Opinion
No. CV 09-5006155 S
October 16, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #113
I FACTS PROCEDURAL HISTORY
On December 4, 2008, the plaintiff, Maria Ribeiro, brought a five-count complaint against the defendants, David H. Elfenbein, M.D., Danbury Hospital and Connecticut Family Orthopedics, P.C., alleging in part, medical malpractice relative to an infection that developed in the plaintiff following surgery for a left hip replacement on February 24, 2006. More specifically, the plaintiff alleges that the defendants provided a continuous course of treatment from about February 24, 2006 through November 20, 2006 but despite obvious signs of an infection, the defendants did not take a culture of her left hip joint until August 31, 2006, did not learn of the infection until that date, did not treat the infection, or inform the plaintiff of it. Appended to the complaint were a certificate of good faith executed by plaintiff's counsel and a letter purporting to be from a similar health care provider claiming that the treatment provided to the plaintiff deviated from the standard of care. These documents were filed as required by General Statutes § 52-190a(a) relative to medical malpractice actions. Following the filing of the complaint, the defendant Danbury Hospital filed a request to revise (#102) which was objected to by the plaintiff (#105). The plaintiff consented to three of the six requested revisions and the court overruled the objection as to the remaining requests. See Order #110. In response to the court's order, the plaintiff filed a "First Amended Complaint" (#111.33) consisting of eight counts, to which the third, sixth and eighth counts related to Danbury Hospital alleging medical malpractice, lack of informed consent, and vicarious liability, respectively.
The defendants David H. Elfenbein, M.D. and Connecticut Family Orthopedics, P.C. filed their own request to revise (#103) to which the plaintiff also objected (#107). The plaintiff consented to two of the six requested revisions and the court overruled the objection as to the remaining requests. See Order #111. The pending motion to dismiss however is only as to the defendant Danbury Hospital.
In the eighth count, the plaintiff contends that because the defendant David H. Elfenbein, M.D. was an agent, servant and employee of the defendant Danbury Hospital, and was acting within the scope of his employment in his treatment of the plaintiff, Danbury Hospital was vicariously liable for the harm caused by the negligent conduct of Dr. Elfenbein.
On April 15, 2009, Danbury Hospital filed a motion to dismiss (#113) the counts pending against it on the basis that the plaintiff failed to comply with General Statutes § 52-190a which required the plaintiff to append to the complaint an opinion of a "similar health care provider" relative to the claim of malpractice against Danbury Hospital. Specifically, the hospital contends that although a written opinion letter was appended to the complaint, "the credentials of the author of the letter are not detailed and the letter does not provide a detailed opinion to support the allegations of negligence against Danbury Hospital." The plaintiff filed a memorandum in opposition (#117) in which she argued: (1) the motion to dismiss is not the proper procedural vehicle with which to challenge the sufficiency of the opinion letter of the similar health care provider; (2) under Practice Book §§ 10-6, 10-7, 10-30, 10-31 and 10-32, the motion is untimely and out of sequence with the proper order of pleadings and therefore the defendant has waived the right to file the motion to dismiss; and (3) the attached opinion letter satisfies the requirements of § 52-190a. On June 1, 2009 the hospital filed a reply memorandum (#118). The matter was heard at short calendar on June 29, 2009.
Section 52-190a states, in relevant part: "(a) No civil action . . . 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 . . . 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 or the claimant'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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate . . . (c) 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."
II LAW
"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). "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 . . ." (Citation omitted; internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n detennining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
Generally, a ruling on a motion to dismiss pertains to jurisdiction and is not a ruling on the merits of the action. Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999). However, in the recent Appellate Court decision, Votre v. County Obstetrics Gynecology Group, P.C., the court explained that "motions to dismiss are not limited to jurisdictional challenges. Rios v. CCMC Corp., supra, 106 Conn.App. 821 n. 8." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813 (2009). "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 [the plaintiff's] medical malpractice action. However, the legislature has provided that such a failure does render [the plaintiff's] 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." Id., 583-84. Hence, under Votre and Rios, a motion to dismiss a medical malpractice action may be brought under the provision of statute and without the necessity of basing the motion on a claim of lack of subject matter jurisdiction.
