away briefly, long enough for the plaintiff to fall off of the toilet onto the floor striking her head and sustaining injuries. The plaintiff alleges her fall was caused by the defendants' inadequate and negligent care. The complaint was accompanied by two opinion letters in accordance with General Statutes § 52-190a: the first letter was signed by an author with RN, BSN credentials; and the second letter was signed by someone who has a thirty-year career developing and operating senior living communities, is currently licensed as a Community Residential Care Facility Administrator in South Carolina, and has worked for more than five years as an instructor of Executor Director Certification at the Institute for Senior Living Education, an instructor at EasyCEU, and an adjunct professor in the Master's Program in the Business of Senior Housing at Johns Hopkins University.
The defendants will collectively be referred to as the defendants.
On November 14, 2016, the defendants filed a motion to dismiss on the ground that the plaintiff's experts are not similar health care providers with respect to the defendants and their staff, and consequently the opinion letters do not establish jurisdiction pursuant to § 52-190a. The motion is accompanied by a memorandum of law. On April 21, 2017, the plaintiff filed an objection to the motion to dismiss, accompanied by a memorandum of law. On May 8, 2017, the defendants filed a reply brief, and on July 10, 2017, the plaintiff filed a supplement to her objection to the defendants' motion to dismiss. The matter was heard at short calendar on July 24, 2017.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " [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, which implicates personal jurisdiction over the defendant." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, supra, 351. This is so because the written opinion letter, prepared in accordance with the dictates of § 52-190a . . . is akin to a pleading that must be attached to the complaint in order to commence properly the action." Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.3d 451 (2011). Therefore, " the grant of a motion to dismiss . . . is the proper statutory remedy for deficiencies under § 52-190a . . ." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011).
The defendant argues that the plaintiff's purported letters from similar health care providers attached to the complaint fail to satisfy the requirements of General Statutes § 52-190a and General Statutes § 52-184c because the letters do not provide sufficient information to support a conclusion that the authors are similar healthcare providers. The plaintiff counters, claiming that the experts, as documented in their written opinions attached to the complaint, sufficiently state their qualifications necessary to satisfy the statutory requirements.
Section 52-190a(a) provides in relevant part that, prior to filing a personal injury action against a health care provider, " the attorney or party filing the action . . . [must make] a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant . . . 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." Pursuant to General Statutes § 52-184c(a), " [t]he prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."
Under the non-specialist definition in § 52-184c(b), " 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." Under the specialist definition, " 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.'" General Statutes § 52-184c(c). " [I]t is appropriate to look to the allegations of the plaintiff's complaint to frame the requirements for who constitutes a similar health care provider for purposes of the good faith opinion certification." Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 730-31, 104 A.3d 671 (2014).
In the present case, the plaintiff attached two opinion letters to her complaint. The court will look at each one individually because if either one satisfies the statutory requirement, the motion must be denied.
I
FIRST LETTER
The defendants argue that the first letter signed by an author with " RN, BSN" credentials does not satisfy the requirements of § 52-190a and § 52-184c because " RN, BSN" does not establish that this author is a similar healthcare provider. The plaintiff does not object to the defendants' arguments, other than to baldly state in her opposition that the first author is a similar healthcare provider. The plaintiff did not argue the first letter was sufficient at oral argument.
In Bell v. Hospital of St. Raphael, 133 Conn.App. 548, 560, 36 A.3d 297 (2011), the court upheld the trial court's dismissal of the action when the submitted opinion letter, though initialed " RN, BSN, ICP, " lacked any other information concerning the author's qualifications. The Appellate Court agreed, noting that " the only thing that may be gleaned from the opinion letter is that the author is a registered nurse with a bachelor of science degree in nursing, " and that this information alone did not meet the requirements set for the in § 52-184c(b) or § 52-190a(c). In the present case, the first letter is signed by an author with the credentials " RN, BSN." Following Bell, this is insufficient. Furthermore, the plaintiff did not object to the defendant's specific arguments regarding the first letter in her objection or at oral argument. Accordingly, the court finds that the first letter does not comply with the applicable statutes.
