Opinion
No. CV 11-6019721-S
September 16, 2011
MEMORANDUM OF DECISION MOTION TO DISMISS
This is a medical malpractice action brought by the plaintiff, Maria Maccarone, against the defendants, Michael Golioto, Connecticut Gastroenterology Medical Associates, P.C. (CGMA) and Hartford Hospital. Before the court is the motion to dismiss filed by Hartford Hospital (#108). In its motion, Hartford Hospital argues that count two of the plaintiff's complaint should be dismissed because (1) the written opinion appended to the complaint pursuant to General Statutes § 52-190a was not authored by a "similar health care provider," in violation of that section, and (2) such written opinion lacks a "detailed basis" for the author's opinion, also in violation of that section. For the reasons that follow the court denied the motion to dismiss.
In count two of the complaint, the plaintiff alleges as follows. Golioto was a licensed physician who had privileges at Hartford Hospital to perform colonoscopies and endoscopies. He was an officer, agent, owner and/or employee of CGMA as well as Hartford Hospital. The plaintiff, a seventy-nine-year old woman with multiple diverticula sought and received services from Golioto, namely a colonoscopy and upper endoscopy as part of a work up for anemia. Following the procedures, the plaintiff complained of abdominal pain, cramping, distention and inability to eat. She was sent home without examination or testing despite repeated complaints. Over the next few days Golioto and CGMA received several calls on behalf of the plaintiff reiterating the same complaints. A few days later, the plaintiff was brought via ambulance to Hartford Hospital, where she was found to have perforations in her colon, requiring emergency surgery. These injuries were caused by the defendants' failure to perform the procedures in a manner that protected the colon from perforation and their subsequent failure to take action to recognize and repair the damage. In addition, Hartford Hospital and its agents and employees were negligent in failing to have procedures for recognizing and detecting colon perforations following colonoscopies and endoscopies, failing to train properly its agents and employees to test for such injuries and failing to heed the plaintiff's complaints of pain post procedure.
Hartford Hospital appeared in this action on March 29, 2011. The next day, it moved for an extension of time of thirty days, until May 30, 2011, to file a responsive pleading. The court granted the motion. Thereafter, on May 25, 2011, Hartford Hospital filed the present motion to dismiss and a supporting memorandum of law (#109). The plaintiff filed an objection to the motion (#112) on June 15, 2011. On June 28, 2011, Hartford Hospital filed an amendment to the motion to dismiss (#114), along with a memorandum of law (#115). The next day, it filed a reply memorandum in support of its original motion (#116). On July 5, 2011, the court heard oral argument and ordered supplemental briefs on the issue of whether the amendment to the motion to dismiss was timely.
I
As a preliminary matter, before addressing the substantive issues raised by the motion, the court must resolve the issue of the timeliness of both the amendment and the original motion to dismiss.
A Amendment to Motion to Dismiss
The first issue of timeliness is whether the amendment to the motion to dismiss, filed on June 28, 2011, is timely and can be considered by the court. On July 12, 2011, after the court ordered the supplemental briefs, the Supreme Court issued its decision in Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011). In that case, the Court held that a motion to dismiss filed pursuant to General Statutes § 52-190a(c) implicates the personal jurisdiction of the court. See id., 402. The court then held that, consequently, the thirty-day time limit of Practice Book § 10-30 and the waiver provisions of Practice Book § 10-32 apply to these motions to dismiss. See id., 404.
General Statutes § 52-190a(c) provides: "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." In turn, subsection (a) of § 52-190a provides, in relevant part: "No civil action . . . 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 . . . 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 . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named 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, 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."
Practice Book § 10-30 provides, in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance."
Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30."
The plaintiff argues that, on the basis of Morgan, the amendment to the motion to dismiss is untimely and must be denied on that basis. She contends that, since Hartford Hospital filed the amendment on June 28, 2011, more than thirty days after filing its appearance, § 10-32 bars consideration of the amendment as untimely. Hartford Hospital argues that the court has the power to accept the amendment as timely, as long as there is no prejudice or undue delay that would result.
The plaintiff also contends that amendment was filed out of the order of pleadings mandated by Practice Book § 10-6, because the defendant had previously filed a request to revise (#110). For reasons articulated later in this memorandum, the court does not need to address this argument.
The amendment was filed not only more than thirty days after Hartford Hospital filed its appearance, but also beyond the date to which it specifically requested an extension of time in order to plead, i.e., May 30, 2011. Section 10-32 explicitly states that "[ a]ny claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed . . . within the [thirty day time limit of § 10-30]." (Emphasis added.) The amendment is essentially an attempt to raise a separate claim of lack of personal jurisdiction not raised in the original motion. Since the claim raised in the amendment was not brought in a timely manner, the amendment cannot be considered by the court.