III A WHETHER A MOTION TO DISMISS IS THE IMPROPER VEHICLE TO ATTACK THE OPINION LETTER
Danbury Hospital contends that the plaintiff's complaint should be dismissed because the level of detail contained in the physician's written opinion letter is insufficient to satisfy the requirements of § 52-190a. The plaintiff challenges this assertion on two grounds. First, it claims that the letter is sufficiently detailed to meet the statutory requirements. Second, that the motion to dismiss is not the proper procedural vehicle through which to attack the sufficiency of the letter. The court will address the latter challenge first in that it presents a threshold inquiry.
The plaintiff cites in her brief several Superior Court decisions discussing the issue of whether the sufficiency of the opinion letter is properly raised by a motion to dismiss. Those citations, however, all pre-date the Appellate Court ruling in Votre which addressed the issue as follows: "[t]he plaintiff also argues that the motion to dismiss was an improper procedural vehicle for the defendants to employ in attacking the complaint. She contends that the proper motion here would have been a motion to strike challenging the legal sufficiency of the complaint rather than a motion to dismiss challenging the jurisdiction of the court. The plaintiff urges us to treat the motion to dismiss as a motion to strike, under which the complaint could be remedied by an amendment. We conclude that the action was dismissed properly by the court pursuant to the specific authorization of the governing statute due to the plaintiff's failure to file a written opinion of a similar health care provider. See General Statutes § 52a-190a(c)." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 580.
Our Appellate Court recently addressed the issue again in Bennett v. New Milford Hospital, Inc., AC29944 (2009). There the court held that "[a] plain reading of this subsection [§ 52-190a(c)] indicates that the letter must comply with subsection (a) to avoid 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." Id. In a footnote to that statement, the court wrote: "[w]e note that our Supreme Court recently decided Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009). Although Dias does not explicitly address the issue of whether an inadequate opinion letter would subject an action to dismissal, the court appears to have answered that question in the affirmative by reason of the fact that the court reached the merits of the defendant's claim." Id., footnote 6.
By virtue of the language in Votre and Bennett, this court concludes that the motion to dismiss is the proper procedural vehicle for challenging the sufficiency of the written opinion of a similar health care provider.
B THE ISSUE OF COMPLIANCE WITH § 52-190a 1 Count Three
The court now turns to the issue of the sufficiency of the letter. Recent appellate authority has made clear that "Section 52-190a(a) requires a plaintiff bringing a personal injury claim sounding in negligence against a health care provider to 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 . . ." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 581. See also Rios v. CCMC Corp., supra, 106 Conn.App. 810. "The plaintiff must attach to her initial pleading both `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' and a `written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . .' General Statutes § 52-190a(a)." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 581. "[T]he language and history of § 52-190a(a) indicate that the statute was intended to bar meritless medical malpractice actions." Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009). "[T]he [2005] amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint. See P.A. 05-275, § 2(c), now codified as General Statutes § 52-190a(c)." Id., 358. Thus, to comply with § 52-190a(a), a plaintiff must: (1) append to the complaint a good faith certificate of the attorney or party initiating the cause of action; and (2) obtain a written opinion letter from a "similar health care provider," as defined in § 52-184c, and attach it to the complaint. Id. See also Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 581; Rios v. CCMC Corp., supra, 106 Conn.App. 817.
General Statutes § 52-184c provides in relevant part: "(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The 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.
(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 speciality, 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 speciality, or holds himself out as a specialist, a "similar health care provider" is one who: (1) Is trained and experienced in the same speciality; and (2) is certified by the appropriate American board in the same speciality; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his speciality, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider."
"The language of § 52-190a does not specify the amount of detail required" in the opinion letter to satisfy the requirements of the statute. Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341). Other than whether the issue of causation must be recited in the opinion letter, as addressed in Dias v. Grady, supra, 292 Conn. 350, to date there is no appellate authority specifically addressing the level of detail required to render the written opinion letter sufficient under § 52-190a. While there is a split in Superior Court decisions concerning the level of detail necessary, a majority of those decisions have held that the opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence. See Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.). Section 52-190a "[n]either explicitly nor implicitly . . . require[s] the letter of opinion accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter of opinion." DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) ( 43 Conn. L. Rptr. 420). Additionally, there is no requirement for separate opinion letters pertaining to each named defendant in the same cause of action. DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 06 5010472 (August 5, 2008, Berger, J.) ( 46 Conn. L. Rptr. 121); see also Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) ( 43 Conn. L. Rptr. 195). Specifically, a number of Superior Court decisions have held that an opinion letter from a doctor is sufficient to cover the liability of a hospital. 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); see also Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 07 6001269 (November 28, 2007, Bellis, J.) ( 44 Conn. L. Rptr. 595); Cataldo v. Zuccala, Superior Court, judicial district of Danbury, Docket No. CV 08 5004961 (August 11, 2009, Shaban, J.).
