Opinion
No. X10 UWY CV 08-5008854 S
October 14, 2008
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (## 102, 103, 104, and 105)
Introduction
This is a medical malpractice action brought by the Plaintiffs, Joan Draper and her husband, Gary Townsend, against the Defendants, Danbury Health Systems, Inc., which operates Danbury Hospital; Danbury Office of Physicians Services, P.C. ("DOPS"), which is alleged to provide physician staffing for Danbury Hospital; Paul Nee, a physician board certified in internal medicine employed by DOPS; William Delaney, M.D., a member of Danbury Hospital's Hospitalist Program and board certified in internal medicine; Eric Jimenez, M.D. and David Oelberg, M.D., physicians board certified in internal medicine employed by DOPS and retained to provide care to patients admitted to Danbury Hospital's intensive care unit.
The Plaintiffs claim that on October 18, 2005 Draper was seen by Nee at Danbury Hospital and admitted to the hospital service with a probable diagnosis of Dengue fever. On October 20th Draper was transferred to the intensive care unit of the Hospital under Jimenez' service. Although Nee recommended that no antibiotics be administered the resident responsible for Draper's care in the intensive care unit ordered antibiotics nevertheless. Between October 20th and 24th Draper's condition continued to worsen and she was seen repeatedly by Nee, Jimenez, Oelberg and Delaney. On October 24th an ophthalmologist's examination confirmed that Draper had vision loss due to a presumed inflammation of either the eye tissues or blood vessels of the eye or due to cerebral edema. Draper's vision continued to deteriorate, and tests confirmed that she had increased intra cranial pressure as well as damage to the nerves necessary for vision. The Plaintiffs claim that she is now left with virtually no vision in her right eye and near blindness in her left eye.
The Defendants, Danbury Hospital and William H. Delaney, have filed a Motion to Dismiss (#102) because the "opinion letters" attached to the complaint appear to be drafted by Plaintiffs' counsel rather than by the attesting physicians, and the Plaintiffs have failed to append to the complaint a detailed written opinion from the attesting physician. Therefore, in accordance with General Statutes § 52-190a(c), the matter must be dismissed. The Defendants, Danbury Health Systems, Inc. and Danbury Office of Physicians Services have also filed a Motion to Dismiss (#103) on the same grounds, but, in addition, they claim that the complaint should be dismissed because the "opinion letters" fail to state that they were medically negligent and the Plaintiffs' petition for an extension of the statute of limitations and accompanying order fail to specifically identify, these Defendants. The Defendants, David A. Oelberg, M.D. and Eric I. Jimenez, M.D., have also filed a Motion to Dismiss (#104) on the same grounds as that of the Defendants, Danbury Hospital and William H. Delaney, but, in addition, they claim that the attesting physician offering an opinion as to them fails to state that their alleged deviation from the standard of care was the proximate cause of the Plaintiffs' injuries. Dr. Oelberg also claims that the case should be dismissed as to him because the Plaintiffs' petition for an extension of the statute of limitations and the accompany order fail to specifically identify him. Lastly, Paul F. Nee, M.D. has also filed a Motion to Dismiss (#105) on the same grounds as that of the Defendants, Danbury Hospital and William H. Delaney, but, in addition, he claims that the attesting physician offering an opinion as him is not a similar health care provider.
Oral argument on the Motions to Dismiss was heard by the court on July 21, 2008.
