Opinion
FSTCV196041890S
09-18-2019
Paul SACCO et al. v. Charles LITTLEJOHN et al.
UNPUBLISHED OPINION
OPINION
Hon. Edward T. Krumeich, II
Defendant Dr. Neeraj Anand has moved to dismiss the complaint against him for noncompliance with C.G.S. § 52-190a by failing to annex to the complaint an opinion letter from a similar health care provider that there is a good faith basis to commence this medical malpractice action. For the reasons set forth below, the motion is denied.
The legislation starts with a simple proposition: to commence a medical malpractice action, plaintiff must first obtain an opinion from a qualified expert that malpractice has occurred and attach a copy to the complaint along with a good faith certificate as required by C.G.S. § 52-190a. See Morgan v. Hartford Hospital, 301 Conn. 388, 396-97 (2011). "[T]he purpose of § 52-190a and its requirement of a good faith certificate was to prevent the filing of frivolous medical malpractice actions." Id. at 398 citing Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 31 (2011). Failure to comply with C.G.S. § 52-190a warrants dismissal of the action for lack of jurisdiction over the person: "Section 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52-190a(c) provides: ‘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.’" Morgan, 301 Conn. at 397. In Morgan the Supreme Court held: "[t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ... [B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process ..." Id. at 401-02.
Dr. Anand is a board certified gastroenterologist so a similar health care provider must satisfy C.G.S. § 52-184c(c) which provides: "[i]f 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 ..."
The expert opinion attached to the complaint was written by Dr. Robert Bergamaschi, board certified as a gastrointestinal surgeon. The residency and fellowship training for gastroenterologists and gastrointestinal surgeons substantially overlap and both administer biologic treatments such as Remicade, and specialists in both fields would be familiar with the standards of patient care for the prescription and administration of Remicade. Dr. Bergmashi asserts that he has training and experience in gastroenterology. The issue is whether a gastrointestinal surgeon is a "similar health care provider" to a gastroenterologist to satisfy C.G.S. § 52-184c(c) and thus qualified to write an opinion letter to meet the requirements of C.G.S. § 52-190a.
These facts are asserted in an affidavit from Dr. Bergmashi, are not disputed by defendant and therefore may be considered by the Court in deciding this motion. See Labissoniere v. Gaylord Hospital, 182 Conn.App. 445, 454 (2018).
At first blush the answer would appear to be "no" because the plain language of Section 52-184c(c) refers to training and experience "in the same specialty" and "certified by the appropriate American board in the same specialty," which for Dr. Anand is gastroenterology and for Dr. Bergamaschi is gastrointestinal surgery and both are certified by different boards. See generally Bennett, 300 Conn. at 23-24.
In Wilkins v. Connecticut Childbirth and Women’s Center, 314 Conn. 709, 727 (2014), the Supreme Court held that a certified obstetrician and gynecologist could opine in an opinion letter that would satisfy C.G.S. § 52-190a that a certified nurse-midwife had deviated from the standard of care:
We conclude that the text of the statute accommodates a circumstance in which two different types of medical professionals are board certified in the same medical specialty. To the extent that the statute is ambiguous as to this question, we agree with the plaintiff that a construction that deems a medical professional who is board certified in the same specialty but has greater training and experience, satisfies the purpose of the requirement of the opinion letter. Under this construction, a board certified obstetrician and gynecologist is a similar health care provider for purposes of § 52-184c(c).
The Wilkins Court explained its decision as follows:
As the foregoing demonstrates, § § 52-190a and 52-184c(c) were implemented to prevent frivolous medical malpractice actions, by requiring a medical professional with expertise in the particular medical field involved in the claim to offer his or her professional opinion that the standard of care was breached in a particular instance. In the present case, the plaintiff submitted a good faith opinion certification from an obstetrician and gynecologist who certified that he has instructed and supervised certified nurse-midwives and is familiar with the standard of care applicable to them and that the plaintiff’s claims fell within his realm of expertise as a board certified obstetrician and gynecologist. 314 Conn. at 730.
The Wilkins Court refused to interpret "similar health care provider" as requiring that the expert author be an "identical" health care provider. 314 Conn. at 733. However, the Court found that both professionals practiced in the same specialty "obstetrics." The Court noted "... § 52-184c(c) simply provides that the similar health care provider must be ‘certified by the appropriate American board in the same specialty ...’ It does not provide that the author of the opinion letter must be certified by the same board as the defendant health care provider, but rather the same specialty. Both the American Midwifery Certification Board and the American Board of Obstetrics and Gynecology provide certification in the same specialty, obstetrics." Id. at 735. Thus, it would not appear that the fact that Dr. Bergamaschi and Dr. Anand are certified by different boards is disqualifying so long as both doctors work in the "same specialty." Id.
The Wilkins Court was influenced by evidence that nurse-midwives worked with and were supervised by obstetricians and gynecologists. Id. at 733. Although gastroenterologists and gastrointestinal surgeons often collaborate, as was the case here, there is no evidence surgeons supervise gastroenterologists. With respect to prescription and administration of Remicade, and the care and treatment of patients on Remicade, there does not seem to be any difference in the standard of care for gastroenterologists and gastrointestinal surgeons. To that extent, they may be considered to practice the same specialty, gastroenterology, i.e. treating diseases and conditions of the lower intestinal tract and organs. In his affidavit, Dr. Bergamaschi averred "[c]olo-rectal surgeons must learn and master the same techniques learned by gastroenterologists, and are permitted to practice the same as part of his practice." In the curriculum vitae attached to his affidavit Dr. Bergamaschi lists an award he received for his work in gastroenterology.
