Opinion
HHDCV156062006S
03-01-2017
Richard Schnaars v. Bristol Hospital Multispecialty Group, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION UPON REARGUMENT ON MOTIONS TO DISMISS NOS. 104 AND 105
Kevin G. Dubay, J.
The defendants Bristol Hospital Multispecialty Group, Inc. (Multispecialty Group); Bristol Hospital Healthcare Group, Inc. (Healthcare Group); and Bristol Hospital, Inc. (Bristol Hospital) (collectively, hospital defendants); moved to dismiss the present medical malpractice action filed by the plaintiff, Richard Schnaars. The court, having previously denied the motions, granted the hospital defendants' motions to reargue and held reargument. Upon reconsideration, the court grants the requested relief.
Multispecialty Group moved to dismiss separately from Healthcare Group and Bristol Hospital, and they likewise filed separate motions to reargue. Nevertheless, the motions to dismiss and motions to reargue raise the same issues; indeed, Multispecialty Group did not separately argue its motion to reargue at short calendar. Therefore, in deciding the present matter, the court will not distinguish between the two motions to dismiss or the two motions to reargue.
PROCEDURAL HISTORY
The present action arises out of the defendants' treatment of the plaintiff for appendicitis. On September 3, 2015, the plaintiff filed the original, one-count complaint alleging direct negligence on the part of the defendant Sampath Subramaniam, M.D., and seeking to hold the hospital defendants vicariously liable. In this complaint, the plaintiff alleged that the defendants had been negligent by unnecessarily delaying surgery, which resulted in complications to the plaintiff's condition that included the rupturing of his appendix, and by failing to take certain steps during and after surgery to prevent and treat infection. In an attempt to comply with General Statutes § 52-190a, the plaintiff submitted an opinion letter authored by a physician board certified in emergency and internal medicine.
Specifically, the plaintiff alleged that the defendants had (1) failed to irrigate the surgical area and to otherwise take prophylactic action to cleanse the perforated area to prevent infection, (2) failed to consult with an expert physician in infectious diseases upon discovering the rupture, (3) failed to adequately treat the plaintiff for infection during and after surgery, and (4) failed to adequately monitor the plaintiff for postoperative infection symptoms.
The hospital defendants subsequently moved to dismiss the action on the ground that the opinion letter was legally insufficient for purposes of § 52-190a because its author was not a " similar health care provider, " as defined by General Statutes § 52-184c(c), as compared to Subramaniam, whom the hospital defendants established was certified in general surgery by the American Board of Surgery. By memoranda of decision dated June 21, 2016, and September 7, 2016, this court determined that the author's opinion regarding the delay in treating the plaintiff was within his expertise as a physician board certified in emergency medicine, and, therefore, the court denied the hospital defendants' motions. Pursuant to Practice Book § 11-12, the hospital defendants moved to reargue these decisions on the ground that the Appellate Court's subsequently decided decision in Helfant v. Yale-New Haven Hospital, 168 Conn.App. 47, 145 A.3d 347 (2016), necessitates a contrary result. The court granted the motions to reargue, and oral argument was held on November 7, 2016.
DISCUSSION
" [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . ." (Internal quotation marks omitted.) Hudson Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d 260 (2012). When a party files a motion to reargue under Practice Book § 11-12, the motion " shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted. If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested." Practice Book § 11-12(c).
In the present case, the underlying decisions being reargued are those regarding the hospital defendants' motions to dismiss for failure to comply with § 52-190a. It is therefore helpful to also summarize the procedural law relevant to such motions. " [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, which implicates personal jurisdiction over the defendant." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 351, 63 A.3d 940 (2013). Thus, " a motion to dismiss . . . is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Id., 349. " A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Weinstein & Wisser v. Cornelius, 151 Conn.App. 174, 182, 94 A.3d 700 (2014).
In the present case, the hospital defendants request that the court dismiss the plaintiff's action because, in view of Helfant, the author of the opinion letter here at issue cannot be considered a similar health care provider as to Subramaniam. The hospital defendants argue that the opinion letter fails to comply with § 52-190a and is therefore insufficient to support the claims against Subramaniam and, by extension, the hospital defendants. The plaintiff counters that, in light of the amendments that he made to the complaint in response to Helfant, the opinion letter is now adequate to support the original denials of the motions to dismiss.
