Opinion
No. CV08 5014917
December 8, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS
This is a medical malpractice action in which the plaintiff claims she received negligent medical care from the following defendants: (1) Dr. Arthur Yee, an internist; (2) Norwalk Medical Group, P.C., Dr. Yee's group; (3) Dr. Lawrence Pomeraniec, a psychiatrist; (4) Columbia Mental Health, LLC., Dr. Pomeraniec's group; (5) Linda Feller, RN; and (6) St. Vincent's Medical Center.
Specifically, the plaintiff alleges that she received a prescription from Dr. Yee for Xanax, an anti-anxiety medication, which is part of the benzodiazepine class of drugs. The plaintiff claims that this prescription was subsequently discontinued by Dr. Yee on April 13, 2006, after the plaintiff informed Yee she was pregnant. She alleges that Yee was negligent in not prescribing a tapering dose of Xanax and that as a result, she began to suffer from withdrawal symptoms.
On April 18, 2006, the plaintiff alleges she presented to the Emergency Department of St. Vincent's Medical Center, complaining of symptoms consistent with benzodiazepine withdrawal. At St. Vincent's she was treated by Dr. Pomeraniec and Linda Feller, RN and was discharged without a dose of Xanax to treat her withdrawal. The plaintiff, thereafter, alleges she suffered a seizure at home later that day and fractured her ankle as a result of her withdrawal. She alleges that her injuries were caused by the negligence of each of the defendants in that they failed to prescribe a tapering dose of Xanax.
Defendants, Linda Feller, RN, and St. Vincent's Medical Center have moved to dismiss Counts Five and Six of the plaintiff's Second Revised Complaint arguing that the court lacks jurisdiction due to the plaintiff's alleged lack of compliance with General Statutes § 52-190a. General Statutes § 52-190a requires a plaintiff who institutes a medical malpractice action to append to the complaint a certificate of good faith and a written opinion of a similar health care provider, as defined in General Statutes § 52-184c. The defendant argues that the plaintiff alleges medical negligence against Feller, a psychiatric nurse, but while the plaintiff has attached the written opinions of a psychiatrist and an internist, neither has the background, training and knowledge similar in nature to that of Feller. Accordingly the defendant moves to dismiss that count which is applicable to her, as well as, the plaintiff's vicarious liability action against the defendant St. Vincent's Medical Center, which is based on the alleged acts and/or omissions of Feller.
Count Five against Feller alleges negligence. Count Six against St. Vincent's Medical Center alleges "vicarious negligence" for the acts of Feller, who is alleged to have been an agent, servant and employee of St. Vincent's, acting in the scope of her employment with the knowledge and consent of St. Vincent's.
This is the second motion to dismiss filed by these defendants. These defendants previously filed a motion to dismiss on October 30, 2008, in which they also argued that the written opinions attached to the plaintiff's complaint were authored by an internist and a psychiatrist, neither of whom were a similar health care provider to the defendant Feller, a psychiatric nurse. This court denied that motion to dismiss, by way of a written memorandum decision dated September 3, 2009. See. Parks v. St. Vincent's Med. Center, No. CV08 5014917 Superior Court, judicial district of Fairfield at Bridgeport (Sept. 3, 2009, Arnold, J.) 48 Conn. L. Rptr. 393.
The defendants have now filed this second motion to dismiss requesting that the court revisit the issue in light of the Appellate Court's decision in Bennett v. New Milford Hosp., Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), cert. granted 294 Conn. 916, 983 (2009). The defendants state that the decision in Bennett v. New Milford Hosp., Inc., was "issued 39 days" after this court's decision denying the initial motion to dismiss. As such, they state that "it was not possible for defendants to utilize . . . a motion to reargue." They request that the court utilize equitable considerations to allow the filing of this second motion to dismiss.
The plaintiff's petition for certification for appeal from the Appellate Court, 117 Conn.App. 535, was granted, limited to the following issue:
Did the Appellate Court properly affirm the trial court's dismissal of the present case for failure to comply with General Statutes § 52-190a?
Bennett v. New Milford Hosp., Inc., supra, 294 Conn. 916.
Practice Book Sec. 11-12(a)(b) regarding a Motion to Reargue reads as follows:
(a) A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for re-argument upon which the party relies.
(b) The judge who rendered the decision or order may, upon motion of a party and a showing of good cause, extend the time for filing a motion to reargue. Such motion for extension must be filed before the expiration of the twenty day time period in subsection (a) . . .
