Opinion
No. FBT-CV09-5023443S
September 11, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
FACTS
In this wrongful death action, the plaintiff, Thomy Jaboin, in his capacity as administrator of the estate of Lydia Jaboin (the decedent), has brought suit against the defendants, Bridgeport Hospital (the hospital), Brian D. Baxt, Justin C. Cahill and Michael J. Werdmann. The complaint alleges the following facts. On March 24, 2007, the decedent became a patient of the emergency department of the hospital with complaints which included left calf pain without any previous history of trauma. At the request of a "Med-Now" walk-in clinic, the decedent went to the hospital in order to rule out deep venous thrombosis. At the time of the decedent's admission to the hospital, Baxt, Cahill and Werdmann held themselves out as specialists in emergency medicine and were "servants, agents, apparent agents and/or employees" of the hospital. The complaint alleges that each of the individual defendants "had concurrent control and acted in concert with each other herein as to the care, treatment, monitoring, diagnosing and supervision of the plaintiff's decedent . . ."
On April 24, 2007, the decedent died as a result of a massive pulmonary embolus caused by deep vein thrombosis. Consequently, the plaintiff alleges that the defendants failed to exercise reasonable care during the decedent's March 24, 2007 hospital visit, in that, inter alia, they failed to properly treat the decedent's deep venous thrombosis, incorrectly relied on a negative ultrasound to rule out deep venous thrombosis, misdiagnosed the decedent with a muscle strain, failed to take account of the decedent's symptoms that indicated deep venous thrombosis including an elevated d-dimer, failed to obtain a consultation with an internal medicine specialist and failed to administer the correct medication. Attached to the plaintiff's complaint are a certificate of reasonable inquiry, along with two medical opinion letters. The first letter, from J. Stephen Bohan, M.D., discusses the standard of care, whereas the second letter, from H. Brandis Marsh, M.D., addresses causation.
On May 14, 2009, the defendants filed a timely motion to dismiss and a memorandum of law in support. The defendants move on the basis that the plaintiff's complaint fails to adhere to the requirements of General Statutes § 52-190a. In response, the plaintiff filed a memorandum of law in opposition on June 17, 2009, which attaches copies of the decedent's medical records from the subject hospitalization, the Bohan and Marsh opinion letters, and numerous Superior Court cases. On the same date, the plaintiff also filed a "supplement to objection to motion to dismiss," which attaches a notarized affidavit from Bohan. On July 10, 2009, the defendants filed a reply memorandum, which provided the court with copies of Superior Court case law. This matter was argued at short calendar on July 13, 2009.
Counsel filed an appearance on behalf of all defendants on April 17, 2009.
DISCUSSION
"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." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "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 . . . 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 . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
The defendants move to dismiss this action on two grounds, both involving the plaintiff's alleged failure to adhere to the requirements of § 52-190a. First, the defendants argue that this action must be dismissed as to Baxt and Cahill because the attached medical opinion letters do not contain any expert opinion as to alleged deviations from the standard of care by Baxt or Cahill. Secondly, the defendants contend that dismissal is appropriate as to all defendants because the attached opinion letters do not discuss a causal connection between the defendants' alleged negligence and the death of the decedent. As a result of our Supreme Court's recent decision in Dias v. Grady, 292 Conn. 350 (2009), where the Supreme Court held that § 52-190a only requires a plaintiff to attach an opinion letter as to the standard of care, the defendants withdrew the lack of causal connection ground at oral argument. Accordingly, the court need only address the first ground raised in the defendant's motion to dismiss.
The plaintiff argues in response that the defendants' motion should be denied because (1) a motion to dismiss is not the proper procedural vehicle to challenge the sufficiency of an opinion letter from a similar health care provider, (2) the attached opinion letters are sufficient to maintain a cause of action against the hospital and its agents, including all of the individually named defendants, (3) the hospital records are unclear as to precisely which doctor misinterpreted the blood clotting study so the plaintiff has asserted this claim against all of the physicians who were listed as attending to the plaintiff and (4) § 52-190a does not implicate subject matter jurisdiction so the court should not dismiss this case when the attached opinion letters are lengthy and provide an exact basis for the expert's opinions. Additionally, the plaintiff has also provided an affidavit from Bohan, where he attests that his opinion letter was meant to apply to all of the individual defendants, as it is unclear from the hospital's records which of the physicians incorrectly failed to rule out deep venous thrombosis.
The defendants respond to the plaintiff's arguments by contending that (1) a motion to dismiss is the correct procedural device to challenge the sufficiency of an opinion letter from a similar health care provider, (2) the court cannot consider the Bohan affidavit as it is outside the face of the complaint and (3) this case must be dismissed as to Baxt and Cahill because the plaintiff has failed to attach an opinion letter regarding the actions of these physicians.