General Statutes § 52-190a(a) provides in relevant part that, in any medical malpractice action, " 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 . . ." " To interpret the requirements of § 52-190a(a), [the court] 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.) Helfant v. Yale-New Haven Hospital, supra, 168 Conn.App. 57-58.
In the present case, because it is undisputed that Subramaniam is board certified in general surgery, pursuant to the plain language of § § 52-190a(a) and 52-184c(c), a " similar health care provider" with respect to Subramaniam would be a physician who is not only trained and experienced in general surgery, but one who is also " certified by the appropriate American board" in general surgery. General Statutes § 52-184c(c); see Gonzales v. Langdon, 161 Conn.App. 497, 505, 128 A.3d 562 (2015) (" [U]nder § 52-184c[c], it is not enough that an authoring health care provider has familiarity with or knowledge of the relevant standard of care . . . A similar health care provider must be 'trained and experienced in the same specialty' and 'certified by the appropriate American board in the same specialty.' General Statutes § 52-184c[c]" [citation omitted; emphasis added; internal quotation marks omitted]). Because it is likewise undisputed that the author of the plaintiff's opinion letter is not board certified in general surgery, he therefore does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c(c). See Helfant v. Yale New Haven Hospital, supra, 168 Conn.App. 58 (concluding that, because opinion letter author was not board certified in emergency medicine like defendant physician, author did not fall within definition in § 52-184c[c]).
Citing § 52-184c(c), the plaintiff contends that the opinion letter author nevertheless constitutes a similar health care provider for purposes of § 52-190a. The plaintiff argues that § 52-184c(c) contains an exception to the general definition and that this exception is applicable in the present case because Subramaniam was not providing treatment to the plaintiff solely within his claimed specialty of general surgery. The portion of § 52-184c(c) that the plaintiff refers to as the exception states: " [I]f 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.'" As the hospital defendants implied in explaining their basis for moving to reargue, the contours of this exception were poorly defined prior to the Appellate Court's decision in Helfant, having been considered by our appellate courts on only one previous occasion and in a different context. See Farrell v. Bass, 90 Conn.App. 804, 812-13, 879 A.2d 516 (2005) (affirming trial court's suppression of testimony from plaintiffs' experts regarding defendant's standard of care because experts were not similar health care providers).
In Helfant, the Appellate Court affirmed the trial court's dismissal of the plaintiff's medical negligence action on the ground that the opinion letter submitted by the plaintiff was not from a similar health care provider. Helfant v. Yale-New Haven Hospital, supra, 168 Conn.App. 50-51. The plaintiff alleged in that action that the defendant physician, who had been board certified by the American Board of Emergency Medicine, had acted negligently with respect to various aspects of the treatment of the plaintiff's decedent. Id., 52. In an attempt to comply with the requirements of § 52-190a, the plaintiff attached a letter authored by a physician purportedly certified as a specialist by various American boards of medicine; however, a specialty of emergency medicine was not one of the many listed. Id., 53. The Appellate Court therefore had no trouble in concluding that, " [b]ecause the plaintiff's expert [was] not board certified in emergency medicine, he [did] not fall within the statutory definition of a similar health care provider as set forth in § 52-184c(c)." Id., 58.
Citing the exception in § 52-184c(c), however, the plaintiff in Helfant argued that the opinion letter author was a similar health care provider for purposes of § 52-190a because the defendant had not been providing treatment to the decedent solely within his claimed specialty of emergency medicine. Helfant v. Yale-New Haven Hospital, supra, 168 Conn.App. 58-59. More specifically, the plaintiff argued that the defendant acted outside of his specialty when he endeavored to interpret the decedent's X-ray. Id., 59. The Appellate Court rejected this argument, emphasizing that " [i]t [was] important to note . . . that the plaintiff [had] not allege[d] in her . . . complaint that [the defendant had been] acting outside of his medical specialty when he rendered treatment to the decedent." Id. The court bolstered its conclusion by pointing out that the plaintiff had not restricted her claims against the defendant to improperly interpreting an X-ray but, rather, had made various other allegations that would clearly fall within the defendant's specialty. Id. Finally, the court stated that, even if it were to accept the plaintiff's assertion that the allegations of negligence were limited to the improper interpretation of the X-ray, " there were no facts alleged . . . to demonstrate that the interpretation of X-rays falls outside the purview of the emergency medicine specialty." Id., 60. The court therefore concluded that the trial court had not erred in dismissing the plaintiff's action.