Hartford Hospital cites Gianquitti v. Shepard, 53 Conn.App. 72, 76-77, 728 A.2d 1133 (1999), in support of its argument that the court has discretion to permit the amendment, despite its untimeliness. That case is distinguishable because it involved an attempted amendment of an answer, a pleading not subject to §§ 10-30 or 10-32.
B Timeliness of Original Motion to Dismiss
The plaintiff argues, also on the basis of Morgan, that the original motion to dismiss is untimely, despite being filed within the time period for filing a responsive pleading as extended by the court. The plaintiff cites Pitchell v. Hartford, 247 Conn. 422, 722 A.2d 797 (1999), for the proposition that the thirty-day time limit of § 10-30 is mandatory and may not be extended by order of the court. Thus, the plaintiff concludes that, since the original motion to dismiss was filed more than thirty days after Hartford Hospital entered its appearance, it must be denied as untimely despite the court's order extending the time to file a responsive pleading. Hartford Hospital argues that neither Pitchell nor any other appellate case explicitly holds that the thirty-day limit may not be extended by order of the court. It contends that, in fact, the court has flexibility with respect to the rules of practice and that there are Superior Court judges that have allowed personal jurisdictional challenges beyond thirty days but within the time to plead as extended.
Pitchell v. Hartford, supra, 247 Conn. 422, does not explicitly state that the court may not extend the time to file a motion to dismiss for the purpose of filing a challenge to the court's personal jurisdiction. There was no motion for extension of time filed in that case and the court never ordered any extension of time. The Court simply held that § 10-32 "specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Id., 433.
Some Superior Court cases interpret the above quoted language from Pitchell as rendering the thirty-day limit mandatory and not subject to extension by the court. See, e.g., State v. Four Health Drugs, LLC, Superior Court, judicial district of Hartford, Docket No. CV 01 0807586 (March 30, 2004, Sheldon, J.) ( 36 Conn. L. Rptr. 748) ("Extension of the deadline for any reason, on a motion for extension of time to file a responsive pleading or otherwise, would be completely inconsistent with the relevant language of the Practice Book, which makes no provision whatsoever for such extensions. Granting extensions to some defendants and not others, moreover, would surely lead to the very result that the Pitchell Court sought to avoid by issuing its strongly worded decision . . ."); accord Mazzone v. Carranza, Superior Court, judicial district of New Britain, Docket No. CV 07 5004401 (October 19, 2007, Shapiro, J.) ( 44 Conn. L. Rptr. 546); Neutrocrete Systems, Inc. v. Everett Corp., Superior Court, judicial district of New Haven, Docket No. CV 05 4009574 (November 3, 2005, Lopez, J.) ( 40 Conn. L. Rptr. 288).
There are other cases, however, that allow challenges to personal jurisdiction beyond thirty days but within the time limit as previously extended by the court. See, e.g., Dorry v. New Milford Hospital, Inc., Superior Court, complex litigation docket at Waterbury, Docket No X10 CV 09 6004823 (April 29, 2011, Dubay, J.); Medina v. Garcia, Superior Court, judicial district of New Britain, Docket No. CV 06 5000784 (October 31, 2006, Pittman, J.) ( 42 Conn. L. Rptr. 260); Smith v. McKeough, Superior Court, judicial district of New London, Docket No. 123757 (August 19, 2002, Hurley, J.T.R.).
The court finds Dorry v. New Milford Hospital, Inc., supra, Superior Court, Docket No X10 CV 09 6004823 persuasive. That case is factually analogous to the present one: the defendant timely moved for an extension of time to file a responsive pleading and filed the motion to dismiss within the time period as extended. Id. The plaintiff argued that the thirty-day time limit was mandatory and that the extension was ineffective to render the motion timely. Id. The court disagreed, stating: "Practice Book § 1-8 provides: `The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.' Moreover, the [r]ules of practice must be construed reasonably and with consideration of this purpose . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding." (Internal quotation marks omitted.) Id. The court finds that it would be unjust, within the meaning and spirit of § 1-8, for the court to grant a party an extension of time to file a responsive pleading and then, only after the party acted in reliance upon the extension, deem it ineffective and deny the responsive pleading as untimely. Thus, the court deems the original motion to dismiss to be timely filed.
II
The court now turns to the merits of the motion to dismiss. "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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
A
Hartford Hospital's first argument is that, with respect to count two, the written opinion is not authored by a "similar health care provider" as required by § 52-190a(a). Specifically, it contends that, since count two attempts to hold it vicariously liable for the actions of unnamed doctors and nurses, the letter cannot comply with that requirement because the complaint fails to allege the type of medical professional or professionals of whose conduct the plaintiff complains. The plaintiff contends that, with respect to an institutional defendant, the written opinion need only address the conduct of one of its agents in order to be sufficient against such defendant.
