Opinion
FBTCV176065747S
01-29-2018
Jose MARTINEZ et al. v. BRIDGEPORT HOSPITAL
UNPUBLISHED OPINION
OPINION
Anthony D. Truglia, Jr., J.
I. Factual and Procedural Background
The plaintiffs, Jose and Linda Martinez, commenced this action in July 2017 against the defendant, Bridgeport Hospital. The plaintiffs claim monetary damages against the defendant and make the following allegations in support of their claims. In the first count of their complaint, the plaintiffs allege that Jose Martinez (Martinez) was an employee of the Sikorsky Aircraft Corporation (Sikorsky) in July 2015. At that time, Sikorsky maintained an on-site health clinic for their employees. Also at that time, Janette Campbell, a registered nurse, was an employee of Bridgeport Hospital and was assigned by her employer to work at the Sikorsky health clinic.
On or about July 21, 2015, the defendant, through its agent and employee, Campbell, " undertook the care, treatment, monitoring, diagnosing and supervision of [Martinez]." Although the complaint is not clear what injuries or medical condition Martinez suffered from, or precisely why Campbell began treating him on that date, the plaintiffs allege that Campbell’s care, treatment and diagnosis was improper and inadequate. The plaintiffs allege that Campbell, in the course of her diagnosis and treatment, " failed to adequately and properly document her observations and examination of [Martinez]." The plaintiffs further allege that Campbell failed to refer Martinez " to an emergency outpatient [department] or other designated health care facility for evaluation and treatment" or " arrange for transport to an emergency department or other designated health care facility." The plaintiffs also allege that Campbell " failed to adequately and properly evaluate [Martinez] condition on [his] second visit to the clinic when his signs and symptoms had changed." As a result of Campbell’s negligence and carelessness in rendering health care to him, the plaintiffs allege that Martinez suffered " severe, serious and painful and permanent injuries."
The plaintiffs, in the second count of their complaint, incorporate by reference the allegations of negligence of the first count and further assert a claim of loss of consortium on behalf of Martinez’ wife Linda Martinez.
The plaintiffs’ counsel attached a certificate of good faith to the complaint which was served upon the defendant to commence this action. The certificate of good faith included a " consultant’s opinion pursuant to C.G.S. Section 52-109a." The consultant’s opinion was prepared by an " occupational health and wellness consultant." The opinion sets forth the consultant’s professional memberships, educational background, state licensing, and certification by the American Board for Occupational Health Nurses, including the author’s certification as an " Occupational Health Nurse Specialist." The opinion then sets forth the consultant’s review of the actions Campbell took, or failed to take, on the day of the incident and the consultant’s opinion that " there appears to be evidence of negligence on the part of [Campbell]."
The defendant filed a timely motion to dismiss the plaintiffs’ complaint for lack of personal jurisdiction on September 21, 2017. The defendant argues that the consultant’s opinion does not satisfy the requirements of General Statutes § 52-184c and General Statutes § 52-190a. First, the defendant argues, it is clear that the plaintiffs’ claim is a medical malpractice action. Thus, if the plaintiffs fail to attach a copy of a written opinion from a similar health care provider with the original complaint served on the defendant, the action must be dismissed for insufficiency of service of process. Second, the defendant contends that Campbell was not, at the time the cause of action accrued, board certified as a specialist, and did not hold herself out as a specialist. Therefore, because the present matter concerns a medical malpractice action that does not involve medical specialists, the plaintiffs are required to attach a written opinion of a " similar health care provider" which complies with the provisions of § 52-184c(b). Subsection (b) requires that the written opinion specify that (1) the author is a similar health care provider licensed by this state or another state which requires " the same or greater qualifications," and (2) that the provider is trained and experienced in the same discipline, which shall be the result of active involvement in the practice or teaching of medicine within the five-year period before the plaintiffs’ claims accrued.
General Statutes § 52-184c(b) and (c) provide:
General Statutes § 52-190a(a) provides in part: " No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made 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. 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 or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’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."
The defendant argues that the consultant’s opinion in the present case satisfies neither requirement of § 52-184c(b). Specifically, the defendant maintains that the plaintiffs’ written opinion does not state that the qualifications and credentials of a registered professional nurse in the state of Illinois, where Campbell is licensed, are equal to or greater than those of a Connecticut registered nurse. Second, the defendant contends that the written opinion does not state that the consultant’s training and experience, upon which the opinion is based, derive from five years of active involvement as a registered nurse or through the teaching of medicine. Therefore, the defendant argues, the written opinion does not meet the mandatory statutory requirements of § 52-184c(b) and the complaint must be dismissed.
