Opinion
No. CV 10-6002479
September 9, 2010
MEMORANDUM OF DECISION
These motions challenge the sufficiency of the opinion letter attached to and supporting the plaintiff's complaint as to counts three and four. The plaintiff argues that the letters are sufficient and the motion must be denied.
FACTS
On January 6, 2010, the plaintiffs, Donald and Donna Noel, filed a six-count complaint against the defendants, Lawrence and Memorial Hospital, Inc. ("L M"), Emergency Medicine Physicians of New London County, LLC ("EMP") and Thomas Marchiondo, DO, alleging the following facts. On December 15, 2008, Noel went to L M, complaining of left arm numbness and slurred speech. A triage nurse examined Noel and found weakness in his left upper extremity. Marchiondo, who was on duty as an emergency room physician at the time diagnosed Noel with left cervical radiculopathy and sent him home. Thereafter, on December 22, 2008, Noel returned to the hospital complaining of left arm numbness and slurred speech. Noel was admitted to the hospital with a diagnosis of transient ischemic attack. The next day, Noel was transferred to Yale New Haven Hospital and, on December 24, 2008 surgery was performed on Noel to restore circulation through his right internal carotid artery. Count one of the complaint alleges negligence against Marchiondo. Count two of the complaint alleges loss of consortium. Counts three and four of the complaint allege negligence against L M and EMP, respectively. Counts five and six allege negligence against L M and EMP, respectively, under the doctrine of respondeat superior. The complaint was accompanied by a certificate of reasonable inquiry and good faith, along with an opinion letter from a medical expert.
Donald and Donna Noel will be referred to collectively as the Noels. Donald Noel will be referred to individually as Noel.
L M was served on December 15, 2009. EMP was served on December 30, 2009. Marchiondo was served, pursuant to General Statutes 52-59b, via the secretary of state on December 16, 2009. All parties have filed appearances in the present matter.
According to the complaint, Marchiondo was allegedly "employed by, was an agent of, and/or was the apparent agent" of both L M and EMP.
On February 5, 2010, L M filed a motion to dismiss the complaint's third count on the ground that the medical opinion letter failed to satisfy the requirements of General Statutes § 52-190a. The Noels moved for a continuance in order to cure the alleged deficiencies in the medical opinion letter and their motion was granted by the court, Devine, J., on February 18, 2010. On March 12, 2010, EMP filed a motion to dismiss the fourth count of the complaint on the ground that such count was deficient under § 52-190a. The Noels objected to EMP's motion on March 13, 2010 and EMP replied thereto on March 19, 2010. The court, Cosgrove, J., entered an order on April 5, 2010, continuing argument on EMP's motion.
The Noels subsequently filed a request to amend their complaint on April 20, 2010, and attached to that filing a second medical expert opinion letter. Argument on the motions to dismiss of both L M and EMP was heard by the court on May 24, 2010.
As no objection to the amended complaint was filed within the time proscribed by Practice Book § 10-60, the amended complaint is the operative complaint in the present matter. The body of the amended complaint is identical to that of the original complaint, thus the recitation of allegations outlined above is consistent with the operative complaint's allegations.
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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 183, 734 A.2d 1031 (1999).
Nonetheless, "motions to dismiss are not limited to jurisdictional challenges." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813, cert denied, 292 Conn. 911 (2009). "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; it does not affect the power of the court to hear [the plaintiff's] medical malpractice action. However, the legislature has provided that such a failure does render [the plaintiff's] complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Id., 583-84. Compliance with § 52-190a(c) is required for the court to exercise personal jurisdiction over the defendant health care providers.
I L M's Motion to Dismiss
L M initially moved to dismiss count three of the Noels' complaint for failing to satisfy the requirements of § 52-190a(a). In particular, L M argued that the medical opinion letter attached to the complaint contained only a conclusory allegation that L M deviated from the standard of care. The letter failed to provide a detailed basis for the formation of such opinion, as required under the statute.
The Noels subsequently filed an amended complaint. Attached thereto was the original opinion letter (the "first letter"), along with a second opinion letter (the "second letter") addressing alleged instances of misconduct on the part of L M in its treatment of Noel.
L M now argues that the second letter is likewise insufficient under the Appellate Court's decision in Wilcox v. Schwartz, 119 Conn.App. 808, 815-16, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010), because it does not identify specific policies that should have been in place at the time of the subject incident. The Noels counter that the second letter sets out specific procedures that were improperly administered by L M.
This portion of L M's argument was raised at the May 24, 2010, hearing and was not referenced in their original motion papers. L M's original motion to dismiss argued that the first letter failed to include a detailed basis for the opinion that L M deviated from the applicable standard of care. The parties have agreed that the amended complaint and letters attached thereto should be considered by the court in resolving the pending motions to dismiss.
