Opinion
No. CV08-5022319 S
February 19, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
Defense counsel is quite correct in stating that in granting the motion to amend and on denying the motion to dismiss as originally framed the court acted prematurely in that counsel was not given time to advance his objection to the amended complaint being permitted and to further pursue the motion to dismiss. For all of these reasons the defense was allowed to reargue and that reargument was held on October 24, 2008. It consumed 25 pages of transcript so it cannot be claimed that defense counsel was not given an opportunity to advance its arguments under § 52-190a. Furthermore much of the displeasure at allowing the amended complaint simply ignores the fact that amendments to the complaint are liberally allowed and when so allowed are not insulated from further attack by means of motions to strike or motions to dismiss whether based on lack of personal or subject matter jurisdiction. The commentary to P.B. § 10-60 is instructive, however, on two points related to the procedural issue before the court. There Horton Knox state: "A plaintiff may not use this section to amend his (sic) complaint to correct a lack of subject matter jurisdiction once the defendant has filed a motion to dismiss based upon that defect" but "a ruling on a motion to amend the pleadings should not be a vehicle to decide an issue of law," Vol. 1 of Connecticut Practice Series, page 560. That is exactly true and for the reasons the court set forth in Doe v. Priority Care, Inc., 50 Conn.Sup. 385 (2007) this court does not believe a failure to comply with § 52-190a means the court does not have subject matter jurisdiction of one of these malpractice cases. Subsection (c) does not use the language of subject matter jurisdiction — it does not say failure to file the required opinion shall result in dismissal. The language simply says "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." (Emphasis by court).How on earth could that language be construed as referring to subject matter jurisdiction in a jurisdiction that exercises every presumption in favor of jurisdiction Fedus v. P Z Commission, 278 Conn. 751 (2006). Rios v. CCMC Corp., 106 Conn.App. 810 (2008) does nothing to change this observation, see footnote 8 of the opinion which in fact supports it.
Oddly enough subsection (e) does not say that failure to file a good faith certificate shall be "grounds" for dismissal.
But effect must be given to the legislature's intent in amending § 52-190a. It appears the legislature wanted to change the practice authorized by LeConche v. Elligers, 215 Conn. 701 (1990) which simply permitted parties not complying with § 52-190a requirements to respond to a motion to strike by pleading over. The amended § 52-190a does say that failure to comply with the written opinion requirement of § 52-190a shall be grounds for dismissal and as Rios indicates in footnote 8: "Both statutory and Practice Book provisions provide for dismissals on the basis of non jurisdictional grounds." (See P.B. § 13-14 for example which the court cited in Priority Care).
Based on the foregoing the court cannot apply a "gotcha" interpretation to the requirements of the amended § 52-190a and rule in all cases and no matter what the circumstances, where the statute has not been complied with, amendments to so comply should not be permitted. This right to amend and provide an absent good faith certificate or an appropriate written opinion should rarely be granted since it was clear that the legislature intended (1) to allow the defendant at the inception of litigation to be fairly apprised of the exact nature of his or her or its purported professional negligence and (2) to force the prospective plaintiff to make a reasoned decision as to whether the action should be brought in the first place prior to the inception of litigation.
The court concluded in this case that since the amendment was filed within only three weeks of the original return date it should be allowed and the motion to dismiss as originally filed should be denied since its only basis was a failure to attach a certificate of good faith or a written opinion of a similar health care provider. What the court did not make clear as it should have, is that merely allowing the amendment under these circumstances which presents a complaint with certificate and opinion does not, in fact cannot, insulate the amended pleadings from further attack by way of a motion to dismiss. That would be a silly result since LeConche would still reign under a new name — an amendment would be allowed as a substitute for a right to plead over after a motion to strike.
The court will, under the foregoing reasoning, review the letter submitted as a written opinion purporting to comply with § 52-190a.
The court concludes that the written opinion attached to the amended complaint does not meet the requirements of § 52-190a. Subsection (a) itself provides that a written opinion must be obtained from a similar health care provider and it must state "that there appears to be evidence of medical negligence (which) includes a detailed basis for the formation of such opinion." In Andrikis v. Phoenix Internal Medicine, 41 Conn. L. Rptr. 222 (2006) Judge Matasavage referred to some of the legislative history behind the amendment to the statute and Representative Lawlor is quoted as saying the defendant in a malpractice case would be helped by the amendment "right at the inception of the medical malpractice case . . . (because it would allow) . . . counsel and their clients (to) really narrow down exactly what was the basis . . . for the malpractice claim . . ." In one of his opinions Judge Holden quoted Senator Kissell as saying that the amendment "was meant to allow the defense counsel to review the nuts and bolts of what's in there."
In Doe v. Priority Health Care, supra, this court said that: "a dismissal would certainly seem in order where the opinion sets forth facts and makes conclusions that are patently absurd, which on their face have nothing to do with the claimed injury or its causation or, as said in Ranney v. New Britain General Hospital et al., (Pittman, J., 2006 Conn.Super. Lexis 2809), the opinion is `disjointed,' `illogical or incomprehensive.'" In Priority Health Care the court held that where the opinion is not sufficiently detailed or conclusory, a continuance, albeit a short one, can be given to allow an amendment attaching an acceptable opinion.