Discussion
General Statutes § 52-190a provides:
(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. 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 Rios v. CCMC Corporation, 106 Conn.App. 810, 815-17 (2008) the court stated:
Section 52-190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must 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 . . ." In order to show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that "such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . ." General Statutes (Rev. to 2005) § 52-190a(a), as amended by P.A. 05-275, § 2. Prior to the 2005 amendments, the statute provided that good faith may be shown if the plaintiffs or their counsel obtained a written opinion, not subject to discovery, from a similar health care provider that there appeared to be evidence of medical negligence. General Statutes (Rev. to 2005) § 52-190a(a) . . . Prior to the amendment, the statute did not require plaintiffs to include with the complaint an opinion of a similar health care provider attesting to a good faith basis for an action. Effective October 1, 2005, the statute was amended to require that in order to show the existence of good faith, claimants or their counsel, prior to filing suit, "shall obtain 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 . . ." General Statutes § 52-190a(a). The amended statute also provides that claimants or their counsel "shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate . . ." General Statutes § 52-190a(a). Subsection (c), which was added by P.A. 05-275, § 2, provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." P.A. 05-275 was "[e]ffective October 1, 2005, and applicable to actions filed on or after said date . . ." (Footnote omitted.)
In Rios the court concluded that:
The plain language of this new statutory subsection, which was not in effect at the time of LeConche and Gabrielle, expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a (a). (Footnote omitted.)
Id., p. 822. There the court upheld the dismissal of the case where the complaint did not have attached to it any opinion by a similar health care provider.
In this case the certificate signed by the Plaintiffs' attorney, and attached to the complaint, states that
a reasonable inquiry has been made, as permitted by the circumstances, and this inquiry has given rise to a good faith belief on my part that grounds exist for an action against each named defendant . . .
Also attached to the complaint are three physician opinions. The first is by a physician board certified in internal medicine and a director of hospitalist services at a major metropolitan teaching institution who states that
it is my opinion that there was medical negligence on the part of the hospitalist responsible for the care and management of Joan by failure to provide appropriate therapy, including, the failure to consider and treat Joan Draper empirically for rickettsial infection.
The second opinion is from a board certified internist with a subspecialty in critical care who states that
it is my opinion that there was negligence on the part of the Danbury Hospital intensive care physicians in their care and management of Joan Draper by failing to adequately monitor and treat Joan Draper's elevated intra cranial pressure and failing to monitor Joan Draper's optic fundi.
The third opinion is from a board certified neurologist with a subspecialty in infectious disease of the central nervous system who states that
it is my opinion that there appears to be evidence of medical negligence on the part of the Danbury Hospital and the health care providers responsible for her care and management, in that they failed to provide appropriate therapy for Joan Draper's infection (and its involvement of the central nervous system). In particular, their failure to consider and empirically treat her for other infectious processes such as rickettsial infection.
Unlike in Rios, the issues here go to the sufficiency of those opinions. Although the court in Rios held that the failure to attach the opinion required by General Statutes § 52-190a to the complaint required dismissal of the medical malpractice action there, the court did not reach the issue of whether dismissal is required where an opinion is supplied but it is, arguably, not in conformance with all of the requirements of the statute. It has been held, however, that:
Nothing in the plain language of the statute or its legislative history indicates that an insufficient opinion is grounds for dismissal of the action .°. (Internal quotation marks and citations omitted.)
Delacruz v. Negbenebor, Superior Court Judicial District of Fairfield at Bridgeport, Docket No. CV 07-5007236S (Frankel, J., Aug. 18, 2008). The court here need not reach this issue, or whether the Defendants' motions to dismiss should have been more appropriately motions to strike, since the court finds that the opinions are in conformance with the requirements of the statute.