In the present case, just as in Helfant, the operative, third amended complaint (operative complaint) is devoid of any specific, factual allegations from which one could conclude that Subramaniam had been acting outside his specialty of general surgery at the time of his alleged negligence. The plaintiff alleges in the operative complaint that Subramaniam and the hospital defendants breached their duty of care by (1) " failing to monitor and physically examine the plaintiff's abdomen while in the emergency room for changes suggesting that his condition was worsening and [that] his inflamed appendix was at risk of rupturing"; Pl.'s 3d Am. Compl. P33(a); and (2) " unnecessarily delaying surgery while the plaintiff was in the emergency room resulting in complications to the plaintiff's condition, including the rupturing of his appendix and the concomitant release of infectious pus into the plaintiff's abdominal cavity." Pl.'s 3d Am. Compl. P33(b). Although the plaintiff is careful to specify that the alleged negligence took place in the emergency room, this alone is insufficient to bring Subramaniam within the exception of § 52-184c(c). The setting in which the negligent conduct is alleged to have occurred is not necessarily determinative of whether that conduct fell outside the purview of the treating physician's specialty. Cf. Helfant v. Yale-New Haven Hospital, supra, 168 Conn.App. 60 (concluding that defendant's interpretation of X-ray was within his specialty of emergency medicine because it occurred in emergency room setting, but only after having first emphasized that plaintiff had alleged no facts to demonstrate that interpretation of X-rays fell outside purview of emergency medicine specialty). Indeed, it would defy common sense to conclude that a physician, providing treatment within his specialty while working in one part of a hospital, necessarily acts outside his specialty when he provides that same treatment elsewhere in the hospital. Thus, in order for the plaintiff to avail himself of the exception, he must have alleged something more.
On September 28, 2016, the plaintiff filed a request for leave to amend the second amended complaint pursuant to Practice Book § 10-60. Because no party filed an objection to the request within fifteen days, the amendment is " deemed to have been filed by consent of the adverse part[ies]." Practice Book § 10-60(a)(3). Although the hospital defendants had the right under Practice Book § 10-61 to alter their previously filed motions in light of the third amended complaint, they did not exercise this right, and, therefore, the motions " already filed by the [defendants] shall be regarded as applicable so far as possible to the amended pleading." Practice Book § 10-61.
The only allegation in the operative complaint that speaks to the capacity in which Subramaniam is alleged to have acted is the plaintiff's conclusory assertion that, " [a]t all times prior to the actual surgery, Dr. Subramaniam was acting outside of his specialty (general surgery) as a member of the emergency medicine team." Pl.'s 3d Am. Compl. P25. This is insufficient to support application of the exception in § 52-184c(c). To come within the exception, a plaintiff cannot rely solely on a conclusion of ultimate fact; he must allege " facts . . . to demonstrate that [the conduct at issue] falls outside the purview of the [defendant's specialty]." Helfant v. Yale-New Haven Hospital, supra, 168 Conn.App. 60. Indeed, it is well established that " [a] plaintiff, in presenting facts sufficient to establish the court's jurisdiction, must present specific, and not simply conclusory, allegations." Matthews v. SBA, Inc., 149 Conn.App. 513, 552, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
In sum, the plaintiff has not made any specific, factual allegations from which one could conclude that Subramaniam had been acting outside his general surgery specialty when he allegedly failed to properly monitor the plaintiff and unnecessarily delayed the surgery. Therefore, pursuant to the general definition in § 52-184c(c), a similar health care provider as to Subramaniam would be a physician who is American board certified in general surgery. The author of the opinion letter submitted by the plaintiff, however, is not so certified. The letter is therefore insufficient under § 52-190a to confer on the court personal jurisdiction over Subramaniam. Nevertheless, this conclusion does not end the court's inquiry, for the plaintiff raises the additional issue of whether the opinion letter, although insufficient as to Subramaniam, nevertheless remains sufficient for the hospital defendants.