II
SECOND LETTER
The defendants highlight that the second author is currently a Community Resident Care Facility Administrator and a formerly certified Emergency Medical Technician (EMT), and they argue that this letter does not provide any information regarding the licensing, training, or experience of the author. The defendants argue that it is not known whether the author is currently affiliated with a nursing home, whether he or she worked for a nursing home near the time of the admission that is the subject of the complaint, or if they ever practiced in a nursing home setting. Specifically, the defendants argue that there are no allegations against the defendants from an institutional standpoint; rather, the allegations have to do with the care rendered by the individuals evaluating and caring for the plaintiff, and that there are no allegations related to the author's former EMT certification.
The plaintiff counters that the second letter was authored by someone with extensive credentials, an expert who has a thirty-year career developing and operating senior living communities. The plaintiff argues that the author is a licensed Community Residential Care Facility Administrator in South Carolina who, for the past five years, has served as an instructor of Executor Director Certification at the Institute for Senior Living Education, an instructor at EasyCEU, and an adjunct professor in the Master's Program in the Business of Senior Housing at Johns Hopkins University. The plaintiff also notes that the author has written a number of textbooks that are used for courses on senior living and for certification courses for assisted living administrators. For these reasons, the plaintiff posits that the author is a similar health care provider as defined in § 52-184c(b).
In the defendants' reply to the plaintiff's objection to the motion to dismiss, the defendants take issue with the author's South Carolina license as a Community Residential Care Facility Administrator. The defendant argues that, pursuant to the South Carolina regulations, a Community Residential Care Facility (CRCF) is not equivalent to a nursing home, and that they are two different kinds of facilities which are overseen by different state agencies. The defendants, therefore, argue that contrary to the plaintiff's position, the alleged similar healthcare provider is licensed to operate a facility entirely separate and apart from a nursing home. As such, she is required to obtain a similar healthcare provider opinion from someone affiliated with a nursing home, not a CRCF.
Community Residential Care Facility (CRCF) is defined in South Carolina as the following: " A facility which offers room and board and which, unlike a boarding house, provides/coordinates a degree of personal care for a period of time in excess of 24 consecutive hours for two or more persons, 18 years old or older, not related to the licensee within the third degree of consanguinity. It is designed to accommodate residents' changing needs and preferences, maximize residents' dignity, autonomy, privacy, independence, and safety, and encourage family and community involvement. Included in this definition is any facility (other than a hospital), which offers or represents to the public that it offers a beneficial or protected environment specifically for individuals who have mental illness or disabilities. These facilities may be referred to as " assisted living" provided they meet the above definition of community residential care facility." S.C. Code Ann. Regs. 61-84 (2015).
The court finds that CRCFs may be defined differently from nursing homes pursuant to the South Carolina regulations, but non-assisted and assisted living professionals are both licensed by the same entity, the South Carolina Department of Health and Environmental Control. This fact, along with the amplification of the qualifications of the author of the second letter included in the affidavit attached to the plaintiff's supplement to the plaintiff's objection to the motion to dismiss, is enough to establish the author of the second letter as a similar healthcare provider. Following § 52-184c(b), the author of the second letter is one who " [i]s licensed by the appropriate regulatory agency of this state or [South Carolina], " and is trained, experienced, and actively practices and teaches in the field within the previous five years. The court, therefore, finds the second letter sufficient.
CONCLUSION
As the second letter is sufficient to show the author is a similar healthcare provider, the motion to dismiss is denied.
A nursing home is defined in South Carolina as the following: " A facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two (2) or more unrelated individuals over a period exceeding twenty-four (24) hours which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing intermediate or skilled care for persons who are not in need of hospital care." S.C. Code Ann. Regs. 61-17 (2016).