Opinion
No. CV-08-6001313
April 15, 2009
I. Nature and History of Proceedings
This medical malpractice, wrongful death action is brought by the plaintiff Andrew Knott, Esq. as the administrator for the estate of Barry Gurath (decedent), who died on January 5, 2007. The cause of decedent's death was heart failure and cardiac arrest, allegedly as a result of the negligence of the defendants Dr. Inkuk Lee a cardiologist; Dr. Gregory Bell, an emergency room physician; Connecticut Heart Group, P.C., of which Dr. Lee was a principal; the Hospital of Central Connecticut/Bradley Memorial Campus (hospital) and Central Connecticut Health Alliance, Inc. (Alliance). The plaintiff alleges that Dr. Bell was an agent, servant, and/or employee of the latter of the two corporate defendants.
On September 19, 2008, the probate court for the District of Southington (Meccariello, J.), appointed Andrew S. Knott as successor fiduciary to Katarzyna Maluszewski. A "Motion To Substitute Party Plaintiff" (#120) was filed by plaintiff's attorney on October 3, 2008, relative to which no order had entered, therefore, this court granted the motion on April 15, 2009.
In general, the plaintiff alleges that the named physicians failed to properly diagnose the plaintiff's heart condition, failed to perform the requisite diagnostic studies and prematurely discharged the decedent from the emergency room at the hospital on January 4, 2007, which ultimately resulted in the decedent suffering cardiac arrest and subsequent death. Specifically, the plaintiff alleges that the individual physicians failed to properly diagnose the cause of the decedent's chest pain as an "aortic dissection" which extended to the heart and which caused the decedent's death within a day of his discharge.
As mandated by General Statutes Sec. 52-190a, the plaintiff filed with the compliant a "certificate of reasonable inquiry," wherein counsel asserts that he maintains a good-faith belief that the defendants were negligent in their treatment of the decedent. Filed with the complaint were reports from two physicians, one submitted by a board certified cardiologist and professor of cardiology at a large metropolitan university hospital and the other submitted by a board certified emergency medicine physician, who is also chief of emergency medicine at a university teaching hospital. Each report was submitted in compliance with that portion of the cited statute that requires a written opinion by a "similar health care provider" detailing the medical negligence alleged in the complaint to be submitted therewith.
The board certified cardiologist set forth in his opinion twelve specific negligent acts and or omissions attributed to Dr. Lee in his treatment of the decedent, while the opinion submitted by the board certified emergency medicine physician provided four separate ways in which Dr. Bell was negligent in his treatment of the decedent. See plaintiff's Exhibits B and C, attached to his memorandum.
Notably, on June 25, 2008, these corporate defendants filed a request to revise pursuant to Practice Book Sec. 10-35 et seq., to which the plaintiff filed his objection (#116), which was sustained by Judge Pittman on November 4, 2008 without comment. In their request, these defendants wanted the plaintiff to clarify the reference in the complaint (paragraphs #25 of the fourth and fifth counts, applicable to these defendants) to the negligence of the hospital and Alliance, "acting through its physicians granted privileges, agents, servants and employees." Specifically, these defendants asked the court to order the plaintiff, at this early stage of the case, to identify which corporate personnel were implicated in the quoted phrase. Most notably, the plaintiff, in the memorandum accompanying his objection to their request, offered those arguments and cited those cases which the plaintiff cites and discusses in his memorandum in opposition to the motion to dismiss.
Presumably, Judge Pittman, in rejecting the position taken by these defendants and in accepting that taken by the plaintiff chose to follow her own guidance as set forth in Ranney v. New Britain General Hospital et al., (CV-06-5000954), 2006 Ct.Sup. 17021, Judicial District of New Britain, September 18, 2006. Emphasis added. Judge Pittman, in referring to Sec 52-190a, opined:
The statute does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion. Nor does the statute 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.
These defendants have now filed their motion to dismiss, arguing that since the plaintiff's complaint alleges that the corporate defendants were independently negligent or vicariously liable for the conduct of the medical providers, other than Doctors Lee and Bell, the failure to provide a good-faith opinion as to the other providers is fatal to any action against the hospital or the Alliance. In his response, the plaintiff, inter alia, points out that the arguments offered by these defendants have been previously rejected by Judge Pittman in this case and in Ranney.
