Opinion
No. CV 10 6002934
December 30, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 136)
I. FACTS
On February 20, 2010, the plaintiff, Janice Stimac, filed a complaint alleging medical malpractice against Frank Maletz, M.D., Cross Roads Orthopedic Subspecialists, LLC, Patrick Doherty, M.D., Sound Medical Neurosurgical Associates, Louis Mazzarelli, M.D., Tibor Kereshi, M.D., Lawrence Memorial Hospital, Inc. (Lawrence Memorial), Ocean Radiology Associates (Ocean) and Southeastern Connecticut Imaging Center, LLC (Southeastern). In her revised complaint filed on June 18, 2010, the plaintiff alleges that the defendants caused her various injuries as a result of the care and treatment she received related to a lumbar fusion surgery that took place on October 25, 2007, as well as her aftercare.
On July 14, 2010, Mazzarelli, Kereshi, Ocean and Southeastern filed a motion to dismiss along with a supporting memorandum of law. They seek to dismiss the plaintiff's claims against them on the ground that the plaintiff failed to obtain and attach a written opinion from a similar health care provider as required by § 52-190a. On September 20, 2010, the plaintiff filed an objection to the motion to dismiss. On August 12, 2010, Mazzarelli, Kereshi, Ocean and Southeastern filed a supplemental memorandum of law in support of their motion to dismiss. The court heard oral argument on October 18, 2010.
At oral argument, the court, Cosgrove, J., requested, sua sponte, that the parties submit supplemental memoranda on the issue of whether the motion to dismiss was timely filed. Specifically, the issue to be addressed was whether a motion to dismiss challenging the adequacy of a written opinion pursuant to § 52-190a is subject to Practice Book § 10-32 in that it implicates personal jurisdiction and is therefore waived if not filed within thirty days of the filing of the appearance. The parties filed their supplemental memoranda on October 25, 2010.
Counts five and six are directed against Mazzarelli and Kereshi, respectively. In both counts, the plaintiff alleges the following facts. At all relevant times Mazzarelli and Kereshi held themselves out to the general public as physicians specializing in the field of radiology and licensed to practice in Connecticut. They acted as agents, servants, employees or principals of Ocean, Southeastern or Lawrence Memorial. On or about October 25, 2007, and continuing until on or about February 27, 2008, Mazzarelli and Kereshi undertook the care and treatment of the plaintiff's radiological needs including, among other things, the interpretation and reporting of imaging studies relating to the positioning of pedicle screws. As a result of the care, treatment and supervision by Mazzarelli and Kereshi, the plaintiff suffered injuries. The injuries were caused by the failure of Mazzarelli and Kereshi to exercise the degree of care and skill ordinarily and customarily utilized by radiologists.
Counts eight and nine are directed at Ocean and Southeastern, respectively. In both counts, the plaintiff alleges the following facts. Ocean and Southeastern acted through its agents, servants, employees or principals in providing care and treatment to the plaintiff. On or about October 25, 2007, Ocean and Southeastern undertook the care, treatment and supervision of the plaintiff's radiological needs including the interpretation and reporting of imaging studies obtained on December 17, 2007 or January 23, 2008, relating to the positioning of pedicle screws in her spine. As a result of the care, treatment and supervision by Ocean and Southeastern, the plaintiff suffered injuries. These injuries were caused by the failure of Ocean and Southeastern to exercise the degree of care and skill ordinarily and customarily used by medical providers.
Pursuant to General Statutes § 52-190a, the plaintiff attached to her complaint a certificate of good faith by her attorney and a written opinion of a board certified neurosurgeon that concluded that Mazzarelli and Kereshi deviated from the standard of care in their treatment of the plaintiff. On February 23, 2010, Mazzarelli, Kereshi, Ocean and Southeastern filed their appearance. On March 9, 2010, they filed a motion for extension of time seeking an additional thirty days to file a responsive pleading to the plaintiff's complaint. Thereafter, on April 29, 2010, they filed a second motion for extension of time seeking an additional ninety days, until July 28, 2010, to file a responsive pleading.
II. DISCUSSION
A party who files a medical malpractice action is required to file both a certificate of good faith 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).
A. Waiver Pursuant to Practice Book § 10-32
Mazzarelli, Kereshi, Ocean and Southeastern argue that their motion to dismiss was timely filed for several reasons. First, they argue that § 52-190a does not implicate personal jurisdiction, and therefore, they were not required to file the motion within thirty days of the entry of their appearance. Second, they argue that § 52-190a does not contain a time requirement. Third, they argue that a motion to dismiss is not the exclusive pleading which can be used to attack the sufficiency of a written opinion under § 52-190a, and therefore, does not have to be filed within thirty days of the entry of a defendant's appearance. Fourth, they argue that Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) ( 50 Conn. L. Rptr. 199), which held that a motion to dismiss pursuant to § 52-190a should be treated as a challenge to personal jurisdiction, was wrongly decided. Finally, they argue that even if § 52-190a implicates personal jurisdiction, their motion to dismiss is still timely because it was filed within the time frame of their second motion for extension of time.