(a) Grounds for Dismissal Asserted by All Defendants: (1) The Drafting and (2) Detail of the Opinions (1) The drafting of the Opinions
The Defendants claim that their Motions to Dismiss should be granted because the opinions attached to the complaint appear to be drafted by Plaintiffs' counsel rather than by the attesting physicians. They argue that by paraphrasing select portions of the physicians' opinions and providing only conclusory opinions they are deprived of the full opinions of the attesting physicians. The Plaintiffs counter that the Defendants have failed to offer any evidence to support their claim. The court agrees. The Defendants' claim is premised on the assumption that the opinions attached to the complaint are not copies of the actual opinions of the physicians but simply the Plaintiffs' attorney's restatement of those opinions. This claim raises a factual issue which would require evidence to resolve. The court cannot simply assume from the format and wording of the opinions that they were drafted by the Plaintiffs' counsel and not the physicians. The statute provides that the "written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate." Thus discovery can be used where the validity of the certificate is challenged and in order to provide the evidentiary basis for a claim such as that being made by the Defendants here. Yet apparently such discovery has not been pursued in this case and therefore the court has no basis to reach the conclusion proffered by the Defendants. In any event, absent any evidence that the opinions are not in fact those of the physicians, as the court held in Walton v. Caffrey, Superior Court Judicial District of Waterbury at Waterbury, Docket No. CV06-5000857S (Gallagher, J., May 4, 2007) [43 Conn. L. Rptr. 341], in considering a motion to dismiss on the same grounds:
The fact that it is not in the doctor's handwriting or typed by the doctor on his or her letterhead is, in this court's opinion, of no consequence. It is a written report of a similar health care provider which states his or her opinions and the bases for them. The legislative requirement is fulfilled. Nothing in the legislative history of the statute as amended by the public act prohibits the plaintiff's attorney from putting the words to paper so long as the opinion expressed is that of the similar health care provider.
See also, Scofield v. Quinn, Superior Court, Judicial District of Waterbury, Docket No. CV08000897S (Brunetti, J., Sept. 16, 2008). Although this court agrees that the fact that an attorney may have drafted the opinion for the doctor's signature may not defeat the sufficiency of the opinion as long as it is signed by the doctor, this court does believe, as the Defendants argue, that the statute requires that what should be attached to the complaint is a copy of that actual signed opinion, as appropriately redacted. However, in the absence of any evidence to the contrary, this court cannot conclude that the opinions attached to the complaint here are not copies of the actual original signed opinions.
(2) Detail of the Opinions
The Defendants also claim that the opinion letters do not fulfill the requirements of the statute because they are not sufficiently detailed. The Defendants cite Delude v. Young, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV 07-5001903-S (Vacchelli, J., Feb. 5, 2008) [45 Conn. L. Rptr. 99] in support of their position. However there the court noted that:
Of course, each case is fact specific . . . In this case, it is clear that the written opinion is not sufficiently detailed. It is entirely conclusory and provides no illumination as to what is the standard of care, who violated it and how or on what basis or when it was violated. It does not even reveal whether the writer is a health care provider, or what type. It does not even mention Dr. Young. It does not comply with the requirements of the statute.
The opinions here clearly provide more detail then in Delude. They each describe the qualifications of the author. They each refer to particular negligent conduct. Although they do not refer to each individual Defendant by name, they do refer to the negligence of the "hospitalist," "Danbury Hospital intensive care physicians," and "Danbury Hospital and the health care providers responsible for her care and management." The statute does not provide any specific parameters for the details required in the opinions, and the opinions here provide sufficient details to comply with the statute. In addition, some courts have noted that:
Although C.G.S. § 52-190a requires that a plaintiff obtain a written and signed opinion of a similar health care provider, it does not specify the amount of detail required in the opinion. The underlying purpose of the legislature in enacting C.G.S. § 52-190a was to discourage the filing of baseless lawsuits against health care providers, . . . and to assure that a plaintiff has in fact made a reasonable pre-complaint inquiry giving him a good faith belief in the defendant's negligence. (Internal quotation marks and citations omitted.)
Pivarnik v. Parmanatham, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 08-5013404S (Frankel, J., May 28, 2008).