I
Motion to Dismiss: Standard of Law
Before proceeding further, the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 [ 18 Conn. L. Rptr. 409] (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). "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, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).
A motion to dismiss is the proper vehicle with which to challenge an absent or inadequate written opinion of a similar health care provider. See Bennett v. New Milford Hospital, supra, 117 Conn.App. 545 n. 6; Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008). A motion to dismiss challenging the adequacy of a § 52-190a written opinion does not, however, implicate the subject matter jurisdiction of the court. See Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). In contrast to a defect in subject matter jurisdiction, which "may not be waived by any party"; Gonzalez v. Commissioner of Correction, 107 Conn.App. 507, 511, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008), a defendant may waive the statutory requirements of § 52-190a. See Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 586.
II
Discussion
A.
Timeliness
The court initially addresses the plaintiff's argument that the defendants have waived their right to file a second motion to dismiss objecting to the failure of the plaintiff's written opinion to comply with the requirements of § 52-190a. The plaintiff's suit was filed on March 31, 2008 and bears a return date of April 22, 2008. Counsel for defendants Feller and St. Vincent's filed an appearance on April 24, 2008. On November 3, 2008, the subject defendants filed their initial motion to dismiss regarding General Statutes § 52-190a. That motion to dismiss was thereafter denied by the court on September 3, 2009. Thereafter, the defendants filed a second Motion to Dismiss more than twenty months after the defendants filed their appearance, subsequent to the release of the Appellate Court's decision in Bennett v. New Milford Hosp., Inc., supra, 117 Conn.App. 535 on October 13, 2009.
Practice Book § 10-30 requires that, a person, wishing to contest the court's jurisdiction, may do so by filing a motion to dismiss within thirty days of the filing of an appearance. The subject motion to dismiss was filed on December 8, 2009, after the plaintiff filed a Second Revised Complaint on October 20, 2008, and the defendants had filed an answer. Accordingly, the court examines the defendants' motion in the context of the relevant waiver provisions of the Practice Book: §§ § 10-32, 10-6, and 10-7.
Practice Book Sec. 10-30 reads as follows:
"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. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant the request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request."
Sec. 10-32. — Waiver Based on Certain Grounds
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.
Sec. 10-6. Pleadings Allowed and Their Order
The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.
Sec. 10-7. Waiving Right to Plead
"In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section."
The first motion to dismiss which was denied by the court was filed on November 3, 2008, more than six months after the defendants' counsel filed a general appearance. However, no objection was filed by the plaintiff that the motion was untimely pursuant to Practice Book § 10-30. Thereafter, the subject second motion to dismiss was filed as a result of the Appellate Court's decision Bennett v. New Milford Hosp., Inc., supra, 117 Conn.App. 535, which was released on October 13, 2009. The plaintiff, as noted herein, has objected to this second motion as being untimely pursuant to Practice Book § 10-30.
The release of Bennett was forty days following this court's decision denying the initial motion to dismiss, which was dated September 3, 2009. The time limitations set forth in Practice Book § 11-12, regarding a motion to reargue, prevented the defendants from filing a motion to re-argue the court's denial of the initial motion to dismiss. As a result, the defendants filed the second motion to dismiss to address the issues decided in Bennett v. New Milford Hosp., Inc., supra. The dispositive issue, therefore, is whether the defendants have waived their statutory right by filing this motion beyond the time frame for filing such a motion pursuant to the Practice Book.
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 grounds of "improper venue" or "insufficiency of process" or "insufficiency of service of process" are specific grounds to challenge a court's jurisdiction over a particular person. "Practice Book § 10-30 specifically and unambiguously provides that any claim of lack of jurisdiction over the person or 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, formerly § 112. 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." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). "Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." Foster v. Smith, 91 Conn.App. 528, 536-37, 881 A.2d 497 (2005).
