Opinion
No. CV06 5002865S
February 16, 2007
MEMORANDUM OF DECISION
FACTS
The plaintiff, Scott Ouellette, as fiduciary for the estate of Alla Lee Harrison, filed a single-count complaint for medical negligence on March 28, 2006.
In his complaint the plaintiff alleges the following facts. Harrison was a patient and resident of the Brook Hollow Health Care Center, the defendant. She had multiple sclerosis and, as a result, very limited mobility. In order to be moved from her bed to her wheelchair, she required the use of a sling device. On January 1, 2005, while being moved in "a sling of excessive size," her left foot was caught on the supporting arm of the sling, causing her to fracture her left thigh. She was then transferred to West Haven Veteran's hospital, dying several days later on January 7, 2005, from a myocardial infarction. The plaintiff claims damages for medical expenses, pain and suffering, loss of enjoyment of life's activities and wrongful death.
The plaintiff attached a certificate of good faith and an affidavit from a medical professional, which opined that Harrison's leg fracture was caused by the defendant, Brook Hollow Health Care Center, LLC's, deviation from an acceptable standard of care, and that the fracture was a substantial factor in her death.
The defendant filed this motion to dismiss on the ground that the affidavit attached to the complaint was insufficiently detailed to comply with § 52-190a(a), and, therefore, this court lacks subject matter jurisdiction pursuant to § 52-190a(c). The defendant attached a memorandum of law in support thereof. The plaintiff filed a memorandum of law in opposition. The issue in this matter is the sufficiency of the written opinion of the healthcare provider.
DISCUSSION CT Page 3055
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "Pursuant to [Practice Book § 10-31], a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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 . . . 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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).
The defendant moves to dismiss the action on the ground that the health care provider's opinion submitted by the plaintiff does not provide any basis for the opinion, as required by § 52-190a(a). The defendant argues that the opinion was "in affidavit form and written in legalese," did not sufficiently include a detailed basis for the formation of the opinion, and merely stated in a conclusory fashion that the transfer of Harrison represented a deviation from the acceptable standard of care. The defendant further argues that the language of the statute and the legislative history indicate that the medical opinion requirement is mandatory, and implicates the court's subject matter jurisdiction; therefore, this court is required to dismiss the action.
The plaintiff counters that the medical professional's affidavit he submitted meets the requirements of § 52-190a. He argues that the facts are straightforward and provide the defendant with all the knowledge necessary to know the basis of the plaintiff's claim. The legislative history, according to the plaintiff, demonstrates that the purpose of the written opinion requirement is merely to give defendants notice of the good faith basis of the allegations against them, which the present plaintiff's medical opinion has done adequately.
THE LAW
Section 52-190a, as recently amended, requires a plaintiff's attorney in any medical malpractice action to 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." General Statutes § 52-190a(a). Moreover, "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 [§ ]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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate." General Statutes § 52-190a(a). The amendment also added an enforcement mechanism: "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." General Statutes § 52-190a(c).
Prior to the amendment of § 52-190a by Public Acts 2005, No. 05-275, the statute did not require the plaintiff to append the actual opinion of the expert, just a good faith certificate by attorneys that they had made a "reasonable inquiry" that grounds exist for a good faith belief in the negligence of a health care provider, and there was no subsection (c) providing a penalty for failure to comply. See General Statutes (Rev. to 1987) § 52-190a.
Since the amendment requiring a written opinion of a similar health care provider is relatively recent, there exists no appellate authority, and only a few Superior Court cases have considered it. Those courts that have considered the precise issue of how detailed the written opinion must be to comply with § 52-190a, however, are substantially in agreement; when the plaintiff has submitted the opinion of a health care provider with his or her complaint, the jurisdictional hurdle is cleared, and deficiencies therein are not grounds for dismissal.
In Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001608 (October 2, 2006, Adams, J.), the defendant's motion to dismiss based a on the insufficiency of the written opinion was denied. The court "disagree[d] that § 52-190a(a) requires that the similar healthcare providers' certification must opine that the medical care which is the subject of the complaint deviated from the applicable standard of care in so many words. Such a requirement does not appear in the statute which requires only an opinion that there `appears to be evidence of medical negligence.' This court concludes that the certification's statement that `the injury suffered by [the plaintiff] is directly related to the lack of appropriate caution practiced by the operating surgeon' meets this requirement. Additionally, the certification, while terse, provides sufficient details." Id.
In Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 222). In holding the medical opinion proffered by the plaintiff sufficient, the court noted that "the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of [§ 52-190a] or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action. Because this court cannot read something into [this] statute . . . nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature . . . this court should not interpret the amended statute . . . [as creating] a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 225. The court in Andrikis also scrutinized the legislative history, and concluded that the functional purpose of the requirement was merely to corroborate the "good faith certificate" that the attorney had conducted a reasonable inquiry into the merits of the claim, not to provide specific information as to the medical basis for the opinion. Id., 224-25. The court further opined that this information was properly obtained through discovery, as evinced by the provision in subsection (a) of § 52-190a that "[s]uch written opinion shall not be subject to discovery . . . except for questioning the validity of the certificate." (Emphasis added.) General Statutes § 52-190a(a). Thus, according to Andrikis, the only jurisidictional prerequisite is the attachment of a certificate; its sufficiency, or the "reasonableness" of the attorney's inquiry, are appropriate matters for discovery. See also Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) [ 41 Conn. L. Rptr. 163] (following Andrikis).