Before addressing the defendants' substantive arguments, it is first necessary to determine whether a challenge to the sufficiency of an opinion letter can properly be raised by a motion to dismiss. As I have previously noted, "Connecticut's appellate courts have not yet had occasion to address whether a motion to dismiss is the proper vehicle where the written opinion has in fact been filed, but the claim is that the opinion is insufficient." 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, 596). In Shankar, I reviewed the legislative history for Public Act 05-275, which amended § 52-190a effective October 1, 2005, and determined that the legislative history provided little guidance on the issue. In short, I found that while the legislative history includes discussions that a failure to file the written opinion would be grounds for a dismissal, the only reference in the legislative history with respect to the procedure to be filed where the written opinion is inadequate is found in the testimony of Attorney Mike Neubert to the Judiciary Committee. When this question was before me in 2007, I noted that, while there was a split in the Superior Court regarding this question, "[t]he majority of the trial courts that have decided the issue have held that a motion to dismiss should not be used to attack the sufficiency of the written opinion." Id. In their memorandum of law, the defendants argue that this split in authority was settled by the Appellate Court in Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008). A close examination of Rios, however, reveals that the plaintiff in that case failed to attach an opinion letter, and, therefore, that holding does not necessarily address the present situation which involves the issue of sufficiency.
In Shankar v. Midstate Medical Center, supra, 44 Conn. L. Rptr. 595, the court did not directly address the issue of whether the sufficiency of a medical opinion letter should be challenged on a motion to dismiss or on a motion to strike. Although raised in a motion to dismiss, the parties in Shankar agreed that the matter could be resolved by either a motion to dismiss or a motion to strike. Id., 597.
In its subsequent discussion of § 52-190a, the Appellate Court, in a case involving the plaintiff's failure to attach an opinion letter from a similar health care provider, stated that "[a] plaintiff's failure to comply with the requirements of § 52-190a (a) does not destroy the court's subject matter jurisdiction over the claim . . . However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c)." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911 (2009). This language suggests that the Appellate Court would uphold the dismissal of a case where the plaintiff has failed to adhere to the requirements of § 52-190a, which would include an insufficient opinion letter. Moreover, recently in Dias v. Grady, supra, 292 Conn. 350, the Connecticut Supreme Court considered a challenge to the sufficiency of an opinion letter in the context of a motion to dismiss. In Dias, the Supreme Court, while not called upon to address the issue of whether the defendants properly raised the issue in a motion to dismiss as opposed to a motion to strike, did not suggest that the issue was not correctly before them. As our Supreme Court has both addressed the sufficiency of an opinion letter in the context of a motion to dismiss, in the Dias case, and indicated that a failure to comply with the requirements of § 52-190a(a) renders the complaint subject to dismissal in the Votre case, it appears that the court may resolve this matter on the motion that is currently before it.
I will now address the defendants' argument that this case should be dismissed as to the defendants Baxt and Cahill because the attached opinion letters do not specifically reference their actions in treating the decedent. In both their memorandum of law and reply memorandum, the defendants urge this court to construe this case as if there were no letter from a similar health care provider, arguing that dismissal is therefore mandated. There are, however, two opinion letters attached to this complaint which must first be analyzed. See, e.g., Wood v. Caldwell, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 07 500584 (January 23, 2008, Scholl, J.) (rejecting the defendant's argument that motion to dismiss should be analyzed as if no opinion letter attached when defendant not referenced therein).
General Statutes § 52-190a(a) provides in relevant part: "No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 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. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment 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 . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion."
The plain language of § 52-190a(a) sets forth two requirements. The plaintiff, or his attorney, is required to provide a certificate of reasonable inquiry that states there is a good faith basis to believe that there are grounds for suit against each of the defendants, and, in order to show this good faith, the plaintiff must provide a signed opinion of a similar health care provider. The statutory language does not expressly mandate that the opinion letter specifically reference the conduct of each of the defendants, as suggested by the defendants. The clause "against each named defendant" follows only the requirement of the certificate of reasonable inquiry, not the requirement of an opinion letter. The plaintiff's certificate of reasonable inquiry states that "reasonable inquiry has given rise to a good faith basis that grounds exist for an action against the named defendants, BRIDGEPORT HOSPITAL, its agents, apparent agents, servants and/or employees and BRIAN D. BAXT, JUSTIN CAHILL, AND MICHAEL J. WERDMANN." Accordingly, the plaintiff's certificate of reasonable inquiry conforms with the requirements of § 52-190a, as it attests that there is a good faith basis for this lawsuit against each of the named defendants. In addition, the plain statutory language of § 52-190a suggests that as long as the opinion letter provides a sufficient basis for a good faith belief that there has been medical negligence, then the statutory mandate has been met.
