Opinion
CV176010981S
06-07-2018
Juan SANTIAGO v. Jean F. WONG, M.D. et al.
UNPUBLISHED OPINION
Harmon, Judge.
FACTS AND PROCEDURAL HISTORY
The plaintiff’s complaint alleges the following: The defendant, Jean Wong (hereinafter known as "Wong"), is a licensed physician specializing in Urology, and is affiliated with the other named defendant, Hartford Healthcare Medical Group (hereinafter known as "HHMG"). On June 24, 2015, the plaintiff had an appointment with the defendant, Wong, at HHMG’s office to treat him for dysuria and left testicular pain. After examining the plaintiff, Wong confirmed the symptoms of dysuria and sent the plaintiff’s urine for culture. In addition, Wong gave the plaintiff ibuprofen; 600mgs every twelve hours for a period of five days. The plaintiff had a documented and known allergy to ibuprofen and other nonsteroidal anti-inflammatory drugs (nsaids). Wong failed to review the plaintiff’s medical records for allergies and other drugs; failed to take a complete medical history to determine the plaintiff’s allergies; failed to discuss with the plaintiff whether he was allergic to ibuprofen before prescribing it; and, failed to observe the patient for signs of an adverse reaction following the prescription and administration of ibuprofen.
Within thirty minutes of taking the ibuprofen, the plaintiff became acutely ill. Subsequently, the plaintiff was admitted to the emergency department of the New Britain General Campus of the Hospital of Central Connecticut. Within six to seven hours, the plaintiff was admitted to the hospital and was required to be hospitalized overnight. In addition, the plaintiff was required to pay for additional medical care, treatment, and, hospitalization. Furthermore, in addition to Wong’s negligence, the plaintiff’s injury was also caused by the defendant, HHMG, through its agent, servant, and, or employee, Wong.
The plaintiff attached a certificate of reasonable inquiry to his complaint, in addition to a letter from a healthcare provider addressing the plaintiff’s injury and the defendants’ negligence. The defendants submitted their motion to dismiss on November 14, 2017. On March 1, 2018, the plaintiff submitted his objection to the defendants’ motion to dismiss. The defendants subsequently submitted their reply to the plaintiff’s objection on March 8, 2018. The matter was heard at short calendar on March 19, 2018.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
"[A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and ... dismissal of a letter that does not comply with § 52-190a(c) is mandatory ..." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). "[A]n 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." 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).
ANALYSIS
We begin our analysis by examining Section 52-190a of the Connecticut General Statutes. "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 ... 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 ..." (Internal quotation marks omitted.) Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 581, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
"[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice." Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 558, 36 A.3d 297 (2012). "[A]n opinion letter must demonstrate that its author meets the qualifications of a similar health care provider." Id., 561. "The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Id., 558-59. See Gonzalez v. Langdon, 161 Conn.App. 497, 504, 128 A.3d 562 (2015) (noting failure to attach to complaint legally sufficient opinion letter authored by similar health care provider mandates dismissal because the court lacks jurisdiction).
Additionally, "To determine if an opinion letter meets the requirements of § 52-190a(a), the letter must be read in conjunction with Connecticut General Statutes § 52-184c(c), which defines the term similar health care provider." (Internal quotation marks omitted.) Torres v. Carrese, 149 Conn.App. 596, 608-09, 90 A.3d 256, cert. denied, 312 Conn. 912 (2014). "For health care providers who are board certified or who hold themselves out as specialists ... § 52-184c(c) 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 ..." (Internal quotation marks omitted.) Id., 609. "If the [plaintiff] [alleges] in his complaint that the defendant [is a specialist] ... the opinion letter ... ha[s] to be ... authored by a similar health care provider as defined by § 52-184c(c), even if the defendant health care provider is not actually board certified in that specialty." (Internal quotation marks omitted; citations omitted.) Gonzales v. Langdon, supra, 161 Conn.App. 505.
Consequently, because the plaintiff alleges in the complaint that Wong is a specialist in Urology, the opinion letter must therefore be authored by a provider who is trained and experienced in the same specialty, and, certified by the American board in the same specialty; in the present case, Urology. The only reference to the author’s training or qualification is "I am a licensed physician, FACOG and FACS." There is no indication that the author is trained and experienced in Urology, and, is certified by the American board in Urology. To the contrary, the author of the opinion letter is a Fellow of the American Congress of Obstetricians and Gynecologists. Accordingly, the author’s letter fails to meet the requirements of a similar healthcare provider under § 52-184c. Additionally, the plaintiff’s reference to § 52-184c(d), a healthcare provider testifying as an expert, is inapplicable here.
"[B]ecause the plaintiff alleged in his complaint that the defendant was a specialist in emergency medicine, the author of the opinion letter pursuant to § 52-190a(a) had to be a similar health care provider as that term is defined by [General Statutes] § 52-184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c(d)." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 12.
The plaintiff next argues that the alleged injury was caused by the use of ibuprofen, a universal drug that is used both over the counter as well as by prescription. As a result of ibuprofen being a universal drug, the plaintiff contends that it is difficult to argue that the plaintiff’s expert has little or no experience with the drug. Furthermore, the plaintiff argues that the author of the opinion letter is a Fellow of American Congress of Obstetricians and Gynecologists, and, therefore, he would certainly have had occasion to treat urinary tract infections.
Both assertions by the plaintiff are misplaced. First, "the purpose of § 52-190a and its requirement of a good faith certificate was to prevent the filing of frivolous medical malpractice actions. We also concluded that the purpose of requiring a written opinion letter, in an amendment to the statute ... was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from the experts." (Internal quotation marks omitted; citation omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.3d 451 (2011). Second, on the basis of the statute, the issue to be addressed is not whether the drug is universally used, or whether the author has, on occasion, prescribed the drug ibuprofen or treated patients for urinary tract infections. Particularly, the issue to be addressed is whether a Urologist and an Obstetrician or Gynocologist are trained and experienced in the same specialty, and, certified by the same American board. Wong and the author of the opinion letter are not trained and experienced in the same specialty, nor certified by the same American board.
See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 6 ("[b]ecause the plaintiff brought this action against the defendant in his capacity as a specialist in emergency medicine, we conclude that § 52-190a[a] required the plaintiff to supply an opinion letter authored by a similar health care provider as defined by § 52-184c[c]").
CONCLUSION
Based on the foregoing discussion, the defendant’s motion to dismiss is granted and plaintiff’s objection is overruled, because the opinion letter is not from a similar health care provider in the field of urology.