Opinion
No. CV 09-5025623-S
January 28, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S SECOND MOTION TO DISMISS PURSUANT TO GENERAL STATUTES 52-190a #119
The issue presented in this motion is whether the written opinion attached to the plaintiff's complaint is sufficiently detailed to comply with General Statutes § 52-190a. The instant motion pertains to the plaintiff's revised complaint dated August 11, 2009. Count one of that complaint is entitled lack of informed consent as to the defendant Christopher Clyne, a cardiologist (Dr. Clyne); count two is entitled negligence as to Dr. Clyne; count three is entitled vicarious liability as to the defendant Hartford Hospital re: informed consent; and count four is entitled vicarious liability as to Hartford Hospital re: medical negligence.
Section 52-190a provides in relevant part: "(a) 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 . . . 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, 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 . . ."
It should be noted at the outset that the plaintiff's original complaint contained one count against Dr. Clyne and one count against Hartford Hospital. In that complaint, the count against Dr. Clyne contained paragraphs that alleged that Dr. Clyne failed to obtain informed consent from the plaintiff and paragraphs that alleged that Dr. Clyne failed to properly perform certain procedures upon the plaintiff. In the count against Hartford Hospital, the plaintiff alleged that the hospital was vicariously liable for Dr. Clyne's medical negligence, and the plaintiff also alleged negligence on the part of physicians and staff of Hartford Hospital. On March 30, 2009, the defendants filed a motion to dismiss claiming that the written opinion attached to the complaint did not satisfy § 52-190a. Thereafter, on May 20, 2009, the defendants filed a request to revise requesting that the plaintiff separate the paragraphs alleging lack of informed consent and the paragraphs alleging professional negligence into separate counts.
In ruling on the first motion to dismiss, this court noted that a request to revise had been filed and that the plaintiff had agreed to separate his allegations into separate counts. This court denied the motion to dismiss without prejudice and stated, "[o]nce the specific claims of negligence against each defendant are delineated in separate counts, a thorough review for compliance with § 52-190a can be conducted." See ruling on motion to dismiss pursuant to General Statutes § 52-190a (#104, July 21, 2009, noted as 116.10). The plaintiff filed his revised complaint on August 11, 2009 and on August 25, 2009 the defendants filed the instant motion to dismiss.
ALLEGATIONS IN REVISED COMPLAINT
The defendants ask the court to dismiss counts two and four of the revised complaint on the ground that the plaintiff failed to obtain a written expert opinion that is sufficiently detailed to support an allegation of medical negligence, as required by § 52-190a. As noted earlier, counts two and four allege medical negligence on the part of Dr. Clyne, and vicarious liability as to Hartford Hospital for said alleged medical negligence. In the original complaint, the plaintiff made independent allegations of negligence against Hartford Hospital, which are not contained in the revised complaint.
It is appropriate to summarize the plaintiff's allegations regarding the lack of informed consent allegations as to Dr. Clyne contained in count one. The plaintiff states that he complained to Dr. Clyne about heart palpitations that had occurred over ten years. He further states that Dr. Clyne recommended ablation of an extra or accessory electrical pathway affecting the plaintiff's heart, and that Dr. Clyne presented ablation as the only treatment alternative. The plaintiff further alleges that Dr. Clyne was negligent in that he failed to fully explain the risks and benefits of the procedure, failed to disclose his level of experience in performing the procedure, and failed to explain all treatment alternatives.
In count two, the plaintiff alleges two specific acts of medical negligence: first, that Dr. Clyne failed to properly perform the RF ablation and cryoablation procedure, thereby causing damage to the electrical conductivity of the plaintiff's heart, and second, that he failed to recognize, during the surgery, that he had caused damage to the electrical conductivity of the plaintiff's heart. These allegations were incorporated by reference in count four as to the plaintiff's claim that Hartford Hospital is vicariously liable for Dr. Clyne's medical negligence
THE OPINION LETTER
The plaintiff attached to his original complaint an opinion letter from a board certified cardiologist who stated that he had reviewed the medical records related to the care and treatment of the plaintiff. The cardiologist gave the following opinion: "Based upon my review of these records, it is my opinion that there is evidence of medical negligence on the part of Dr. Clyne/Hartford Hospital in his medical management, care and treatment of Ian Osborn as follows: negligent failure to properly inform the patient of treatment alternatives including medication; negligent failure to properly inform the patient of all the risks and benefits of all treatment alternatives; negligent failure to inform the patient of Dr. Clyne's experience performing cryoablation. As a result of this negligence, Ian Osborn suffered damages." This opinion is dated December 16, 2008.
