Opinion
HHBCV176039316S
07-03-2018
Anthony DIGNOTI, as Executor of the Estate of Christine Dignoti et al. v. PRIME HEALTHCARE, P.C. et al.
UNPUBLISHED OPINION
OPINION
Morgan, J.
The plaintiff, Anthony Dignoti, as executor of the estate of Christine Dignoti, commenced this medical malpractice action against the defendants, Prime Healthcare, P.C. (Prime), Frederick J. Pope, M.D.(Dr. Pope), and Patrice Horan, A.P.R.N. (Nurse Horan), arising from their alleged treatment of the decedent, Christine Dignoti. In his individual capacity, the plaintiff also brought claims against each of the defendants for loss of consortium.
Counts one, two and three allege medical malpractice claims against Prime, Dr. Pope and Nurse Horan, respectively. Counts four, five and six allege loss of consortium claims against Prime, Dr. Pope and Nurse Horan, respectively.
The defendants move to dismiss the entire complaint for lack of personal jurisdiction on the grounds that the opinion letter attached to the complaint is legally insufficient under General Statutes § 52-190a because it does not satisfy the "detailed basis" requirement of the statute as to Dr. Pope and because it is not written by a "similar health care provider" as defined by General Statues § 52-184c as to Nurse Horan. The defendants argue further that the remaining counts of the complaint are derivative of the medical malpractice claims against Dr. Pope and Nurse Horan and cannot survive dismissal of the predicate claims. The plaintiff objects to the motion to dismiss on the ground that the written opinion letter fully complies with the requirements of General Statutes § 52-190a.
While the motion to dismiss was pending, the plaintiff filed a request for leave to amend the complaint in which he seeks to provide an amended opinion letter from the physician who authored the original letter and submit an entirely new opinion letter from an A.P.R.N. The defendants object to this request on the ground that the proposed amendment is untimely. The motion to dismiss and the objection to the request to amend were heard by the court at short calendar on April 2, 2018. For the reasons stated below, the court denies the plaintiff’s request for leave to amend the complaint and grants the defendants’ motion to dismiss the complaint in its entirety.
A. Background
The plaintiff alleges that on July 15, 2015, the decedent presented herself to the medical office of her primary care physician, Dr. Pope, for complaints of pain and swelling in her left foot and ankle. The decedent was seen that day only by Nurse Horan, who ordered blood testing and prescribed Prednisone. The next day, Nurse Horan called the decedent to tell her of the blood test results and instruct her to return for follow-up blood testing at a later date. On July 23, 2015, the decedent returned to the defendants’ office for further blood testing. The decedent passed away on August 21, 2015 as a result of an obstructive pulmonary thromboemboli due to deep venous thrombosis. There are no allegations that the decedent was seen by Dr. Pope, or any employee or agent of Prime other than Nurse Horan, during the relevant treatment time period.
Attached to the plaintiff’s complaint is an opinion letter of a physician who is board certified in internal medicine and geriatric medicine. The plaintiff alleges, and the defendants do not dispute, that Dr. Pope is a physician specializing in internal medicine. The plaintiff also alleges, and the defendants do not dispute, that Nurse Horan is an A.P.R.N. There is no separate written opinion letter by an A.P.R.N. attached to the original complaint. Moreover, the plaintiff does not allege that Nurse Horan was a specialist in any particular area of medicine or that she held herself out as a specialist. Additional references to the relevant factual background are set forth below.
B. Request for Leave to Amend Complaint
The date of the decedent’s death, August 21, 2015, is not disputed. Additionally, the parties do not dispute the timeliness of the original action. The original complaint was served on the last defendant (Prime) on August 21, 2017, the final day to file an action for wrongful death under General Statutes § 52-555. The plaintiff did not file an application for an automatic ninety-day extension under General Statutes § 52-190a(b), and thus, the statute of limitations expired on August 21, 2017, the same date the original complaint was served on the last defendant. See Rocco v. Garrison, 268 Conn. 541, 553 (2004) ("In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant").
