Opinion
Nos. UWY-CV-07-6000812-S, UWY-CV-07-6000811-S
September 4, 2008
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS
I. BACKGROUND
The plaintiffs filed two separate lawsuits on September 17, 2007, against numerous defendants. The lawsuit bearing docket number UWY-CV-07-6000812-S was filed against St. Mary's Hospital; Dr. David Gregory Gersten, M.D.; Greater Waterbury-Gambro Healthcare, Gambro Healthcare, Inc., Davita Greater Waterbury Dialysis, Davita, Inc., and DVA Renal Healthcare, Inc. (hereinafter referred to as the "Gambro defendants"), alleging negligence. The original complaint also asserts claims against Angio Dynamics, Inc. and Medical Components, Inc., alleging product liability claims. The two product liability defendants have not filed Motions to Dismiss and, therefore, are not discussed in this opinion.
On September 17, 2007, the plaintiffs filed another lawsuit alleging negligence against Dr. David Roer, Dr. Gregory Butler, Ms. Marilyn Olsen, and Nephrology Hypertension Associates, P.C. (hereinafter referred to as the "Roer defendants"). This lawsuit bears docket number UWY-CV-07-6000811-S.
On January 2, 2008, defendant Saint Mary's Hospital filed a Motion to Dismiss the original Complaint. On February 21, 2008, the Gambro defendants filed a Motion to Dismiss the original complaint.
On February 26, 2008, the Gambro defendants then filed an Apportionment Complaint against Dr. David Roer, Dr. Gregory Butler, Ms. Marilyn Olsen and Nephrology Hypertension Associates, P.C. (hereinafter referred to as the "Roer apportionment defendants"); and Dr. David Gregory Gersten. Subsequently, on April 17, 2008, the Roer apportionment defendants filed a Motion to Dismiss the Apportionment Complaint. On April 18, 2008, the apportionment defendant, Dr. Gersten, filed a Motion to Dismiss the Apportionment Complaint.
On April 17, 2008, the plaintiffs filed a Notice of Claim and Amended Complaint against the Roer apportionment defendants and the apportionment defendant Dr. Gersten. The Motions to Dismiss filed by the Roer apportionment defendants and the apportionment defendant Dr. Gersten do not seek to dismiss the plaintiffs' Amended Complaint. However, since the issues raised by all Motions to Dismiss concern both the adequacy of the good faith certificate, doctor's opinion letter, and the necessity thereon the Court's decision will apply to all motions in an effort to avoid the necessity of further Motions to Dismiss in this matter.
In her complaint, the plaintiff alleges that her decedent, Hazel Smart, had a hemo-dialysis catheter inserted on April 19, 2004, at St. Mary's Hospital in Waterbury. It is further alleged that this catheter contained instructions from the manufacturer and warnings which indicated that the catheter was not to be used longer than a period of twelve months. It is further alleged that the catheter contained warnings which indicated that it should not have any ointments used on it because of the potential for product failure. On June 11, 2005, it is alleged, that the plaintiff's decedent had received her regularly scheduled dialysis treatment at the Greater Waterbury Gambro HealthCare n/k/a Davita Greater Waterbury Dialysis facility located in the City of Waterbury. Thereafter, plaintiff contends that her decedent went home and began to bleed massively from the catheter entry site. Subsequently, plaintiff's decedent was transported to St. Mary's Hospital where she died due to blood loss. It is further alleged that the profuse bleeding at the catheter site was due to a large opening or hole in the arterial limb of the catheter.
The original complaint alleges, in summary, that Saint Mary's Hospital and the Gambro defendants failed to establish and/or implement policies, procedures, training and/or management processes to circulate and publish the Instructions for Use which warned about the timely replacement, proper site care, and proper monitoring of implanted hemo-dialysis catheters. The original Complaint further alleges that as a result of this negligence, the catheter was permitted to remain in the decedent Hazel Smart for almost 14 months and was subjected to applications of various ointments which resulted in a large hole in the arterial limb of the catheter. This product failure, it is alleged, led to the decedent Hazel Smart's massive hemorrhage on June 11, 2005, after her regularly scheduled dialysis with the Gambro Defendants, and ultimately her death on June 21, 2005.
The plaintiffs attached to the original complaint a certificate of the plaintiffs' attorney that reasonable inquiry had given rise to a good faith belief that grounds existed for the action against each defendant. The plaintiffs also attached to the original complaint a written opinion of an expert board certified in Hospital and Healthcare Administration that there appeared to be evidence of administrative/medical negligence, including a basis for each opinion. An opinion letter was also attached relating to the doctors.