In Nelson v. Dettmer, Superior Court, Judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. X07 CV 07 5012152 S (July 30, 2008), Judge Berger stated that:
The Superior Court bench has written extensively on the subject of how much detail in a written opinion is sufficient. See Harrison v. Trusheim, Superior Court, judicial district of Danbury, Docket No. CV 07 5003727 (March 7, 2008, Sheedy, J.) (listing Superior Court decisions addressing whether insufficient opinion letter of similar health care provider defeats otherwise valid jurisdiction). "The underlying purpose of the legislature in enacting . . . § 52-190a was to discourage the filing of baseless lawsuits against health care providers, LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990), and to assure that a plaintiff has in fact made a reasonable pre-complaint inquiry giving him a good faith belief in the defendant's negligence." (Internal quotation marks omitted.) Nieves v. Midstate Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 5002604 (March 7, 2008, Gilligan, J.). "The language of § 52-190a does not specify the amount of detail required." Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) (43 Conn. L. Rptr. 341, 343). "Because the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint." Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) (43 Conn. L. Rptr. 195, 196). "[T]he statute [does not] 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." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.). "The requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery."
Walton v. Caffrey, supra, 43 Conn. L. Rptr. 343.
(b) Grounds for Dismissal Asserted by Danbury Health Systems, Inc. and Danbury Office of Physicians Services: (1) Lack of opinion letters and (2) Petition for an extension of the statute of limitations and accompanying order fail to specifically identify these Defendants. (1) Lack of opinion lettersThe Defendants, Danbury Health Systems, Inc. and Danbury Office of Physicians Services, argue that the case should be dismissed as to them because the "opinion letters" of the attesting physicians fail to mention or assert that they were medically negligent or that their actions proximately caused the injuries alleged in the complaint nor are there any allegations of vicarious liability as to these Defendants in the complaint. The Plaintiffs claim that the allegations against these Defendants are based on agency, apparent agency, as well as nondelegable duty, thus the opinion letters regarding the conduct of the individual physicians are sufficient to support the claims against Danbury Health Systems, Inc. and Danbury Office of Physicians Services.
In their complaint, the Plaintiffs refer to Danbury Health Systems, Inc., Danbury Hospital, and Danbury Office of Physicians Services, P.C., as affiliated organizations which are referred to, collectively, as "Danbury." Complaint, Paragraph 1. As to each of the physician Defendants it is alleged that his location of practice was Danbury Hospital, that Danbury allowed or represented him to be a member of the Danbury Hospital's medical staff, and that he was employed by Danbury Office of Physicians Services, P.C. and retained to provide health care to patients admitted to Danbury Hospital. Complaint, Paragraphs, 9, 10, and 11. Based on these allegations, the physician Defendants are alleged to be the agents, apparent agents, servants or employees of the Defendants Danbury Health Systems, Inc., Danbury Hospital and Danbury Office of Physicians Services, P.C. sufficient for vicarious liability purposes.
From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that, under the common-law principle of respondent superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.
Matthiessen v. Vanech, 266 Conn. 822, 839 (2003).
In the medical malpractice area it has been held that a corporate entity can be held liable for the medical malpractice of its employees. Ali v. Community Health Care Plan, Inc., 261 Conn. 143 (2002). Since the written opinions of health care providers similar to the individual physician Defendants are attached to the complaint, it is sufficient to withstand a motion to dismiss as to the claims against Danbury Health Systems, Inc. and Danbury Office of Physicians Services, based on vicarious liability. In cases similar to this, where the opinion attached to the complaint referenced only the alleged negligence of the individual physician employee of the Hospital Defendant, and not the Hospital, courts have held that such an opinion was sufficient to withstand a motion to dismiss. Guido v. Hughes, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. X10 UWY CV 06-5004889S (Scholl, J., Oct. 17, 2007) [44 Conn. L. Rptr. 347], Hernandez v. Moss, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV065000664S (Gallagher, J., May 31, 2007).
(2)Petition for an extension of the statute of limitations and accompanying order fail to specifically identify these Defendants
The Defendants claim that since the Plaintiffs failed to name Dr. Oelberg, Danbury Health Systems, Inc. and Danbury Office of Physicians Services in their petition for an extension of the statute of limitations the claims against them should be dismissed.
General Statutes § 52-190a(c) provides that:
Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.
Subsection (a) of that statute provides for such an inquiry when it states that:
No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death 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.