The plaintiff’s request for leave to amend the complaint was filed on January 19, 2018. The filing date is approximately five months outside the two-year statute of limitations imposed by General Statutes § 52-555 in medical malpractice actions. Our appellate court has recently held that amendments to legally insufficient opinion letters are permitted only if they are sought prior to the expiration of the statute of limitations. Ugalde v. Saint Mary’s Hospital, Inc., 182 Conn.App. 1, 12 (2018); Gonzales v. Langdon, 161 Conn.App. 497, 510 (2015).
In this case, the plaintiff’s request for leave to amend the original opinion letter and provide an entirely new opinion letter is untimely because it was filed after the expiration of the statute of limitations imposed by § 52-555. Consequently, the court cannot consider the amended opinion letter or the new opinion letter in connection with the defendants’ pending motion to dismiss. Under the appellate authorities cited above, the court must deny the plaintiff’s request for leave to amend the complaint.
C. Motion to Dismiss
General Statutes § 52-190a(a) "requires a plaintiff in a medical malpractice action to attach to the complaint a written ‘opinion of a similar health care provider’ attesting to a good faith basis for the action ..." Morgan v. Hartford Hospital, 301 Conn. 388, 392 (2011). The statute further requires that the letter include both the opinion of the similar health care provider that "there appears to be evidence of medical negligence" and a "detailed basis for the formation of such opinion." General Statutes § 52-190a(a). "[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." Morgan v. Hartford Hospital, supra, 301 Conn. 401.
A motion to dismiss is the proper procedural vehicle to challenge the insufficiency of an opinion letter in a medical malpractice action. Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29 (2011). "[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-109a(a)." Id., 28. "A plain reading of [General Statutes § 52-190a(c) ] indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an 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 basis for the opinion." (Footnote omitted.) Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, aff’d, 300 Conn. 1 (2011).
1. Medical Malpractice Claim as to Dr. Pope
The defendants contend that the opinion letter attached to the plaintiff’s complaint is legally insufficient under § 52-190a(a) because it does not include a detailed basis for the formation of the opinion that Dr. Pope was medically negligent. The court agrees with the defendants.
"[A] written opinion satisfies the ‘detailed basis’ requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider’s opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider’s opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider’s conclusion concerning the breach of the standard of care." (Footnote omitted.) Wilcox v. Schwartz, 303 Conn. 630, 643 (2012).
In this case, the opinion letter makes only passing reference to Pope in the medical record review portion of the letter. It does not describe the standard of care applicable to Pope or detail what Pope did or failed to do to breach the applicable standard of care. Rather, the three-page opinion letter is only critical of the actions of Nurse Horan. Indeed, in the conclusory section of the letter titled "Medical Expert Opinion/Conclusion," the author opines that "there was a negligent failure to diagnose a DVT [by] Patrice Horan, APRN." Nowhere in the opinion letter does the author state that Dr. Pope’s actions or inactions were negligent in any way or that they caused or contributed to the decedent’s death. In fact, Dr. Pope’s name is not even mentioned in the opinion/conclusion portion of the letter.
Having considered the allegations of the complaint in their most favorable light, as the court is required to do when deciding a question raised by a pretrial motion to dismiss; see Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 11; the court finds that the written opinion letter is legally insufficient under § 52-190a(a) because it is not sufficiently detailed as to Dr. Pope’s involvement in the treatment of the decedent, it makes no reference to the standard of care applicable to Dr. Pope, and it fails to state whether or how Dr. Pope breached that standard of care. Accord Sibilia v. Western Connecticut Medical Group, P.C., Superior Court, judicial district of Litchfield, Docket No. CV-16-6014063-S (May 8, 2017, Schuman, J.) (64 Conn.L.Rptr. 446, 448) (holding that an opinion letter does not satisfy the "detailed basis" requirement of § 52-190a(a) where it "makes only passing reference" to a doctor but "at no point finds fault with his actions"). The failure of the plaintiff to provide a written opinion letter that complies with § 52-190a(a) constitutes insufficient process and service of that insufficient process does not subject Dr. Pope to the jurisdiction of this court. See Morgan v. Hartford Hospital, supra, 301 Conn. 401. Consequently, the medical malpractice claim asserted against Dr. Pope in count two of the complaint must be dismissed.