The plaintiffs object to the motion to dismiss on several grounds. First, the plaintiffs argue that their complaint, read broadly, alleges that Campbell held herself out as a specialist. Specifically, by virtue of her position as a nurse at a health clinic at an industrial facility, the plaintiffs contend that Campbell held herself out as a nurse with a specialty in occupational health and safety. Thus, the requirements of § 52-184c(c), rather than subsection (b), are applicable. Subsection (c) of § 52-184c requires that the person authoring the written opinion (1) must be trained and experienced in the same specialty as the defendant health care provider and (2) certified by the appropriate American board in that same specialty. The plaintiffs argue that Campbell held herself out as a nurse specializing in occupational health and safety, and that the author of the written opinion is a licensed registered nurse who is also certified by the American Board for Occupational Health Nurses as an " Occupational Health Nurse." The plaintiffs contend that the written opinion was properly authored by a " similar heath care provider" as required by § 52-184c(c).
Second, the plaintiffs argue that, when evaluating whether the author of the written opinion is a " similar health care provider," the court must examine the allegations of the complaint and view them in the light most favorable to the plaintiff, keeping in mind that " the actual board certification of the defendant is not what matters; the appropriate similar health care provider is defined by the allegations of the complaint," citing Gonzales v. Langdon, 161 Conn.App. 497, 506, 128 A.3d 562 (2015). Furthermore, the plaintiffs argue that a written opinion is sufficient if the author of the opinion has greater qualifications than the party against whom the claim is made, so long as they are both trained in the same medical specialization. In the present case, the plaintiffs contend that the author of the written opinion possesses additional credentials in the field of nursing and is, therefore, qualified as a " similar health care provider" for purposes of § 52-190a. See, e.g., Wilkins v. Connecticut Childbirth &Women’s Center, 314 Conn. 709, 730-31, 104 A.3d 671 (2014).
Finally, in the alternative, the plaintiffs argue that, should the court find that subsection (c) of § 52-184c is not applicable, the written opinion also satisfies the requirements of subsection (b). In support of this argument, rather than file an amended complaint with an amended opinion, the plaintiffs attached an affidavit of counsel to their memorandum of law in opposition to the defendant’s motion to dismiss which states that plaintiffs’ counsel reviewed the credentials of the person " who would be authoring the opinion letter attached to our complaint." Plaintiffs’ counsel then states that his review included " learning that the opinion author’s training and experience in the field of nursing was the product of practice or teaching of medicine within the five-year period prior to the alleged medical negligence in this case." The plaintiffs argue that the affidavit of counsel, filed with their memorandum of law in opposition to the defendant’s motion to dismiss, satisfies the requirements of § 52-184c(b) and the defendant’s motion should, therefore, be denied on that ground as well.
The court heard argument on January 2, 2018, and reserved decision on the motion. Following argument, the plaintiffs submitted an affidavit from the author of the written opinion which states that he or she has " been trained, experienced and licensed in the discipline and/or school of practice of nursing and have specialized in occupational health nursing for more than 30 years, including being involved in the active practice of occupational health nursing for the five years before July 21, 2015." Both parties, in response to an inquiry from the court, have filed supplemental memoranda of law supporting their respective arguments.
II. Discussion
Pursuant to Practice Book § 10-30(a), " [a] motion to dismiss shall be used to assert: ... (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " 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 ... A plain reading of this subsection indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 17-18, 12 A.3d 865 (2011). " [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, 308 Conn. 338, 351, 63 A.3d 940 (2013). Failure to attach a proper certificate to the complaint implicates personal jurisdiction 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). Thus, " a motion to dismiss ... is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, supra, 349. See also Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 581, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009); Section 52-190a(e) (" [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." [Internal quotation marks omitted.] ).
" 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007), quoting State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006). " When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). Finally, when determining whether the court has jurisdiction over any controversy, " every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).
First, the plaintiffs do not dispute that their cause of action against Campbell, and vicariously against the defendant, is a claim of medical negligence causing personal injury. Therefore, the provisions of § § 52-184c and 52-190a apply.
Second, the court agrees with the defendant that Campbell, at the time that the plaintiffs’ causes of action accrued, was not a board certified specialist. The plaintiffs’ complaint identifies Campbell as a registered nurse. The complaint does state, as argued by the plaintiffs, that she was sent by the defendant to Sikorsky to work in their health clinic. However, there is no allegation in the complaint that Campbell was certified by an American board in any medical or nursing specialty. There is no allegation that she practiced in the field of occupational health and safety nursing. Nor does the plaintiffs’ complaint allege that Campbell received special training in occupational health and safety or any other medical specialty, or allege that she held herself out as a medical specialist. Merely alleging that Campbell, a registered nurse, was assigned to an on-site health clinic operated by Sikorsky does not sufficiently allege that she held herself out as a specialist in occupational health and safety, or that she was board certified in that specialty or any other nursing or medical specialty. Moreover, it is not even clear from the plaintiffs’ complaint that Martinez suffered a work-related injury or illness on July 21, 2015 such that Campbell’s role as an occupational health and safety " specialist" could be implied.