The plaintiff contends that, even if the opinion letter is inadequate as to Subramaniam, it is sufficient as to other agents and/or employees of the hospital defendants, namely, Marvin McMillen, M.D, the medical director of surgical services at Bristol Hospital. The plaintiff makes two arguments. First, the plaintiff argues that the opinion letter author is a similar health care provider as to McMillen, under the general definition provided in § 52-184c(c), because McMillen and the author have a specialty in common--internal medicine. Alternately, the plaintiff contends that the opinion letter author is a similar health care provider as to McMillen under the exception to the general definition in § 52-184c(c). With respect to this contention, the plaintiff makes essentially the same argument as he makes in relation to Subramaniam: that McMillen was rendering medical care outside his fields of expertise.
The court need not reach these arguments. In order for the plaintiff to maintain a medical negligence action against the hospital defendants premised on vicarious liability for McMillen's conduct--which would thus require an opinion letter as to McMillen--the plaintiff must have alleged that McMillen had acted negligently. The plaintiff makes no such allegation. In the operative complaint, the specifications of negligence implicate only Subramaniam and the hospital defendants. Although the plaintiff does allege that the hospital defendants acted negligently " through [their] employees and/or agents"; Pl.'s 3d Am. Compl. P33; the fact remains that the only specific employee or agent alleged to have breached any duty of care is Subramaniam. The court recognizes the plaintiff's effort in identifying in the operative complaint various specific actions taken by McMillen and other medical staff in relation to the plaintiff's treatment, but, importantly, the plaintiff does not allege that McMillen or the other staff undertook these actions in a negligent manner. Thus, the only basis for the plaintiff's claim against the hospital defendants is the allegedly negligent conduct of Subramaniam. Consequently, it is immaterial whether the opinion letter submitted by the plaintiff would satisfy § 52-190a as to individuals other than Subramaniam. Therefore, because, as the court has already concluded, the opinion letter is legally insufficient as to Subramaniam, the letter is likewise insufficient as to the hospital defendants.
Specifically, the plaintiff alleges that McMillen: (1) is the medical director of surgical services at Bristol Hospital and is board certified in internal medicine, general surgery, and critical care, Pl.'s 3d Am. Compl. P15; (2) discussed the plaintiff's condition with Robert Murray, M.D., Pl.'s 3d Am. Compl. P15; (3) " requested the assistance of medical admission during the holding timeframe until operative management [was] available [in the] morning" (internal quotation marks omitted), Pl.'s 3d Am. Compl. 16; (4) is listed in the plaintiff's Bristol Hospital medical records as " [o]ther ED provider, " " [a]dmitting [p]hysician, " and " [a]ttending [p]hysician" (internal quotation marks omitted), Pl.'s 3d Am. Compl. P17; (5) is listed in the plaintiff's Bristol Hospital billing records as " [a]dmit [p]hysician" and " [a]ttending [p]hysician" (internal quotation marks omitted), Pl.'s 3d Am. Compl. P18; (6) was formally charged with supervising those other medical staff members who provided health care treatment to the plaintiff, including Subramaniam, Pl.'s 3d Am. Compl. P19; (7) was authorized by the plaintiff, in the plaintiff's informed consent farm, to perform the appendectomy with Subramaniam, Pl.'s 3d Am. Compl. P21; (8) electronically signed off on the admitting history and admitting physical that physician's assistant Leslie Madore conducted, Pl.'s 3d Am. Compl. P23; and (9) examined the plaintiff and explained the plan for the operating room, Pl.'s 3d Am. Compl. P24.
Specifically, the complaint references actions by Murray, see Pl.'s 3d Am. Compl. ¶ ¶ 14, 15, 20; Madore, see Pl.'s 3d Am. Compl. ¶ ¶ 21, 22, 23; registered nurse Mona Abaire, see Pl.'s 3d Am. Compl. ¶ ¶ 26, 27; and nurse Maria Deleppo. See Pl.'s 3d Am. Compl. P27. Although the plaintiff asserts, in his surreply in opposition to the motions to reargue, that he has alleged liability on the part of other actors in addition to McMillen, the plaintiff does not attempt to argue that the opinion letter would be adequate as to any of these other actors.
CONCLUSION
For the foregoing reasons, the court grants the hospital defendants' motions to dismiss.
It is important to stress that, although the plaintiff alleges that McMillen was responsible for supervising the other medical personnel involved in the plaintiff's treatment, nowhere does he allege that McMillen in some way failed to fulfill this responsibility.