2. Medical Malpractice Claim as to Nurse Horan
The defendants also contend that the opinion letter attached to the plaintiff’s complaint is legally insufficient under § 52-190a(a) because it was not authored by a "similar health care provider" to Nurse Horan as that term is defined in § 52-184c. Section 52-184c offers two separate definitions for a "similar health care provider." Section 52-184c(b) "establishes the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and [subsection (c) ] [establishes] those qualifications when the defendant is board certified, trained and experienced in a medical specialty, or holds himself out as a specialist ..." (Citation omitted; internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 725 (2014).
The parties dispute whether the appropriate subsection of § 52-184c for the court to consider in relation to Nurse Horan is (b) which applies to nonspecialists, or (c) which applies to specialists. The defendants contend that subsection (b) provides the applicable definition. The plaintiff suggests that subsection (c) applies. In evaluating such a dispute, our Supreme Court has previously found "that it is appropriate to look to the allegations of the plaintiff’s complaint to frame the requirements for who constitutes a similar health care provider for purposes of the good faith opinion certification." Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 730-31.
In the present case, there are no allegations in the complaint that Nurse Horan is certified by any American board as being a specialist, is trained or experienced in a medical specialty, or holds herself out as a specialist. To the contrary, the plaintiff alleges merely that Horan "had privileges at Defendant Prime, where she was permitted to treat and/or provide care to patients, including the care and treatment provided to the decedent ..." On these allegations, the court finds that § 52-184c(b), the non-specialist subsection, supplies the appropriate definition for a "similar health care provider" in relation to Nurse Horan.
General Statutes § 52-184c(b) provides:
If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
The opinion letter attached to the complaint states, in relevant part, that "I am a Medical Doctor who is currently Board-Certified in both Internal Medicine (continuously since 1997) and Geriatric Medicine (continuously since 1999). I have practiced Internal Medicine and Geriatric Medicine for 18 years. Currently, I am also a Medical Director for a major national health plan where I oversee the quality of medical care for New York State beneficiaries. I hold active medical licenses in New York State and Connecticut."
The information in the opinion letter is not sufficient to satisfy the statutory requirements that the author "is trained and experienced in the same discipline or school of practice" as Nurse Horan or that "such training and experience shall be as a result of the active involvement in the practice or teaching of [nursing] within the five-year period before the incident giving rise to the claim." See General Statutes § 52-184c(b)(2). The author of the letter is an internist, not an A.P.R.N. like Nurse Horan. There is no representation in the letter that the author is trained and experienced in the same discipline or school of practice as Nurse Horan or that such training and experience was a result of the active involvement in the practice or teaching of nursing within the requisite five-year period. Consequently, the author of the opinion letter is not a "similar health care provider" to Nurse Horan as that term is defined in § 52-184c(b). The letter therefore fails to satisfy the essential requirement of § 52-190a that it must "disclose that the health care provider possesses the qualifications set forth in § 52-184c." Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561 n.6 (2012). Accord Morgan v. Baxter, Superior Court, judicial district of Hartford, Docket No. CV- 16-6073827-S (May 16, 2017, Shapiro, J.) (opinion letter from physician board certified in family medicine, emergency medicine, geriatrics and forensic medicine, that makes no reference to practice or teaching of nursing does not meet the "similar health care provider" requirement in action alleging negligence of hospital’s nursing staff).