"[General Statutes § ]52-190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make ` 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 good faith, the complaint . . . is required to contain a certificate of the attorney or party filing the action stating that `such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . .' General Statutes § 52-190a(a)." (Italics added.) Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 542, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009).
"[I]n order to fulfill the requirement of § 52-190a(a) and to provide assurance that `there appears to be evidence of medical negligence,' a claimant's written opinion from a similar health care provider need not address the issue of causation. Further, the opinion must indicate that there appears to be evidence of a breach of the standard of care . . . The ultimate purpose of this requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care. So 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. 815-16.
In Wilcox, the Appellate Court considered a written medical opinion that stated, "to a reasonable degree of medical probability, that there were deviations from the applicable standards of care by [a physician] and that the care and treatment provided to [the injured party] by [the physician] was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident." (Internal quotation marks omitted.) Wilcox v. Schwartz, supra, 119 Conn.App. 815. Furthermore, that opinion stated that the physician "failed to prevent injury to [the injured party's] billiary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure." Id. In finding the written opinion sufficiently detailed, the Wilcox court reasoned that "the structure of the document reveals the author's statement of the prevailing standard of care: protecting the billiary structures during laparoscopic gallbladder surgery. It is this standard of care, the author opines, that [the physician] breached in performing the surgery on [the injured party]." Id.
Count three of the present complaint alleges negligence on the part of L M. In particular, count three alleges that L M failed to have appropriate policies, procedures and protocols in place to guide hospital staff in the proper treatment of patients exhibiting weakness or numbness of an extremity. In addition, count three alleges that L M failed to follow existing procedures in its treatment of Noel and, furthermore, that it failed to supervise emergency room physicians, so as to ensure safe medical practices.
The second letter, authored by a board certified emergency physician and based upon a review of the medical records related to Noel's care, states that the author is "familiar with the standard of care for hospitals and emergency departments in 2008 as it relates to the symptoms, signs and condition that Mr. Noel presented with on December 15, 2008." The second letter goes on to state "that [L M] in New London, Connecticut deviated from the standard of care expected of the average qualified hospital." The second letter further states that such deviation resulted from L M "either failing to have in place or failing to comply with an adequate policy or procedure for the evaluation and care of patients presenting ischemic stroke symptoms and signs on December 15, 2008. Had these deviations from the standard of care not occurred, Mr. Noel's subsequent stroke and resultant neurologic disability would, more likely than not, have been prevented."
Applying the textual analysis of Wilcox to the second letter, the present author has opined that the prevailing standard of care is the maintenance of, or compliance with, an adequate policy or procedure for evaluating patients presenting signs of ischemic stroke. In failing to maintain or comply with such adequate policy or procedure, the author opines that L M has breached the prevailing standard of care. Thus, the second letter suffices to notify the reader that a similar health care provider is of the opinion that the medical negligence alleged consisted of a failure to maintain or comply with an adequate policy or procedure for evaluating and treating patients presenting symptoms of ischemic stroke on December 15, 2008. As the Noels' amended complaint alleges that L M failed to have in place or follow appropriate procedures to guide hospital staff in the treatment of patients exhibiting extremity weakness or numbness and alleges, by reference, that Noel went to L M on December 15, 2008, complaining of "left arm numbness and slurred speech," all alleged symptoms of ischemic stroke, the second letter sufficiently addresses the allegations of negligence pleaded in count three of the amended complaint.
II EMP's Motion to Dismiss
EMP moves to dismiss count four of the Noel's complaint on the ground that the attached medical opinion letters fail to satisfy the requirements of 52-190a(a). Count four of the complaint contains allegations against EMP substantially similar to those raised against L M in count three. In particular, count four alleges that EMP failed to maintain proper procedures and/or follow proper procedures with regard to Noel's treatment and symptomatic manifestations. Moreover, count four alleges that EMP failed to supervise emergency room physicians so as to ensure they practiced in a safe manner.
EMP argues that the first and second letters do not set forth any opinions regarding EMP's conduct. In particular, the letters fail to state that there was evidence of medical negligence on the part of EMP. The Noels respond that the extent of EMP's control in the present matter is unclear; thus, EMP should be bound by the same law, and held to the same standard, as L M.
Neither the first nor the second letter contain any mention of EMP. The first letter states that L M and Marchiondo "deviated from the standard of care expected of the average qualified hospital and emergency care physician in the care of [Noel]." The first letter goes on to describe specific instances where Marchiondo allegedly breached the standard of care. The second letter, as described above, concerns itself with the adequacy of L M's policies and procedures. Neither letter alleges that EMP breached the applicable standard of care and neither letter outlines instances of conduct that would allow for an inference of such breach. Thus, the medical opinion letters offered by the Noels are insufficient under § 52-190a(a) as against EMP.
CONCLUSION
Based on the foregoing, L M's motion to dismiss count three of the amended complaint is denied; EMP's motion to dismiss count four of the amended complaint is granted.