MEMORANDUM OF DECISION RE MOTION TO DISMISS #102

BARBARA N. BELLIS, JUDGE.

This is a medical malpractice action brought by the plaintiffs, Pradheep Shankar and Nancy Shankar, against the defendants, Midstate Medical Center (hereinafter "Midstate"), and Gary M. Tickey, M.D. (hereinafter "Tickey"). The complaint alleges that Pradheep Shankar was accepted as a patient of Midstate through its Medi-Quick facility, and further alleges that Midstate, acting by and through Tickey, "as well as it's (sic) other servants, actual or apparent agents and/or employees," treated Pradheep Shankar for injuries he sustained to his right ankle following a fall from a ladder. The plaintiffs claim that as a result of the negligence of the defendants, they sustained injuries and damages, including, as to the plaintiff, Pradheep Shankar, necrotizing fasciitis of the right lower extremity requiring amputation above the knee.

The plaintiffs filed with the complaint a certificate of good faith signed by plaintiffs' counsel, and a two-page written opinion of a physician board-certified in Emergency Medicine. In essence, the opinion indicates that the physician reviewed certain identified medical records, summarizes the plaintiff's medical treatment, and opines that there was "evidence of medical negligence on the part of Gary Tickey, M.D., and the residents and staff of the Midstate Medical Center in the care and treatment of Pradheep Shankar." The opinion goes on to identify in detail the basis for the opinion.

On September 7, 2007, Midstate filed a motion to dismiss the complaint for the plaintiffs' failure to comply with Connecticut General Statutes § 52-190, on the ground that Midstate is an institutional health care provider, and the opinion letter does not qualify as a similar health care provider as to the servants, agents, or employees of Midstate, as it fails to specifically identify the negligent agent, servant, or employee. On October 25, 2007, the plaintiffs filed an objection to the motion to dismiss. Oral argument was heard on October 29, 2007.

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DISCUSSION

The general purpose of § 52-190a, as initially promulgated, is "to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710 (1990). "The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence." Id. at 711. "The failure to obtain and file the written opinion shall be grounds for the dismissal of the action." General Statutes § 52-190a(c).

Connecticut's appellate courts have not yet had occasion to address whether a motion to dismiss is the proper vehicle where the written opinion has in fact been filed, but the claim is that the opinion is insufficient.

While the statute makes clear that the plaintiff's failure to obtain and file the written opinion is grounds for dismissal, it does not address the procedure a defendant should follow when presented with an inadequate or insufficient opinion. A review of the legislative history for Public Act 05-275, which amended § 52-190a effective October 1, 2005, provides little guidance. During the Senate hearing discussing P.A. 05-275, Senator McDonald explained that "this makes substantial improvements over the current system because it would require that that report be in writing and presented in a detailed fashion, and a copy of that report, with the name of the doctor supplying it expunged, would be attached to the complaint as an exhibit. The failure to attach such an opinion would require the court to dismiss the case." 48 S. Proc. Pt. 14, 2005 Sess., p. 4411. During committee hearings, Attorney Mike Neubert remarked that "[t]he Bill would also provide that failure to obtain and file the written opinion would be grounds for an immediate dismissal of the action." Conn. Joint Standing Committee Hearings, Judiciary, p. 18, 2005 Sess. P. 5539. Subsequent discourse between Attorney Neubert and Senator Meyer suggests that Attorney Neubert envisioned the court dismissing an action where the "[opinion] letter doesn't state what he says it says and the court agrees with [defense counsel] and dismisses it":

Mike Neubert: "Let's say you were to file a case. The letter doesn't state what he says it says and the court agrees with me and dismisses it. I guess clearly he could have another bite at the apple and submit another complaint with another letter or possibly respond by attaching the letter that met the requirements of the Statute. I guess my answer is that it doesn't say with prejudice so I assume it is not drafted with prejudice in mind."

Sen. Meyer: "Then it doesn't have a lot of teeth."

Mike Neubert: "It might or might not. Obviously this isn't going to impact the majority of cases. We're talking about the cases on the margins."

In short, while the legislative history includes discussions that a failure to file the written opinion would be grounds for a dismissal, the only reference in the legislative history with respect to the procedure to be filed where the written opinion is inadequate is found in the testimony of Attorney Neubert to the Judiciary Committee.

The majority of the trial courts that have decided the issue have held that a motion to dismiss should not be used to attack the sufficiency of the written opinion. Judge Matasavage in Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05-5000482S (April 19, 2006) [41 Conn. L. Rptr. 222], sets forth the reasoning for the majority view:

[t]he statutory language [of 52-190a as modified by P.A. 05-275], and the legislative intent indicate that the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action. Because this court cannot read something into [this] statute . . . nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature, . . . this court should not interpret the amended statute, in accordance with the defendants' view, that it creates a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion.

(Internal citations omitted; internal quotation marks omitted.)

