Opinion
HHDCV125036229S.
12-12-2012
Benita TOUSSAINT v. HARTFORD HOSPITAL et al.
UNPUBLISHED OPINION
JANE S. SCHOLL, J.
The defendants, Hartford Hospital, John Welch M.D., and Elliott Joseph, President, have moved to dismiss this action for the plaintiff's failure to attach to the complaint a good faith certificate or an opinion letter from a similar health care provider as required by General Statutes § 52-190a. The defendants claim that their motion should be granted based on the Supreme Court's decisions in Bennett v. New Milford Hospital, 300 Conn. 1 (2011), and Morgan v. Hartford Hospital, 301 Conn. 388 (2011). Oral argument on the motion, and the plaintiff's objections thereto, was heard by the court on October 15, 2012.
The complaint here alleges that the plaintiff, Benita Toussaint, was admitted to Hartford Hospital on February 11, 2010, to remove a hernia, treat a navel infection, and to have another procedure to her bladder. Following the procedure, the plaintiff suffered debilitating pain and was bleeding. Despite her condition, the plaintiff claims she was discharged from the hospital. She later went to Dr. Welch's office to have her stitches removed and was told her hernia had not been removed. She returned to his office a short time later when puss began to flow out of her navel. Dr. Welch referred her for an MRI and told her to see an OBGYN. The plaintiff claims that Hartford Hospital and Dr. Welch inflicted and caused serious internal injuries. The plaintiff alleges that she was " robbed of standard of care." Complaint, p. 3. She also claims Medicare was robbed and the defendants charged and received Medicare funds while subjecting her to experimentation. The plaintiff alleges that the defendants violated her rights under the Patients' Bill of Rights and False Claims Act.
The defendants claim that this action is a medical malpractice action against health care providers for which the statute requires that a certificate of good faith and an opinion of a similar health care provider be attached to the complaint and there are none, warranting dismissal of the complaint. The plaintiff claims that this is not a medical malpractice case but one brought under Connecticut's False Claim Act and the Health Insurance Fraud Act.
General Statutes § 52-190a provides that: " (a) No civil action ... shall be filed to recover damages resulting from personal injury ... whether in tort or in contract, in which it is alleged that such injury ... 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 ... 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."
In Bennett v. New Milford Hospital, 300 Conn. 1, 25 (2011), the Court held " that § 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers ..."
In Morgan v. Hartford Hospital, 301 Conn. 388, 397-98 (2011), the Court stated: " It is the failure to obtain and file the opinion letter which serves as a basis for the dismissal. Clearly, the legislature unambiguously contemplated a dismissal at the beginning of the action by its usage of the phrase ‘ obtain and file ...’ General Statutes § 52-190a ... Today, we recognize that the written opinion letter, prepared in accordance with the dictates of § 52-190a, like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action." The Court further held that: " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... [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. 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., at 401.
The court must first decide whether this action sounds in medical malpractice and therefore the provisions of General Statutes § 52-190a apply. The Bennett Court also set forth the standard of review on a motion to dismiss: " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... When a ... court decides a ... 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 ... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks and citation omitted.) Bennett v. New Milford Hospital, 300 Conn. 1, 10-11 (2011).
" [T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Citation omitted.) Gold v. Greenwich Hospital Ass'n, 262 Conn. 248, 254 (2002). A review of the plaintiff's complaint here reveals that it is an action for medical malpractice. The defendants are sued regarding their roles in the care and treatment of the plaintiff. The plaintiff alleges that she was admitted to Hartford Hospital for a medical procedure, that she was a patient of Dr. Welch and was operated on by him, and that she complained to Joseph as President of the Hospital " expecting intervention and some remedy in treatment." Complaint, p. 2. Her allegations all center around her claims that she was " robbed of standard of care." Complaint, p. 3.
The plaintiff argues that this is not a medical malpractice case but one brought under the State's False Claims Act, General Statutes § 17b-301d, and the Health Insurance Fraud Act, General Statutes § 53-440 et seq. This argument fails. First, in essence her claims under these statutes are predicated on her allegations that she was not provided appropriate care and therefore Medicare was " robbed." Complaint, p. 3. Thus her claims are really ones of medical malpractice. Second, she has not met the statutory criteria required for such actions. The plaintiff does not bring her action in the name of the State nor has she followed the procedures outlined in the State's False Claims Act which requires that the complaint be first served on the Attorney General along with the evidence supporting it and filed in camera. General Statutes § 17b-301d. The Health Insurance Fraud Act also does not allow for such an action by the plaintiff. It provides for an action by an insurer against the perpetrator of a fraud or the Insurance Commissioner, after investigation, may refer such investigation to the appropriate state agency for criminal prosecution, civil enforcement or disciplinary action. General Statutes §§ 53-444, 53-445.
Therefore, for the reasons stated above, the Motion to Dismiss is granted.