However, in addressing the sufficiency of the letter, the court must consider not only the level of detail required, but whether the letter has been issued by a "similar health care provider." Here too, Bennett is instructive. In that case, the claim of medical malpractice was against the hospital and its employee who was a physician. The complaint alleged, that the physician specialized in emergency care and was board certified in emergency medicine. The plaintiff appended to its complaint a good faith certificate and an opinion letter pursuant to § 52-190a. The letter stated: "As a practicing and [b]oard certified [g]eneral [s]urgeon with added qualifications in [s]urgical [c]ritical [c]are, and engaged in the practice of trauma surgery, I believe that I am qualified to review the contents of these records for adherence to the existing standard of care. One should note that I regularly evaluate and treat injured patients in the [e]mergency [d]epartment including those who are discharged from the [emergency department] as well as those who require inpatient care. The overwhelming majority of my time at work is spent providing clinical care in the [emergency department], general ward, intensive care unit and operating room over the last [twelve] years." (Footnote omitted.) Bennett v. New Milford Hospital, Inc., supra, AC29944. The court found that the letter submitted did not meet the definition of a similar health care provider under § 52-190a(a) for to do so it would have had to have been authored by "one who is trained and experienced in emergency medicine and is certified in emergency medicine . . . Because the plaintiff's expert is not certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c(c)." (Emphasis in original.) Id.
In the case presently before the court, the plaintiff's complaint alleges that the defendant David Elfenbein, M.D., individually and as an agent of Danbury Hospital, "was and still is a physician duly licensed to practice in the State of Connecticut with his principal place of business at 33 Hospital Ave., Danbury, Connecticut 06810." Plaintiff's first amended complaint, paragraph 3 (incorporated into all counts). The one-page physician's opinion letter appended to the complaint references the plaintiff's name and provides detail relative to the time period and course of her treatment. It concludes that "[t]he original failure to diagnose the infection in a timely fashion by not doing the appropriate tests was in my opinion of [sic] deviation from the standard of care." The name and signature of the author was properly expunged from the letter as required by statute. However, a thorough review of the text of the letter finds that nowhere is the name of any individual or corporate defendant found thereby making it impossible to identify which defendant(s) the author believes had breached the standard of care, or in what manner each may have done so. Moreover, the letter is completely devoid of any reference to the qualifications of the author. There is no mention of the author's area of practice, level of experience, or degree of education. As submitted, the letter could have been authored by a medical school student or someone other than a physician employed in the medical field. There is simply no way to know, or even infer, from the text of the letter whether it was authored by a similar health care provider.
The full text of the letter read as follows:
I have reviewed the records of Maria Ribeiro. The pertinent features of this case have been discussed during our telephone conversation today. It is my feeling that when the patient came into the hospital with intractable pain on August 29, 2006, the possibility of infection should have been contemplated. Although, the white blood cell count and ESR was within normal limits and there was no history of fever and chills, I feel that a bone scan to rule out infection would have been indicated at that time. Instead, she was taken to the operating room on August 31, 2006, for the revision of her left total hip arthroplasty. It was hear [sic] that intraoperative cultures grew staphylococcus. If the infection had been diagnosed preoperatively, the new implants would not have been inserted and she could have been treated earlier with the appropriate antibiotics. She was discharged on September 3, 2006, before the final intraoperative cultures were evaluated. The final report of September 4, 2006, revealed staphylococcus. The patient came in on September 7, 2006, with a left hip dislocation and on September 8, 2006, an infectious disease consult was obtained. She subsequently had a PICC line placed and intravenous vancomycin was given. She was subsequently treated with a removal of the implants with an antibiotics pacer in addition to being treated with the appropriate antibiotics. She was subsequently treated with a removal of the interpositional PROSTALAC with a revision of the total hip arthroplasty on November 17, 2006. The original failure to diagnose the infection in a timely fashion by not doing the appropriate tests was in my opinion of [sic] deviation from the standard of care. The original total hip arthroplasty revision that had been performed in an infected joint could have been avoided with the subsequent dislocation."
