Opinion
No. CV 06 5001158 S
September 22, 2006
MEMORANDUM OF DECISION RE MOTION #122 MOTION TO DISMISS
The plaintiff alleges in her complaint that on or about April 1, 2004, she employed the defendant, Brian C. Hennessey, M.D., to treat her for abdominal pain and said defendant undertook to do so. On April 1, 2004, the plaintiff was admitted to the defendant Bradley Memorial Hospital for the purpose of undergoing a dilation and curettage ("DC") and diagnostic laparoscopy to be performed by Dr. Hennessey (hereinafter "Hennessey"). Hennessey employed the defendant Dr. Patrick M. Rocco (hereinafter "Rocco") to attend the procedure. The plaintiff alleges that defendant Hennessey failed to exercise the degree of care or skill ordinarily exercised by physicians or surgeons in the profession in this State.
In the Third and Fourth Counts of the complaint, the plaintiff alleges that Hennessey was the servant, agent and or employee of the Hospital and was acting within the scope of his authority, agency or employment when the plaintiff was injured.
The plaintiff alleges in the Fifth, and Sixth Counts that the defendant Rocco attended and participated in a portion of the surgery that is the subject of this cause of action and that Rocco failed to exercise the degree of care or skill ordinarily exercised by physicians or surgeons in the profession in this state.
The plaintiff alleges in the Seventh and Eight that Hennessey was the servant, agent and or employee of the Hospital and was acting within the scope of his authority, agency or employment when the plaintiff was injured.
The plaintiff alleges in the Ninth Count that the defendant Hospital failed to exercise the degree of care or skill ordinarily exercised by hospitals in this state.
The following documents accompanied the complaint: (1) an attorney's certificate stating that: "I hereby certify that I have made reasonable inquiry, as permitted by the circumstances, to determine whether there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. This inquiry has given rise to a good faith belief on my part that grounds exist for an action against each named defendant." (2) An opinion of a "practicing Obstetrician Gynecologist," board certified and recertified in Obstetrics and Gynecology since 1987. Stating in pertinent part that: "I am very familiar with the operations that were performed, having performed them numerous times in the past. I am also privileged by my hospital to perform these operations. On April 1, 2004, patient Krista Ellegard was admitted to Bradley Memorial Hospital where a DC with Open Diagnostic Laparoscopy with Lysis of Adhesions was then performed without the patient's consent. This resulted in an unplanned laparotomy and unnecessary loss of the patient's ovary and tube. The operating physicians were Dr. Brian Hennessey and Dr. Patrick Rocco . . . It is my medical opinion that there was clear departure from the medical norm resulting in damage to the patient as a result of malpractice."
On July 17, 2006 the defendant Rocco filed a Motion to Dismiss. The defendant asserts that the matter should be dismissed for reason that: ". . . The Plaintiff [failed] to comply with the requirements of 2005 Public Act No. 05-275, Section 2(a)." Specifically, the defendant asserts that the "plaintiff has failed to provide a sufficient written opinion by a similar health care provider that there appears to be evidence of medical negligence and a detailed basis for the formation of such opinion."
Discussion
"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 . . . [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 omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, CT Page 17415 826 A.2d 138 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendant Rocco asserts that the motion to dismiss should be granted on the ground that the plaintiff has not attached a written opinion similar health care provider as required by Public Act 05-275. Subsection 52-190a(a) C.G.S. as amended by Public Act 05-275 provides in pertinent part:
To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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 . . .
Section 52-184c defines the term "similar health care provider" in its following subsections:
(b) 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.
(c) 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 defendant asserts in the motion to dismiss that:
[He] is a "board-certified General Surgeon. In the written opinion attached to her Complaint, the plaintiff's expert states that he/she is a board certified Obstetrician/Gynecologist. This expert clearly does not satisfy the basic requirements for a `similar health care provider' because he/she is not board certified in General Surgeon (sic) and, therefore does not meet the requirements of Public Act No. 05-275.
The fact that the Obstetrician/Gynecologist who authored the written report may be familiar with the subject procedure and/or has performed the subject procedure does not render him a "similar health care provider" for the purposes of Section 52-190a. Specifically, Section 52-184c(c) clearly delineates who is a similar health care provider if a defendant is certified by the appropriate American board as a specialist . . ."
(See defendant's memorandum at page 4.)
Curiously, although the issue was clearly raised by the defendant in the motion to dismiss, the plaintiff's objection does not address the issue of whether the individual offering his opinion concerning the alleged malpractice is a similar health care provider. It is well settled law in this jurisdiction that issues that are not briefed are considered abandoned. Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995). However, as was stated earlier herein, the motion to dismiss admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. See Dyous v. Psychiatric Security Review Board, supra. The court has reviewed the plaintiff's complaint and could not find any allegations that the defendant was a board-certified general surgeon. Furthermore, although the defendant asserts in his motion that he is a "board-certified General Surgeon" other than this bald assertion he does not provide any supporting affidavits or other admissible evidence concerning this issue. Whereas the issue that the defendant was a board-certified general surgeon was not alleged in the complaint and no admissible evidence was presented in support of the motion to dismiss, the court finds that the defendant has failed to meet his burden of proof as to this aspect of the motion to dismiss.
The court notes that if the allegation was made in the complaint it would be an admitted fact.
Insufficiency of Opinion
As to the insufficiency of the opinion, Section 52-190a(c) provides that: "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."
This court could not find any appellate authority concerning insufficient good faith opinions; however the issue has been addressed by judges of the Superior Court. At least one court has found that dismal provision of Section 52-190a(c) C.G.S. only applies where the plaintiff has actually failed to attach a doctor's opinion and is inapplicable where the defendant argues that the attached opinion is insufficient. See Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 222). In Andrikis the defendants conceded that the plaintiff had attached a doctor's opinion; however, they maintained that such opinion was insufficient on the ground that it failed to support the allegations of negligence and argued that such insufficiency constituted grounds for dismissal under § 52-190a(c) C.G.S. The court found that: "The statutory language 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 indicates 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 defendant's view, that it creates a jurisdiction hurdle when a claimant has obtained and filed an allegedly insufficient opinion." (Citation omitted; internal quotation marks omitted.) Andrikis v. Phoenix Internal Medicine, supra, 41 Conn. L . Rptr. 225.
"When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006). "To determine whether statutory language is plain and unambiguous, [the court] examine[s] the text itself and its relationship to other statutes. The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Chesler v. Derby, 96 Conn.App. 207, 212, 899 A.2d 624 (2006).
This court believes that the relevant requirements of § 52-190a(a) are straightforward and unambiguous. See Andrikis v. Phoenix Internal Medicine, supra, 41 Conn. L. Rptr. 224 ("The requirements of the § 52-190a, as stated in subsection (a) do not appear to be ambiguous"). When filing a malpractice action, the plaintiff must: (1) prior to filing suit the attorney or filing party 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"; (2) the attorney or filing party must submit a certificate "that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant"; and (3) "such good faith may be shown to exist if the claimant or his attorney has received a written opinion . . . of a similar health care provider . . . that there appears to be evidence of medical negligence." The statute further provides that the purpose of attaching a health care provider's opinion is to "show the existence of such good faith" belief that grounds for the action against each defendant exist.
In the case before the court, the defendant asserts that the written opinion is insufficient for reason that the individual who wrote it was not board-certified in the same areas as the subject defendant and that the opinion does not provide sufficient information concerning the basis for the good faith opinion. However for the reasons stated herein the court concludes that the motion to dismiss should be denied. So ordered.