In order to determine whether the defendants have waived their right to contest the adequacy of the plaintiff's written opinion, the court must address whether the claim raised in the defendants' motion is subject to the timeliness requirements incorporated by reference in § 10-32. This issue was recently discussed by Judge Cosgrove in Sanabria v. Ashmead, Superior Court, judicial district of New London at New London, No. CV-09-5010404 (Jul. 20, 2010, Cosgrove, J.) [ 50 Conn. L. Rptr. 199]. The court in Sanabria determined that pursuant to Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 583, a claim for dismissal based on General Statutes 52-190a does not implicate subject matter jurisdiction. Id. Judge Cosgrove noted that Votre is silent as to whether § 52-190a implicates personal jurisdiction. The court in Votre did, however, state that a defendant may waive the statutory requirements of § 52-190a. Id., 586. "Implicit in the recognition that this statutory ground for dismissal is waivable is the recognition that it will be waived if not exercised in a timely or equitable fashion." Sanabria v. Ashmead, supra. Judge Cosgrove then proceeds further to analyze whether the motion to dismiss should be treated as a challenge to the personal jurisdiction of the court over the defendants, or because this motion is based upon a right of the defendants granted by General Statutes § 52-190a(c), it should be analyzed in a different manner. After conducting his analysis Judge Cosgrove concluded that the issue of whether a plaintiff has complied with § 52-190a implicates the court's personal jurisdiction over the person of a defendant. Id.
The sufficiency of a § 52-190a opinion letter is a threshold question that ought to raised and addressed in an expeditious fashion. It seems to the court that the Practice Book's thirty-day time frame for raising these issues is appropriate. This time frame is triggered by an appearance of behalf of the defendant. Without such a limiting time frame a defendant could sit on his rights, expend the time and energy of his opponent and the court on pleadings and motions practice and then at the last hour raise his grounds for dismissal. Accordingly, the court concludes that claims challenging the adequacy of a written opinion pursuant to § 52-190a are waived if not raised in the manner specified in § 10-32.
Id.
Continuing to follow Judge Cosgrove's blueprint for analysis, the court next considers whether the defendants have waived their right to file their motion to dismiss through noncompliance with the pleading order requirements of Practice Book § 10-6. Section 10-6 governs the order in which pleadings may be filed. Section 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by [§ 10-6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Section 10-6 is also incorporated by reference into § 10-32, which provides in relevant part: "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 . . ." See. Sanabria v. Ashmead, supra. "[G]enerally, pleadings are not to be filed out of the order specified in [Practice Book § ]112 [now Practice Book § 10-6]." Sabino v. Ruffalo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989). Ultimately, the court in Sabino v. Ruffalo, supra, determined that the trial court properly exercised its discretionary authority, pursuant to Practice Book § 10-7, to overlook the untimely filing of the motion to dismiss and to consider the motion on its merits. Id., 405. "[T]he court has discretion to allow the filing of pleadings out of order . . . by allowing for the liberal interpretation of the rules where strict adherence to them will work surprise or injustice because the very design of the rules is to facilitate business and advance justice or injustice because the very design of the rules is to facilitate business and advance justice." (Internal quotation marks omitted.) (Internal quotation marks omitted.) Id., 404.
In the present case defendants' motion implicates the court's personal jurisdiction, the motion is subject to the pleading order requirements of § 10-6 and § 10-7 as incorporated by reference in § 10-32. As a "defendant's motion to dismiss the complaint," the motion is also independently subject to § 10-6, irrespective of the ground on which it was brought. Accordingly, the defendants were required to file their motion to dismiss in the proper order. Because the defendants filed an answer prior to the filing of their second motion to dismiss, the court finds that, pursuant to § 10-7, they waived the right to file this motion to dismiss.
However, the court has decided to overlook this deficiency pursuant to its discretionary authority under § 10-7. The decision in Bennett v. New Milford Hosp., Inc., supra, 117 Conn.App. 535, became known to the defendants forty days following this court's denial of the initial motion to dismiss, and, as such, the issues decided in Bennett could not have been raised by the defendants at an earlier date. The decision in Bennett has been the source of much debate and ongoing analysis by the judges of the superior court. The court is cognizant that the Supreme Court has chosen to review this decision of the Appellate Court. The defendants have not consciously waived the right to file the motion to dismiss. In the court's opinion, there is an equitable reason to invoke the court's discretion in this case to allow this motion to be filed out of time and to be decided by the court.
B.
General Statutes § 52-190a
The plaintiff appended to her complaint and to her attorney's Good Faith Certificate of Reasonable Inquiry an opinion from an adult and forensic psychiatrist certified by the American Board of Psychiatry and Neurology, dated December 27, 2007. The psychiatrist lists qualifications in that he has been in private practice of general adult and forensic psychiatry since 1990 and has been an assistant clinical professor in the Department of Psychiatry at the University of Connecticut School of Medicine. He has authored numerous professional articles and delivered lectures regarding topics in the field of psychiatry. He has testified at deposition or trial in excess of fifty times since 2004 to the present.
