Opinion
No. CV 06-500 52 20 S
March 12, 2010
MEMORANDUM OF DECISION
This is a medical malpractice wrongful death action brought by the plaintiff Vannah Griffin, individually, and as Administratrix for the estate of Reverend Dr. Richard C. Griffin against the defendants, St. Vincent's Medical Center, St. Raphael's Hospital, Elmer L. Valin, M.D. Elmer L. Valin, M.D. LLC and William B. Fitzgerald, M.D.
The plaintiff claims the defendants' treatment or lack thereof began on June 23, 2004, when Richard Griffin was admitted to St. Raphael's Hospital under the care of Dr. Valin for complaints of severe abdominal pain which was caused by a small bowel obstruction. On June 29, 2004, he underwent an exploratory laparotomy, lysis of adhesions and closure of an internal hernia. He was discharged three days later on July 2, 2004. Upon discharge Mr. Griffin received written instructions advising him to notify his physician if he developed "redness or swelling at the incision; a fever; increased pain; drainage from the incision."
On a Tuesday following the Fourth of July holiday, fluid began flowing from the incision which Mrs. Griffin described as brown with a terrible odor. It was soaking the front of his pajamas. She called Dr. Valin and told him that she thought it was urgent and maybe his staples were coming out and something terrible happened. Dr. Valin told her not to worry, that was normal and he had a regular appointment scheduled in a few days. The discharge grew progressively worse and the plaintiff called Dr. Valin's service at 5 a.m. the next day to tell him that the fluid was coming out and that it had a musty smell. Dr. Valin did not call back that day. On July 8, Mrs. Griffin called Dr. Valin again reporting that the discharge had gotten worse and his physical condition was deteriorating. Dr. Valin told Mrs. Griffin to immediately take Mr. Griffin to the nearest hospital emergency room. The nearest hospital from their home in Monroe was St. Vincent's Medical Center in Bridgeport.
On July 8, 2004 Mr. Griffin was admitted to the emergency room of St. Vincent's Hospital. He was confused and exhibited an erythemotous wound with a foul smelling discharge. According to the admission record, Mr. Griffin had drainage from his wound for two days prior to admission. He was hypotensive. A small bowel was protruding from the incision. He demonstrated renal failure, hypoglycemia as well as coagulopathy.
The emergency room physician had consultations with a medical resident as well as a surgical resident. The admission note notes of the resident indicated the exposed small bowel at the midline incision. His impression was necrotizing fasciitus. Mr. Griffin was admitted to the medical ICU (Dr. Fitzgerald) at "1215" for treatment of hypotension, renal insufficiency, septic shock and to rule out a myocardial infarction. The emergency room physician did not list the necrotizing soft tissue infection or the intra-abdominal abscess in the differential diagnosis. Initially, Mr. Griffin was treated with antibiotics.
Mr. Griffin was seen by the surgical ICU physician and attending surgeon, Michael Smith, M.D., several hours later. At that time he was in respiratory distress. He was intubated and underwent placement of an arterial line as well as a pulmonary artery catheter. His interior abdominal wall was found necrotic which had apparently emanated from the initial site of the operation at St. Raphael's. A bedside debridement was attempted with portions of the abdominal wall resected and noted to have an extensive abscess. His condition had deteriorated to the point where it was determined no further treatment could be successful. He expired on July 11, 2004.
A subsequent autopsy listed the primary cause of death as "status post recent umbilical hernia repair (approximately one week ago) with necrotizing cellulitis/fasciitus of the anterior abdominal wall extending into the abdomen with a acute peritonitis and adherent loop of small bowel with adhesions and acute serositis."
The plaintiffs retained Louis J. Kaplan, M.D., a Board Certified General Surgeon with added qualifications and surgical critical care, to review the medical records. After repeating the medical history, Dr. Kaplan's conclusion was that the factors leading to Mr. Griffin's death was initially the delay in immediately referring him to be medically treated in definitive facility when the drainage began which was coupled with coronary artery disease indicated by the elevated troponin exhibited on admission to St. Vincent's. Dr. Kaplan indicated that the necrotizing soft tissue infection required immediate surgical intervention as opposed to the reference from the emergency room to a nonsurgical physician in ICU which caused further delay. Dr. Kaplan concluded that a delay in operative therapy has been demonstrated to have an adverse impact outcome.