It appears to this court that these defendants are attempting to accomplish via their motion to dismiss that which they were unable to accomplish via their earlier request to revise. It appears that these defendants desire a second bite of the same apple furnished by a different vendor. After reviewing the court file, including the plaintiff's complaint, the documents pertaining to the request to revise, the defendants' motion and plaintiff's objection thereto and the accompanying memoranda and, giving due consideration to the arguments of counsel, the court will deny the motion to dismiss.
II. General Statutes Sec. 52-290a
Subsection (a) of the statute, in pertinent part provides:
. . . 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 healthcare 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 . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.
Subsection (c) provides: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action. Although the good-faith requirement in medical malpractice cases was enacted by the General Assembly in 1986 as part of court reform in Connecticut, the provision mandating the attachment to the complaint of the opinion of a similar health care provider was not inserted into the statute until 2005 with the enactment of Public Act 05-275."
In interpreting the 2005 amendment, Judge Langenbach, in Tutillo v. Day Kimball Hospital, CV-06-5009722 [ 44 Conn. L. Rptr. 570], complex litigation docket, Judicial District of Hartford, November 26, 2007, stated:
The purpose of the amendment was not to require a plaintiff's attorney, based upon the limited information available before filing the action, to consult with experts in every conceivable specialty with respect to every possible health care provider who may have been involved in a claimant's treatment before the action is filed or any discovery is conducted . . . a single written opinion of a similar health care provider is sufficient to meet the requirements of Sec. 52-290a as to all defendants, with respect to a particular incident or course of treatment involving several healthcare providers that is the subject of a single complaint.
In this case, the plaintiff's cardiology expert is highly qualified to provide an opinion as to the manner in which Dr. Lee, a cardiologist, managed the decedent's care after his consultation was solicited by Dr. Bell. Further, the plaintiff's expert in emergency care appears to be highly qualified to opine on the standard of care regarding the proper diagnosis and treatment of one who had complaints similar to those of the decedent. Both opinions, in this court's view, are in complete compliance with the 2005 amendment.
III. Plaintiff's Complaint
Contrary to the assertion of these defendants, the court agrees with the plaintiff that his claims against the hospital and Alliance are based solely on a theory of respondeat superior due to the negligence of Dr. Bell and Dr. Lee. The Fourth Count of the plaintiff's complaint is against the hospital. Paragraph #25 contains seventeen specifications of negligence lodged against the hospital, "acting through its physicians granted privileges, agents, servants, and/or employees." Identical allegations are lodged against Alliance in paragraph #25 of the Fifth Count. Moreover, paragraph #16, which is incorporated into each of those counts, alleges:
At all times mentioned herein, Dr. Lee and Dr. Bell were granted privileges by the Hospital of Central Connecticut/Bradley Memorial Campus and were acting within the scope of their privileges and duties and with the knowledge, permission and consent of Central Connecticut Health Alliance, Inc. and the Hospital of Central Connecticut/Bradley Memorial Campus as its agents, servants and/or employees, while treating and caring for the decedent, Barry Gurath.
The motion to dismiss filed by these defendants implicates the court's subject matter jurisdiction and is, therefore, a question of law, however, in considering a motion to dismiss, as is the case with other pretrial motions such as a motion to strike and motion for summary judgment, the court is obligated to view the allegations contained in the plaintiff's complaint broadly and in a manner most favorable to the plaintiff. The court must look at those facts specifically pled and those facts necessarily implied in a light that favors the plaintiff. Kelly v. University of Connecticut Health Center, 290 Conn. 245, 252 (2009). In performing this obligatory task, this court finds that the plaintiff is asserting a claim against these corporate defendants, at this early stage of a case, based upon a theory of vicarious liability or respondeat superior.
IV. The Defendants' Position
As noted, these defendants, in their motion to dismiss and in their earlier request to revise, persist in maintaining that the plaintiff is obligated by Sec. 52-290a, at the time the complaint is filed, to specifically identify any other allegedly negligent personnel employed by them, long before any discovery is pursued. They argue that the plaintiff's failure to do so and failure to attach what could amount to a multitude of additional written opinions by various "similar health care providers" is fatal to the plaintiff's cause of action. This court agrees with those jurists who have earlier considered and rejected this untenable position in finding that it would place an unreasonable burden and erect an insurmountable barrier against the plaintiff, who seeks to bring an action based upon a good-faith belief, that is backed up in writing by one or, as in this case, more qualified experts in the appropriate medical specialty who opine that negligence has been committed by a medical professional involved in the plaintiffs or, as in this case, a decedent's treatment. This court agrees with Judge Pittman, that this could not have been the intent of the legislature when it passed Public Act 05-275.