Although the petition for a ninety-day extension here did not name these Defendants specifically, it did refer to
any other physicians, medical personnel, persons, professional, corporations, entities, medical institution, hospitals and/or facilities, and/or health care personnel who may have been involved in the care and treatment of Joan Draper commencing on October 18, 2005 but who have not yet been identified.
The order granting such extension so provided as well. As the Defendants point out, the statute requires that:
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 . . .
By the clear language of the statute the reasonable inquiry cannot be limited to actors the Plaintiffs may already know about. The reasonable inquiry is required to provide the basis for the action to be brought against the named defendants. To require that the plaintiff know who those defendants will be before such an inquiry is made, and identify them in their petition for an extension of time to make such an inquiry, is illogical.
The Defendants cite Perfetto v. Daoud, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. CV 89 0367421 (Wagner, J., Feb. 24, 1993) [8 Conn. L. Rptr. 406] in which the court held "that under the plain language of the two sections [subsections (a) and (b) of General Statutes § 52-190a], read together, if certain defendants are named in the petition for extension, the benefit of such extension may not be claimed for other defendants not so named." This court agrees, however, with the decision in Mastroianni v. Mayor, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV-99-0432044 S (Zoarski, J.T.R., Feb. 11, 2002) in which the court stated:
The majority of Superior Court cases have held that § 52-190a(b) is applicable to all potential unnamed parties. See, e.g., Blake v. Bindelglass, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 380046 (July 12, 2001, Thim, J.) [30 Conn. L. Rptr. 118]; Brittain v. Hospital of Saint Raphael, supra, Superior Court, Docket No. 413933; Lucid v. Arthritis Center of Conn., Superior Court, judicial district of Waterbury, Docket No. 153804 (October 10, 2000, Wiese, J.) [28 Conn. L. Rptr. 404]; Falzone v. Hoos, Superior Court, judicial district of New Haven, Docket No. 368957 (March 27, 1998, Devlin, J.) [21 Conn. L. Rptr. 585]; Hagbourne v. Campbell, Superior Court, judicial district of Waterbury, Docket No. 132593 (January 6, 1998, Kulawiz, J.) [21 Conn. L. Rptr. 77]; Burton v. West Hartford Obstetrics Gynecology, P.C., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 392280 (August 1, 1994, Corradino, J.). In Blake v. Bindelglass, the court emphasized that "the petition applies to the cause of action and not merely to the defendants named in the petition." Blake v. Bindelglass, supra, Superior Court, Docket No. 380046. In another case, the court determined that "the naming of one health care provider in the plaintiff's petition was surplusage. The timely filing of the petition served to extend the statute of limitations against all health care providers, named and unnamed." (Emphasis added.) Falzone v. Hoos, supra, Superior Court, Docket No. 368957. "[T]he attorney filing a petition for an extension of time need not name the health care provider against whom the attorney may expect to file an action . . . Were the rule to be that an attorney seeking an extension . . . was required to name in his petition every defendant against whom his reasonable inquiry might indicate liability, there is little doubt but that the medical malpractice bar would, with Pavlovian predictability, name every health care provider anywhere in the geographical [area]." Lucid v. Arthritis Center of Conn., supra, Superior Court, Docket No. 153804.
(c) Grounds for Dismissal Asserted by Defendants, David A. Oelberg, M.D. and Eric I. Jimenez, M.D.: Lack of Causation Opinions
The Defendants, David A. Oelberg, M.D. and Eric I. Jimenez, M.D., also claim that the attesting physician offering an opinion as to them fails to state that their alleged deviation from the standard of care was a proximate cause of the Plaintiffs' injuries. The opinion letter regarding these Defendants states:
it is my opinion that there was negligence on the part of the Danbury Hospital intensive care physicians in their care and management of Joan Draper by failing to adequately monitor and treat Joan Draper's elevated intra cranial pressure and failing to monitor Joan Draper's optic fundi.