In his objection to this motion to dismiss, the plaintiff attached a supplement to the physician's opinion that is dated November 16, 2009. The operative language in that supplemental opinion is as follows: "It is a violation of the standard of care to fail to offer the least invasive, least risk treatment alternative which has substantial benefit for most patients. The patient expressed the desire to avoid risk of a pacemaker. The standard of care requires presenting all treatments because failure to do so is essentially a management, care and treatment choice by the doctor and not the patient. Dr. Clyne's management, care and treatment of the plaintiff, therefore violated the standard of care causing damages."
DISCUSSION
The requirements of § 52-190a have been the subject of numerous Superior Court decisions. Since the 2005 amendment to the statute, a series of appellate decisions have resolved several of the controversies that were the subject of earlier decisions. See Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008) ("[t]he plain language of [the statute] . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a)"); Dias v. Grady, 292 Conn. 350, 359-60, 972 A.2d 715, aff'd, (2009) (Section 52-190a does not require that written opinion submitted in medical malpractice action must address causation).
The recent case of Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009) is informative here. In Bennett, the Court upheld the dismissal of a medical malpractice action against a physician "because the opinion letter submitted by the plaintiff was not authored by a similar health care provider . . ." Id., 550. After reviewing the language of § 52-190a, the court stated, "[t]hus, an action is subjected to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." (Emphasis added.) Id., 545. A reading of § 52-190a shows that the physician's opinion is required to support the good faith belief of the claimant, or the claimant's attorney, that there has been "negligence in the care or treatment of the claimant."
After carefully considering the allegations of medical negligence contained in the plaintiff's revised complaint and the opinions expressed in the physician's opinion letters, the court concludes that the opinions are not sufficiently detailed as to the allegations of medical negligence contained in count two. In fact, the physician's opinions do not discuss or mention the two allegations of medical negligence contained in that count. A review of the December 16, 2008 opinion as well as the November 16, 2009 supplement shows that the physician opined that there was a negligent failure to properly inform the patient about treatment alternatives, risks and benefits of alternative treatments, and Dr. Clyne's experience performing cryoablation. These opinions may support the plaintiff's allegations in the lack of informed consent count, but they do not offer any substantiation of the medical negligence counts.
Count two of the revised complaint alleges that Dr. Clyne was negligent in that he failed to properly perform certain procedures upon the plaintiff and that he failed to recognize damage he allegedly caused to the plaintiff's heart. This count, in essence, alleges that Dr. Clyne was negligent in his care and treatment of the plaintiff. The plaintiff did not submit documentation from a similar health care provider that contains an opinion that Dr. Clyne was negligent in his care and treatment of the plaintiff in the ways alleged in count two. Consequently, the plaintiff has not complied with the requirements of § 52-190a as to his cause of action for medical negligence.
The plaintiff argues that his medical negligence action should not be dismissed because he has complied with § 52-190a as to his lack of informed consent cause of action, which is considered a medical malpractice action. See Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987) ("where a patient seeks recovery against a physician based upon a lack of informed consent, he is bringing a `malpractice' action"). This argument ignores the holding of later cases. "A claim against a physician for negligence based on lack of informed consent is separate from a claim based on negligence in medical treatment, because it is based on information communicated by the physician to the patient before the procedure or treatment." Sherwood v. Danbury Hospital, 278 Conn. 163, 181, 896 A.2d 777 (2006). "The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks is not merely linguistic. It reflects, instead, the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care." Pekera v. Purpora, 80 Conn.App. 685, 691, 836 A.2d 1253 (2003), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005).
The plaintiff cannot use an opinion letter related to lack of informed consent to support his action for medical negligence; to hold otherwise would allow the plaintiff to circumvent the requirements of § 52-190a. Since the plaintiff has not complied with the requirements of § 52-190a as to the allegations pertaining to medical negligence, the court is obliged to dismiss those counts in which they are contained.
For the foregoing reasons, the court grants the motion to dismiss counts two and four of the plaintiff's revised complaint.