V. Discussion
In Maitan v. Access Ambulance Co., Superior Court, Judicial District of Stamford-Norwalk at Stamford, CV07-5003252 (October 18, 2007) [ 44 Conn. L. Rptr. 436], Nadeau, J., referring to an opinion by Judge Adams, writes:
In Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV06 5001692 (March 12, 2007, Adams, J.), the court held that an opinion letter from a board certified obstetrician and gynecologist was enough to satisfy the similar health care provider requirement in a suit against two defendants, a hospital and a obstetrician/gynecologist. The court determined that the opinion letter from a gynecologist met the requirements of similar health care provider under § 52-190a because "the care and treatment provided the plaintiff, whether by [the gynecologist defendant], arose, at least initially, from obstetrics and gynecological areas of medical practice." Id. " It would be unwieldy at best . . . to have a blizzard of opinion letters from a physician, a physician's assistant and a nurse all opining, probably hypothetically, about evidence of negligence." Id. See also Ellegard v. Hennessy, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) [ 43 Conn. L. Rptr. 195] (Emphasis added.)
In referring to his opinion in Kiner v. Ward, Superior Court, Judicial District of Stamford-Norwalk at Stamford, CV 06-5000711, (January 8, 2007), Judge Nadeau opines, relative to the statutorily mandated opinion letters:
CT Page 6566
Surely, the rationale behind the requirement of such letters is closer to insuring an absence of frivolity and/or lay mistakes than to the other end of the spectrum, which is that the letter tightly frames under pain of exclusion, all of the evidence. (Quotation marks omitted.)
A month later, Judge Bellis, in Shanker v. Midstate Medical Center et al., Superior Court, judicial district of New Haven, at New Haven, CV 07-6001269, (November 28, 2007), dealt with an issue substantially similar to that raised by the these defendants, i.e., the reference in the plaintiff's complaint to "other servants, actual or apparent agents, and/or employees," expressed the issue in the following fashion:
In the present matter, Midstate does not claim that the same physician cannot render an opinion as to the negligence of both Tickey and Midstate. Rather, Midstate argues that because the complaint fails to specifically identify the "other servants, actual or apparent agents and/or employees" of Midstate besides Tickey, it cannot determine whether the opinion written is a "similar health care provider" to those individuals, and it cannot begin an investigation. The court rejects this argument. The defendants are importing into § 52-190a a requirement that simply does not exist. There 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. (Emphasis added.)
Judge Bellis, in denying the hospital's (Midstate) motion to dismiss/strike the count against the hospital, found that the opinion letter by a board certified emergency care physician that set forth and medically confirmed the basis of the plaintiff's claims of negligence served the purposes of the statute.
In Griffen v. St. Vincent's Medical Center, Superior Court, Judicial District of Fairfield at Bridgeport, CV 06-5005220, (February 8, 2008), Judge Hiller considered a claim raised by the hospital in its motion to dismiss that the author of the plaintiff's 52-290a opinion (a board certified general surgeon qualified in surgical critical care), was not a "similar health care provider" to the named defendant doctor who treated the plaintiff and whose specialty was emergency medicine and internal medicine. In denying the motion and in quoting portions of Judge Adams' opinion in Behling, supra, and Judge Langenbach's opinion in Tutillo, supra, Judge Hiller agreed that:
In a suit against a medical facility, . . . 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.
Based upon that precedent and his own analysis, Judge Hiller concluded in that case, as this court concludes in this case, that:
The plaintiff and [his] attorney have conformed with both the letter and the spirit of § 52-190a. They dutifully identified [two] highly qualified physician[s] to assess the possibility of negligence by the defendant[s] and relied upon that assessment in pursuing this action in good faith. The written opinion issued by the plaintiff's expert health care provider[s] and filed with the complaint served upon the defendant[s] is, in the discretion of this court, sufficient to overcome a motion to dismiss.
Based upon the foregoing, the motion to dismiss filed by these corporate defendants is denied.