Opinion
No. CV10 6013753 S
January 20, 2011
MEMORANDUM OF DECISION
FACTS
On August 17, 2010, the plaintiff, JoAnn Smith, the administratix of the estate of Shane R. Smith, filed a complaint alleging medical malpractice against the defendant, Scott Crowley, a physician assistant. The complaint alleges the following facts. On August 8, 2008, the plaintiff's son, Shane R. Smith, had surgery to treat a laceration and fractured elbow at MidState Medical Center. The surgery was uneventful. After the surgery, the defendant provided Shane R. Smith with postoperative care and treatment. Later that day, Shane R. Smith died. The plaintiff alleges that her son died as the result of the negligent postoperative care and treatment by the defendant. Pursuant to General Statutes § 52-190a(a), the plaintiff attached to her complaint a certificate of good faith by her attorney and a written opinion of an unidentified orthopaedic surgeon concluding that the defendant was negligent and deviated from the standard of care expected of a physician assistant in failing to order appropriate postoperative monitoring.
MidState Medical Center, Meriden-Wallingford Anesthesia Group, P.C., Guy Aliotta, M.D., John Stephen Hayes, C.R.N.A., Kristin Ohler-Zullo, R.N. and Mary Ann Thorpe, L.P.N. were also named as defendants but are not party to the present motion to dismiss. As such, the aforementioned are not included in any references to the defendant.
On September 17, 2010, the defendant filed a motion to dismiss the claims against him on the ground that the plaintiff failed to include with her complaint an opinion letter from a similar health care provider as required by General Statutes § 52-190a. He also filed a memorandum in support of his motion to dismiss. On November 12, 2010, the plaintiff filed a memorandum in opposition to the motion to dismiss. On November 15, 2010, the court heard oral arguments at short calendar.
DISCUSSION
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 stating "that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). "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 . . . However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy . . ." 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).
When the defendant health care provider is not a specialist, the author of the written opinion must meet the requirements of § 52-184c(b). Section 52-184c(b) states in relevant part: "[A] `similar health care provider' is one who . . . (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
In his memorandum in support of his motion to dismiss, the defendant argues that the author of the plaintiff's opinion letter is not a similar health care provider under § 52-184c(b). Specifically, he argues that even though the attesting physician and the defendant may work in similar settings, the attesting physician, an orthopaedic surgeon, has higher qualifications, a different education, license and skill set than the defendant, a physician assistant, and is therefore, not a similar health care provider. In her memorandum objecting to the motion to dismiss, the plaintiff argues that the author of the opinion letter is sufficiently qualified for the purposes of § 52-184c(b). Specifically, she argues that although a physician assistant and a physician have different education and certification requirements, physician assistants perform the same or similar duties as physicians albeit under a physician's supervison.
There is a split in authority in the Superior Court regarding the interpretation of § 52-184c(b). The court in Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 095026454 (December 4, 2009, Wilson, J.) ( 49 Conn. L. Rptr. 162), took a strict approach and held that a board certified physician in emergency medicine was not a similar health care provider to a physician assistant. The court reasoned: "[T]he Appellate Court has noted that `arguably, § 52-190a sets the bar higher to get into court than to prevail at trial. Although this result may be harsh to would-be plaintiffs, we cannot conclude that it is absurd or unworkable.' Bennett v. New Milford Hospital Inc., [ 117 Conn.App. 535, 549 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009).] . . . [T]he plaintiff's opinion writer, a board certified physician in emergency medicine, and [the defendant], a physician's assistant, are not trained in the same discipline or school of practice and are therefore insufficiently similar . . . A board certified physician who specializes in emergency medicine has a different education, license and skill set than a physician's assistant, even though they may work in similar settings. See, e.g., General Statutes § 20-12a et seq., which regulates the licensing and duties of physician's assistants. Although this may seem to be a harsh result, the Appellate Court has concluded that an opinion must come from a `similar health care provider' as defined in §§ 52-184c(b) or (c), and the plaintiff's opinion writer in the present matter does not satisfy § 52-184c(b). Therefore, the plaintiff's opinion writer is insufficiently similar to [the defendant]." Wightman, supra, 49 Conn. L. Rptr. 165. See also Xicohtencatl v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.) ( 49 Conn. L. Rptr. 156) (holding that the plaintiff's letter from a board certified obstetrician and gynecologist was not written by a similar health care provider where the defendant was a physician assistant).