The point of all these observations is to underline what the court believes was the goal of the amendment "(1) to allow the defendant at the inception of litigation to be fairly apprised of the exact nature of his or her purported professional negligence (and) (2) to force the prospective plaintiff to make a reasoned decision as to whether an action should be brought at all, while at the same time providing a reviewing trial court the means to determine whether, given the required written opinion, the certificate can be said to have been filed in good faith," Doe v. Priority Health Care, 50 Conn.Sup. at page 392.
The written opinion here satisfies neither of these goals.
The letter, at its end, offers a conclusory opinion as to negligence on the defendant's part but does not give any basis for the opinion. Much of the letter reads as if it is meant to be advisory in nature advising counsel areas to explore and issue to raise after a thorough investigation. At points the letter is quite candid but where this is so it militates against using it to support by way of written opinion claims made in the case. On page 1, for example, it states: "Whether she died as a result of her injuries (she did not have a broken hip, according to the records provided) would be a determination best made by a physician." The writer of the letter is an R.N. At another point it states "You (apparently defense counsel) reported she `fell in or at a construction site.' We do not question you — or your source. But we note that none of the A/I Assessments provided — for any of the documented falls — documents her falls anywhere but in her room, near her bed or bathroom — and she was always noted as `sitting' or `falling on her buttocks' or `backside.' None of those positions or mechanisms of injury suggest an ankle or fibula fracture" . . . It is our professional opinion (albeit not being orthopedic physicians) that the fibula and malleolar type fractures are "twist and fall type fractures — such as one might get stepping into a hole or off a step or tripping on an obstacle." These comments are simply confusing given the contents of the records that were apparently being reviewed as to the type of fall. No matter how the poor lady suffered any injuries the foregoing comments do not establish negligence and seem offered to support the later conclusory observations that the injuries suffered here would not have occurred but for negligence — however, this is not a res ipsa loquitur case.
There is a lengthy discussion of the medications the deceased was on and their possible side effects but the discussion is not related to or supportive of any opinion which is offered to show that improper or unregulated prescription of medication caused any particular falls let alone the lady's demise. The tone of the discussion is revealed in the sentence: "Many drugs commonly prescribed for older patients result in potentially life threatening or disabling reactions."
Another confusing aspect of the written opinion is located at the top of page 3. The drugs that the progress notes indicates the patient was on can produce, among other things, dizziness and lethargy which can be related in the allegations in the complaint that the woman was unattended when she fell. At the top of page 3 it says: "There was no motion detector placed on her bed or chair (when she became chair bound)" but then it says "(in fairness, it was mentioned with a ? on 8/26 — albeit two weeks before she died and 1 day before she was hospitalized the last time." Query how a motion detector could do anything but detect a fall and beyond that the last quoted part of the sentence seems to dispel any negligence conclusion.
In light of the allegations of the complaint the fact that this opinion reads more like an advisory on how the attorney can ascertain whether a negligence claim can be made is underlined by several paragraphs at the bottom of page 4 and top of page 5.
It is our opinion that there are issues of Standard of Care violations — Coccomo Memorial Healthcare Center clearly Failed to Protect the deceased and by failing to protect her harm was done — whether it led to or contributed to her death remains in the purview of a physician's expertise. They may well have violated Standards of Documentation (perhaps opening themselves to fraudulent concealment) as individuals and as a Facility.
Staffing patterns — more likely than not — contribute to some of the issues as most facilities, particularly the corporately owned ones, staff to the minimal State (and Medicare) regulations, which is the norm rather than the exception. Should you decide to pursue this case you will want to request the staffing pattern for the year prior, through and beyond the period in question — both the posted master schedule and the daily posted schedule (which reflects changes due to call outs and no shows. Use of Agency nurses and other staff may also be an issue — although many of the signatures during this period seem fairly constant.
You will also want to request full copies of the State of Connecticut's Inspection Surveys, deficiencies found and corrections made. You will want these for the year prior to, the year of and the year following the incident. You should request these from the State to avoid manipulation of information issues.
It might also be worthwhile to request copies of all A/I Reports that involve falls (with or without injuries or hospitalizations) for the same period as the State Surveys. A pattern of similar incidents will be a strong support for your case should you decide to pursue it. You might also want to call the Ombudsman for Coccomo Memorial Healthcare Center and inquire whether there is information available to you from that quarter.
Another issue to be considered could be:
When the physician came for his monthly visits — did he spend the Medicare billed amount of time with the patients he purported to see? Or did he sit at the desk and inquire of the nurse what was happening and how was the patient "doing" — and write orders for medications, treatments or interventions that the nurse(s) had written in a "Doctor's Book" as needing to be addressed.
If he did not assess each and every patient himself (and many do not) then it would seem he is condoning the nurse's request as a diagnosis and her recommendation as a prescription. For instance — a nurse might write, "Mrs. Smith hollers all night long. Would you increase her Seroquel dose?" That Mrs. Smith may be cold, or hot, in pain or need to be turned, or wet, or need to use the bedpan or be thirsty or any number of normal things is not discussed. The Seroquel dose is increased.
How on earth does this written opinion offer a defendant health care provider the nuts and bolts of the actual claim against it. It just alerts a defendant that to defend itself all of a patient's particular record must be examined and along with that, how it operates in general so it can counter any possible claim of negligence — in effect doing the plaintiff's work.
The court concludes the written opinion is inadequate under § 52-190a. A further continuance to allow another amendment would be unfair since the court has already allowed one and none was proferred after the October argument. To allow such a second amendment would in effect reinstall the regime of LeConche which the legislature sought to bring to an end by its amendment to § 52-190a. The motion to dismiss is granted.