The plaintiffs filed a six-count complaint against the defendants:
The first count is against the defendant, The St. Vincent's Medical Center, acting through its agents servants and employees including its emergency department resident physicians, attending physicians, house staff, nurses and other care personnel to the general public in that they failed to properly treat and diagnose the necrotizing soft tissue infection, intra-abdominal abscesses and an exposed small bowel resulting in his death.
The second count is against the defendant, The Hospital of St. Raphael, alleging that commencing on June 23, 2004 and continuously though his discharge on July 2, 2004 the agents servants and employees of the hospital were negligent in the care, treatment, monitoring and diagnosis of the decedent with respect to the necrotizing soft tissue and exposed small bowel resulting in his death.
The third count is against the defendant William B. Fitzgerald M.D. for his treatment of the decedent as an inpatient at this St. Vincent's medical center in that he failed to properly care, treat and diagnose the necrotizing soft tissue infection and intra-abdominal abscess and in particular failed to order the immediate surgical intervention resulting in his death.
The fourth count is against the defendant, Elmer L. Valin M.D., for his failure to properly care treat, monitor, diagnose and supervise the decedent from his admission for surgery until his death; that he failed to examine the decedent after learning of discharge; failed to immediately order surgical intervention and prevention and failed to properly assess the decedent's medical condition in particular all resulting in delayed treatment of the decedent exposed small bowel, necrotizing soft tissue infection and intra-abdominal abscess which resulted in his death.
The fifth count is against defendant corporate entity, Elmer L. Valin M.D. LLC alleging corporate liability for the claimed negligence of its agents servants and/or employee, Elmer L. Valin M.D., as alleged in count four.
The fifth count is brought on behalf of Vannah Griffin, individually, alleging the loss of the companionship, services, consortium and society of her deceased husband as a result of the negligence of the defendants.
There is presently pending before this court three motions for summary judgment; one filed by the Hospital of St. Raphael's, Elmer L. Valin M.D., Elmer L. Valin M.D. LLC; one by William Fitzgerald M.D. and one by St. Vincent's Medical Center. All three motions are based in substance on three separate theories.
The first claim is that the plaintiff's causes of action are barred by the applicable two-year statute of limitation (C.G.S. § 52-555). The plaintiff's decedent passed away on July 11, 2004. In June of 2004 the plaintiff's attorney obtained a 90-day extension of the statutory limit pursuant to C.G.S. § 52-190. The plaintiff's attorney put the writ, summons and complaint in the hands of a marshal on October 10, 2006, and the marshal served the defendants the following day. The defendants claim that the statute of limitation would have expired on July 11, 2004 and with the 90-day extension it expired on October 9, 2006. The plaintiff claims that October 9, 2006 was a legal holiday, Columbus Day, which extended the limitation one day.
The Connecticut Legislature, pursuant to C.G.S. § 1-4, designates certain days as Legal Holidays. The statute specifically provides that the second Monday in October shall be known as Columbus Day.
The defendants have claimed that the only time a holiday tolls a daily time limit is when it falls on the terminal day for filing a document in a public office and only because public offices are closed for holidays.
Webster's New World Dictionary, Second College Edition defines a holiday as follows: "4. A day set aside by law a custom for the suspension of business usually in commemoration of some event."
There are, in fact, many instances where Connecticut has recognized that legal holidays shall not be included in calculating time limits even if they fall on an intermediate day.
Article Fourth, 15 and 16, of the Connecticut Constitution provides that with respect to the governor's option when presented a bill, "In case the Governor shall not transmit the bill to the secretary, either with his approval or with his objections within five calendar days . . . (excluding Sundays and legal holidays) after the same shall have been presented to him, it shall be a law at the expiration of that period."
Rule 6(e) of the Federal Rules of Civil Procedure provide in pertinent part: "in computing any period of time prescribed . . . by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included . . . when the period of time prescribed or allowed in less than 11 days, intermediate Saturdays Sundays and legal holidays shall be excluded in the computation."
