Opinion
No. CV 10 6006135
March 2, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#109)
Facts and Procedural History
The plaintiffs, Susan and Frank Skewes, bring this medical malpractice action against Ocean Radiology Associates, P.C., Dr. Tibor Kereshi and Dr. Nicholas Salerno, for their alleged failure to diagnose Mrs. Skewes' breast cancer. On November 10, 2010, Kereshi, a board certified radiologist, and Ocean Radiology, the defendants for the purpose of this decision, filed a motion to dismiss counts one through four of the plaintiffs' six-count complaint, which was filed on October 1, 2010. The plaintiffs filed their objection to the defendants' motion to dismiss on January 10, 2011.
Discussion
The defendants argue that they are entitled to dismissal pursuant to General Statutes § 52-190a because the plaintiffs' opinion letter fails to satisfy that statute's requirements. Section 52-190a(a), in pertinent part, states: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . 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."
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." The Appellate Court held that "[a] plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action . . . Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
The defendant concedes that the opinion letter was written by a board certified radiologist, which is a "similar healthcare provider" to Dr. Salerno. See General Statutes § 52-184c. The defendant argues, however, that the opinion letter fails to set forth a detailed basis for the author's opinion that the defendant was negligent. The opinion letter states: "Thank you for asking me to review the mammograms and written reports of Susan Skewes . . . I have reviewed the following films of Susan Skewes . . . Susan Skewes had yearly appointments with her internist and had yearly mammograms. She was always told her mammograms were negative . . . I am of the opinion that Dr. Nicholas Salerno . . . violated the accepted standard of practice in the care and treatment of Susan Skewes. He failed to properly read and interpret the 9/30/08 mammogram. The mammograms were adequately interpreted in 2009, when Mrs. Skewes also palpated a lump in her left breast. She was diagnosed in February 2009 with cancer of the left breast. She underwent a lumpectomy in March 2009 with multiple node involvement and has a metastatic disease to her spine. Based upon my review, it is my opinion that there appears to be evidence of medical negligence on the part of . . . Dr. Salerno in the care and treatment of Susan Skewes. The opinion states herein is based upon the information available to me at this time . . ."
In Wilcox v. Schwartz, 119 Conn.App. 808, 810-11, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010), the plaintiffs claimed that the surgeon failed to prevent injury to the patient's biliary structures during the laparoscopic cholecystectomy. Attached to their complaint was a certificate of reasonable inquiry and the opinion letter of a similar health care provider. The letter, in its entirety, stated: "I have reviewed the relevant records and information that were provided to me with regard to Kristy Wilcox. I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of Kristy Wilcox provided by Daniel S. Schwartz, M.D. and that the care and treatment provided by Daniel S. Schwartz, M.D. was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident. Specifically Daniel S. Schwartz, M.D. failed to prevent injury to Kristy Wilcox's biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure of March 12, 2006. As a result of Dr. Schwartz's negligent treatment, Kristy Wilcox sustained severe, painful and permanent injuries. My opinions are based upon my education, training and experience as a physician, and my examination of Kristy Wilcox's medical records." Id., 811-12.
The Appellate Court found that the opinion revealed the author's statement of the prevailing standard of care: protecting the biliary structures during laparoscopic gallbladder surgery, which, the author opined, was breached by the surgeon breached in performing the surgery on the patient. See id., 815. The court was satisfied that this opinion was sufficiently detailed to satisfy the requirements of § 52-190a(a), in that it notified the defendants that a similar health care provider was of the opinion that their medical negligence consisted of a failure to protect the patient's bile ducts from injury during surgery. See id., 815-16. As a result, the court reversed the trial court's dismissal of the action. See id., 817.
Moreover, "a majority of [Superior Court] decisions have held that the opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence. See Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.). Section 52-190a [n]either explicitly nor implicitly . . . require[s] the letter of opinion accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter of opinion. DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) ( 43 Conn. L. Rptr. 420)." (Internal quotation marks omitted.) CT Page 5833 Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.).
The court finds that the defendant is not entitled to dismissal. The opinion letter revealed the author's statement of the prevailing standard of care: properly reading a mammogram so as to facilitate earlier diagnosis, which may have allowed Mrs. Skewes to avoid the subsequent lumpectomy, multiple node involvement, and metastatic disease to her spine.
Conclusion
For all of the foregoing reasons, the defendant's motion to dismiss, pursuant to § 52-190a(c), is hereby denied.
Facts and Procedural History
The plaintiffs, Susan and Frank Skewes, bring this medical malpractice action against Ocean Radiology Associates, P.C., Dr. Tibor Kereshi and Dr. Nicholas Salerno, for their alleged failure to diagnose Mrs. Skewes' breast cancer. On November 17, 2010, Salerno, a board certified radiologist and the defendant for the purpose of this decision, filed a motion to dismiss counts five and six of the plaintiffs' six-count complaint, which was filed on October 1, 2010. The plaintiffs filed their objection to the defendant's motion to dismiss on January 18, 2011.
Discussion
The defendant argues that he is entitled to dismissal pursuant to General Statutes § 52-190a because the plaintiffs' opinion letter fails to satisfy that statute's requirements. Section 52-190a(a), in pertinent part, states: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . 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."
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." The Appellate Court held that "[a] plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action . . . Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
Specifically, the defendants argue that "the opinion letter fails to state that there appears to be evidence of medical negligence as to each named party. No mention whatsoever is made of . . . Ocean Radiology Associates and the claims of negligence made against it, in its own capacity, in count one. Further, although the letter does state that Dr. Kereshi deviated from the standard of care, the opinion letter fails to provide a detailed basis for the formation of that opinion. These deficiencies are fatal to the plaintiffs' complaint and counts one, two, three and four are subject to dismissal."