On the other hand, another court has noted that "[i]t might certainly be the case that a written opinion appended to a medical malpractice complaint could be so cursory or so disjointed that it would fail to constitute a proper opinion of negligence at all." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.) Nevertheless, the court in Ranney held that the expert's opinion was sufficient, observing that "[§ 52-190a] does not . . . presuppose that the opinion expressed in the writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit."
In support of its motion to dismiss, the defendant argues that the legislative history of § 52-190a indicates that the statute was amended in response to its perceived inefficacy in preventing frivolous or groundless claims, since the basis for the attorney's good faith certificate was unavailable to the defendant or the court. The discussion in the legislative hearings, the defendant claims, suggests that the purpose of the required written opinion was not only to ensure that the plaintiff had actually conducted a reasonable inquiry into the legitimacy of their claim, but also to provide the defendant with detailed notice of the basis of the expert's opinion.
Portions submitted by the defendant are replete with statements that the medical professional's report be "detailed"; however, the exact nature of the information envisioned by the legislature is not explicated. The members of both the House and the Senate, as well as those testifying before the judiciary committee, differed in their comments as to the purpose of the "professional opinion" requirement, and discussed a variety of reasons for amending § 52-190a. While several courts have dismissed complaints filed after the effective date of the 2005 amendments to § 52-190a, the plaintiffs in those cases had not attached any medical opinion at all. A review of Connecticut case law revealed no instances where the plaintiff had filed a medical opinion with the complaint — or at least with an amended complaint — in which the court dismissed the action.
Representative Lawlor, for example, suggested the written opinion must "state, in explicit detail" the author's assessment that the claim was meritorious. (Emphasis added.) 48 H.R. Proc., Pt. 31, 2005 Sess., p. 9446. He also noted that the provision "is [creating a] considerably . . . more significant hurdle to overcome in order to file a medical malpractice case." 48 H.R. Proc., supra, p. 9501. Senator Kissell suggested the provision was meant to allow "the defense counsel [to] review the nuts and bolts of what's in there." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 18, 2005 Sess., p. 5545. On the other hand, Mike Neubert, an attorney specializing in medical malpractice defense, commented that "[t]hose cases where attorneys, based on their own judgment and may be in good faith have misread what an expert's told them, we don't know now what an expert's told them . . . In other words, if the doctor's not willing to sign on the dotted line, maybe that's a good indication that this isn't a good case to bring." Conn. Joint Standing Committee Hearings, supra, p. 5553. He further noted that the statute as amended would primarily provide clear evidence to the court that the plaintiff's attorney truly had some reasonable basis for asserting the validity of the plaintiff's claim, without mentioning any requirements of detail, or the goal of giving the opposing side more complete information. Conn. Joint Standing Committee Hearings, supra, pp. 5538-40. Senator McDonald remarked only that "the failure to attach such an opinion would require the court to dismiss the case." (Emphasis added.) 48 S. Proc., Pt. 14, 2005 Sess., p. 4411. Finally, a number of opponents of the bill objected, stating: "[the medical opinion requirement is] not effective reform, because, with a relatively minimal effort, a plaintiff's attorney can still find a single voice out there in the void who will back the case." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2005 Sess., p. 5768, remarks of attorney Jonathan Greenwald. Representative Truglia, after noting that the good faith certificate provision was not being enforced, went on to conclude that the amended statute would be no more effective, commenting that, "we, again, have failed to legislate meaningful medical liability reform." 48 H.R. Proc., supra, p. 9469.
See, e.g., Kudera v. Ridgefield Physical Therapy, Inc., Superior Court, judicial district of Danbury, Docket No. CV 06 5000993 (September 18, 2006, Shaban, J.); Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 695); Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) [ 41 Conn. L. Rptr. 504].
In the present case, the attesting medical professional stated that he is "a physician practicing in the [s]tate of Connecticut," that he "[has] reviewed the available medical record pertaining to Alla Lee Harrison" and that, based on his review, the injuries suffered by Ms. Harrison were due to "the manner in which Ms. Harrison was being transferred by [the defendant, which] represented a deviation from [the] acceptable standard of care . . ." This is sufficient to show that the plaintiff's attorney has conducted a good faith inquiry into the validity of his cause of action, and to give the defendant adequate notice of the basis of the plaintiff's claim. The opinion submitted by the plaintiff comports with the requirements of § 52-190a.
CONCLUSION
This court finds that the written opinion concerning the negligence of the Brook Hollow Health Care Center, LLC complies with the requirements of Sec. 52-190(a). Accordingly, the motion to dismiss is denied.