C.G.S. § 47a-35 provides in relevant part "(a) execution shall be stayed for five days from the date judgment has been rendered provided any Sunday or legal holiday intervening shall be excluded in computing such five days."
C.G.S., § 10-218 provides "the votes of each member of such board cast in such election shall be reduced to writing and made available for public inspection within 48 hours, excluding Saturday, Sunday or legal holidays."
C.G.S. § 1-21 provides "the votes of each member of any such public agency upon any issue before such public agency's number reduced to writing and made available for public inspection within 48 hours, excluding any Saturday Sunday or legal holiday."
C.G.S. § 1-21j-15. With respect to the 30 days for filing an appeal to the Freedom of Information Commission for reconsideration, the statute provides "when such period of time, with the intervening Saturdays Sundays and legal holidays counted is five days or less, than said Saturday Sunday and legal holiday shall be excluded from the computation."
C.G.S. § 4-137e provides that if a general contractor is selected he must, within five days, "Saturdays Sundays and legal holidays excluded," execute a contract in accordance with the terms of the general bid.
As was indicated, the defendants claim that because the defendant health providers did not close on Columbus Day, they were available for service and therefore the legal holiday should not toll the limitation one day. The conflict between a statute requiring service of a notice within a certain number of days and the terminal day falling on a public holiday was decided by the Supreme Court in Lamberti v. Stamford, 131 Conn. 396 (1944).
In that case the plaintiff was allegedly injured as a result of a highway defect. At that time the highway defect statute (General Statutes, 1420) required that notice of the accident must be served on the city clerk "within 10 days thereafter." The court concluded that the limitation fell on December 25 and the clerk was served on the 26th, consequently not within 10 calendar days.
The defendants claim that the only reason the Supreme Court extended the service in Lamberti was that the clerk's office was closed. The court disagrees. The court noted that there was a conflict between the Highway Defect Statute and General Statutes, 6565, which, at that time, designated Connecticut's Legal Holidays.
"The Legislature has designated certain days as legal holidays without stipulating in any general way what is the effect intended. General statutes, 6565. It must've intended to attach to those days the significance generally accorded a holiday in the civil law, that is, it is a day in which the ordinary occupations are suspended, a day of exemption or cessation from work, a day of religious observation or of recreation or amusement. 29 C.J. 761; 40 C.J.S. 410; 29 Am. 137 (N.S . . .) 137. When the Legislature provides a time within which an act must be done, and the last day of the period allowed as a holiday, it becomes necessary to determine, as between the intent of the Legislature expressed in that statute, and in the statute designating certain days as holidays, which shall prevail or whether the act may be performed on the day succeeding the holiday is a matter of a statutory construction."
The court ruled that the legislative intent to recognize legal holidays should be recognized and expanded the time limit for service of a defective highway claim an additional day.
". . . it is true that the effect of a rule is to give the injured party more than 10 calendar days in, and that, if only 1420 is to be considered, this would seem to read an exception into the statute; but when 1420 is read in connection with 6565, as it must be, the language of the legislative acts clearly expresses the intent that holidays be excluded from the computation." Lamberti v. Stanford, 131 Conn. 396, 399, 400, 401 (1944).
In Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, (1988) the Supreme Court confirmed the enforceability of C.G.S. § 51-347c, a statute which specifically allowed for extending a termination date for a filing an additional day for a holiday, noting "our interpretation accords with the common law or rule that ruled "if the last paper of for performance of certain acts fall on a Sunday or legal holiday, the doing of that act on the following day would be timely."
As was indicated, the defendants claim that because the defendant health providers did not close on Columbus Day, they were available for service and therefore the legal holiday should not toll the limitation one day. In Lamberti the notice was actually not required to be filed in a public office but was required to be served on the clerk, not necessarily in his office. The court did not rule the service was impossible but only that it would be difficult on a holiday. As in the present case, the clerk could have been served on a holiday but the court noted "no doubt a notice given to a proper officer of the municipality upon a holiday within the period allowed by the statute would be valid site. But it if the last day falls on a holiday, the giving of notice on the next day is a sufficient compliance with the statute." Lamberti v. Stamford, Supra, 401.
It is the opinion of this court that the defendants were timely served.