The defendant Saint Mary's Hospital filed a Motion to Dismiss arguing that the court lacks subject matter jurisdiction and must dismiss this case because the Opinion letter provided by the plaintiffs failed to meet the requirements of Connecticut General Statute Section 52-190a. Specifically, Saint Mary's Hospital argues that the lawsuit presents an issue of medical malpractice requiring expert testimony, and the Opinion letter was not written by a similar health care provider.
The Gambro defendants have similarly filed a Motion to Dismiss arguing that the court lacks subject matter jurisdiction and must dismiss this case because the Opinion letter provided by the plaintiffs failed to meet the requirements of Connecticut General Statute Section 52-190a. The Gambro defendants contend that the Opinion letter was not written by a similar health care provider. The Gambro defendants further contend that an insufficient Opinion letter under the Statute is equivalent to having filed a Complaint without a written opinion at all. With regard to the Roer defendants it is alleged that they did not inquire about the warnings and correct use of the catheter, and failed to read the warnings, and could not render care to the patient in accordance with those warnings.
Dr. Gersten has moved to dismiss the Apportionment Complaint on the grounds that the opinion letter was not written by a similar health care provider and the physician bases his statements on his subjective belief on what the standard should be, not what is customary in the medical community.
The Roer defendants have moved to dismiss the plaintiffs' Complaint on the grounds that the Opinion letter states that there was no deviation from the standard of care as to the apportionment defendants.
The parties presented their oral arguments to the Court on August 27, 2008, at which time the Court reserved decision. All of the defendants rely upon the wording contained in Conn. Gen. Statutes Section 52-190a(c) in their position that the Court lacks subject matter jurisdiction.
II. DISCUSSION CT Page 14417
Connecticut General Statutes Section 52-190a, provides, in relevant part:
(a)No civil action or apportionment complaint shall be filed to recover damages . . . whether in tort or in contract, in which it is alleged that such injury . . . resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint 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 . . . 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 . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . (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.
The legislative intent leading to the original adoption of C.G.S. Section 52-190a and the amendments thereto, was "to discourage the filing of baseless lawsuits against health care providers" and to assure "that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence." LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990).
The plaintiffs contend that the medical negligence in this case is so obvious that an opinion letter is not required to support their claims. In other words, they state that it is common knowledge that one should read and heed the Instructions for Use which accompany a catheter, and an expert is no more qualified to attest to the merit of that claim than a non-expert. They further argue that although they did not believe it to be necessary, they attached an opinion letter related to the doctors and hospital in the event that a judge believed that an opinion letter would have been necessary. Further, they claim that this is a case of ordinary negligence and not medical malpractice.
In Trimel v. Lawrence Memorial Hospital Rehabilitation Center, CT Page 14418 61 Conn.App. 353, 764 A.2d 603 (2001), the Connecticut Appellate Court recognized that ordinary negligence claims would not require the good faith certificate which existed at the time. The statute was later amended to include the attachment of an opinion letter from a similar health care provider. "The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred." Thus, the Appellate Court developed a three-prong test of relevant considerations in determining whether a claim sounds in medical malpractice or ordinary negligence. The three areas of consideration are whether:
(1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.
Id. at 358.
In Trimel, the plaintiff, who had multiple sclerosis, underwent regular therapy sessions at the defendants' clinic. The defendants were medical professionals and the plaintiff was at their clinic for treatment, specifically her therapy session. Her session was to begin on the exercise mat, which required her to transfer from her wheelchair to the mat. The plaintiff had learned to perform these transfers without assistance. She would use a transfer board in the presence of a physical therapist. On the date in question she attempted to use her transfer board and fell from her wheelchair sustaining personal injuries. The question for the court was whether allowing the plaintiff to transfer unassisted on the day in question, after she had learned to perform the transfers without assistance, involved the exercise of medical judgment. The court, in what it referred to as a close question, decided that the decision involved a medical judgment and, thus, the Summary Judgment in favor of the defendants was upheld.
A similar test was approved by the Connecticut Supreme Court in Boone v. William W. Backus Hospital, 272 Conn. 551, 864 A.2d 1 (2005). In that case the physician was sued when he treated the plaintiff's four-year-old son for an earache by administering prescription medicine to which the boy was allergic. The medication contained penicillin, which plaintiff's counsel argued, was commonly known to cause an allergic reaction in many people. The doctor had refused to re-admit the plaintiff's son to the emergency room despite signs of allergic reaction. The trial court granted the defendant's motion for summary judgment, concluding that the plaintiff's claim sounded in medical malpractice rather than ordinary negligence and that the plaintiff, having failed to disclose any expert witnesses in a timely fashion, was precluded from offering the required testimony. Plaintiff had argued that the defendant's actions in administering the drug and subsequently refusing to treat or to re-admit him were so egregious that an average person could find them to be negligent and reckless on the basis of common knowledge and experience. The Supreme Court disagreed and held that the case involved the exercise of medical judgment. In its' opinion, the Court opined:
The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged malpractice occurred. Professional negligence or malpractice . . . is defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill or . . . the failure to exercise requisite medical skill.
