Opinion
No. 5002633
October 16, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #134
FACTS
The instant medical malpractice action was initiated by the plaintiffs, Lisa Robbins, as administratrix of the estate of Elijah Jamal Hezekia Robbins Martin, and Lisa Robbins, individually, against the defendant, Donna Burke-Howes, by way of a second amended complaint, dated March 7, 2007. Defendant Burke-Howes was added as a party defendant to this action which had previously been directed against Physicians for Women's Health, LLC, Women's Health USA, Inc., Jonathan Levine, M.D., and Shoreline Obstetrics Gynecology, P.C. The second amended complaint sets forth a claim sounding in medical malpractice in four counts. The allegations directed at defendant Burke-Howes are set forth in count one and two, both of which are the subect of the instant motion to dismiss.
The action arises out of the death of the plaintiffs' infant decedent, Elijah Jamal Hezekia Robbins Martin, shortly after his delivery at Lawrence Memorial Hospital on October 10, 2005. In count one, the plaintiff, Lisa Robbins, administratrix of the estate of and mother of the decedent, alleges, in part, that defendant Burke-Howes failed to exercise reasonable care and skill in the care and treatment provided to the plaintiffs, and that as a result of defendant Burke-Howes's carelessness and negligence the plaintiff's infant decedent suffered serious, painful and permanent injuries including death. In count two, the plaintiff Lisa Robbins, individually, alleges, in part, that as a result of the carelessness and negligence of defendant Burke-Howes, she suffered, continues to suffer, and for a long time to come will suffer severe psychological, physiological and emotional distress.
The plaintiffs attached to their initial complaint and subsequent amended complaints a written opinion from an obstetrician-gynecologist asserting that defendant Burke-Howes, a certified nurse-midwife, was negligent in the care and treatment rendered to the infant decedent and to the plaintiff Lisa Robbins, the mother of the infant decedent.
On May 25, 2007, defendant Donna Burke-Howes filed a motion to dismiss the plaintiffs' second amended complaint, on the ground that the court lacks subject matter jurisdiction to adjudicate the matter as a result of the plaintiffs' failure to file, with the complaint, a written opinion by a similar health care provider that complies with the requirements of General Statutes §§ 52-190a(a) and 52-190a(c). Defendant Burke-Howes has submitted a memorandum of law in support of the motion. On June 14, 2007, the plaintiffs filed a memorandum of law in opposition. The matter was heard at the short calendar on June 19, 2007.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). Furthermore, "[p]ursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003).
Effective October 1, 2005, a party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating "that there appears to be evidence of medical negligence . . . includ[ing] [the] detailed basis for the formation of such opinion." General Statutes § 52-190a(a). Pursuant to subsection (c) of § 52-190a, "[t]he failure to obtain and file the written opinion required by subsection (a) [of § 52-190a] shall be grounds for the dismissal of the action." See CT Page 17361 Oram v. DeCholnorky, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV05 4005513 (March 10, 2006, Shay, J.), 41 Conn. L. Rptr. 46 (May 22, 2006).
In her memorandum of law in support of the motion to dismiss, defendant Burke-Howes argues that "the court lacks subject matter jurisdiction to adjudicate this matter since [the] plaintiffs failed to file a written opinion by a similar health care provider that complies with the requirements of [General Statutes §§ 52-190a(a) and 52-190a(c)]. Specifically, defendant Burke-Howes argues that the author of the opinion, an obstetrician-gynecologist, is not a "similar health care provider" as to herself, a nurse-midwife, pursuant to the definition provided in § 52-184c. Defendant Burke-Howes argues that, "[e]ven though an obstetrician-gynecologist is trained in obstetrics, nurse-midwifery is a separate specialty with its own certification and therefore not the `same specialty' as envisioned and required by § 52-184c." Accordingly, Burke-Howes contends that the written opinion submitted by the plaintiffs does not constitute a written opinion as required by § 52-190a and that the court, therefore, does not have subject matter jurisdiction with respect to any claims against Burke-Howes in this action.
The plaintiffs counter that their § 52-190a(a) certificate recites that the author of the written opinion, a board certified obstetrician-gynecologist "work[s] with several certified nurse midwives, and ha[s] worked with many others in the past." The plaintiffs further argue that this physician has "supervised midwives and [is] informed about the level of obstetric care they are expected to furnish." Accordingly, the plaintiffs argue that this physician is undoubtedly qualified to judge defendant Burke-Howes's alleged substandard care that led to the death of the infant decedent. The plaintiffs also argue that the motion does not implicate the subject matter jurisdiction of the court. Specifically, the plaintiffs argue that their submission of a good faith certificate and written health care provider opinion satisfies the purpose of § 52-190a, and that a motion to strike is the appropriate pleading device by which to question the adequacy of such documents.
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 or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in [§ 52-184c], . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.
General Statutes § 52-184c(c) provides: "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 . . .'" General Statutes § 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."
As to defendant Burke-Howes's assertion that the provided opinion of the obstetrician-gynecologist is insufficient, the court notes that "[t]he appellate courts have not yet addressed either the `written opinion' requirement or the `grounds for dismissal' provision of [§ 52-190a] as amended. The Superior Court, however, has done so on numerous occasions, and has repeatedly held that the attachment of a written opinion of a health care provider to the complaint is sufficient to clear the jurisdictional hurdle, notwithstanding the possibility that its content does not conform to the specific requirements of the statute. While several decisions have dismissed cases based on a failure to comply with § 52-190a, the plaintiffs in each had failed to attach a written opinion at all." Torres v. Carrese, Superior Court, judicial district of New Haven, Docket No. CV 06 5006514 (April 16, 2007, Jones, J.).