In Wilkins the Supreme Court took a practical view of what constitutes a "specialty":
Furthermore, the defendants conceded at oral argument before this court that nurse-midwives practice obstetrics. The defendants also were unable to identify any obstetrical procedure that a nurse-midwife is trained and board certified to perform that an obstetrician is not trained and board certified to perform. Instead, the defendants pointed to the fact that a physician is certified by the American Board of Obstetrics and Gynecology, whereas a nurse-midwife is certified by the American College of Nurse-Midwives and, more specifically, the American Midwifery Certification Board. In addition, the defendants pointed to the fact that an obstetrician can perform certain procedures that are beyond a nurse-midwife’s scope of practice. See General Statutes § 20-86b (recognizing possible referral to obstetrician when care of patient is not within nurse-midwives’ scope of practice). We are not persuaded that these considerations are relevant to determining whether an obstetrician is a similar health care provider to a certified nurse-midwife under § 52-184c(c). First, § 52-184c(c) simply provides that the similar health care provider must be "certified by the appropriate American board in the same specialty ..." It does not provide that the author of the opinion letter must be certified by the same board as the defendant health care provider, but rather the same specialty. Both the American Midwifery Certification Board and the American Board of Obstetrics and Gynecology provide certification in the same specialty, obstetrics. Although it is possible. that the legislature never considered whether two boards could provide certification in the same specialty, to construe the statute to permit such a result seems wholly consistent with the purpose of the opinion letter requirement. Second, although an obstetrician’s training in that specialty undoubtedly exceeds that of a certified nurse-midwife in terms of the type of procedures that may be performed and the type of patients that may be treated, there is nothing in the record that would indicate that the standard of care for the two professionals would differ substantively with respect to those matters that fall within the scope of both professionals’ certification. Accordingly, it is wholly consistent with statute’s purpose to allow an opinion letter to be provided from a medical professional whose qualifications in a specialty exceed those of the medical professional alleged to be negligent. Id. at 734-35 (footnotes omitted; emphasis added).
Similarly, there is nothing in the record that would indicate that the standard of care for the two professionals here would differ substantively with respect to the prescription and administration and care of patients on Remicade. That a gastrointestinal surgeon may practice surgery, while a gastroenterologist may not, would not be a relevant difference in specialty as it relates to the treatment at issue.
In Bennett the Supreme Court would not allow a general surgeon to opine on the standard of care of a non-board certified internist who specialized in emergency medicine as a similar health care provider under C.G.S. § 52-184c(b). 300 Conn. at 23-24. Wilkins distinguished Bennett as follows: "[t]hus, the present case is wholly distinguishable from Bennett v. New Milford Hospital, Inc., 300 Conn. at 17 ... In that case, the physician who was alleged to have been negligent and the author of the opinion letter were not certified in the same specialty. Id., at 23-24 ... In the present case, the author of the opinion letter and the allegedly negligent medical professional were both board certified in the same specialty, obstetrics." Here, both doctors practice the same specialty with respect to the prescription and administration of Remicade for gastrointestinal disease and conditions of the lower gastro-intestinal tract. That gastrointestinal surgeons may practice gastroenterology, as does Dr. Bergamaschi, indicates that in non-surgical situations, they practice the same specialty.
The Wilkins Court defined obstetrics, not as a formal medical specialty but as the type of care provided by both professionals to patients: "[b]oth are trained and experienced in providing prenatal care for pregnant women and providing assistance/medical care to women during childbirth. Furthermore, both are certified in the same specialty of providing medical care to women prior, during, and after childbirth." Id. at 734 n. 7. The same is true here as it relates to the prescription, administration and care of patients on Remicade, according to the record on this motion, both are trained and experienced in gastroenterology and in prescribing and administering Remicade and related patient care. In addition to practicing gastroenterology, Dr. Bergamaschi as a gastrointestinal surgeon also may conduct surgery, but as Wilkins makes clear greater training and experience does not disqualify an expert author: "it is wholly consistent with statute’s purpose to allow an opinion letter to be provided from a medical professional whose qualifications in a specialty exceed those of the medical professional alleged to be negligent." 314 Conn. at 735.
Following Wilkins other courts have taken a practical approach to defining "specialty" in terms of "similar health care provider" under C.G.S. § 52-184c entitled to author an opinion letter as to standard of care under C.G.S. § 52-190a where both professionals have similar training and experience in the relevant specialty and provide similar patient care. See e.g., Heroy v. Soundview Behavioral Health, LLC, 2016 WL 1728158 *5 (Conn.Super. 2016) (Aurigemma, J.) ("advanced practice registered nurse (APRN) who had been treating the decedent for mental health issues" and psychiatrist author); Bell v. Greenwich Hospital, 2015 WL 1427658 *8 (Conn.Super. 2015) (Povodator, J.) ("registered nurses performing obstetrical functions" and obstetrician author). But see Souza v. Zbrowoski, 2018 WL 4839870 (Conn.Super. 2018) (Shapiro, J.) ("[t]hat there may be some overlap in the treatment provided by periodontists and by oral and maxillofacial surgeons does not make them similar health care providers for the purposes of § 52-184c").
The Court is mindful of the Wilkins Court’s admonition: "... as this court has recognized many times, the purpose of § 52-190a was to prevent frivolous malpractice actions ... It was not intended to serve as a sword to defeat otherwise facially meritorious claims." Id. at 736 n.9. The motion to dismiss is denied.