Id. at 562.
The Court then proceeded to use the same three-prong test mentioned in Trimel and concluded that the administration of prescription medication is of a specialized medical nature and requires the exercise of medical judgment. It is noteworthy that the Supreme Court concluded that the "prescription of medication to a patient is inherently of a specialized medical nature because only licensed health care professionals may do so. See General Statutes Section 20-14c(3)." Boone, supra, 564. Thus, the entry of the Summary Judgment in favor of the defendants was affirmed.
In the instant case, there is no question that the defendants are sued in their capacities as medical professionals. Further, there is no question that the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship. The question for the Court is the third prong of the test: Is the alleged negligence substantially related to medical diagnosis or treatment and involved the exercise of medical judgment?
In Bourquin v. Melsungen, 40 Conn.App. 302, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996), the decedent died from Creutzfeld-Jacob disease ("CJD") contracted after receiving a human tissue dura matter brain graft. The packaging for the brain material that the defendants used included a written warning stating "For Investigational Use Only," "For Use in Canada Only," and "Laboratory Sample — For Testing Only." Bourquin v. Melsungen, 40 Conn.App. at 305. The plaintiff decedent's administrator brought a medical malpractice action against the defendants and alleged that they were negligent in failing to read the plain warnings on the packaging of the brain graft prior to implanting it in the decedent. While the plaintiff proffered expert testimony regarding the causal link between the brain graft and the decedent's CJD, the plaintiff filed a motion for late disclosure of an expert witness concerning standard of care. The trial court denied that motion, refused to allow the plaintiff to amend its complaint, and then dismissed the case for lack of expert testimony establishing the standard of care and the defendants' breach of it.
On appeal, the plaintiff contended that the trial court erred in dismissing the case because the defendants' failure to read the warning was such obvious, ordinary negligence that it was well within the common knowledge of the members of a lay jury to determine that the defendants were negligent, without any expert testimony. The Appellate Court agreed and noted that the requirement for expert testimony is indeed inapplicable where such ordinary negligence or gross want of care is within the common knowledge of a lay person. The Court reasoned that:
It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary. Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982). The plaintiff claims that his case falls within the exception, because the acts of negligence on which he now relies are the failure of the hospital to heed the warnings printed on Lyodura boxes and to investigate their significance . . . We conclude that the plaintiff's claim that the hospital was negligent in failing to investigate the source of the Lyodura it received from Tri Hawk, in the light of the alleged warnings on the packages, does not present an "esoteric or uniquely medical issue" requiring expert testimony for its determination. See Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 387, 505 A.2d 741 (1986). Whether reasonably prudent hospital personnel would have been alerted by the imprints to inquire about their significance is a question that can be resolved on the basis of the common knowledge that jurors possess. The failure to observe or heed a warning is not a novel basis for finding negligence.
Id. at 314-17
Likewise, in Taylor v. Blueridge Health Services Inc., Superior Court, Judicial District of Hartford at Hartford, Docket No. CV02-0819513 (February 15, 2005, Lavine, J.), wherein it was alleged that a counselor at a drug treatment facility had an inter-personal relationship with a member of one of her groups, Judge Lavine denied a Motion for Summary Judgment, in part, on the grounds that the negligence claims against the defendant did not require an expert because the claim of negligence was so gross as to be apparent to a lay person. Further, it was recently held that Conn. Gen. Stat. 52-190a did not apply to a situation wherein a patient was transported in a wheelchair and subsequently fell when allowed to go into a bathroom without the aid of the wheelchair. Viega v. New Milford Hospital, Superior Court, Judicial District of Waterbury at Waterbury. Docket No CV07-5005253 (October 29, 2007, Roche, J.) [ 44 Conn. L. Rptr. 397].