In Bennett, the court effectively ruled that in determining whether the author of the opinion letter was a similar health care provider relative to the named defendant, the comparison should be one of "apples to apples." There, the failure of the author to be board certified in emergency care was fatal to the sufficiency of the opinion letter even though the author was "a practicing and [b]oard certified [g]eneral [s]urgeon with added qualifications in [s]urgical [c]ritical [c]are and engaged in the practice of trauma surgery." Bennett v. New Milford Hospital, Inc., supra, AC29944. In the present case, the only allegation brought forth by the plaintiff is that Dr. Elfenbein was a physician who performed a left total hip replacement surgery at Danbury Hospital. There is nothing that can be gleaned from the opinion letter to indicate that its author was a surgeon with a specific area of practice or that he/she was a general surgeon. Again, there is nothing in the letter to identify him or her as a general physician with or without any specialty, or for that matter, as a physician at all. As Judge Eveleigh has succinctly noted, a "[written] opinion derived from a doctor who is not a similar health care provider . . . is effectively the same as no opinion at all for the purposes of conferring statutory jurisdiction upon the court." Cataldo v. Zuccala, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 06 5004649 (September 27, 2007, Eveleigh, J.) ( 44 Conn. L. Rptr. 300) (internist not a similar health care provider to a board certified surgeon).
Under the standard set forth in Bennett and the statutes, the letter cannot be determined to have been authored by a similar health care provider. Reading the motion to dismiss in the light most favorable to the non-pleader, the court finds that the opinion letter attached to the plaintiff's complaint is insufficient to comply with the requirements of § 52-190a as to count three.
2 Count Six
Count six alleges lack of informed consent as its cause of action. Notably, neither in her memoranda of law, nor at oral argument, did the plaintiff contest the applicability of Danbury Hospital's motion to dismiss under § 52-190a as to her sixth count which was a cause of action based on a lack of informed consent. From their pleadings and arguments it was clear that both parties considered the motion to address all counts pending against Danbury Hospital. Nonetheless, it is incumbent upon the court to review the applicability of the statute to this count. Specifically, the relevant allegations are that: "2. Defendant Danbury Hospital rendered the aforesaid medical treatment to Plaintiff Maria Ribeiro without first disclosing to her such information which a reasonable patient would have found material in order to decide whether to embark upon the course of treatment recommended, including the nature of the course of treatment, the risks and hazards of the course of treatment, the alternatives to the course of treatment and the anticipated benefits of the course of treatment. 3. That a reasonable patient in Plaintiff Maria Ribeiro's position would not have undergone the aforesaid course of treatment recommended if she had been fully informed and the lack of informed consent was a proximate cause of the injuries for which recovery is sought." These allegations differ from those of counts three and eight, both of which allege that Danbury Hospital departed from the prevailing standard of care in its treatment of the plaintiff.
"A claim against a physician for negligence based on lack of informed consent is separate from a claim based on negligence in medical treatment, because it is based on information communicated by the physician to the patient before the procedure or treatment. Sherwood v. Danbury Hospital, 278 Conn. 163, 181 896 A.2d 777 (2006)." Thiel v. Fine, Superior Court judicial district of Hartford, Docket No. CV 08 5021485 (February 26, 2009, Wagner, J.T.R.). Informed consent claims involve a lay standard whereby a physician is required "to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy." Logan v. Greenwich Hospital Association, 191 Conn. 282, 292-93, 465 A.2d 294 (1983). Because a lay standard is used to determine whether there has been a lack of informed consent between patient and physician, it would not make sense to require the plaintiff to obtain the opinion of an expert as a pre-condition to instituting suit on such a claim. Statutes should not be read to require absurd or unworkable results where the text of the statute is plain and unambiguous. In Re Jordan R., 239 Conn. 539, 552 (2009). The language of § 52-190a(a) makes clear that it relates to "negligence in the care or treatment of the claimant" and that the written opinion letter must provide "evidence of medical negligence." Cases of medical negligence require expert testimony. However, "[i]n a case where only one physician treats the patient, it is not necessary to establish through expert testimony that the physician had a duty to inform the patient prior to a surgical procedure." Godwin v. Danbury Eye Physicians Surgeons, 254 Conn. 131, 757 A.2d 516 (2000). Though decided prior to the 2005 amendment to § 52-190a, Godwin is factually similar to the present case which involves only one physician and separate counts of medical malpractice and lack of informed consent. That case is distinguishable from Mason v. Walsh, 26 Conn.App. 225, 230 (1991), which held that where there was more than one physician involved, expert testimony would be necessary in a lack of informed consent claim to establish which physician breached his or her duty.
