Opinion
CV095014599.
11-07-2012
Gary STRICKLAND, Administrator of the Estate of Marion Drezek v. BRISTOL HOSPITAL, INC. et al.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE RENEWED MOTION TO DISMISS, # 180
As noted below, although the motion before the court is a " renewed motion to dismiss, " it is effectively a motion to reargue the court's prior denial of a motion to dismiss.
SWIENTON, J.
The court had previously denied Bristol Hospital's motion to dismiss the plaintiff's second count. See Memorandum of Decision dated September 27, 2010, Swienton, J., # 150 . The defendant, Bristol Hospital, has renewed its motion to dismiss the second count on the ground that the Appellate Court decision in Wilkins v. Connecticut Childbirth & Women's Center, 135 Conn.App. 679, 42 A.3d 521 (2012), contradicts the court's ruling on the prior motion to dismiss.
FACTS
On November 3, 2009, the plaintiff, Gary Strickland, in his capacity as the administrator of the estate of Marion Drezek, the decedent, filed a four-count complaint for medical malpractice against the defendants Bristol Hospital and Dr. Cliff Wagner, a physician specializing in emergency medicine employed by Bristol Hospital. Following the submission of an amended complaint on March 4, 2010, and a substituted complaint on March 30, 2011, the plaintiff filed a three-count second substituted complaint on June 7, 2011, for medical malpractice against the defendants. In the second substituted complaint, the plaintiff alleges that the defendants were negligent in their treatment of the decedent, who allegedly suffered serious, severe, painful and permanent injuries leading to her death while under their care. Each of the three counts features identical allegations of negligence. Count one is directed at Bristol Hospital under the theory of respondeat superior for the actions of its agents, servants and/or employees, triage nurse(s), emergency department nurse(s) and/or emergency department technician(s); count two is directed at the defendant, Dr. Wagner; and count three is directed at Bristol Hospital under the theory of respondeat superior for the alleged malpractice of Dr. Wagner, who was an agent, servant, and/or employee of the hospital. To comply with the requirements of General Statutes § 52-190a for filing a medical malpractice action, the plaintiff attached a letter from a board certified emergency medicine physician stating that Dr. Wagner and the staff of Bristol Hospital violated the applicable standard of care for the treatment of the decedent to the original November 3, 2009 complaint.
On March 24, 2010, Bristol Hospital filed a motion to dismiss the first count of the revised complaint insofar as the count sought to hold the hospital vicariously liable for the actions of any person other than Dr. Cliff Wagner, or any other emergency room physician. Bristol Hospital argued that the plaintiff only attached an opinion letter of an emergency medicine physician to the original complaint. Bristol Hospital asserted that this letter was insufficient for the actions of the additional, unidentified health care providers, who may not be emergency medicine physicians. The court denied the motion to dismiss, noting that Bristol Hospital conceded that the plaintiff's opinion letter was sufficient for counts two and three involving Dr. Wagner. The court agreed with the reasoning of the majority of Superior Court decisions, which hold that a written opinion is sufficient for a medical institution if it is sufficient for at least one agent or employee of the medical institution.
Bristol Hospital initially moved to dismiss count two of the original complaint, however, prior to oral argument on the motion to dismiss, the complaint was revised. This amended complaint split the allegations of vicarious liability of the negligence of the doctor and the hospital staff into two separate counts, which are reflected above. The second substituted complaint, filed on June 7, 2011, is almost identical to the amended complaint and the substituted complaint of March 30, 2011, but now includes those allegations that the plaintiff must prove to establish agency and adds the terms " triage nurse(s), emergency department nurse(s) and/or emergency department technician(s)" to paragraph nine of the second count.
On April 13, 2011, the plaintiff filed its disclosure of expert witnesses. One of the two expert witnesses, Dr. Paige, an emergency physician, is expected to testify that Dr. Wagner and two emergency care nurses, Nurse Cribley and Nurse Dzis, deviated from their respective standards of care in their care and treatment of the decedent.
On August 3, 2012, Bristol Hospital filed a renewed motion to dismiss (motion to reargue) on the ground that the recent Appellate Court decision of Wilkins v. Connecticut Childbirth & Women's Center, 135 Conn.App. 679, 42 A.3d 521 (2012), contradicts the trial court's ruling on their prior motion to dismiss in Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (September 27, 2011, Swienton, J.) (50 Conn. L. Rptr. 641). Bristol Hospital filed a memorandum of law in support of the motion. In response, on August 20, 2012, the plaintiff filed an objection and a memorandum of law in opposition. The matter was heard at short calendar on September 17, 2012.
The defendants filed a renewed motion to dismiss which, despite its name, is effectively a motion to reargue as it is based on new law that was not in existence during the first motion to dismiss.