Reading count two in the light most favorable to the plaintiff, the allegations are sufficiently stated to hold Hartford Hospital vicariously liable for the conduct of unnamed physicians, nurses and other agents as well as Golioto himself. In fact, it explicitly incorporates by reference the allegations of count one, which references the alleged negligence of Golioto. In its original motion to dismiss, Hartford Hospital does not contend that the letter was not authored by a "similar health care provider" with respect to Golioto. Thus, the issue becomes whether a letter that is sufficient as to one agent of an institutional defendant, namely Golioto, is sufficient as to the institution, even if negligent conduct of other agents is also claimed.
There is no appellate authority addressing the question of what constitutes a "similar health care provider" for an institutional defendant. The majority of Superior Court decisions agree with the plaintiff's position. See Barrett v. Eastern Connecticut Health Network, Inc., Superior Court, judicial district of Hartford, Docket No. CV 10 6006126 (January 28, 2011, Peck, J.) ( 51 Conn. L. Rptr. 404.). "[T]he majority of decisions . . . hold that the written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution. [Section 52-190a] does not require the plaintiff to identify the name of each individual who acted on behalf of the corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in 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 . . . [T]he legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiff who, the legislature determined, might otherwise institute meritless claims." (Internal quotation marks omitted.) Id. Moreover, "[i]t would be unwieldy at best, not to say unnecessary and unhelpful 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." (Internal quotation marks omitted.) Id. The court adopts this reasoning. Therefore, the plaintiff's failure to name every single potentially negligent agent of Hartford Hospital and obtain a written opinion with respect to each of them is not fatal to her claim. That she has a written opinion sufficient with respect to Golioto, one such agent, is enough to render it sufficient as to Hartford Hospital.
B
Hartford Hospital's second argument in favor of dismissal is that the written opinion is insufficiently detailed to meet the "detailed basis" requirement of § 52-190a. It argues that several allegations of negligence pleaded in count two are not addressed in the attached written opinion including the failure to have and/or follow procedures and the failure to properly train staff. The plaintiff contends that the written opinion is sufficient because it meets the requirements of the Appellate Court's decision in Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).
Wilcox is the only appellate authority articulating the level of detail necessary to meet the "detailed basis" requirement of the statute. In that case, a patient brought a medical malpractice claim against her physician, alleging that he "breached the applicable standard of care in that he: (1) failed to assure the adequate and accurate identification of [the patient's] internal anatomy prior to proceeding with the laparoscopic cholecystectomy, (2) failed to prevent injury to [her] biliary structures during the laparoscopic cholecystectomy and (3) failed to accurately document the surgical procedure . . ." (Internal quotation marks omitted.) Wilcox v. Schwartz, supra, 119 Conn.App. 811. The defendant physician moved to dismiss, arguing that the written opinion was insufficiently detailed. Id., 812. The court disagreed and reversed the trial court's dismissal of the action. See id., 817.
Hartford Hospital's argument that the failure to address several of the allegations of count two renders the written opinion insufficiently detailed is undermined by Wilcox. The written opinion in Wilcox did not address the first of the patient's three allegations of negligence but, nevertheless, the court found it to be sufficiently detailed. See id., 811-12; see also Steinmann v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV 11 6017158 (May 24, 2011, Wilson, J.) ("[ Wilcox] stands for the proposition that not all allegations of negligence need be addressed."). Instead, the rule is "[s]o long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint . . . the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose." Wilcox v. Schwartz, supra, 119 Conn.App. 816. The court finds the reasoning of Steinmann v. Doyle, supra, Superior Court, Docket No. CV 11 6017158, with respect to this rule to be persuasive. In Steinmann, Judge Wilson held that "[t]he court in Wilcox articulated no explicit rule [as to what "sufficiently addresses" means], but it apparently chose to discuss the written opinion's inclusion of the second allegation because it was the one specification of negligence pertaining to the actual performance of the surgery . . . This strongly suggests that a written opinion need only address the allegations of negligent conduct that are central to the procedure that allegedly caused the plaintiff's injury; that allegations of negligence that relate to the preparation for the procedure or are otherwise only tangential to the actual procedure need not also be addressed." (Citation omitted; internal quotation marks omitted.) Id.
The allegations of the failure of the hospital to have proper policies and procedures or proper training, or the failure of hospital employees to follow specific directions given by Golioto are not central to the cause of the injury. Rather, the key allegations involve the failure to respond to the plaintiff's post-operative complaints of pain and thereafter recognize and treat the perforations in a timely fashion. The deficiencies claimed by the defendant concern only tangential allegations of negligence and do not render the written opinion insufficiently detailed.
CONCLUSION
Accordingly, for all the foregoing reasons, the motion to dismiss is hereby denied.