See, e.g., Doherty v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV 06 5001040 (February 22, 2007, Thim, J.); Lyon v. Yeager, Superior Court, judicial district of Windham, Docket No. CV 06 5000150 (February 20, 2007, Martin, J.); Greer v. Norbert, Superior Court, judicial district of Hartford, Docket No. CV 06 05004859 (February 7, 2007, Rittenband, J.) (42 Conn. L. Rptr. 806); Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket CV 06 5001663 (January 25, 2007, Prestley, J.) (42 Conn. L. Rptr. 724); Tutillo v. Day Kimball Health Care, Inc., Superior Court, judicial district of Windham, Docket No. CV 06 5000096 (November 7, 2006, Martin, J.) (43 Conn. L. Rptr. 367); Gallo v. Hunter's Ambulance Service, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000924 (January 9, 2007, Rubinow, J.) (42 Conn. L. Rptr. 632); Lawlor v. Hagstrom, Superior Court, judicial district of Hartford, Docket No. CV 06 5002094 (December 29, 2006, Wiese, J.); Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) (42 Conn. L. Rptr. 163); Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 065000954 (September 18, 2006, Pittman, J.); Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 065001608 (October 2, 2006, Adams, J.); Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) (41 Conn. L. Rptr. 222).
See, e.g., Kirkpatrick v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 4011523 (December 14, 2006, Pittman, J.) (42 Conn. L. Rptr. 519); Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001000 (October 25, 2006, Hiller, J.) (42 Conn. L. Rptr. 244); Continuing Care v. Byczajka, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4008605 (October 25, 2006, Adams, J.); Kudera v. Ridgefield Physical Therapy, LLC, Superior Court, judicial district of Danbury, Docket No. CV 06 5000993 (September 18, 2006, Shaban, J.); Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) (41 Conn. L. Rptr. 695); Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) (41 Conn. L. Rptr. 504).
Furthermore, "[n]othing in the plain language of the statute or its legislative history indicates . . . that an insufficient opinion is grounds for dismissal of the action." Ellegard v. Hennessey, Superior Court, judicial district of New Britain, Docket No. CV 06 5001158 (September 22, 2006, Robinson, J.). Our Supreme Court has stated that the underlying purpose behind the initial enactment of § 52-190a was "to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). In enacting the requirement that a medical opinion be attached to the attorney's good faith certificate, the legislature intended to further this public policy initiative. See Ricciardi v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 065001033 (May 4, 2007, Gilligan, J.) [43 Conn. L. Rptr. 388].
Lastly, defendant Burke-Howes asserts that she is a certified nurse-midwife. In holding herself out as a specialist, defendant Burke-Howe subjects herself to § 52-184c(c) in determining who qualifies as a "similar health care provider." Under § 52-184c(c), a "similar health care provider" is one "trained and experienced in the same specialty" and "certified . . . in the same specialty." Clearly, defendant Burke-Howes, a nurse-midwife, is trained and experienced in the same specialty as the opinion writer in this case, an obstetrician-gynecologist. Both are trained and experienced in providing prenatal care for pregnant women and providing assistance/medical care to women during childbirth. Furthermore, both are certified in the same specialty of providing medical care to women prior, during, and after childbirth. Lastly, the court is persuaded by the opinion writer's assertion that he/she has "supervised midwives" and that he/she is "informed about the level of obstetric care they are expected to furnish."
Furthermore, as aptly noted by the court in Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 500692 (March 12, 2007, Adams, J.), "[o]ne must also recognize that the opinion writer required by § 52-190a is not performing the same role as an expert witness under § 52-184c. There is certainly an overlap, but the opinion writer has the role of a gatekeeper in providing the underpinning for the plaintiffs attorney's certificate of good faith by stating there appears to be evidence of medical negligence, while the expert witness is called upon to testify to a reasonable degree of medical probability that there has been a breach of the prevailing professional standard of care." The former standard is a lower standard permitting a physician to find "evidence of medical negligence" in the conduct of certain health care providers without necessarily being sufficiently familiar with the standard of care applicable to each provider so as to be able to testify that such provider breached that standard. In the present case, it is apparent that an obstetrician-gynecologist is capable of determining whether there is evidence of medical negligence in the conduct of a nurse-midwife.
In light of the ever increasing list of Superior Court decisions holding that the sufficiency of an opinion submitted pursuant to § 52-190a is not properly addressed via a motion to dismiss, the legislative history of the relevant statutes, the similarities between the training and experiences of nurse midwives and obstetrician-gynecologists, the specific experience of the opinion writer in supervising nurse midwives, and the role of an opinion writer pursuant to § 52-190a, this court concludes that the plaintiffs' counsel has complied with the requirements of § 52-190a in selecting the obstetrician-gynecologist as the opinion writer for the second amended complaint — specifically as it pertains to defendant Burke-Howes.
CONCLUSION
Based on the foregoing, the court hereby denies defendant Burke-Howes's motion to dismiss.