Opinion
No. CV 10 6015881S
May 13, 2011
MEMORANDUM OF DECISION MOTION TO DISMISS #105 AND #107
PROCEDURAL HISTORY
The plaintiff, Milverta Mitchell, in her capacity as the administratrix of the estate of Janet Mitchell, filed the present case against the defendants, Yale New Haven Hospital, Yale School of Medicine, Leora Horwitz, Mohamed Taki Tajani and Sudali Sreenivasan, on November 12, 2010. The following facts are alleged within the complaint. On October 23, 2008, the plaintiff's decedent died as a result of respiratory depression. This condition was caused by the combined effect of multiple medications which were prescribed by the defendants in order to treat chronic pain and depression. The complaint sets forth a cause of action for medical negligence against Horwitz, Tajani and Sreenivasan directly and against Yale New Haven Hospital and Yale School of Medicine under a theory of vicarious liability.
The claims against Tajani are not the subject of the motions to dismiss currently pending before the court. It should be noted, however, that according to the marshal's return, "no service was made upon this defendant" and that no appearance has been filed on this defendant's behalf.
The complaint alleges that Horwitz and Tajani were acting as "agents, servants and/or employees" of Yale New Haven Hospital and Yale School of Medicine. No similar allegation has been made in relation to Sreenivasan.
Two motions to dismiss have been filed in the present case. The first motion was filed by Horwitz, Yale New Haven Hospital and Yale School of Medicine on December 14, 2010. The second motion was filed by Sreenivasan on December 16, 2010. On February 7, 2011, the plaintiff filed an objection to these motions. On the same day, Horwitz, Yale New Haven Hospital and Yale School of Medicine filed a reply memorandum. On February 8, 2011, the plaintiff filed a supplemental memorandum and oral argument was heard by this court.
DISCUSSION
The motion to dismiss filed by Horwitz, Yale New Haven Hospital and Yale School of Medicine seeks the protection afforded by § 52-190a. Sreenivasan's motion to dismiss claims insufficient service of process. Because the latter presents an issue relating to the jurisdiction of this court; Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008); while the former does not; Santorso v. Bristol Hospital, 127 Conn.App. 606, 609 n. 4 (2011); Sreenivasan's motion will be addressed first.
I.
Personal Jurisdiction Over Sreenivasan
In her motion to dismiss, Sreenivasan argues that the plaintiff's attempt to serve process upon her through Yale New Haven Hospital is insufficient to confer personal jurisdiction. The plaintiff responds by arguing that this court possesses jurisdiction over Sreenivasan because Yale New Haven Hospital represented that it is authorized to accept service of process on her behalf.
The standard governing insufficient service of process is well established. "[W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576. "[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).
The method for serving process on a resident defendant is equally axiomatic: "[P]rocess . . . shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." General Statutes § 52-57(a). "[O]ne of [these] two alternatives, personal or abode service, must be followed." Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003). "When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Nelson v. Stop Shop Cos., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).
In Jolly v. Wal-Mart Stores, Inc., Superior Court, judicial district of New London, Docket No. CV 07 5004976 (September 29, 2009, Martin, J.), the plaintiff sued Wal-Mart and two of its employees for pharmaceutical malpractice. The marshal's return indicated that the individual defendants were served, "c/o Wal-Mart Stores, Inc. at CT Corporation Systems, One Corporate Center, Hartford, Connecticut." Id. The employees moved to dismiss claiming insufficient service of process. Id. After examining the requirements of § 52-57(a), the court concluded that service through the employer was ineffective and granted the motion to dismiss. Id.
Likewise, in Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV 03 0521686 (December 1, 2003, Robinson, J.), the plaintiff sued a neurological surgeon for medical malpractice. In that case, the marshal's return indicated that the doctor was served "by leaving a true and attested verified copy of the within original Writ, Summons [and] Complaint . . . with and in the hands of Irene Flich, Office Manager who stated she was duly authorized to accept service for said defendant." Id. Thereafter, the defendant filed a motion to dismiss the plaintiffs' complaint due to insufficient service of process. Id. The court, concluded that service "was not made in the hands of the defendant . . . nor was it made at his usual place of abode" and granted the motion to dismiss. Id.
In the present case, the marshal's return indicates that Sreenivasan was served by leaving a copy of process "with and in the hands of Rose Valentino, Office of the Vice President and General Counsel" of Yale New Haven Hospital. Like the defendants in Jolly and Drwiega, Sreenivasan was never served in hand or at her usual place of abode. Consequently, the plaintiff's attempt to serve process did not comport with statutory requirements.
Having concluded that service of process was improper, a single question remains: whether the representations made by Yale New Haven Hospital regarding service of process would allow this court to exercise jurisdiction over Sreenivasan. The plaintiff's argument in this regard appears to be one of equitable estoppel.