The second claim of the respective defendants is that although two separate motions to dismiss the complaint based on non-compliance with C.G.S. § 52-190a have been filed in this case, the recent Appellate Court decision of Bennett v. New Milford Hospital Inc., 117 Conn.App. 535 (October 13, 2009) requires reconsideration of the sufficiency of the health provider's opinion letter.
In Bennett, the plaintiff brought an action against an emergency room physician and attached to the complaint was an opinion from a board certified general surgeon with added qualifications in critical surgical care. He further indicated that he regularly evaluated and treated patients in emergency rooms. The Bennett court held that the motion to dismiss referred to in C.G.S. § 52-190a applied not only to actions where the plaintiff failed to attach an opinion letter of a similar health provider to the complaint, but also to situations where the opinion letter attached to this complaint was insufficient. The court concluded that the opinion of a board certified general physician was insufficient in action against an emergency room physician as it should have been written by a board certified emergency room physician and therefore dismissed the complaint. (The Supreme Court has granted a Petition for Certification, which is currently pending.) Until Bennett the strict requirement of the same board certification had been the subject of divergent opinions by Superior Court judges.
With respect to the additional claim of these defendants as to of the substance of the opinion letter filed with the complaint in this case, that specific issue was raised in a motion to dismiss filed by a defendant on December 21, 2006, and was denied by this court on February 27, 2008. A second motion to dismiss based on the same claim of the insufficient content of the opinion letter was filed on November 11, 2007 and was also denied by Judge Hiller in February of 2008. This court has no intention to revisit the same issue for the third time.
The defendants claim that the opinion letter was written by a board certified general surgeon within which he criticized the lack of treatment by the emergency room physician, the defendants claim that as the opinion writer was not board certified in emergency room medicine they should be granted summary judgment.
The opinion and the basis for the opinion in Bennett does not apply to the present case. In Bennett the emergency room physician was the lone named defendant in two counts of the complaint. Summary judgment was sought with respect to those two counts. It was not sought with respect to two additional counts filed against the defendant hospital.
In the present case, the emergency room physician, who was never identified in the emergency room records, is not a named defendant in this complaint. The complaint in this case is filed against the defendant, St. Raphael's Hospital, acting through its agents servants and employees as well a claim against the defendant, St. Vincent's Medical Center, acting through its agents services and employees and encompasses the emergency room staff, medical residents, surgical residents, medical ICU physicians, surgical ICU physicians as well as attending physicians and support staff. In summary, this claim is not against an unnamed emergency room physician but is a claim against two hospitals acting through their physicians and staff.
In Bennett v. Manchester Hospital, No. 19-502-9769, Judicial District of Hartford, (November 6, 2009, Aurigemma, J.) [ 48 Conn. L. Rptr. 758], the claim was against an orthopedic surgeon and the agents, servants and employees of the defendant hospital. The court noted that the court in Bennett v. New Milford Hospital specifically did not address medical malpractice claims against institutional defendants.
In Bennett v. New Milford Hospital Inc., 117 Conn.App. 535, the Court itself noted "In resolving the issues presented in this appeal, we need not address medical malpractice claims against institutional defendants. We note, however, that there may be a gap in § 52-190 regarding such defendants appropriate for the Legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation. See Finan v. Finan, 287 Conn. 491, 501." Bennett v. New Milford Hospital Inc., Supra, fn7.