In 2005, Conn. Gen Stat. Section 52-190a was amended to require the attachment of a written opinion of a similar healthcare provider that there is evidence of negligence along with the good faith certificate of the attorney. The question arises, that, as a result of the 2005 amendment, is expert testimony now required in a negligence action against medical personnel even for those matters within the common knowledge of a layperson? Certainly, the presence of a requirement of a good faith certificate under the prior statute, did not preclude the Appellate Court from engaging in the three-prong analysis expressed in the Trimel case. While the appellate courts of Connecticut have not rendered an opinion on this issue since the amendment to the statute in 2005, appellate courts in other jurisdictions with similar medical malpractice statutes as Conn. Gen. Stat. Section 52-190a have held that there is a "common knowledge" exception to the requirement for a provision of a written expert opinion as to the standard of care and its breach. ExParte HealthSouth Corp. v. HealthSouth Medical Center, 851 So.2d 33 (Ala. 2002); Tousignant v. St. Louis County, 615 N.W.2d 53 (Minn. 2000); Hubbard v. Reed, 774 A.2d 495 (N.J. 2001); Mosberg v. Elahi, 605 N.E.2d 353 (N.Y. 1992); see also Joseph H. King, The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L. Rev. 51, 63-64 (2007).
In the Hubbard case, for example, the plaintiff filed a complaint for medical malpractice alleging a dentist pulled out the wrong teeth. The plaintiff did not attach the statutorily-required affidavit of merit from an appropriate expert stating the standard of care and the defendant's breach of it. See N.J.S.A. Section 2A: 53A-27. The trial court entered summary judgment for the defendants based on the plaintiff's failure to comply with the statute.
On appeal, the plaintiff alleged that the common knowledge exception took precedence over the statutory requirement of an affidavit of merit. The Supreme Court of New Jersey held that such an exception applied and that whether pulling a wrong tooth was negligent was a matter of common knowledge to a layperson that did not invoke the requirement of filing an affidavit of merit. The Court opined that:
The primary purpose of the Affidavit of Merit Statute is to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily can be identified at an early stage of litigation. As observed by the Appellate Division, the Affidavit of Merit Statute is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint, but with whether there is some objective threshold merit to the allegations. To demonstrate that objective threshold of merit, the statute requires plaintiffs to provide an expert opinion, given under oath, that a duty of care existed and that the defendant breached that duty. Yet, by definition, in common knowledge cases an expert is not needed to demonstrate that a defendant breached a duty of care. The doctrine applies where jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts. Thus, a plaintiff in a common knowledge malpractice case will not need expert testimony at trial to establish the standard of care or a deviation therefrom. The question, then, is whether an expert is nonetheless required to establish that plaintiff's claims meet the required threshold.
We consider first the purpose of the statute, to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court. If jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of the plaintiff's complaint. Although the Appellate Division points out that questions relating to evidence at trial and to the basis for the affidavit are quite different, broadly speaking, an affidavit serves little purpose when a plaintiff intends to rely on common knowledge at trial. Put another way, in a common knowledge case an expert is no more qualified to attest to the merit of a plaintiff's claim than a non-expert.
Id. at 499-500.
This Court has employed the three-prong analysis suggested in both the Trimel and Boone decisions. The communication of the catheter warnings in this case, much like the warnings contained in the Bourquin decision, do not require the exercise of medical judgment. The plaintiffs' claims of negligence raise the issue of obvious, ordinary negligence that is well within the common knowledge of the members of a lay jury to determine whether the defendants may be negligent, without any expert testimony. The warnings contained on the catheter in the instant case could be communicated to the patient and the patient's doctors through hospital administrators, staff, nurses, and other doctors. There is no intrinsic medical judgment, as there was in Boone, which must be exercised by doctors in this case. As stated in Bourquin, "The failure to observe or heed a warning is not a novel basis for finding negligence. Whether reasonably prudent hospital personnel would have been alerted by the imprints to inquire about their significance is a question that can be resolved on the basis of the common knowledge that jurors possess." Bourquin at 316-17. Therefore, the Court holds that the common knowledge exception applies to this case and that a good faith certificate and medical opinion were not necessary.
Conn. Gen. Statutes Section 52-190a does not eliminate the common knowledge exception to a medical malpractice action. In matters of ordinary negligence where there was no medical judgment exercised, as the Appellate Court recognized in Trimel, there was no requirement for a good faith certificate. Likewise, the fact that the Statute now requires a doctor's opinion to be attached to the complaint along with a good faith certificate does not change the application of the rule. The Statute was passed to avoid both the initiation and perpetuation of frivolous lawsuits. It was not designed to rid the system of cases of ordinary negligence which carry the obvious imprimatur of legitimacy on their face. In the Court's opinion this decision furthers the purpose of the Statute and does not run counter to the intent of the legislature.
III. CONCLUSION
For the foregoing reasons, all of the Motions To Dismiss currently pending before this Court are denied. The issues raised involve matters of ordinary negligence within the knowledge of the members of the jury. Therefore, there is no requirement that a good faith certificate and doctor's opinion letter be attached to this complaint pursuant to Conn. Gen. Statutes Section 52-190a.