The defendants concede that the opinion letter was written by a board certified radiologist, which is a "similar healthcare provider" to Dr. Kereshi. See General Statutes § 52-184c. Thus, the court will address the defendants' argument that the letter fails to provide a detailed basis for the formation of the author's opinion as to the alleged negligence of Dr. Kereshi. The opinion letter states: "Thank you for asking me to review the mammograms and written reports of Susan Skewes . . . I have reviewed the following films of Susan Skewes . . . Susan Skewes had yearly appointments with her internist and had yearly mammograms. She was always told her mammograms were negative. However, I am of the opinion that Dr. Tibor Kereshi violated the accepted standard of practice in the care and treatment of Susan Skewes. He failed to properly read and interpret the 7/31/07 mammogram . . . The mammograms were adequately interpreted in 2009, when Mrs. Skewes also palpated a lump in her left breast. She was diagnosed in February 2009 with cancer of the left breast. She underwent a lumpectomy in March 2009 with multiple node involvement and has a metastatic disease to her spine. Based upon my review, it is my opinion that there appears to be evidence of medical negligence on the part of Dr. Kereshi . . . in the care and treatment of Susan Skewes. The opinion states herein is based upon the information available to me at this time . . ."
In Wilcox v. Schwartz, 119 Conn.App. 808, 810-11, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010), the plaintiffs claimed that the surgeon failed to prevent injury to the patient's biliary structures during the laparoscopic cholecystectomy. Attached to their complaint was a certificate of reasonable inquiry and the opinion letter of a similar health care provider. The letter, in its entirety, stated: "I have reviewed the relevant records and information that were provided to me with regard to Kristy Wilcox. I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of Kristy Wilcox provided by Daniel S. Schwartz, M.D. and that the care and treatment provided by Daniel S. Schwartz, M.D. was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident. Specifically Daniel S. Schwartz, M.D. failed to prevent injury to Kristy Wilcox's biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure of March 12, 2006. As a result of Dr. Schwartz's negligent treatment, Kristy Wilcox sustained severe, painful and permanent injuries. My opinions are based upon my education, training and experience as a physician, and my examination of Kristy Wilcox's medical records." Id., 811-12.
The Appellate Court found that the opinion revealed the author's statement of the prevailing standard of care: protecting the biliary structures during laparoscopic gallbladder surgery, which, the author opined, was breached by the surgeon breached in performing the surgery on the patient. See id., 815. The court was satisfied that this opinion was sufficiently detailed to satisfy the requirements of § 52-190a(a), in that it notified the defendants that a similar health care provider was of the opinion that their medical negligence consisted of a failure to protect the patient's bile ducts from injury during surgery. See id., 815-16. As a result, the court reversed the trial court's dismissal of the action. See id., 817.
Moreover, "a majority of [Superior Court] decisions have held that the opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence. See Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.). Section 52-190a [n]either explicitly nor implicitly . . . require[s] the letter of opinion accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter of opinion. DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) ( 43 Conn. L. Rptr. 420)." (Internal quotation marks omitted.) Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.).
The court finds that the defendants are not entitled to dismissal on this basis. The opinion letter revealed the author's statement of the prevailing standard of care: properly reading a mammogram so as to facilitate earlier diagnosis, which may have allowed Mrs. Skewes to avoid the subsequent lumpectomy, multiple node involvement, and metastatic disease to her spine.
Next, the court will address the defendants' argument that the opinion letter is insufficient because it fails to mention Ocean Radiology or address the claims of negligence made against it. The plaintiffs' complaint alleges, in relevant part, that: "Ocean Radiology Associates, P.C. was a professional corporation . . . comprised of physicians specializing in radiology . . . Tibor Kereshi was a servant, agent, apparent agent and/or employee of . . . Ocean Radiology . . . Commencing on or about July 13, 2007 and continuously to on or about September 30, 2008 . . . Ocean Radiology . . . and its servants, agents, apparent agents and/or employees, undertook the care, treatment, monitoring, diagnosing and supervision of . . . Susan Skewes . . . While under the care, treatment, monitoring, diagnosing and supervision of . . . Ocean Radiology . . . and its servants, agents, apparent agents and/or employees, Susan Skewes suffered serious, severe, painful and permanent injuries . . ."
Decisions of the Superior Court are in agreement that when an institutional defendant is alleged to be vicariously liable for actions of a health care provider, so long as the written opinion is sufficient as to the health care provider, then it is sufficient as to the institutional defendant. "[Several] Superior Court decisions have held that plaintiffs are not required to attach additional opinion letters for institutional defendants when a letter is already attached for an individually named defendant and the complaint sounds in vicarious liability as to the institutional defendants. The courts reasoned that institutional defendants do not write opinions." Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) ( 49 Conn. L. Rptr. 162, 167 n. 14) (appeal pending); see also Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) ("Hospitals do not issue written opinions"); see e.g., Cataldo v. Zuccala, Superior Court, judicial district of Danbury, Docket No. CV 08 5004961 (August 11, 2009, Shaban, J.); Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 07 6001269 (November 28, 2007, Bellis, J.) ( 44 Conn. L. Rptr. 595).
In the present case, the opinion letter is sufficient as to Dr. Kereshi and the complaint sounds in vicarious liability against Ocean Radiology. As such, the opinion letter is also sufficient as to Ocean Radiology and thus, defendants are not entitled to dismissal on this basis.
Conclusion
For all of the foregoing reasons, the defendants' motion to dismiss, pursuant to § 52-190a(c), is hereby denied.