The portion of the plaintiff's memorandum which sets forth this argument is entirely devoid of any reference to case law or statute. However, the gravamen of the plaintiff's argument appears to be that dismissal for lack of personal jurisdiction would be inequitable in light of the statements made by Yale New Haven Hospital. See e.g. Bailey Hill Lending Trust v. Eramian, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 10 5013349 (November 23, 2010, Adams, J.) (when e-mail from defendant to plaintiff predating service stated: "Beck . . . is authorized to accept service for me," defendant is estopped from arguing that service through Beck was insufficient).
"The party claiming estoppel . . . has the burden of proof." (Internal quotation marks omitted.) O'Connor v. Waterbury, 286 Conn. 732, 757, 945 A.2d 936 (2008). "There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." Id.
Although there is evidence indicating that Yale New Haven Hospital represented to the plaintiff that Sreenivasan may be served through it, these statements, according to the marshal's affidavit, were made pursuant to a "practice of Yale New Haven Hospital's legal department." There is no evidence indicating that Sreenivasan made such a representation directly to the plaintiff or that she conveyed the authority to Yale New Haven Hospital to do so on her behalf. Absent such evidence, the plaintiff has failed to carry the burden of proving the elements of estoppel. Consequently, this court lacks personal jurisdiction over Sreenivasan and the motion to dismiss dated December 16, 2010 is granted.
II.
General Statutes § 52-190a
Horwitz, Yale New Haven Hospital and Yale School of Medicine have filed a motion to dismiss pursuant to § 52-190a claiming that the absence of the author's credentials from the opinion letter dated September 21, 2010, is fatal to the plaintiff's case. Specifically, these defendants argue that the opinion letter must demonstrate that its author qualifies as a similar health care provider in relation to Horwitz, a physician board certified in internal medicine. The plaintiff responds by arguing, inter alia, that this defect may be cured by an affidavit from the opinion letter's author indicating that he possesses the requisite qualifications.
General Statutes § 52-190a(a) provides, in relevant part: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . 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 . . . 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 . . . shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]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 52-190a requires a plaintiff to obtain an opinion letter from a similar health care provider. Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011). "For [defendants] who are board certified or hold themselves out as specialists, subsection (c) of § 52-184c defines `similar health care provider' as `one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty.'" Id., 546.
Our Appellate Court has made clear that: "An action is subject to dismissal under [§ 52-190a(c)] 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. The plaintiff's contention that a motion to dismiss is not the proper procedural vehicle to challenge the sufficiency of an opinion letter is, consequently, without merit.
In the present case, because Horwitz is board certified in internal medicine, the author of the opinion letter must be: (1) trained and experienced in that field and (2) possess the same certification. None of the defendants contest that a physician possessing the credentials set forth in the affidavit would qualify as a similar health care provider. Indeed, such an argument would be unavailing. The affidavit indicates that the author is board certified in internal medicine, has completed an internship and a residency in that same field and has practiced medicine for approximately thirty years. The dispositive question, therefore, is whether the contents of this affidavit may be considered by the court in ruling upon the motion to dismiss.
The defendants contend that Williams v. Hartford Hospital, 122 Conn.App. 597, 1 A.3d 130 (2010), prevents this court from considering the affidavit. It does not. In Williams, the defendant was a board certified anesthesiologist. Id., 598. The opinion letters attached to the complaint were authored by a board certified neurologist and a board certified internist. Id. Affirming the trial court's dismissal, the Appellate Court concluded that, even if the trial court had considered certain supplemental affidavits, dismissal would nonetheless be proper because the authors of the original opinion letters did not qualify as similar health care providers. Id., 600 n. 2. This conclusion does not indicate that consideration of such affidavits would be improper.
At least two Superior Court cases have held that an affidavit may be used to explain the opinion letter attached to the original complaint. Jaboin v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5023443 (September 11, 2009, Bellis, J.) ( 48 Conn. L. Rptr. 469); Murphy v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 09 5008059 (January 26, 2010, Marano, J.) ( 49 Conn. L. Rptr. 257). These decisions are based on the Appellate Court's statement in Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), that: "[g]iven the fallibility existing in the legal profession . . . it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss." Id. Specifically, Jaboin and Murphy state: "If the Appellate Court has given a trial court the authority to allow a plaintiff to amend the complaint to add an opinion letter, it seems reasonable that the court could consider an affidavit that explains the existing opinion letter." Jaboin v. Bridgeport Hospital, supra, 48 Conn. L. Rptr. 469; Murphy v. Blau, supra, 49 Conn. L. Rptr. 257.
Jaboin and Murphy demonstrate that the court possesses discretion to consider the affidavit submitted by the plaintiff. As stated above the information contained within this affidavit is sufficient to determine that the author of the original opinion letter qualifies as a similar health care provider under § 52-190a. For the foregoing reasons, the motion to dismiss filed by Horwitz, Yale-New Haven Hospital and Yale School of Medicine is denied.
A "written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution." Dorry v. New Milford Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 09 6004823 (April 29, 2011, Dubay, J.). Thus, because the opinion letter submitted by the plaintiff is sufficient to support the claims against Horwitz, it is sufficient to support the claims against Yale New Haven Hospital and Yale School of Medicine as well.