The plaintiff counters with two arguments. First, she argues that although there is a split of authority in the Superior Court regarding whether a motion to dismiss brought pursuant to § 52-190a implicates the court's personal jurisdiction over a defendant, Sanabria was properly decided and should govern the present case. Second, the plaintiff argues that Mazzarelli, Kereshi, Ocean and Southeastern waived their statutory right to dismissal on equitable grounds.
The court need not address the Mazzarelli, Kereshi, Ocean and Southeastern's first three arguments because it is the opinion of the court that Sanabria, was correctly decided and governs the present case. Accordingly, as a preliminary matter, the court must determine whether Mazzarelli, Kereshi, Ocean and Southeastern have waived their right to challenge the court's personal jurisdiction over them.
"Practice Book § 10-32 provides: `Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.' The grounds of `improper venue' or `insufficiency of process' or `insufficiency of service of process' are specific grounds to challenge a court's jurisdiction over a particular person. `[Practice Book § 10-30] specifically and unambiguously provides that any claim of lack of jurisdiction over the person or an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court.' (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). `Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.' Foster v. Smith, 91 Conn.App. 528, 536-37, 881 A.2d 497 (2005)." Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 200.
According to Sanabria: "The issue of whether a plaintiff has complied with § 52-190a implicates the court's personal jurisdiction over the person of a defendant . . . The sufficiency of a § 52-190a opinion letter is a threshold question that ought to be raised and addressed in an expeditious fashion . . . [T]he Practice Book's thirty-day time frame for raising these issues is appropriate. This time frame is triggered by an appearance on behalf of the defendant. Without such a limiting time frame, a defendant could sit on his rights, expend the time and energy of his opponent and the court on pleadings and motions practice and then at the last hour raise his grounds for dismissal. Accordingly, . . . claims challenging the adequacy of a written opinion pursuant to § 52-190a are waived if not raised in the manner specified in § 10-32." Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 201.
A review of the file establishes that Mazzarelli, Kereshi, Ocean and Southeastern have filed their motion to dismiss in a timely manner. On February 23, 2010, they filed their appearance, which triggered the start of the thirty-day time frame. On March 9, 2010, they filed a motion for extension of time seeking an additional thirty days to file a responsive pleading to the plaintiff's complaint, which the court granted. Thereafter, on April 29, 2010, they filed a second motion for extension of time seeking an additional ninety days, until July 28, 2010, to file a responsive pleading. On July 14, 2010, they filed their motion to dismiss. The motion to dismiss is timely because they filed it within the extended time frame. Additionally, they have not waived their right to file their motion to dismiss on equitable grounds because they have filed it within a reasonable period of time from the filing of the complaint. Unlike the defendants in Sanabria who waited one year after the plaintiff filed the complaint to file their motion to dismiss, Mazzarelli, Kereshi, Ocean and Southeastern filed their motion within six months of the filing of the complaint. Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 203.
The April 29, 2010 motion for extension of time was marked "take papers" on the short calendar. The plaintiff did not object to the motion for extension of time.
B. Adequacy of the Plaintiff's Opinion Letter Under General Statutes § 52-190a
Mazzarelli, Kereshi, Ocean and Southeastern argue that the plaintiff has failed to attach to her complaint a supporting written opinion authored by a similar healthcare provider in compliance with the requirements of § 52-190a. Specifically, Mazzarelli, Kereshi, Ocean and Southeastern argue that the plaintiff did not attach a written opinion authored by a radiologist despite the fact that her claims focus on radiological services they provided. Instead, the plaintiff attached a written opinion authored by a physician who specializes in neurosurgery.
The plaintiff counters by arguing that the written opinion complies with the statutory requirements of § 52-190a because Mazzarelli and Kereshi were providing treatment and diagnosis for a condition that is not within their specialty. Specifically, the plaintiff argues that because Mazzarelli and Kereshi undertook her treatment and care related to her spinal surgery, a similar health care provider would be a specialist trained in the treatment or diagnosis for the misplacement of pedicle screws, in other words, a spinal surgeon. Additionally, the plaintiff argues that even if the court grants the motion to dismiss as to Mazzarelli and Kereshi, the individuals, the court should not grant the motion to dismiss as to Ocean and Southeastern, the institutions. Mazzarelli, Kereshi, Ocean and Southeastern have not submitted arguments regarding the distinction between individual and institutional defendants.
1. Adequacy of the Plaintiff's Opinion Letter as Against Mazzarelli and Kereshi
When a plaintiff alleges medical malpractice against a specialist, General Statutes § 52-184c(c) applies. Section 52-184c(c) provides: "If 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) [i]s 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.'"
The Appellate Court in Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009), addressed the issue of what constituted a "similar health care provider" pursuant to § 52-184c(c). In Bennett, the plaintiff filed a medical malpractice lawsuit against the defendant, a physician who specialized in emergency medicine. Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 538, 539. The plaintiff's opinion letter was written by a board certified general surgeon who had experience in the emergency department. Bennett v. New Milford Hospital, Inc., supra, 539. The trial court granted the defendant's motion to dismiss pursuant to § 52-190a on the ground that the author of the opinion letter was not a "similar health care provider" under § 52-184c. Bennett v. New Milford Hospital, Inc., supra, 540. On appeal, the Appellate Court affirmed the trial court's decision. Bennett v. New Milford Hospital, Inc., supra, 550. According to the Appellate Court: "Subsections (b) and (c) of § 52-184c define a `similar health care provider' for purposes of [§ 52-190a(a)]. 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 v. New Milford Hospital, Inc., supra, 546-47.
