Opinion
UWYCV166030156S
12-21-2016
Martha Ramos et al. v. Saint Mary's Hospital
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102, REQUEST FOR LEAVE TO AMEND #106, #109
Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiffs filed an action by way of writ, summons, and complaint dated February 8, 2016. The plaintiffs named as defendant Saint Mary's Hospital. The plaintiffs contend that the defendant was negligent in failing to assess the plaintiff Martha Ramos for a risk of falling and failed to engage in a number of actions which caused the plaintiff to fall and sustain injuries. The defendant has filed a motion to dismiss on the grounds that there was insufficient service of process and insufficient process. The plaintiff has filed an objection and filed a request for leave to amend the complaint to which the defendant has objected. The court heard argument as to the motion and the request to leave on August 22, 2016.
II. FACTS
The plaintiff's action arises out of a fall that Martha allegedly suffered while hospitalized at the defendant's facility. In the complaint, Martha alleges claims of medical and ordinary negligence, and William alleges derivative claims for loss of spousal consortium. Only the medical negligence claim in count one and the related consortium claim in count three are at issue for purposes of the present motion. In count one, the plaintiffs essentially allege that Martha was a high fall risk during her hospitalization, that the defendant's treatment of Martha fell below the standard of care in various respects, and that as a result, Martha fell and suffered serious injuries. The plaintiffs further allege in count three that, as a result of the defendant's medical negligence, William was deprived of Martha's love, affection, society, and services. In an attempt to comply with the requirements of General Statutes Sec. 52-190a, the plaintiffs submitted along with their complaint a certificate of good faith signed by their attorney and a letter from a registered nurse, Frank Druse, III in which he expresses his opinion that there appears to be evidence of medical negligence.
The signature of the author of the opinion letter attached to the original complaint is cut off, and the author's name is not otherwise discernable from the complaint or letter. Nevertheless, in support of their opposition to the defendant's motion for summary judgment, the plaintiffs have submitted an affidavit from Frank Druse, III in which Druse identifies himself as the author of the opinion letter.
On April 14, 2016, the defendant moved to dismiss counts one and three of the plaintiffs' complaint on the ground that the opinion letter attached to the complaint is deficient for purposes of Sec. 52-190a because it fails to establish that its author is a " similar health care provider" as defined in General Statutes Sec. 52-184c. The defendant filed a memorandum of law in support of this motion. The plaintiff filed a memorandum in opposition to the motion to dismiss and on July 11, 2016 they filed a request for leave to amend their complaint to correct the purported defects in the original opinion letter, and they included in this filing the proposed amended opinion letter authored by Druse and Druse's signed and sworn affidavit. The plaintiffs also filed, on the same date, a memorandum of law in opposition to the defendant's motion to dismiss along with the same proposed amended opinion letter and affidavit. The defendant filed a reply memorandum of law in response to the opposition on July 2, 2016, and objected to the plaintiffs' request for leave to amend on July 26, 2016. The court heard oral argument on the motion and the objections including the leave to amend on August 27, 2016.
II. DISCUSSION
Pursuant to Practice Book Sec. 10-30(a), " [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " [T]he failure to provide written opinion letter, or the attachment of a written opinion letter, or the attachment of a written opinion letter that does not comply with Sec. 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). This is so because " the written opinion letter, prepared in accordance with the dictates of Sec. 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 Sec. 52-190a." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, supra, 349.
" A motion to dismiss admits all facts well pleaded and involves any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Weinstein & Wisser v. Cornelius, 151 Conn.App. 174, 182, 94 A.3d 700 (2014). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Id., 651-52.
In the present case, the defendant offers two arguments in support of its contention that the plaintiffs' opinion letter fails to satisfy the " similar health care provider" requirement of § 52-190a. First, the defendant argues that, because the plaintiffs do not more specifically identify in their complaint the officers, employees, or agents who allegedly committed the medical malpractice, there is thus insufficient information to determine whether the author of the opinion letter is a " similar health care provider" as defined by § 52-184c. Second, the defendant contends that, even if the complaint did sufficiently identify those individuals alleged to have committed malpractice, the opinion letter is nevertheless independently deficient because its author fails to include certain information required by § 52-184c to demonstrate that he is a " similar health care provider." The court agrees with the defendant's second argument and thus will not address the first.