The defendant, Feller, indicates that she is a psychiatric nurse; that she holds a registered nurse license issued by Connecticut; and has been practicing as a psychiatric nurse at St. Vincent's Medical Center since 1990. She maintains that she is "board certified" in psychiatric and mental health nursing through the American Nurse Credentialing Center. She argues that the written opinion from the plaintiff's board certified psychiatrist is not the opinion of a similar health care provider. The defendant concedes that the written opinions of the plaintiff's internist and psychiatrist are sufficient as to the alleged negligence of the co-defendants, Dr. Yee and Dr. Pomaraniec, but that the plaintiff has neglected to include the opinion of a similar health care provider for the co-defendant, nurse Feller, as required by General Statutes § 52-190a. Therefore the defendant asks that the court dismiss the action as to Linda Feller, as well as, the count alleging vicarious liability brought against St. Vincent's Medical Center, which is based on the alleged negligence of Feller.
Prior to commencing a medical malpractice action, § 52-190a requires a party or their attorney, to first make a reasonable inquiry to determine whether adequate grounds exist to demonstrate a good faith belief that medical negligence occurred. Once this inquiry is completed and after good faith is established, an action may be initiated. Section 52-190a also requires that this good faith belief be memorialized and supported in the form of a good faith certificate and a detailed written opinion by a similar health care provider. Both are to be attached to and filed with the complaint.
General Statutes § 52-190a, as amended by Public Act 07-65 states in relevant part as follows:
(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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 or apportionment complaint 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 . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.
(c) 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 § 52-184c sets forth the standard of care in a negligence action against a health care provider and discusses the qualifications of an expert witness. Section 52-184c reads in relevant part as follows:
(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a similar health care provider is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider."
(d) Any health care provider may testify as an expert in any action if he: (1) Is a "similar health care provider" pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
"General Statutes (Rev. to 2005) § 52-190a(a), was amended by P.A. 05-275, § 2. Prior to the 2005 amendments, the statute provided that good faith may be shown if the plaintiffs or their counsel obtained a written opinion, not subject to discovery, from a similar health care provider that there appeared to be evidence of medical negligence. General Statutes (Rev. to 2005) § 52-190a(a). Prior to the amendment, the statute did not require plaintiffs to include with the complaint an opinion of a similar health care provider attesting to a good faith basis for an action." Rios v. CCMC Corp., supra, 106 Conn.App. 815-17. "Effective October 1, 2005, [§ 52-190a] was amended to require that in order to show the existence of good faith, claimants or their counsel, prior to filing suit, `shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . .' General Statutes § 52-190a(a). Subsection (c), which was added by P.A. 05-275, § 2, provides that `[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.' P.A. 05-275 was `[e]ffective October 1, 2005, and applicable to actions filed on or after said date . . .'" Id. 817.
"The underlying purpose of the legislature in enacting . . . § 52-190a was to discourage the filing of baseless lawsuits against health care providers, LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990), and to assure that a plaintiff has in fact made a reasonable pre-complaint inquiry giving him a good faith belief in the defendant's negligence." (Internal quotation marks omitted.) Nieves v. Midstate Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 5002604 (March 7, 2008, Gilligan, J.). "Because the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint." Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) ( 43 Conn. L. Rptr. 195, 196). "[T]he statute [does not] pre-suppose 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. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiffs who, the legislature determined, might otherwise institute meritless claims." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.).
There have been many Connecticut cases that adhered to the liberalization of evidentiary rules allowing expert medical testimony in a medical malpractice action when there is a similarity of practice. See, e.g., Pool v. Bell, 209 Conn. 536, 542-43, 551 A.2d 1254 (1989); Katsetos v. Nolan, 170 Conn. 637, 646-47, 368 A.2d 172 (1976); Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887 (1975); Marshall v. Yale Podiatry Group, 5 Conn.App. 5, 7-12, 496 A.2d 529 (1985). "Medical specialties overlap, and it is within a court's discretion to consider that fact in exercising its discretion to deem the witness qualified to testify. It is not the artificial classification of a witness by title that governs the admissibility of the testimony, but the scope of the witness's knowledge of the particular condition." Marshall v. Hartford Hospital, 65 Conn.App. 738, 758, 783 A.2d 1085, cert. denied, 258 Conn. 938, 786 A.2d 425. One must also recognize that the opinion writer required by § 52-190a is not performing the same role as an expert witness under § 52-184c. There is certainly an overlap, but the opinion writer has the role of a gatekeeper in providing the underpinning for the plaintiff's attorney's certificate of good faith by stating there appears to be evidence of medical negligence, while the expert witness is called upon to testify to a reasonable degree of medical probability that there has been a breach of the prevailing professional standard of care.