In the case now before the court, there is only the action of one physician involved (through which the defendant hospital could be vicariously liable). Accordingly, under Godwin, no expert testimony would be required. Generally speaking, the allegations set forth by the plaintiff in count six relate not to the actual medical/physical treatment received, but rather to information that should (or should not) have been provided to her prior to the actual care and treatment. However, a recent Superior Court decision subsequent to Votre has held that compliance with § 52-190a is necessary for such a cause of action. Hoog v. Chicarilli, Superior Court, judicial district of New Haven, Docket No. CV 08 5020876 (May 4, 2009, Corradino, J.) [ 47 Conn. L. Rptr. 607].
The Hoog case is distinguishable from the present case in that the allegations of medical malpractice in a surgical procedure and those as to the lack of informed consent were combined in the one-count complaint and no request to revise was ever filed. Accordingly, the defendant was forced to bring a motion to dismiss as to the entire complaint because its application could not be limited to individual paragraphs. As noted above, the plaintiff in the case now before the court has separated its claims into separate counts and a determination can be made as to the applicability of § 52-190a as to each cause of action. Because the factual basis of this case is closest to that of Godwin and Thiel, this court finds their reasoning appropriate. Accordingly, the motion to dismiss the sixth count pursuant to § 52-190a is denied.
This situation illustrates why it could be argued that a motion to dismiss under § 52-190a should not be subject to the Practice Book sections relative to a motion to dismiss. Where a pleading may have more than one cause of action alleged in a single count, a motion to dismiss under § 52-190a would be difficult to apply clearly without first separating out the individual causes of action (one or more of which may fail to allege professional negligence on the part of a medical provider) through a request to revise. See Section IIIC below.
3 Count Eight
Count eight alleges vicarious liability against Danbury Hospital for the negligent conduct of Dr. Elfenbein as its agent. There is a split in Superior Court authority concerning the treatment of non-individual defendants on a motion to dismiss where the complaint contains allegations of both direct negligence and vicarious liability.
Count eight of the plaintiff's complaint alleges that the "Defendant Elfenbein was an agent, servant, and employee of Defendant Danbury Hospital and was acting within the scope of his employment." First amended complaint at page 10, paragraph 2.
"From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the facts that, under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortuous conduct of his employee when that conduct occurs during the course of the employee's employment. Matthiessen v. Vanech, 266 Conn. 822, 839, [ 836 A.2d 394] (2003)." Guido v. Hughes, supra, 44 Conn. L. Rptr. 347; see also Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 151, 801 A.2d 775 (2002). The 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 as to the principal non-individual defendants.
The majority line of cases follows the reasoning in Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.) in determining whether the opinion letter is sufficient as to non-individual defendants under § 52-190a. In Ranney, the plaintiff brought a cause of action alleging medical negligence in the delivery of her child against a number of physicians alleged to be agents, servants and employees of the hospital, the medical center that employed the physicians, and the hospital. The defendant hospital moved to dismiss the allegations against it, arguing that the opinion letter, authored by a physician board certified in obstetrics and gynecology, was insufficient to meet the requirements of § 52-190a. The court held that the opinion letter sufficiently satisfied § 52-190a, stating "[t]he statute does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions." Id. The court went on to explain "[t]he fact that the complaint in this case contains more detail about the identity of the hospital's employees or agents than does the written opinion does not make the written opinion insufficient for the purposes for which the legislation was passed." Id.
In Hernandez v. Moss, supra, Docket No. CV 06 5000664, the court relied on Ranney in denying the defendants' motion to dismiss the complaint on the ground that because the opinion letter was sufficient as to the doctor, it was also sufficient to satisfy § 52-190a with respect to the vicarious liability of the defendant hospital. Section 52-190a does not "require the opinion to name each actor of the corporate defendant. Neither does it require the author of the opinion, a similar medical care provider, to express opinions concerning vicarious liability." Id.