Therefore, the plaintiffs were required to attach to their complaint a written opinion from a " similar health care provider" that complied with the requirements of § 52-184c(b). As evaluated against the requirements of subsection (b), the consultant’s opinion does not state that the licensing requirements and professional qualifications for registered nurses in Illinois are equal to or greater than qualifications required for registered nurses in Connecticut. It is equally clear that the opinion also does not state that the author " 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." The written opinion letter, therefore, does not comply with the requirements of § 52-184c(b).
The plaintiffs argue that an author of a written opinion required by § 52-190a may have additional training, education and experience in the same field of medicine as the defendant, citing Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 735. However, the fact that the author of the opinion in the present case may have a certification in the field of nursing that is arguably higher than Campbell’s certification as a registered nurse does not change the analysis. The question before the court in the present case is not whether the author of the opinion possesses credentials and certifications in the same field which are equal to or greater to the defendant’s. Instead, the question is whether Campbell was a board certified specialist, or held herself out as a specialist, at the time the plaintiffs’ causes of action accrued. Campbell was not board certified nor held out to be a specialist and as a result, the plaintiffs were required to attach a written opinion of a " similar health care provider" that complied with the provisions of § 52-184c(b), rather than subsection (c).
As stated earlier, rather than file an amended complaint with an amended opinion, the plaintiffs attached an affidavit of counsel to their memorandum of law in opposition to the defendant’s motion to dismiss which states that plaintiffs’ counsel reviewed the credentials of the person " who would be authoring the opinion letter attached to our complaint." Plaintiffs’ counsel then states that his review included " learning that the opinion author’s training and experience in the field of nursing was the product of practice or teaching of medicine within the five-year period prior to the alleged medical negligence in this case." The court agrees with the defendant that an affidavit of counsel does not satisfy the requirement of § 52-184c(b) that the author include this information in the written opinion.
Thus far, the present case is similar to Osman v. Cavalieri, Superior Court, judicial district of Hartford, Docket No. CV-16-6070166-S (March 23, 2017, Noble, J.) . In Osman, the defendants moved to dismiss the plaintiff’s complaint on the grounds that " there is nothing in the [§ 52-190a] letter which indicates the author’s credentials satisfy the § 52-184c(b)(2) requirement of active involvement in the practice or teaching of medicine during the five-year period prior to the incident giving rise to the claim." (Footnote omitted.) The court agreed, and dismissed the complaint for lack of personal jurisdiction. The trial court reached a similar result in Thibodeau v. Southbury Dental Care, Superior Court, judicial district of Waterbury, Docket No. CV-15-6028643-S (September 12, 2016, Shapiro, J.), where the good faith opinion contained " no reference to active involvement in the practice or teaching of general dentistry within the requisite five-year period." In Mencer v. Mystic Healthcare & Rehabilitation Center, LLC, Superior Court, judicial district of New London, Docket No. CV-12-6013 606-S (February 13, 2013, Martin, J.), the trial court dismissed the plaintiff’s medical malpractice action against a rehabilitation facility when the opinion and supplemental affidavit of counsel failed to state " whether the author of the opinion letter is licensed in Connecticut or in a state with the same or greater qualifications" and failed to " make any reference to the five-year period prior to the incident and whether during that period the author was actively involved in the practice or teaching of medicine, specifically nursing." Each of these cases follow our Supreme Court’s holding in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 28, 12 A.3d 865 (2011), that " dismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)."
The question then becomes whether the supplemental affidavit of the author, filed by the plaintiffs on January 8, 2018, satisfies the requirements of § 52-184c (b). In support, the plaintiffs rely on the holding in Anderson v. Hospital of Saint Raphael; Superior Court, judicial district of New Haven, Docket No. CV-10-6014681-S (August 25, 2011, Lager, J.) . In Anderson, the defendants moved to dismiss the plaintiff’s complaint because the original opinion letter set forth " nothing ... from which the court can determine the author’s qualifications." The letter also failed to " set forth the author’s training or experience in the practice of nursing care in fields relevant to the opinion rendered regarding the breach of the standard of care by nurses practicing in an acute care hospital and a skilled nursing facility nor does it state the author’s training and experience in the practice of nursing generally," or " indicate that the author had been actively involved in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim ..." (Internal quotation marks omitted.) In response to the defendants’ motion to-dismiss; the plaintiff filed an affidavit which addressed all three deficiencies. The trial court, reasoning that the affidavit " contained relevant facts not apparent from the record," Practice Book § 10-31(a), and exercising " its discretion to consider it," found that the affidavit remedied the defects in the original opinion letter, and denied the defendants’ motion to dismiss.
In Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 549-50, 36 A.3d 297 (2012), the Appellate Court upheld a trial court’s dismissal of a medical malpractice action where the plaintiff failed to include the author’s qualifications in the opinion letter. The plaintiff attempted to remedy the opinion letter’s deficiencies by filing an affidavit of plaintiff’s counsel. Id., 552. The Appellate Court found that the § 52-190a opinion letter, even when supplemented by the affidavit filed by plaintiff’s counsel, did not meet the requirements of § 52-184c. Id., 560. The Appellate Court, therefore, did not reach the question of whether an opinion letter which is supplemented by an affidavit, satisfies the requirements of § § 52-190a and 52-184c. Id., 560 n.5.
The defendant in the present case argues, in its supplemental memoranda of law in support of its motion, that the author’s affidavit still fails to meet all of the requirements of § 52-184c. The defendant argues that " [n]either the opinion letter nor the Affidavit establishes that the author’s licensing as a Registered Nurse in the State of Illinois satisfies the provisions for licensing outside of Connecticut articulated in [§ 52-184c(b) ]." Specifically, the defendant argues, neither the letter nor the affidavit expressly states that the author is licensed by " another state requiring the same or greater qualifications" as Connecticut. Second, neither the opinion letter nor the affidavit, read together, establish that the author’s opinion is based on five years of active involvement in nursing. It states, rather, that the author was involved in the active practice of " occupational health nursing" for the five years prior to July 21, 2015. Therefore, the defendant argues, as in Bell v. Hospital of Saint Raphael, supra, 555-56, even if the court accepts that a § 52-190a opinion letter can be supplemented by an affidavit of the author or affidavit of counsel, the court must still find the present opinion letter insufficient as a matter of law and dismiss the plaintiffs’ action.
The court agrees with the defendant. A close reading of Bennett and Bell supports the defendant’s contention that strict compliance with the technical requirements of § § 52-190a and 52-184c at the time the action is commenced is mandatory. " We agree that the remedy of dismissal may, standing alone, have harsh results for plaintiffs, particularly when the problems with the opinion letter are as relatively insignificant as they present in this case, given the apparently high and relevant qualifications of its author." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 30-31.
In the recent decision of Gonzales v. Langdon, supra, 161 Conn.App. 519-21, the Appellate Court ruled that a trial court does have discretion to permit amendment of an original opinion letter, where the proposed amendment is offered within the statute of limitations and where allowing the amendment would not unduly delay trial in the case or unfairly prejudice opposing parties. In the present case, however, the plaintiffs did not file an amended complaint with a proposed new opinion letter. The plaintiffs instead filed two supplemental affidavits, months after the statute of limitations had run on their causes of action, neither of which satisfies the requirement of § 52-184c(b)(1) that the author’s opinion state that the licensing requirements of the state of Illinois are equal to or greater than the licensing requirements in Connecticut for registered nurses. The defendant further argues that the author’s January 8, 2018 affidavit states that the author was involved in occupational health nursing, not nursing, and therefore also fails to satisfy the requirement of § 52-184c(b)(2). Following the holding of Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 735, it is a very close question as to whether involvement in occupational health nursing is the same as involvement in registered nursing. The court does not reach this question, however, because it is clear that the affidavit does not meet the requirement of § 52-184c(b)(1).
Compare Viggiano, Admin. v. Diligent Enterprise, Inc., d/b/a Comforcare, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-16-6028124-S (September 25, 2017, Jacobs, J.) (failure to attach opinion of negligence from similar health care provider to complaint may be cured as of right by filing amended complaint within thirty days of return date pursuant to Practice Book § 10-59).
Filing an affidavit that is not attached to a proposed amended complaint is not the proper way to remedy a defect in a § 52-190a opinion letter. But even if the court considered them, as in Anderson v. Hospital of Saint Raphael, supra, Superior Court, Docket No. CV-10-6014681-S, as affidavits of fact not apparent from the record, the supplemental affidavits in the present case are insufficient as a matter of law.
III. Conclusion
For the reasons set forth above, the defendant’s motion to dismiss is granted.
(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.
(c) 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."