Summary
In Ranney, the court says "nor does the statute 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.
Summary of this case from Doe v. Priority Care, Inc.Opinion
No. HHB CV06 5000954
September 18, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS OF DEFENDANT NEW BRITAIN GENERAL HOSPITAL
The plaintiff Sean Ranney brings this action against the defendants New Britain General Hospital, Dr. John Andreoli, Dr. Ross Allen Glasmann, and the Grove Hill Medical Center. The plaintiff, an infant delivered of Heather Ranney, claims that as a result of the failure of the defendants to adhere to the standard of care in managing his delivery, he suffered serious permanent injuries including cerebral palsy.
The defendant New Britain General Hospital moves to dismiss portions of the complaint, alleging that the written medical opinion accompanying the plaintiff's complaint is inadequate because the opinion fails to state a detailed claim for medical negligence against the defendant hospital as to some of the specifications of negligence. The plaintiff opposes the motion.
THE LAW
P.A. 05-275, which amends Conn. Gen. Stat. § 52-190a, imposes new and more comprehensive requirements on a plaintiff who seeks to commence a medical malpractice action against a healthcare provider. Before commencing suit, in addition to making a good faith inquiry of whether there is evidence of medical negligence, a plaintiff is obligated to obtain a written opinion from a healthcare provider with similar credentials as the defendant and must append the written opinion to the complaint. The act provides:
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 healthcare provider, as defined in section 52-184c, which similar healthcare 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.
P.A. 05-275, Section 2(a). At issue in this matter is the sufficiency of the written opinion of the healthcare provider who supports the claim of malpractice against New Britain General Hospital.
THE CLAIMS OF THE PLAINTIFF AGAINST THE HOSPITAL
Count I sounds in negligence and Count II in recklessness, both against the defendant New Britain General Hospital. The specifications of negligence are contained in Paragraph 9. The allegations, in general, are that the hospital, acting through its agents, servants, and employees, failed to properly monitor and manage Heather Ranney's labor and failed to intervene to perform a cesarean section in a time to prevent the fetal distress and oxygen deprivation that resulted in permanent brain injuries to the infant plaintiff Sean Ranney.
In paragraph 1, the plaintiff alleges that among these agents, servants, and employees were individuals by the name of Dr. R. Allen Glasmann, Dr. John Andreoli, Lillian Kaminsky, Jolene Werden, Charles Cavo, Gilberto Rodrigo, and Zhiyuh Chang. Only the first two of these individuals are named as defendants in this lawsuit, in addition to the hospital and Grove Hill Medical Center. The last five of these individuals are not further identified by job title or job function in the complaint, nor even mentioned in the complaint thereafter.
THE WRITTEN OPINION CONCERNING MEDICAL NEGLIGENCE
Appended to the complaint is a two-page single spaced report from a physician who is board-certified in obstetrics and gynecology and maternal fetal medicine. The reporting physician summarizes the progress (or lack thereof) of Heather Ranney's labor while she was a patient at New Britain General Hospital. The physician notes that the chart discloses fetal heart rate decelerations and a pattern of progressive deterioration of fetal well-being during the final hours of labor, a pattern which eventually became "ominous." The infant was not promptly delivered by C-section until sometime later, and the delay in delivery resulted in significant hypoxic brain injury to Sean Ranney.
Based on the records reviewed, the physician names Dr. Cavo and Dr. Andreoli as having an obligation to promptly proceed with a C-section given the deteriorating fetal status. As for the responsibility of the hospital, the conclusion of the physician is as follows: "The obstetric care rendered by both the nursing and medical staff clearly was [a] proximate cause in causing the injury." Moreover the physician reserved the right to expand the opinions rendered in the report "as further materials are made available to me for review of this matter."
THE MOTION TO DISMISS
The defendant New Britain General Hospital moves to dismiss portions of the complaint because the reporting physician failed to note how each of the agents, servants, and employees named in paragraph 1 of the complaint participated in the care of and decisions regarding the plaintiff. They cite to section 2(c) of P.A. 05-275 which states: "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." They further argue that it is not only the existence of the written opinion that may be challenged with a motion to dismiss but the sufficiency of the written opinion as well. The plaintiff argues that under the expanded statutory scheme, a motion to dismiss may only be used to challenge "the failure to obtain and file" the written opinion described section 2(a) of 05-275 and not its legal sufficiency.
INTERPRETATION OF THE STATUTE
The plain language of the statute allows the use of a motion to dismiss when there has been a "failure to obtain and file a written opinion" as required by subsection (a). The question is whether a proper interpretation of this part of the statute allows the use of a motion to dismiss to test whether the opinion contains enough detailed information to satisfy the requirements of subsection (a). It 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. It might be that a totally illogical or incomprehensible opinion appended to a malpractice complaint would fail to qualify as a proper written opinion at all.
However, in this case, the court finds that the written opinion contains sufficient detail to survive either a motion to dismiss or a motion to strike for insufficiency. The statute does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion. Nor does the statute 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. 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. The fact that the complaint in this case contains more detail about the identity of the hospital's employees or agents than does the written opinion does not make the written opinion insufficient for the purposes for which the legislation was passed.
The parties agreed at oral argument that, in the event the court declined to conclude that portions of the complaint should be dismissed, the court could proceed to determine whether to strike portions of the complaint for insufficiency of the written opinion.
CONCLUSION
This court finds that the written opinion concerning the negligence of New Britain General Hospital fully complies with the requirements P.A. 05-275. Accordingly the Motion to Dismiss filed by New Britain General Hospital is denied.