Opinion
No. CV 09 5014599
September 27, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #118
The issue for the court is whether a written opinion from a physician is sufficient to demonstrate that a good faith basis exists for a medical malpractice action against unidentified hospital staff members that may not be physicians.
FACTS
The present action, sounding in medical malpractice, is brought by the plaintiff, Gary Strickland, in his capacity as the administrator of the estate of Marion Drezek, the decedent, against the defendants, Cliff Wagner, M.D., who was the decedent's physician, and Bristol Hospital. The second revised complaint, filed on July 7, 2010, alleges that the defendants were negligent in the following ways, among others: failure to order, administer, monitor intravenous fluids or document their status; failure to use, or the discontinuation of, cardiac monitoring; failure to insert a foley catheter; failure to diagnose, manage, treat and document rectal bleeding, dehydration and/or hypovolemia; and the failure to perform cardiopulmonary resuscitation in a timely manner.
All three counts contain the identical allegations of negligence described herein. The two counts against Bristol Hospital for the vicarious liability of its employees have been pleaded as separate counts. The first count is directed at Bristol Hospital for the vicarious liability of its staff, identified only as the "agents, servants and/or employees" of the hospital. The third count is directed at Bristol Hospital for its vicarious liability solely for the malpractice of the physician, Dr. Wagner. Count two of the complaint is directed only at Dr. Wagner. To comply with the requirements of General Statutes § 52-190a for filing a medical malpractice action, the plaintiff attached to the original complaint a letter from a physician certified in emergency medicine, who stated that Dr. Wagner and the staff of Bristol Hospital violated various standards of care in the treatment of the decedent.
On March, 24, 2010, Bristol Hospital filed a motion to dismiss the first count of the complaint on the ground that the plaintiff's written opinion from a physician is insufficient as to the staff of Bristol Hospital, who are unnamed in the complaint and may not be physicians. The plaintiff counters that the letter is sufficient, arguing that (1) § 52-190a does not require the plaintiff to name each and every health care provider of an institutional defendant and provide separate written opinions for all of them, and (2) it is impossible to know which other healthcare providers treated the decedent without significant discovery.
Bristol Hospital initially moved to dismiss count two of the amended complaint, in which the allegations of vicarious liability for the negligence of the doctor and the hospital staff were combined. Prior to oral argument on this motion, the complaint was revised pursuant to two separate requests to revise. Among other revisions, the allegations against Bristol Hospital were split into separate counts as described herein, and the hospital's alleged vicarious liability for the negligence of its staff was renumbered as count one. The parties do not dispute that the motion to dismiss only addresses count one.
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 © . 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]n action is subject to dismissal under [General Statutes § 52-190a ©] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009).
Bristol Hospital concedes that the opinion letter from the physician certified in emergency medicine is sufficient as to count two against Dr. Wagner and count three, which alleges that Bristol Hospital is vicariously liable for the negligence of Dr. Wagner. The question is whether that single opinion letter is also sufficient to attest to the hospital's vicarious liability for the actions of other, unidentified hospital staff.
Connecticut's appellate courts have not reached this issue, and Superior Court decisions are not unanimous. At least one decision, CT Page 19048 London v. Jiminez, Superior Court, judicial district of Hartford, Docket No. CV 07 5011354 (March 27, 2008, Miller, J.) ( 45 Conn. L. Rptr. 251), has held that separate opinion letters are required when the allegations of negligence against the medical institution go beyond its vicarious liability for the negligence of the health care provider for whom a proper opinion letter exists. The London court stated: "The allegations against the Hospital, as set forth in the third count, are not based on a claim that Dr. Jiminez was acting as its employee, agent or servant. Plaintiff has instead alleged that the Hospital's own deviations from its standard of care were a proximate cause of her injuries and damages. If plaintiff was proceeding against the Hospital solely on a theory of respondeat superior or was otherwise not claiming that it was independently negligent, I would be strongly inclined to find that the present good faith letter was sufficient as to both Dr. Jiminez and Hartford Hospital." London v. Jiminez, Superior Court, judicial district of Hartford, Docket No. CV 07 5011354 (March 27, 2008, Miller, J.) ( 45 Conn. L. Rptr. 251); see also Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) (in dicta: "If the allegations of the complaint indicated that the alleged negligence arose from other areas of medical care provided by the hospital then an opinion by an obstetrician/gynecologist might not meet the requirements, but that is not the case here").
Nevertheless, this court agrees with the reasoning of the majority of decisions, which hold that the written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution. "The statute does not require the plaintiff to identify the name of each individual who acted on behalf of the corporate defendant, either in the complaint or in the written opinion. Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiff who, the legislature determined, might otherwise institute meritless claims." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.). See also CT Page 19049 Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 085003164 (October 22, 2008, Pickard, J.); DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 5010472 (August 5, 2008, Berger, J.) ( 46 Conn. L. Rptr. 121); 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); Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.).
CONCLUSION
For the foregoing reasons, Bristol Hospital's motion to dismiss is denied.