Furthermore, the court in Wightman acknowledged in a footnote: "Although Bennett is a case involving § 52-184c(c), this language illustrates the Appellate Court's acceptance of the strict, threshold requirement that an opinion come from a `similar health care provider' within the meaning of §§ 52-184c(b) or (c), as compared to the less stringent requirement for expert witnesses in § 52-184c(d)." Id. n. 19 168.
The court in Ogden v. Marlborough Health Care Center, Superior Court, judicial district of New Britain, Docket No. CV 09 5014553 (May 26, 2010, Swienton, J.), reached a different conclusion. Ogden held that a registered nurse was a similar health care provider to a nurse's aide. Id. The court reasoned: "[A]ppropriately qualified registered nurses can be `similar health care providers' with respect to certified nurse's aides for the purposes of § 52-184c(b). Though nurse's aides and registered nurses have different education and certification requirements, nurse's aides perform the same duties as nurses, albeit under a nurse's supervision. General Statutes § 20-102aa defines a `nurse's aide' as `an individual providing nursing or nursing-related services to residents in a chronic and convalescent nursing home or rest home with nursing supervision . . . `Consequently, nurses and nurse's aides both perform nursing duties and therefore adhere to the same standard of care regarding their patients. Given that the written opinion only needs to address whether there was a likely breach of a standard of care; Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009); a registered nurse can opine as to the standard of care of a nurse's aide for the purposes of § 52-190a(a) and § 52-184c(b)." Ogden, supra.
In the present case, this court follows the reasoning of Ogden. While the Wightman approach is certainly a reasonable interpretation of a complex statutory scheme, it places too much weight on the Appellate Court's decision in Bennett.
In Bennett, the plaintiff filed a medical malpractice lawsuit against the defendant, who was a physician trained and experienced in emergency medicine. The plaintiff's opinion letter was written by a board certified general surgeon who had experience in the emergency department. Bennett, supra, 117 Conn.App. 539. The defendant moved to dismiss on the ground that the author of the opinion letter was not a "similar health care provider" under § 52-184c. Bennett, supra, 117 Conn.App. 540. The court reasoned: "Subsections (b) and (c) of § 52-184c define a `similar health care provider' . . . 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 . . . `This definition fits the fact at hand. Thus, pursuant to the plain language of §§ 52-190a(a) and 52-184c(c), a `similar health care provider' with respect to [the defendant] would be one who is trained and experienced in emergency medicine and is certified in emergency medicine. Accordingly, before bringing an action alleging medical negligence on [the defendant's] part, the plaintiff or his attorney must obtain and file a written and signed opinion from such a physician that there appears to be evidence of such negligence. Because the plaintiff's expert is not certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c(c)." (Emphasis in original.) Bennett, supra, 117 Conn.App. 546-47.
The Appellate Court in interpreting § 52-184c(c), which governs specialists, took a strict approach because under that subsection a similar health care provider is one who is "(1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . ." The requirements under § 52-184c(b), which are at issue in the present casey are not as strict as those of § 52-184c(c). Unlike § 52-184c(c), § 52-184c(b) does not require the author of the opinion letter to be certified by the appropriate American board in the same speciality. Accordingly, § 52-184c(b) need not be as interpreted as strictly as § 52-184c(c).
Though physician assistants and physicians have different education and certification requirements, physician assistants perform similar duties as physicians, albeit under a physician's supervision. General Statutes § 20-12a(5) defines "physician assistant" as "an individual who: (A) [f]unctions in a dependent relationship with a physician licensed pursuant to this chapter; and (B) is licensed pursuant to Section 20-12b to provide patient services under the supervision, control, responsibility and direction of said physician." In order to supervise a physician assistant properly, a physician must know the standard of care to which the physician assistant must adhere. Therefore, a physician can give an opinion as to the standard of care of a physician assistant under § 52-190a(a) and § 52-184c(b).
In the present case, the plaintiff's opinion writer is sufficiently qualified for the purposes § 52-184c(b). The opinion writer is a board certified orthopaedic surgeon who has more than twenty-eight years of experience in the field of orthopaedic surgery. Additionally, the writer states that he or she is familiar with the standard of care required of orthopaedic surgeons and physician assistants in post-operative monitoring. The writer has trained medical students on the care of patients undergoing orthopaedic surgical procedures including postoperative management of patients following general anesthesia and patient controlled anaesthesia. He or she has been appointed to several hospital committees, including utilization review, the tissue committee, and the operating room committee. Therefore, the plaintiff's opinion writer may give an opinion as to the standard of care of the defendant physician assistant for the purposes of § 52-190a(a) and § 52-184c(b). For the foregoing reasons, the court denies the defendant's motion to dismiss.