The basis outlined by Judge Hiller in his Memorandum Decision denying the defendants' previous motion to dismiss this case based on divergent board certification is equally applicable to this motion for summary judgment:
"The court first notes that Dr. Weis is not a named defendant in this suit and that his identity as an emergency room health care provider, his background, and/or his medical training, was not available to or disclosed by the defendant until just before short calendar argument. Dr. Weis may in fact be the physician who first treated the decedent, but at this early pre-discovery stage of litigation, "the plaintiff is presumed to have a basis for alleging negligence but not necessarily, particularly in the case of an institution like a hospital, a basis for alleging which agent of the hospital was responsible." Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.); see Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 07 6001269 (November 28, 2007, Bellis, J.) [ 44 Conn. L. Rptr. 595] ("[t]here 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"). In a suit against a medical facility, and particularly where a "paucity of notes in the medical record" is alleged to have contributed to the delay prior to surgery, it would be unreasonable to expect the plaintiff to necessarily identify exactly who among the myriad health care personnel in a medical center, or even just the emergency department, was responsible for the allegedly negligent conduct that ultimately led to the decedent's injuries. See Behling v. Aronow, supra, Superior Court, Docket No. CV 06 5001692; Tutillo v. Day Kimball Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5009722 (November 26, 2007, Langenbach, J.) [ 44 Conn. L. Rptr. 570] ("[t]he information available to a plaintiff at the time of the filing of the complaint is usually limited to medical records and it may not be clear what role each health care provider performed with respect to the alleged negligent conduct"). Under these circumstances, the plaintiff's reliance upon an expert with a specialty in the diagnosis and treatment of surgical emergencies was quite appropriate, and conforms with the language and intent of § 52-184c(c) in that "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.'" Griffin v. St. Vincent's Medical Center, No. CV 06-5005220, Superior Court, Judicial District of Fairfield at Bridgeport (February 8, 2008, Hiller, J.), see also: Sicignano v. Midtown Autobody, Inc., No. CV 08 6000611 s, Superior Court, Judicial District of Ansonia-Milford at Milford (July 31, 2009, Tyma, J.)
It is the opinion of this court that the plaintiffs are in compliance of the requirements of C.G.S. § 52-190a.
The final claim of the defendants is that the plaintiffs have failed to establish the plaintiff's decedent had a 51% chance of survival as is required in a claim of "lost chance" where the opportunity to survive is lost by failure in treatment.
In Boone v. William W. Backus Hospital, 272 Conn. 551 (January 2005), the Court ruled "In order to prevail on a claim that the defendant's negligent acts decreased the decedent's chance for successful treatment, (the plaintiff) must show (1) that the decedent been deprived of the chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant's negligence . . . the plaintiff must prove that prior to the defendant's alleged negligence, the decedent had a chance of survival of at least 51%. Once this threshold has been met, the plaintiff must then demonstrate that the decedent had a decreased chance for successful treatment and that this decreased chance more likely than not resulted from the defendant's negligence." (Internal quotations and citations omitted). Boone v. William W. Backus Hospital, Supra 574.
In Boone a four-year-old was returned to the defendant hospital after reacting to medication previously prescribed. Unfortunately the plaintiff's decedent did not survive and medical malpractice case was brought against the hospital. For an unknown reason the plaintiffs did not have an expert witness and attempted to sue under and a claim of gross and reckless conduct which they argued rose above regular medical malpractice claim and did not require expert opinion. A motion for summary judgment initially granted and sustained by the Supreme Court. The Court confirmed that although the claim was gross and egregious negligence, it was still a medical malpractice case which could not be sustained without expert opinion. The court further found that for a claim of loss chance the plaintiff was required to establish 51% or better chance of survival which also required expert testimony which the plaintiff could not furnish. The summary judgment was confirmed.
A subsequent Appellate Court case, Petterson v. Ocean Radiology Associates, 109 Conn.App. 275 (2008), also involved a claim of omission causing a loss of opportunity. In that case the defendant radiologist failed to properly interpret an x-ray which indicated the plaintiff's decedent had lung cancer. The plaintiff's expert testified to that there was only a 30% chance that the plaintiff's decedent would've survived at the time when the x-ray was misread. A lower court granted a summary judgment for the entire complaint.
In both of those cases the plaintiff's decedent's chance of survival was less than 51% before the defendants undertook treatment. In the present case, the plaintiff's decedent entered St. Raphael's Hospital with probably a 100% chance of survival. 12 hours after admission into St. Vincent's Medical Center emergency room his chance of survival was probably zero. At some point his chance of survival was obviously less than 51%. However, unlike Boone and Patterson any there were defendants allegedly treating, or failing to treat the plaintiff's decedent up to the point his chance of survival was less than 51% and they would not be exonerated.