In Shankar v. Midstate Medical Center, supra, 44 Conn. L. Rptr. 595, the court addressed issues similar to those faced in Hernandez. There, the defendants claimed that "because the complaint fails to specifically identify the `other servants, actual or apparent agents and/or employees' of [the hospital] besides [the physician] . . . it cannot begin an investigation." Id. The court denied the motion to dismiss, stating "[t]he defendants are importing into § 52-190a a requirement that simply does not exist. There is no requirement in the statute that the plaintiff in the complaint or . . . in the written opinion letter, must identify each agent, servant, or employee of the institutional defendant." Id. See also Gurath v. Lee, Superior Court, judicial district of New Britain, Docket No. CV 08 6001313 (April 15, 2009, Trombley, J.) [ 47 Conn. L. Rptr. 562].
Similarly, in Guido, the defendant hospital moved to dismiss the complaint arguing that the language of the opinion letter was insufficient as to the counts alleged against it. Guido v. Hughes, supra, 44 Conn. L. Rptr. 347. The court, citing Hernandez, denied the motion and explained, "[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." Guido v. Hughes, supra, 44 Conn. L. Rptr. 347.
Recently, in Draper v. Danbury Health Systems, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 08 5008854 (October 14, 2008, Scholl, J.) ( 46 Conn. L. Rptr. 462), the defendants brought a motion to dismiss the case on the grounds that, inter alia, the opinion letter contained insufficient language to satisfy the requirements of § 52-190a. There, the plaintiff filed suit against individual and corporate defendants alleging medical negligence and vicarious liability. In denying the motion to dismiss, the court determined that the language of the opinion letter satisfied the statutory requirements in that it identified the qualifications of the author, referred to particular instances of misconduct and made reference to the non-individual defendants, even if those references did not explicitly name particular persons responsible for the misconduct. Id. The court explained, "[b]ecause the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint . . . The requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery." (Citations omitted.) Id. See also Maitan v. Access Ambulance Co., Superior Court, judicial district of Stamford, Docket No. CV 07 5003252 (October 18, 2007, Nadeau, J.) ( 44 Conn. L. Rptr. 436); Walton v. Caffrey, supra, 43 Conn. L. Rptr. 343; Ellegard v. Hennessey, supra, 43 Conn. L. Rptr. 195.
A significant minority of Superior Court decisions have held that for the complaint to survive a motion to dismiss allegations of negligence against the non-individual defendants, the language of the opinion letter must contain some probability of malpractice/misconduct by those defendants. Specifically, in the cases where direct allegations of negligence are present, the opinion letter must contain language beyond the alleged existence of an agency relationship. Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. CV 07 5003920 (September 19, 2007, Pittman, J.) ( 44 Conn. L. Rptr. 243) (when an "opinion letter does not differentiate between the failures of the defendant physician and those of the hospital group," it may be insufficient under § 52-190a). Moreover, when the author of the opinion letter is of a different specialty than the physician defendant, the opinion letter has been held to be insufficient. In Miller v. Rockville General Hospital, Superior Court, judicial district of Tolland, Docket No. CV 07 5001172 (April 9, 2007, Sferrazza, J.) ( 43 Conn. L. Rptr. 694), the court held that a neurosurgeon was not a "similar health care provider" within the meaning of § 52-190a where the defendant was an orthopedic surgeon. Also, subsequent to the decision in Votre, Judge Shapiro granted a motion to dismiss under § 52-190a finding that a board certified internist with a subspeciality in cardiovascular disease was not a similar health care provider as to a defendant physician who was a board certified vascular surgeon.
See Gowlis v. Saint Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 08 5009513 (December 16, 2008, Alvord, J.) (where the opinion letter is "entirely conclusory and provides no illumination as to what is the standard of care, that the medical providers of the Hospital violated it and how or on what basis or when it was violated," it is insufficient); see also DeLude v. Young, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07 5001903 (April 2, 2009, Vacchelli, J.) ( 45 Conn. L. Rptr. 289).
In reviewing the opinion letter in the context of vicarious liability, the court finds the content of the letter to be distinguishable from those found by the majority of cases to be acceptable. Rather, the letter appended to the plaintiff's complaint appears to fall within the category of cases described in the minority view. While not required to identify the agents or all the actors of the non-individual defendants, the letter must at the very least give some ability to identify or reference the individual and non-individual defendants to whom the allegations of the breach of the standard of care may apply. Moreover, and more significantly, the letter fails to 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. There is no information whatsoever as to the qualifications of the author; whether it be as to his/her field of practice, extent of experience, current position or even whether he/she has the necessary medical training or academic degrees. 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 Danbury Hospital where vicarious liability is alleged because the physician was its agent, servant and/or employee.