DISCUSSION
" [T]he purpose of 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 alleged inconsistencies in the trial court's memorandum of decision as well as 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 at the apple or to present additional cases or briefs which could have been presented at the time of the original argument ." (Citations omitted; internal quotation marks omitted.) Opoku v.. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
In the present case, Bristol Hospital premises its motion to reargue on the recent Appellate Court decision in Wilkins v. Connecticut Childbirth & Women's Center, supra, 135 Conn.App. 679. Bristol Hospital argues that our Supreme Court's ruling in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (2011), and the Appellate Court's ruling in Wilkins support Bristol Hospital's claim that the author of the plaintiff's opinion letter, a board certified emergency medicine physician, is not a similar health care provider as the two emergency care nurses who are alleged to have been negligent. Bristol Hospital argues that under these recent two cases, the proper " similar health care provider" within the plain meaning of §§ 52-190a and 52-184c would have to be someone who trained and experienced in emergency care nursing. As the plaintiff has only provided an opinion letter of an emergency physician and no other health care provider for these emergency care nurses, Bristol Hospital contends that § 52-190a has not been satisfied and that the action against them must be dismissed.
Bristol Hospital relied on Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), in their first motion to dismiss, and made repeated references to it, along with the Supreme Court case affirming it, Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, in the present motion to reargue. Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, establishes strict adherence to the statutory definitions of the term " similar health care provider" and that § 52-190a must be read in conjunction with General Statutes § 52-184c. Bennett further establishes that " in cases of specialists, the author of an opinion letter pursuant to § 52-190a must be a similar health care provider as that term is defined by § 52-184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c(d)." Id., 21. As the court in Wilkins explained, " one's familiarity with or knowledge of the relevant standard of care, for purposes of authoring a prelitigation opinion letter, is not a proper consideration in determining the adequacy of that letter if the author does not meet the statutory definition of a ‘ similar health care provider.’ " Wilkins v. Connecticut Childbirth & Women's Center, supra, 135 Conn.App. 687.
Bristol Hospital further argues that
In Wilkins v. Connecticut Child Birth & Women's Center, the issue before the court was whether a board certified obstetrician could opine as to the standard of care for a certified nurse midwife or a registered nurse for the purposes of § 52-190a. The defendants argued that because the plaintiff's care was provided by certified nurse midwives or by a registered nurse, the plaintiff was required to submit an opinion letter authored by a certified nurse midwife or a registered nurse in order to satisfy § 52-184c(c). Id., 684. The plaintiff objected and claimed that an obstetrician can opine as to the standard of care applicable to certified nurse midwives or registered nurses who are engaged in supervising a patient's labor and delivery. Id. The trial court dismissed the plaintiff's action, finding that the obstetrician was not a similar healthcare provider as " the plaintiff was required, pursuant to §§ 52-190a(a) and 52-184c(c), to submit an opinion letter by an individual who is trained, experienced, and certified in nurse midwifery or nursing." Id., 685. The Appellate Court affirmed the judgment of the trial court, noting that " as in Ali [ v. Community Health Care Plan, Inc., 261 Conn. 143, 801 A.2d 775 (2002) ], it is the actions of the individual care givers— the nurse midwives or registered nurse— that are relevant to the question of negligence, forming the basis for the inquiry as to whether there was a breach of duty owed to the plaintiff for which the defendants, as their employer, would be vicariously liable." Id., 690. Consequently, the Appellate Court concluded that the plaintiff did not meet the requirements of § 52-190a(a) because no letter authored by an individual trained, experienced, and certified in nurse midwifery or nursing was submitted. Id.
In addition, the plaintiff argued that § 52-184c(c) does not apply to institutions like the defendants because the definition of " similar health care provider" refers to individuals, and not to institutions. The trial court disagreed with this conclusion, and found that § 52-184c(c) does apply to the employees of the institutional defendant. The Appellate Court affirmed. ---------
Wilkins, however, is readily distinguishable and does not change this court's earlier decision. Unlike the plaintiff in the present case, the Wilkins plaintiff had no other written opinion apart from the one by the board certified obstetrician. Once the Wilkins court held that the obstetrician was not a similar health care provider as the certified nurse midwife or registered nurse, the Wilkins plaintiff had no other means to comply with § 52-190a, and dismissal was the only outcome. Here, the plaintiff already has a written opinion from a similar health care provider as one from Bristol Hospital, namely, the board certified emergency medicine physician attesting to the negligence of Dr. Wagner. The fact that the plaintiff already had this qualifying written opinion for Bristol Hospital was the very reason this court denied the defendant's initial motion to dismiss, holding, along with the majority of courts, that a written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution. Strickland v. Bristol Hospital, Inc., supra, 50 Conn. L. Rptr. 642. Wilkins does not affect that holding because an additional, valid written opinion from a similar health care provider was not present in that case.
CONCLUSION
For the foregoing reasons, the motion is denied.
The court has already been presented with similar language and conclusions of law in the defendant's first motion to dismiss. Furthermore, as demonstrated herein, Wilkins v. Connecticut Childbirth & Women's Center, supra, 135 Conn.App. 679, incorporates the Bennett statutory interpretation concerning what a similar health care provider is into its reasoning and holding. It is therefore not necessary for this court to examine Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, independently in order to resolve this motion.
Bennett and Wilkins have demonstrated that this court's prior ruling on the defendant's motion to dismiss was " based on misinterpretation of law." While Bristol Hospital attempts to distinguish its arguments from those addressed by the court in Strickland v. Bristol Hospital Inc., supra, Superior Court, Docket No. CV 09 5014599, this court declines to address them again as, for the same reasons enunciated herein, Wilkins and Bennett offer no additional relevant law on the issue currently before this court.