See also Schachter v. Evanko, Superior Court, judicial district of New Haven, Docket No. 065007552 (September 24, 2007, Holden, J.) [44 Conn. L. Rptr. 210] (denying defendant's motion to dismiss, holding that the sufficiency of the written opinion is not properly addressed via a motion to dismiss); Robbin v. Physicians for Women's Health, LLC, Superior Court, judicial district of New London at New London, Docket No. 5002633, (October 16, 2007, Hurley, J.T.R.) (denying defendant's motion to dismiss, holding that the sufficiency of the written opinion is not properly addressed via a motion to dismiss, and that the written opinion of an obstetrician-gynecologist is a "similar health care provider" to the defendant, a certified nurse midwife); Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk, CV0650016925, (March 12, 2007, Adams, J.); (denying defendant hospital's motion to dismiss, where opinion letter, from a board-certified obstetrician and gynecologist, stated that the defendants "fail[ed] . . . to timely and/or properly treat [the plaintiff]'s high blood pressure following her caesarian section," rejecting the defendant hospital's arguments that the author was not a "similar health care provider," and that there was no detailed basis for the opinion); Ouelette v. Brook Hollow Health Care Center, Superior Court, judicial district of New Haven, Docket No. 5002865, (February 16, 2007, Holden, J.) [42 Conn. L. Rptr. 863] (denying the institutional defendant's motion to dismiss, where the opinion letter, from a physician, was based upon his review of the medical records, and opined that the plaintiff's injury was caused by the defendant's "deviation from an acceptable standard of care, and that the [injury] was a substantial factor in her death"); Andrikis v. Phoenix Internal Medicine et al, Superior Court, judicial district of Waterbury, Docket No. 05-5000482, supra, (the adequacy of an attached certificate remains a non-jurisdictional issue subject to attack only through a motion to strike, denying the defendant's motion to dismiss); Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. 06 5000664S (May 31, 2007, Gallagher, J.) (written opinion sufficient to satisfy not only the pending motion to dismiss but a motion to strike as well). But see, CT Page 19736 Tobin v. Laye, Superior Court, judicial district of Hartford, Docket No. 065002163, (January 11, 2007, Shortall, J.), (granting motion to dismiss of defendant neurologist, where opinion letter was from a board-certified neurosurgeon); Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. 075003920, (September 19, 2007, Pittman, J.) [44 Conn. L. Rptr. 243] (granting motion to dismiss, where the opinion letter did not identify whether the author was a "similar health care provider," and where it provided no detail for the basis of the opinion); Landry v. Zborowski, Superior Court, judicial district of Tolland, Docket No. 076000211, (September 19, 2007, Vacchelli, J.) [44 Conn. L. Rptr. 205] (Reconsidering and reaffirming its earlier holding that the adequacy of the written opinion may be raised by a motion to dismiss, granting defendants' motion to dismiss where an opinion was attached but was not detailed).

In light of this matter, the parties in this matter agreed subsequent to oral argument of the motion to dismiss that in the event that the court declined to dismiss portions of the complaint, the court could then address whether to strike portions of the complaint, on the basis of insufficiency of the written opinion. The issue then is whether the opinion letter filed with the complaint is sufficient to survive either a motion to dismiss or a motion to strike, where agents, servants, or employees of Midstate, other than Tickey, remain unnamed.

The present case presents similar facts to Hernandez v. Moss, supra. In Hernandez, the opinion letter was from a board certified pediatric surgeon, and while it addressed the conduct of the named defendant, Dr. Moss, no mention was made as to his employers, Yale New Haven Hospital and Yale University. The court in Hernandez denied the motion to dismiss filed by the Yale defendants, in essence holding that the opinion letter was sufficient as to the institutional defendants. Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. 065000954, (September 18, 2006, Pittman, J.) presents a similar fact pattern as well. In Ranney, suit was brought against New Britain General Hospital, Grove Hill Medical Center, and two physicians. The complaint alleged that the defendant hospital, acting through its agents, servants, and employees, was negligent. In the complaint, the plaintiff claimed that among the negligent agents, servants, and employees of the hospital were the two physicians named as defendants, as well as five other individuals identified by name in the complaint but not named as defendants in the lawsuit. The written opinion, from a physician board-certified in obstetrics, gynecology, and maternal fetal medicine, stated that as to the responsibility of the hospital, "the obstetric care rendered by both the nursing and medical staff claim was {a} proximate cause in causing the injury." The defendant hospital moved to dismiss portions of the complaint, on the basis that the opinion letter failed to note how each of the agents, servants, and employees named in the complaint participated in the care of and decisions regarding the plaintiff. The court in Ranney found that the written opinion contained sufficient detail to survive either a motion to dismiss or a motion to strike for insufficiency:

The 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 the 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. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiffs who, the legislature determined, might otherwise institute meritless claims. The 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.

In the present matter, Midstate does not claim that the same physician cannot render an opinion as to the negligence of both Tickey and Midstate. Rather, Midstate argues that because the complaint fails to specifically identify the "other servants, actual or apparent agents and/or employees" of Midstate besides Tickey, it cannot determine whether the opinion written is a "similar health care provider" to those individuals, and it cannot begin an investigation. The court rejects this argument. The 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 certificate of good faith, or the similar health care provider, in the written opinion letter, must identify each agent, servant, or employee of an institutional defendant.

Here, the complaint alleges that the plaintiffs' injuries and damages arose from the plaintiff Pradheep Shankar's treatment in the emergency room at Midstate, by Tickey, and "other servants, actual or apparent agents and/or employees of Midstate." The written opinion letter sets forth a detailed basis for the opinion, and specifically opines, following a detailed summary of the plaintiff's medical treatment, that there was medical negligence by Tickey and residents and staff of Midstate.

The opinion letter required by § 52-190a need not serve as a template for the complaint, nor must it provide such detail that a defendant will have no need for any further discovery. The plaintiffs in this case have served the purposes of the statute, by filing with the complaint a written opinion letter which identifies and provides details for the basis of their claims. The threshold requirement that there is a basis for a medical malpractice claim has been satisfied by virtue of the written opinion which also serves the purpose of identifying the basis of the claim for defense counsel at the inception of the suit. The written opinion contains sufficient detail to survive either a motion to dismiss or a motion to strike for insufficiency.

Accordingly, the defendant's motion is denied.