The defendant argues in its memorandum in support that the original opinion letter fails to demonstrate that Druse is a " similar health care provider" under either of the definitions provided in § 52-184c. See, Gonzales v. Langdon, 161 Conn.App. 497, 504, 128 A.3d 562 (2015) (" [p]ursuant to [§ 52-184c], the precise definition of similar health care provider depends on whether 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 . . ." [internal quotation marks omitted]). More specifically, the defendant contends that the letter is deficient under the nonspecialist definition because it does not include any indication as to Druse's licensure and his training or experience in the five-year period before the incident. The defendant also argues that the letter is deficient under the specialist definition because the plaintiffs have not alleged that any of the negligent actors were specialists and the opinion letter likewise does not indicate that Druse was trained or certified as a specialist. In their memorandum in opposition, the plaintiffs counter that the original opinion letter is legally sufficient because it can be inferred from the letter that Druse satisfies the specific requirements of § 52-184c. Relying on Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 104 A.3d 671 (2014), and Gonzales v. Langdon, supra, 161 Conn.App. 497, the plaintiffs alternatively argue that the relevant inquiry under § 52-184c is not whether the opinion letter discloses the number of years its author has been in practice but, rather, whether the author has " expertise in the particular medical field involved in the claim" and " is familiar with the standard of care applicable" and " the plaintiff's claims fell within his realm of expertise." Pls.' Memorandum in Opposition p. 11, quoting Wilkins v. Connecticut Childbirth & Women's Center, supra, 314 Conn. 730. The plaintiffs thus contend that they have satisfied the purpose of the opinion letter requirement because the letter they submitted indicates that Druse has greater training and experience than the defendant's nursing staff. The court agrees with the defendant that the complaint and original opinion letter fail to include sufficient information from which to conclude that Druse is a " similar health care provider" as defined in § 52-184c and that the letter is therefore deficient under § 52-184c and that the letter is therefore deficient under § 52-190a.
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 . . . 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 . . ." Under the nonspecialist 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 this 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, supra, 314 Conn. 730-31.
In the present case, the plaintiffs identify in their complaint the defendant's " agents, employees, servant, and nursing staff" as the allegedly negligent actors; Plaintiffs' Complaint, ¶ 9 but the plaintiffs do not indicate more specifically that any of these individuals were specialists of some kind. The court will thus evaluate Druse's credentials only against the nonspecialist definition of " similar health care provider" in § 52-184c(b). Because one of the criteria for being a " similar health care provider" under this definition is that the author was actively involved " in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim "; (Emphasis Added.) General Statutes § 52-184c(b)(2); the plaintiffs' contention, that the author's number of years in practice is irrelevant, plainly lacks merit. To satisfy the requirements of § 52-190a, the original opinion letter must indicate that (1) Druse is licensed to practice nursing, (2) is trained and experienced in nursing, and that (3) he obtained this training and experience while actively involved in the field within the five-year period immediately prior to Martha's injury. The letter fails to assert the first and third elements.
The plaintiffs' reliance on Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 104 A.3d 671 (2014), and Gonzales v. Langdon, 161 Conn.App. 497, 504, 128 A.3d 562 (2015), is unavailing. Those cases were concerned only with subsection (c) of General Statutes § 52-184c, which indeed does not define a " similar health care provider" in terms of the provider's number of years of training or experience. As the court has already concluded, only subsection (b) of § 52-184c is relevant in the present case.
According to the original opinion letter, " [Druse is] a registered nurse (R.N.) with over 10 years experience in hospital nursing. [His] credentials include a [master's] of [s]cience in [n]ursing, a [master's] in [h]ealthcare administration, [b]oard [c]ertification in [a]dult [e]mergency [n]ursing, and [b]oard [c]ertification in [p]ediatric [e]mergency [n]ursing. [He has] experience teaching [m]edical/[s]urgical [n]ursing at both Mohawk Valley Community College and Pace University. [He has] clinical experience in the hospital based management of patients such as Martha Ramos. [He is] familiar with applicable standard of care as it pertains to this case, and in particular with regard to fall risk assessment and prevention." As impressive as these credentials may be, nothing in the letter indicates that Druse is actually licensed to practice nursing or that his more than ten years of experience encompass the five years immediately preceding Martha's alleged injury. Contrary to the plaintiffs' assertion, Druse's education and experience do not necessarily imply that he is currently licensed or that he was actively involved in the practice or teaching of medicine within the five-year period prior to Martha's injury. See, Conboy v. State, supra, 292 Conn. 651 (" [in ruling on a motion to dismiss] a court must take the facts to be those alleged to the complaint, including those facts necessarily implied from the allegations" [emphasis added, internal quotation marks omitted]). The court therefore concludes that the original opinion letter does not contain sufficient information to establish that Druse is a " similar health care provider" as defined by § 52-184c(b).