The opinion does not go on and state that this was a cause of Draper's subsequent vision loss. The Defendants claim that since the statute requires that the opinion attached to the complaint include an opinion on the medical negligence of the Defendants it must include an opinion with respect to causation since an essential element of a medical negligence claim is causation. In Nelson v. Dettmer, Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. X07 CV 07 5012152 S (July 30, 2008), Judge Berger noted that:
The defendants also claim that the opinion failed to provide any information concerning the causal connection between the alleged deviations and the plaintiff's injuries. There is simply no requirement in § 52-190a to provide such information. As stated above, "[t]he requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery." Walton v. Caffrey, supra, 43 Conn. L. Rptr. 343. Id., n. 3.
This court agrees that the opinions of the similar health care provider here is sufficient since it refers to negligence by Drs. Oelberg and Jimenez.
(d) Grounds for Dismissal Asserted by Defendant Paul F. Nee, M.D.: Attesting physician offering an opinion is not a similar health care provider
The Defendants claim that the opinion regarding the medical negligence of Dr. Nee is not from a similar health care provider. The statute requires that the opinion must be from a similar health care provider, as defined in section 52-184c. That statute provides that:
If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: (1) is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider."
The complaint alleges that Dr. Nee represented that he is board certified in internal medicine and that he was a member of Danbury Hospital's medical staff within the Department of Medicine's Section of Infectious Disease. Complaint, Paragraph 9. The Defendants claim that "Dr. Nee is board certified in internal medicine and subspecialty boarded in infectious disease." Memorandum of Law in Support of Motions to Dismiss, p. 25. The opinion regarding Dr. Nee's alleged negligence is by a board certified neurologist with a subspecialty in infectious disease of the central nervous system. The Defendants claim that "[t]here is no subspecialty board in `infectious disease of the central nervous system.'°"
Id.
The Plaintiffs cite Estes v. Hillis, Superior Court, Judicial District of New Haven at New Haven No. CV 07 5012573 (Cosgrove, J., Jan. 24, 2008) in which the court noted that: "Courts have consistently held that a challenge to the status of a similar health care provider is not a jurisdictional issue, but rather one that should be addressed after discovery begins." (Citations omitted.) Similarly in Harrison v. Trsusheim, Superior Court, Judicial District of Danbury at Danbury, Docket No. CV07-5003727 S (Sheedy, J., Mar. 7, 2008) the court stated that:
Neither the language of § 52-190a, nor the holding of any case, mandates that the similar health care provider opinion letter state in the letter itself that its author is a similar health care provider. (Citations omitted.) But the Defendants cite Tobing v. Lange, Superior Court, Judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. X 09 CV 065002163 (Shortall, J., Jan. 11, 2007) [43 Conn. L. Rptr. 251] in which the court held "that a written opinion provided by a physician who is not a `similar health care provider' to the defendant doctor, as defined by § 52-184c(c), is not one `required by subsection (a)' of § 52-190." Thus in Tobing the court dismissed the action, in accordance with General Statutes § 52-190a(c), upon finding that the opinion was not that of a similar health care provider as to the defendant.
Here the determination of whether the physician who provided the opinion is a similar health care provider is not as simple as comparing board certifications. In fact, the statute does not so limit the inquiry. The statute provides that a similar health care provider is one who is (1) trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; CT Page 16271 provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider." Here Dr. Nee is described as board certified in internal medicine and as a member of the Hospital's Department of Medicine's Section of Infectious Disease. The expert opinion is provided by "a board certified neurologist with a subspecialty in infectious disease of the central nervous system and director of the department of CNS infectious disease at a major university school of medicine." The court cannot look beyond what is alleged in the complaint and the opinion attached to it to determine whether the opinion is sufficient. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional 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 . . ." (Internal quotation marks and citation omitted.)
Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501 (2005).
The court cannot, based on the information before it and the language of the statute, conclude that the writer of the opinion regarding Dr. Nee's conduct is not a similar health care provider within the meaning of the statute.
Conclusion
Therefore, for the reasons stated above, the Motions to Dismiss are denied.