The defendants have submitted excerpts from the deposition of the plaintiff's expert which they claim indicate plaintiff could not prove that the plaintiff's decedent had a greater than 51% chance of survival. It is the opinion of the Court that the colloquy submitted was inconclusive and not sufficient for a trier of fact to make this factual decision. The defendants repeatedly asked the plaintiff's expert to testify as to a specific numerical percentage of his chance of survival after admission into St. Vincent's Medical Center emergency room. The expert repeatedly testified that he could not give a specific numerical figure. He further testified that sitting at that table during the deposition there were variables to consider and he could not evaluate plaintiff opportunity to survive unless he was able to review the patient's response to treatment including, debridement.
In repeatedly asking the plaintiff's expert for a specific numerical percentage with respect to survival, the defendants appear to be basing their claim on what is called a "proportional approach" to a claim of the lost chance.
In Peterson the court noted that there are three approaches in addressing the doctrine of loss chance "(1) relaxed causation approach, (2) proportional approach, and (3) the traditional approach . . . Connecticut recognizes a cause of action for a loss chance . . . (and follows) a traditional approach in the determination of proximate cause."
"Under the proportional approach to causation in such cases the loss of chances view and redress in its own right . . . instead of attempting to determine whether the physical harm was, a court could examine the extent of the victim's lost chances for improvement and grant a recovery that mirrors the extent of those chances . . . the relevant inquiry is to be whether the defendant probably caused a reduction in the victim's chances. If causation were found, the court would provide compensation for the loss chance in direct proportion to the extent of the loss chance." Peterson v. Ocean Radiology Associates, 109 Conn.App. 275, 287, 288 (2008).
It appears that the defendants, in interrogating the plaintiff's expert did so under the context of the proportional approach to lost chance by asking specific numerical percentages of survival. That is not the basis for a traditional claim of loss chance in Connecticut. The basic inquiry should be whether or not the patient had a greater chance of survival prior to treatment by the defendant.
In their motion, the defendants have asked for summary judgment as to the plaintiff's entire complaint against St. Vincent's Hospital. In Peterson, the appeal was not based on the propriety of granting a motion for summary judgment with respect to the claim of loss of chance. The question was whether or not the entire complaint was subject to a motion for summary judgment on that basis.
The Court noted that paragraph 22 of the Patterson complaint alleged that the plaintiff's decedent "(a) suffered great pain and extreme mental anguish in his life expectancy; (b) lost any opportunity and/or chance of achieving a favorable medical recovery from his disease; (c) lost the opportunity to experience significant palliative benefit of available medical treatment; (d) experience more intrusive invasive and medically, physically and emotionally disabling medical intervention to attempt to treat his disease; and (e) lost the opportunity to enjoy and carry out all of life's activities, including the companionship of the spouse, children, and grandchildren, including his remaining living days(s)."
The Court concluded that although the lower court was correct in granting a summary judgment with respect to (b) of the paragraph 22 of the plaintiff's complaint, which was loss of chance, it was in error to grant summary judgment as to the remaining claims and of damages. It concluded that other claims of damages in paragraph 22, in essence, were based on additional damages allegedly suffered as a result of the defendants' negligence. As opposed to claim of lost chance, to prove causation with respect to these claims the plaintiff would have to establish with reasonable medical probability that the defendants caused the decedent to experience the damages claimed. In summary, the testimony of an expert as to the loss of chance being less than 51% does not preclude a plaintiff establishing proximate cause with respect other allegations of damages. Peterson v. Ocean Radiology Associates PC, 279 to 286.
In the present complaint, the plaintiff claims as a result of the negligence of the defendants the decedent suffered the following severe painful and permanent injuries "(a) Severe abdominal pain; (b) Respiratory difficulty; (c) ante more and pain and suffering and (d) the death. The complaint further alleges that "as result of the aforementioned injuries and death the decedent been permanently deprived of his ability to carry on and enjoy life's activities and his earning capacity has been for the destroyed. As a further result of the aforesaid injuries and death of decedent, the estate has incurred expenses for treatment and funeral expenses, all to its financial loss. There was also a separate claim on behalf of the spouse for loss of consortium."
Although loss of chance it was never specifically claimed as an allegation of damage in the present complaint, arguably the claim in section (d), "death," may well be subject to the proof required of a loss of chance claim, however the remaining claims of damages are subject to proof by the plaintiffs of reasonable medical probability.
For the aforementioned reasons, the motions for summary judgment are denied.