Opinion
LLICV166014063S
05-08-2017
Nicole Sibilia et al. v. Western Connecticut Medical Group, P.C
UNPUBLISHED OPINION
OPINION
Carl J., Schuman, J.
Ruling on Motion to Dismiss
The sole defendant, Western Connecticut Medical Group, P.C., a professional corporation, moves to dismiss this medical malpractice case, at least insofar as it alleges negligence based on the actions of Brian Connelly, an anesthesiologist. The defendant relies on the fact that the plaintiffs, Nicole and Mark Sibilia, provide an opinion letter supporting claims against the nurse anesthetist in the case but not against Dr. Connelly.
I
The complaint is in two counts. In the first count, plaintiff Nicole Sibilia alleges that Christina Imperio is a certified registered nurse anesthetist (CRNA) who was an employee of the defendant assigned to work at New Milford Hospital (hospital). The complaint then alleges that Connelly is a board certified anesthesiologist who also was an employee of the defendant working at the hospital. The complaint does not identify any other agents of the defendant. Without naming names, paragraph six simply alleges that the defendant, " its servants, agents, apparent agents, and/or employees" failed to exercise reasonable care in fourteen different ways, resulting in injury to plaintiff Nicole Sibilia. In count two, plaintiff Mark Sibilia alleges loss of consortium.
The plaintiffs attach an opinion letter from a CRNA. The letter makes passing reference to Connelly but at no point finds fault with his actions. The letter concludes that the defendant, " its agents, apparent agents, servants and/or employees, including CRNA Imperio[, ] acted below the accepted standard of care applicable to her in that, among other things, she failed to properly document difficulties with the intubation process, she failed to properly protect Ms. Sibilia's esophagus during the intubation process and she failed to identify injuries to the esophagus."
II
Pursuant to General Statutes § 52-190a(a), a party who files a medical malpractice action is required to file both a certificate of good faith of the attorney or party and a written opinion from a " similar health care provider as defined in section 52-184c, " stating " that there appears to be evidence of medical negligence and includ[ing] a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). Under § 52-184c(c), " [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; 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.'"
Section 52-190a provides:
In Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 104 A.3d 671 (2014), our Supreme Court confirmed that the good faith opinion letter requirement of § 52-190a(a) applied in malpractice actions against institutional defendants. Id., 719-24. The defendant acknowledges the general rule, as developed through Superior Court cases, that an opinion letter sufficient against one employee of an institutional defendant meets the requirements of § 52-190a(a) in an action against the institution. See, e.g., Isbell v. Lawrence & Memorial Hospital, Inc., Superior Court, judicial district of New London, Docket No. CV-13-6017593-S (October 22, 2014, Cole-Chu, J.) (59 Conn.L.Rptr. 215, 216-17, ). As a corollary of this rule, Superior Court cases have generally held that, if the opinion letter is sufficient as to the agent physician, it is also sufficient to satisfy § 52-190a as to the principal nonindividual defendants. See, e.g., Recinos v. McCarthy, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-15-6028101-S (January 6, 2016, Zemetis, J.) (61 Conn.L.Rptr. 567, 569, ).
Wilkins also held that a board certified obstetrician and gynecologist was a " similar health care provider" to nurse-midwives within the meaning of the good faith opinion letter requirement. Wilkins v. Connecticut Childbirth & Women's Center, supra, 314 Conn. 724-37. The Court reasoned that " 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." (Emphasis added.) Id., 727. The Court noted that the good faith opinion certification in the case came from a physician who was board certified in obstetrics and gynecology and who had " trained and supervised nurse-midwives." Id.
The defendant contends, however, that an opinion letter sufficient against one employee satisfies the statutory requirement in an action against an institutional defendant only if, as in Wilkins, the employee has equal or greater training than the other employees. The defendant essentially argues that the " one for all" rule is a one-way street. According to the defendant, an opinion letter from a medical professional with less training than a physician does not suffice to tie that physician's alleged negligence into the case against the institutional defendant.