In the present case, the plaintiff's opinion letter does not satisfy Bennett's interpretation of § 52-184c(c). The plaintiff argues that her revised complaint alleges that Mazzarelli and Kereshi, were providing treatment and diagnosis for a condition that is not within their radiology specialty, but a close reading of the complaint reveals otherwise. The revised complaint alleges that Mazzarelli and Kereshi undertook the care and treatment of the plaintiff's radiological needs. Additionally, the revised complaint alleges that the plaintiff's injuries were caused by the failure of Mazzarelli and Kereshi to exercise the degree of care and skill utilized by radiologists by: failing to adequately and properly care for the treatment and supervision of the plaintiff's needs; failing to adequately and properly treat the plaintiff and advise her of the risk concerning the misplacement of pedicle screws; preparing an inaccurate report concerning the plaintiff's CT scan; and improperly interpreting the plaintiff's imaging films. These factual allegations are properly characterized as radiological and not neurological. To satisfy § 52-184c(c) the plaintiff's opinion letter must be written by an author who is trained and experienced in radiology and is certified in radiology. Therefore, the author of the plaintiff's opinion letter, a neurosurgeon, is not a "similar health care provider" under §§ 52-190a and 52-184c(c). The court grants Mazzarelli and Kereshi's motion to dismiss the claims against them in counts five and six, respectively.
2. Adequacy of the Plaintiff's Opinion Letter as Against Ocean and Southeastern
The plaintiff first argues that a number of Superior Court decisions have held that if an opinion letter submitted pursuant to § 52-190a as to a defendant physician is deemed to be authored by a sufficiently similar healthcare provider, the requirements of § 52-190a in that respect have been met as to institutional defendants as well. Specifically, the plaintiff argues that if her opinion letter is sufficient as to Mazzarelli and Kereshi, it should be sufficient as to Ocean and Southeastern too.
"[A] significant number of Superior Court decisions have held that if the written opinion letter is sufficient as to at least one of the agents, servants and/or employees of an institutional defendant, the letter satisfies the requirements of § 52-190a. See Murphy v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 09 5008059 (January 26, 2010, Marano, J.) [ 49 Conn. L. Rptr. 257]; 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); Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) ( 44 Conn. L. Rptr. 347)." Wilkins v. Connecticut Childbirth Women's Center, Superior Court, judicial district of Danbury, Docket No. CV 09 5007713 (April 7, 2010, Marano, J.) ( 49 Conn. L. Rptr. 655, 657). As discussed above, the author of the plaintiff's opinion letter is not a "similar health care provider" under § 52-190a as to Mazzarelli and Kereshi, and therefore, cannot be a "similar health care provider" as to Ocean and Southeastern by virtue of Mazzarelli and Kereshi's employment.
Second, the plaintiff argues that even if the court were to find the author of her opinion letter not qualified as a similar health care provider as to Mazzarelli and Kereshi as individuals, it should not grant dismissal to Ocean and Southeastern as institutions. Specifically, the plaintiff argues that the revised complaint alleges that she suffered injuries from treatment not only by Ocean and Southeastern, but also their agents, servants, employees or principals. Consequently, the plaintiff argues that the relevant health care providers are the employees of Ocean and Southeastern who are not certified and who provided her postsurgical care. The plaintiff argues that the proper standard for defendants who are not certified is that of General Statutes § 52-184c(b), which provides in relevant part: "[a] `similar health care provider' is one who: (1) [i]s licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (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." The plaintiff argues that as a qualified neurological surgeon, the author of her opinion letter is similarly or better qualified than the employees of Ocean and Southern who are not certified and provided her postsurgical care.
In the plaintiff's opinion letter, the author did not give an opinion as to whether Ocean, Southeastern or their employees other than Mazzarelli and Kereshi breached the standard of care owed the plaintiff. In fact, the opinion letter does not mention Ocean, Southeastern or their employees other than Mazzarelli and Kereshi. In any event, the facts the plaintiff alleges against Ocean, Southeastern and their employees are substantially similar to those she alleges against Mazzarelli and Kereshi as outlined above. Thus, the malpractice alleged against Ocean, Southeastern and their employees is properly characterized as radiological not neurological. Therefore, the author of the plaintiff's opinion letter, a neurosurgeon with no training or experience in the discipline of radiology, is not a "similar health care provider" under §§ 52-190a and 52-184c(b) as to Ocean and Southeastern or their employees.
III. CONCLUSION
For the foregoing reasons, Mazzarelli, Kereshi, Ocean and Southeastern have not waived their right to challenge the court's personal jurisdiction over them. The court grants Mazzarelli, Kereshi, Ocean and Southeastern's motion to dismiss the claims against them in counts five, six, eight and nine, respectively.