Multiple Superior Court opinions also suggest this result. In a case that is procedurally analogous to the present matter, Sarfatti v. Hoffman, Superior Court, judicial district of New Britain, Docket No. CV 06 5000903 (August 18, 2006, Robinson, J.), the court held that "[i]f a health care provider's statement demonstrates that grounds exist for an action against a defendant without specifically naming such defendant, the statement establishes the requisite foundation for the attorney's certificate, and, therefore comports with the statute." Id. In Sarfatti, the plaintiff brought suit against two doctors, VNA Health Care, and a nurse employed by VNA Health Care named Witzke. The medical opinion letter only detailed alleged negligence on the part of VNA Health Care, and failed to reference any of the individual defendants by name. Referencing the motion to dismiss brought by nurse Witzke, Judge Robinson wrote that "[i]n ruling on a motion to dismiss, the court must consider the complaint's allegations, as well as reasonable inferences that arise from such allegations, in the light most favorable to the pleader . . . Based on the allegations that Witzke was a VNA nurse and that she was `continuously' responsible for the care of the decedent until the date of the decedent's death, the court finds that it is reasonable to infer that Witzke was the VNA nurse primarily, if not solely, responsible for the decedent's care and that the potential negligence of the VNA referenced in the nurse's opinion provides a basis for the assertion in the attorney's certificate that `injury has given rise to a good faith belief . . . that grounds exist for a negligence action against . . . Witzke.'" (Citation omitted.) Accordingly, Judge Robinson denied Witzke's motion to dismiss.
Similarly, many Superior Court judges, including this court, have held that an opinion letter that only discusses alleged negligence on the part of a doctor is sufficient to withstand a motion to dismiss brought by a defendant hospital. In Shankar v. Midstate Medical Center, supra, 44 Conn. L. Rptr. 595, the plaintiffs brought suit against a hospital and its employee doctor. The plaintiffs' opinion letter only referenced the actions of the doctor. On the hospital's motion to dismiss, the court held that "[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." Id., 598. As a result, the court held that "[t]he opinion letter required by § 52-190a need not serve as a template for the complaint, nor must it provide such detail that a defendant will have no need for any further discovery. The plaintiffs in this case have served the purposes of the statute, by filing with the complaint a written opinion letter which identifies and provides details for the basis of their claims. The threshold requirement that there is a basis for a medical malpractice claim has been satisfied by virtue of the written opinion which also serves the purpose of identifying the basis of the claim for defense counsel at the inception of the suit." See also Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) ( 44 Conn. L. Rptr 347) (in context of motion to dismiss, certificate of good faith and opinion letter discussing doctor's negligence sufficient to allege liability of a hospital); DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 5010472 (August 5, 2008, Berger, J.) ( 46 Conn. L. Rptr. 121) (in context of motion to dismiss, no requirement for separate opinion letters for each defendant); Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Lagenbach, J.) ( 43 Conn. L. Rptr. 195) (same).
In the present case, the opinion letter written by Bohan provides a detailed discussion of the alleged negligence of the hospital and its employees. The letter states that "[t]he treatment received by Lydia Jaboin at Bridgeport Hospital fell below the standard of care. The physician and hospital failed to rule out deep vein thrombosis as a diagnosis and thus had the duty to provide or recommend a definitive course of follow-up care and diagnosis. First, the patient's pain was localized in her calf. The ultrasound only examines the upper leg. Therefore, based upon this patient's clinical presentation, the ultrasound done had very very limited negative predictive value . . . Secondly, the D-dimer test was markedly positive — more than seven times the cut-off point . . . Based upon the foregoing, it can be said with a reasonable degree of medical probability that the Bridgeport Hospital and Dr. Michael J. Werdmann deviated from the applicable standard of care in attempting to rule out a diagnosis of deep vein thrombosis in this patient." (Emphasis in original.) Furthermore, the complaint specifically alleges that "the defendant, BRIDGEPORT HOSPITAL, and its servants, agents, apparent agents, and/or employees, including the co-defendants, BRIAN D. BAXT, JUSTIN C. CAHILL, and MICHAEL J. WERDMANN, had concurrent control and acted in concert with each other herein as to the care, treatment, monitoring, diagnosing and supervision of the plaintiff's decedent, LYDIA JABOIN." Read together, the allegations of the complaint and the opinion letter suggest that all of the defendants were negligent, including Baxt and Cahill. Accordingly, the plaintiff has satisfied the requirements of § 52-190a, in that the plaintiff has submitted an opinion letter that shows there is a good faith belief to bring this action as to all of the defendants. As a result, the motion to dismiss is denied.
Having decided that the attached opinion letters satisfy the requirements of § 52-190a, it is unnecessary to determine whether the court can examine the Bohan supplemental affidavit. I would note, however, that Practice Book § 10-31(b) provides that "[a]ny adverse party who objects to [a motion to dismiss] shall . . . file and serve in accordance with Secs. 10-12 though 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record." Therefore, when responding to a motion to dismiss, our rules of practice expressly authorize the filing of an affidavit to explain facts that are unclear from in the record. While this affidavit was filed as a supplemental document, and not technically attached to the plaintiff's memorandum of law in opposition, it was filed the same day as the plaintiff's memorandum of law, and it would appear that the court has the authority to consider it. Moreover, our Appellate Court has recently taken the position that since a plaintiff's failure to adhere to § 52-190a does not divest the court of subject matter jurisdiction, a court has discretion to allow a plaintiff to attach an opinion letter after the complaint has been filed. The Appellate Court has stated that "[g]iven the fallibility existing in the legal profession . . . it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 585. If the Appellate Court has given a trial court the authority to allow a plaintiff to amend the complaint to add an opinion letter, it seems reasonable that the court could consider an affidavit that explains the existing opinion letter.