The defendant points out, with no substantial disagreement from the plaintiff, that the cases have not addressed this proposed exception to the general rule. Nor do the relevant statutes expressly prescribe the requirements in this situation. Accordingly, the court turns to the legislative purpose behind the opinion letter rule. See First Constitution Bank v. Harbor Village Limited Partnership, 37 Conn.App. 698, 706, 657 A.2d 1110, cert. denied, 235 Conn. 902, 665 A.2d 901 (1995). As the Court stated in Wilkins : " The principal purpose of § 52-190a is to avoid frivolous actions against health care providers. It would frustrate the purpose of the statute to allow an action to proceed against a medical institution or facility in the absence of a good faith certificate and opinion letter." Wilkins v. Connecticut Childbirth & Women's Center, s upra, 314 Conn. 724.
Applying those concerns to this case, the court agrees that it would also frustrate the purpose of the statute to allow a plaintiff to rely on an opinion letter from a lesser trained professional to implicate the alleged negligence of a medical doctor in the vicarious liability of a medical institutional defendant. To carry the plaintiff's position further, the plaintiff could rely on an opinion letter from a licensed professional nurse to justify a case against an institution based on the alleged negligence of a medical doctor. Such a letter would provide no guaranty against a frivolous action claiming negligence of a medical doctor, thus defeating the purpose of the statute. Plaintiffs unable to obtain an opinion letter for a medical doctor could simply sue the doctor's employer and attach an opinion letter from a lesser trained professional, thus circumventing the statute's salutary goals. Accordingly, the court concurs with the defendant's position.
In the present case, there is no claim that the CRNA who authored the opinion letter has greater training and experience than Connelly or that the CRNA had trained or supervised anesthesiologists. Nor is there any claim that the author is " certified by the appropriate American board in the same specialty" as Connelly, who is a board-certified anesthesiologist. General Statutes § 52-184c(c). Furthermore, as indicated above, the letter makes only passing reference to Connelly but at no point finds fault with his actions. It therefore does not include a detailed basis for the formation of the opinion that Connolly was medically negligent, as required by § 52-190a(a). Therefore, the plaintiff's opinion letter does not suffice to implicate Connelly's negligence.
III
The defendant's motion ultimately seeks to " dismiss all claims against Western Connecticut Medical Group, P.C. alleging vicarious liability based on [Dr. Connolly's] negligence." (Motion to Dismiss, p. 1.) The initial difficulty is that there do not appear to be any specific claims against Connelly. The complaint names him in the first count but makes no specific allegations against him. Similarly, the opinion letter specifies only nurse Imperio in its critical sentence regarding the breach of the standard of care. The court, even if it should grant the motion to dismiss, is therefore left with uncertainty as to precisely what it should dismiss. It is also uncertain whether the plaintiffs actually contend that Connelly committed malpractice but believe that the opinion letter need not address his alleged negligence, or whether the plaintiffs included Connelly's name in the complaint as a matter of completeness but do not claim that he acted negligently.
To remedy this uncertainty, the court, as a lesser power of its authority to grant a dismissal, will order that the plaintiffs revise their complaint. If the plaintiffs intend to claim the vicarious liability of the defendant based at least in part on the negligence of Connelly, they shall so allege in a separate count. Under the court's ruling, the plaintiffs must then support that claim with an opinion letter from a similar health care provider to Connelly that includes a detailed basis for the formation of the opinion that he was medically negligent. If they do not support this count with an appropriate opinion letter, that count will be subject to dismissal. The court will allow sixty days for the plaintiffs to revise their complaint and attach an opinion letter. If the plaintiffs do not chose to revise their complaint in this fashion, then the court will construe the complaint so as not to allege in any way that the vicarious liability of the defendant stems from the negligence of Connelly.
IV
The motion to dismiss is denied at this time, but the court will reconsider the matter upon the defendant's request in sixty days.
It is so ordered.
(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 or apportionment complaint 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, initial pleading or apportionment 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 or for an apportionment complaint against each named apportionment defendant. 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 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate. (b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods. (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.