C WAIVER
While the court has found the opinion letter not to be in compliance with § 52-190a(a), there remains the issue raised by the plaintiff as to whether Danbury Hospital's ability to claim such an argument was waived by virtue of its having filed a request to revise prior to the filing of the motion to dismiss. Normally, "[t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). However, Votre has made clear that a motion to dismiss under § 52-190a does not implicate the court's subject matter jurisdiction, but rather, invokes a claim of dismissal pursuant to statute. Therefore, the issue of subject matter jurisdiction is not before the court in this instance. Accordingly, the court must consider the applicability of the Practice Book rules to the pleadings presented to the court.
Practice Book § 10-31 sets forth the grounds upon which a motion to dismiss may be brought. It states in relevant part: "(a) [t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." With the exception of lack of jurisdiction over the subject matter which cannot be waived, under Practice Book § 10-30, "[a]ny defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within 30 days of the filing of an appearance." In addition to this time limitation, the filing of a motion to dismiss must be made within the order set forth in Practice Book § 10-6. That section requires that the motion to dismiss be filed following the filing of the complaint. Under Practice Book § 10-7, "the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Also, Practice Book § 10-32 states that "[a]ny claim of lack of jurisdiction over the person of improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." As noted above in section I of this memorandum, the first pleading filed by Danbury Hospital following the filing of the plaintiff's complaint was a request to revise. The plaintiff contends that in so doing, Practice Book §§ 10-7 and 10-32 dictate that Danbury Hospital has waived its right to file a motion to dismiss. Plaintiff's contention is not supported by a combined reading of the motion, the rules and the relevant statute. While citing to Practice Book § 10-31, the defendant's motion makes clear that the substantive basis for the prosecution of the motion is that "[t]he plaintiff failed to comply with Connecticut General Statutes § 52-190a, as amended . . ." Moreover, because the failure to do so was "a clear violation of threshold statutory requirements for commencing a medical malpractice suit . . ., the plaintiff's complaint as to Danbury Hospital must be dismissed pursuant to § 52-190a." Accordingly, in reviewing the claims of the parties, the court reads the motion to dismiss as being rooted in the statute as opposed to the Practice Book. Because the basis of the motion is that of a statutory remedy as held by Votre, and is not one of the enumerated reasons set forth in Practice Book § 10-31, it is therefore not subject to the constraints on the timing or order of pleadings under Practice Book §§ 10-6, 10-7, 10-30 or 10-32.
Section 10-6. Pleadings Allowed and Their Order
The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.
A recent Superior Court decision also allowed a motion to dismiss to proceed under a claim of insufficiency under § 52-190a despite the defendant having previously filed a request to revise. See Gurath v. Lee, Superior Court, judicial district of New Britain, Docket No. CV 08 6001313 (April 15, 2009, Trombley, J.) [ 47 Conn. L. Rptr. 562]. Ultimately the motion was denied as the court found the opinion letter to be in compliance with the statutory requirements. However, for a case holding that the filing of a motion to strike prior to the filing of a motion to dismiss under § 52-190a waives the right to file a motion to dismiss pursuant to Practice Book §§ 10-6 and 10-7, see Muisener v. Saranchak, Superior Court, judicial district of New Britain, Docket No. CV 07 5004003 (March 13, 2009, Pittman, J.) [ 47 Conn. L. Rptr. 359]. Notably, Muisener was decided prior to the decision in Votre while Gurath was decided after Votre. At least one other case following Votre has entertained a motion to dismiss following the filing of multiple pleadings including a request to revise plaintiff's complaint and a motion to strike the revised complaint. See Morgan v. Hartford Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 07 5009731 [ 47 Conn. L. Rptr. 870]. It is the view of this court, in light of Votre and Bennett, that the statutory remedy of dismissal available under § 52-190a has been properly raised by Danbury Hospital.
IV CONCLUSION
For the reasons discussed above, Danbury Hospital's motion to dismiss is granted because (1) the plaintiff failed to present a written and signed opinion of a similar health care provider pursuant to General Statutes § 52-190a, and (2) the filing of a motion to dismiss is authorized under the statutory framework of § 52-190a and is therefore not constrained by the time limits or procedural order of the relevant Practice Book sections governing the filing of a motion to dismiss.
BY THE COURT