In so holding, the court rejects the plaintiff’s argument that Nurse Horan, by virtue of her status as an A.P.R.N. coupled with her employment at a primary care physician’s office, held herself out as someone who is practicing medicine and not just providing nursing duties. First, the complaint does not allege what is now argued by the plaintiff in its opposition to the defendants’ motion to dismiss. Secondly, "[a]bsent evidence of specialized training, registered nurses are considered nonspecialists under § 52-184c(b)." Ruff v. Yale-New Haven Hospital, Inc., 172 Conn.App. 699, 712 (2017). See also Bell v. Hospital of Saint Raphael, supra, 133 Conn.App. 548, 560 (2012) (registered nurse with bachelor of science in nursing treated as nonspecialist under § 52-184c[b]; because opinion letter did not represent that the nurse "had been trained and experienced in any specialty or had been certified by an American board as a specialist," she did not qualify as specialist under § 52-184c[c] ).
Finally, the court is not persuaded by the plaintiff’s arguments that the opinion letter from the internist is sufficient as to Nurse Horan because if Nurse Horan was collaborating with Dr. Pope, then they are both culpable for misdiagnosis, but if Nurse Horan was not collaborating with Dr. Pope, then she was actually practicing internal medicine. There are no factual allegations in the plaintiff’s complaint supporting these arguments and the plaintiff has not provided the court with any controlling case law in support of these claims.
The court has considered the allegations of the complaint in their most favorable light and finds that the written opinion letter is legally insufficient under § 52-190a(a) as to Nurse Horan because it was not authored by a "similar health care provider" as that term is defined in § 52-184c(b). Consequently, the medical malpractice claim asserted against Nurse Horan in count three of the complaint must be dismissed.
The plaintiff’s reliance upon the Supreme Court’s decision in Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 709, is misplaced. Wilkins concerned subsection (c) of § 52-184c, not subsection (b), which, as the court found, supra, is the relevant subsection in the present case.
3. Medical Malpractice Claim as to Prime
In count one of the complaint, the plaintiff alleges vicarious liability against Prime for the negligent conduct of its agents, servants and/or employees, Dr. Pope and Nurse Horan. While there is a split in the Superior Courts on the issue of whether a single opinion letter is sufficient as to multiple individual defendants, the written opinion letter must be sufficient to at least one individual defendant in order to be sufficient as to the institutional defendant. See Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 719 (Section 52-190a(a) applies to claims against institutional defendants); Helfant v. Yale-New Haven Hospital, 168 Conn.App. 47, 61 (2016) (an opinion letter that was insufficient as to an individual doctor was also insufficient as to an institutional defendant when the only basis of liability was respondeat superior); Ugalde v. Saint Mary’s Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-15-6028359-S (June 8, 2016, Shapiro, J.) (62 Conn.L.Rptr. 467, 470), aff’d, 182 Conn.App. 1 (2018) (an opinion letter that does not meet § 52-190a’s requirements is also insufficient as to the alleged agents, servants and employees of the institutional defendant who were alleged to have been negligent). Because the court finds that the opinion letter submitted by the plaintiff does not satisfy the "detailed basis" requirement of § 52-190a(a) as to Dr. Pope and is not authored by a "similar health care provider" under § 52-190a(a) and 52-184c(b) as to Nurse Horan, the vicarious medical malpractice claim asserted against Prime in count one of the complaint must be dismissed.
4. Loss of Consortium Claims as to Dr. Pope, Nurse Horan and Prime
A claim for loss of spousal consortium "is a derivative cause of action, meaning that it is dependent on the legal existence of the predicate action." Musorofiti v. Vlcek, 65 Conn.App. 365, 375 (2001). Thus, a spouse cannot maintain a loss of consortium action independent of the injured spouse’s claim. Jacoby v. Brinckerhoff, 250 Conn. 86, 95 (1999). Because the court finds that the plaintiff’s three predicate medical malpractice claims are legally deficient, the plaintiff’s three derivative claims also fail. Consequently, the loss of consortium claims asserted respectively against Prime, Dr. Pope and Nurse Horan in counts four, five and six of the complaint must be dismissed.
D. Conclusion
For the reasons stated above, the plaintiff’s request to amend its complaint is DENIED and the defendants’ objection to the request is SUSTAINED. Further, the defendants’ motion to dismiss the plaintiff’s complaint in its entirety is GRANTED and the plaintiff’s objection to the motion is OVERRULED.