The plaintiffs additionally argue, however, that the original opinion letter is adequate when read in conjunction with Druse's subsequent affidavit, which the plaintiffs contend the court is required to consider because it was submitted as evidence in opposition to the defendant's motion. Alternatively, the plaintiffs argue that the court should grant their request to amend so that they can have a chance to cure the claimed defects. Relying on Gonzales v. Langdon, supra, 161 Conn.App. 497, the defendant responds in its reply memorandum that the court lacks discretion to grant the plaintiffs' request to amend or to consider Druse's affidavit because they were filed after the applicable statute of limitation had run. The court agrees with the defendant.
In Gonzales, the trial court had dismissed the plaintiff's medical malpractice action after concluding that the original letter was deficient, thus impliedly denying the plaintiff's request for leave to amend her complaint with a revised opinion and a new opinion letter from a different author. Gonzales v. Langdon, supra, 161 Conn.App. 500. On appeal, the plaintiff argued, inter alia, that the trial court had abused its discretion in denying her leave to amend her complaint to avoid dismissal for a legally insufficient opinion letter. Id. The Appellate Court framed the issue as whether, as a matter of law, a plaintiff properly may attempt to cure a legally insufficient opinion letter by amending the complaint to attach an amended opinion letter, or an entirely new opinion letter, that complies with § 52-190a(a)." Id., 510. The court held that the plaintiff may properly do so in two circumstances. " [T]he trial court (1) must permit such an amendment if the plaintiff seeks to amend as of right within thirty days of the return day and the action was brought within the statute of limitations, and (2) has discretion to permit such an amendment if the plaintiff seeks to amend within the applicable statute of limitations but more than thirty days after the return day." Id. Although the plaintiff in Gonzales did not seek to amend as of right, " she did request leave to amend her complaint within the statute of limitations and no other circumstances that would justify denying leave to amend, such as undue delay or prejudice, existed." Id., 521. The court therefore concluded that the trial court had abused its discretion in denying the plaintiff's request to amend. Id.
In so holding, however, the court distinguished this result from its decision in Torres v. Carrese, 149 Conn.App. 596, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014), and suggested that the result would have been different had the plaintiff made her request after the applicable statute of limitations had run: " Our analysis is not inconsistent with our decision in Torres v. Carrese, supra, 149 Conn.App. 596. In Torres, we noted that the trial court could not consider a new opinion letter attached to the amended complaint because it was obtained 'after the action commenced, after the defendants had filed their motions to dismiss, and after the statute of limitations had expired . . .' (Emphasis added.) Id., 611 n.14. Therefore, Torres is distinguishable from the present case and falls outside the time frame for when amending an opinion letter is allowed." Gonzales v. Langdon, supra, 161 Conn.App. 520 n.10.
In the present case, the medical malpractice complained of is alleged to have occurred on February 26, 2014. The plaintiffs did not file their request for leave to amend until July 22, 2016, almost five months after the expiration of the two-year statute of limitations established by General Statutes § 52-584. Pursuant to Gonzales, the court is thus obliged to sustain the defendant's objection to the plaintiffs' request. The court also declines to treat Druse's affidavit as supplementing the original opinion letter. It would violate the spirit of Gonzales to permit the plaintiffs to avoid dismissal simply be redrafting the proposed revised opinion letter as an affidavit and submitting it as evidence in the motion to dismiss proceedings instead of properly seeking the court's leave to file an amended letter. The court thus construes the affidavit as a duplicative request for leave to amend and again sustains the defendant's objection thereto.
General Statutes § 52-584 provides: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
In sum, the opinion letter originally submitted by the plaintiffs fails to satisfy the requirement in § 52-190a that its author be a " similar health care provider, " and the expiration of the statute of limitations forecloses the plaintiffs from curing this defect in the process.
III. CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss counts one and three of the plaintiff's complaint is granted and the objection to the plaintiff's request for leave to amend is sustained.