In this court's decision on the original motion to dismiss, the court stated that it was not making a determination regarding a psychiatrist's ability to qualify as an expert witness regarding the standard of care for the defendant nurse Feller. However, this court did find that the plaintiff's psychiatrist expert is a similar health care provider for the purposes of General Statutes § 52-190a, despite the fact that the defendant is a psychiatric nurse and not a psychiatrist. Parks v. St. Vincent's Med. Center, supra, No. CV08 5014917 Superior Court, judicial district of Fairfield at Bridgeport (Sept. 3, 2009, Arnold, J.) 48 Conn. L. Rptr 393. In denying the initial motion to dismiss, this court stated:
This psychiatrist is trained and experienced in the field of psychiatry, the same discipline and school of practice as the defendant Feller. His professional training and practice is the result of active involvement in the practice of medicine and psychiatry for a period of time exceeding five years prior to the April 18, 2006 incident which gave rise to the plaintiff's claim.
Id.
As stated earlier, herein, the defendants Feller and St. Vincent's have now filed this second motion to dismiss requesting that the court re-visit the issue in light of the Appellate Court's decision in Bennett v. New Milford Hosp., Inc., supra, 117 Conn.App. 535. In Bennett, the defendant practitioner was a physician who specialized in emergency medicine. The Appellate Court found that General Statutes § 52-184c(c) was applicable and concluded that the author of the plaintiff's written opinion would have to be one who was trained, experienced and certified in emergency medicine. The opinion author was a general surgeon and was not certified in emergency medicine. The Appellate Court, therefore affirmed the trial court's dismissal of the action.
The defendants in their memorandum of law, dated December 8, 2008 argue that since nurse Feller is not certified in a particular specialty General Statutes § 52-184b(b) should apply. (Emphasis added.) According to subsection (b) a similar healthcare provider to nurse Feller is one who: "(1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim. See. General Statutes § 52-184c(b). The defendant argues that as neither the internist or psychiatrist can be considered a similar health care provider. The court disagrees and finds that the psychiatrist is a similar health care provider based upon the credentials of the psychiatrist recited earlier herein.
Subsequently, in supplemental legal briefs filed in support of the motion to dismiss, the defendants argue that nurse Feller is "board certified" in psychiatric and mental health nursing through the American Nurse Credentialing Center. This position appears inconsistent with the defendants' statement in their initial memorandum of law. The defendants then argue in the alternative, that the plaintiff's psychiatrist and internist are not similar healthcare providers pursuant to Sec. 52-184c(c). In sum, the defendants argue that under an analysis of both §§ 52-184c(c) and 52-184c(b), the plaintiff's psychiatrist and internist are not similar healthcare providers. (Emphasis supplied.)
A review of Bennett v. New Milford Hosp., Inc., supra, 117 Conn.App. 535, reveals that the Appellate Court in rendering its decision, did so in the context of an opinion author and a defendant who were physicians, which is not the case in the present matter, where the psychiatrist opinion author is a physician and the defendant, Feller, is a nurse.
To interpret the requirements of § 52-190a(a), we must read it together with § 52-184c, the statute regarding similar health care providers. Subsections (b) and(c) of § 52-184c define a similar health care provider for purposes of the statute. For physicians who are board certified or hold themselves out as specialists, subsection (c)of § 52-184c defines similar health care provider as one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . .
(Internal quotation marks omitted.) Id. at 546.
"[W]hen establishing the guidelines for the opinion letter, the legislature clearly and unambiguously referred to a similar health care provider. By the plain language of the statutes, as to a defendant health care provider who is a physician, the similar health care provider contemplated in § 52-190a(a) is one defined in either subsection (b) or (c) of § 52-184c." (Internal quotation marks omitted.) Id. at 548-49. Additionally, given the inconsistent positions of the defendants that Feller is not "board certified" in a specialty, or is "board certified," the court has reviewed the facts in a light most favorable to the plaintiff and concludes that she, in fact, is not "board certified" in the same manner that an opinion author physician is "board certified." The court has no knowledge of the American Nurse Credentialing Center as an organization that "board certifies" nurses such as the defendant Feller. The court finds that Bennett v. New Milford Hosp., Inc., supra, 117 Conn.App. 535, is not controlling in this matter and denies the motion to dismiss.
Order
For the reasons set forth herein, the motion to dismiss is hereby denied.