Opinion
No. CV 065006514
April 16, 2007
MEMORANDUM OF DECISION RE WHETHER GOOD FAITH CERTIFICATE FOR MEDICAL MALPRACTICE ACTION SUFFICIENT TO WITHSTAND MOTION TO DISMISS
Plaintiff Erika Torres has filed a two-count complaint for medical malpractice against defendants, Alexander Carrese and Abraham Yaari, both board certified obstetrician/gynecologists (OB/GYNs). Pursuant to General Statutes § 52-190a, she attached a certificate of good faith and written opinion of a medical expert stating that the defendants breached the prevailing standard of care. On January 3, 2007, the plaintiff filed a request to amend and an amended complaint, the only material changes being that the original written opinion's author was revealed to be Jay Motola, a board certified urologist, and the attachment of a second expert opinion from Daniel Miller, M.D., an OB/GYN. Since neither defendant objected within fifteen days, the complaint is deemed to have been filed by consent pursuant to Practice Book § 10-60 (3).
Statement of alleged Facts set out in the Amended Complaint
The plaintiff's Amended Complaint sets out the following allegations of facts. The plaintiff alleges that Dr. Alexander Carrese provided prenatal care to her for several months prior to August 5, 2004. She suffered from a condition known as placenta previa, (a disorder involving an abnormal location of the placenta near or over the cervix) but Dr. Carrese allegedly failed to keep adequate medical records and failed to detect the placenta previa by not undertaking necessary diagnostic testing.
The plaintiff further alleges that on August 5, 2004, Dr Abraham Yaari performed a cesarean section on the plaintiff at which point the placenta previa was discovered, and had progressed to placenta accreta (condition in which the placenta has partially grown into the muscular tissue of the uterus). Consequently, and because Dr. Yaari allegedly failed to take proper precautions during the operation and failed to arrange for a urologist to be present to deal with the condition, she alleges that she suffered injury to her bladder, as a result of which she is unable to bear children, is incontinent, is unable to carry on many of life's activities, is unable to sustain gainful employment, has endured pain and suffering and has incurred medical expenses.
The plaintiff claims that Alexander Carrese was negligent in not diagnosing the placenta previa or warning other doctors of it, and that Dr. Abraham Yaari was negligent in injuring her bladder, not taking the proper precautions with respect to the placenta previa, not retaining a urologist to be present during the operation, and performing an operation that was more properly within the specialty of a urologist.
Motions to Dismiss
Dr. Abraham Yaari has filed a motion to dismiss (no. 105) on the ground that the written opinion supplied by the plaintiff was not written by a "similar health care provider" as set forth in General Statutes § 52-184c and, therefore, it is insufficient under § 52-190a. Also Dr. Alexander Carrese has filed his own motion to dismiss (no. 106) on the same ground, attaching his own affidavit in support. The plaintiff filed an objection to Dr. Carrese's motion.
Section 52-190a(a) provides, in relevant part, that before filing an action for medical negligence, "the attorney or party filing the action or apportionment complaint [must make] 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 [General Statutes § 152-184c, 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate . . ." Subsection (c) provides an enforcement mechanism: "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." General Statutes § 190a(c).
Section 52-184c provides in relevant part: "If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a `similar health care provider' is one who: (1) Is 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." General Statutes § 52-184c(b).
Oral argument was heard on January 2, 2007, at which time the court, Jones, J., granted Dr. Yaari's motion because it was unopposed; Dr. Carrese's motion was marked off because the plaintiff's counsel was absent. On the same day, the plaintiff filed an objection to Dr. Yaari's motion. The plaintiff then, on January 3, 2007, filed a motion to set aside the dismissal as to Dr. Yaari and for reargument, which was granted by the court, Jones, J., on January 22, 2007. On February 26, 2007, Dr. Carrese filed another motion to dismiss (no. 139.65), which was in all respects identical to his prior motion (no. 106). Oral argument was heard a second time on February 26, 2007.
There was some confusion in this case due to difficulty locating the court's file, heightened by the granting of Yaari's, but not Carrese's, motion to dismiss and subsequent reopening. Presumably, Carrese refiled in an effort to ameliorate the confusion, although his first motion (no. 105) was, and is, still pending before the court. Since both motions are identical, the court will treat them as a single motion.
On February 26, 2007, the plaintiff filed another request to amend and a second amended complaint. Both defendants filed timely objections. The court has not ruled on this issue pending resolution of the motions to dismiss; therefore, the plaintiff's first amended complaint is the operative complaint for the purposes of the present motions.
Standard for Deciding Motion to Dismiss
"Jurisdiction of the [subject matter] is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 787 A.2d 760 (2001). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348.
The defendants move to dismiss the first amended complaint on the ground that the first written opinion submitted by the plaintiff was not obtained from a "similar health care provider" as mandated by § 52-190a. They argue that the plain language of § 52-190a(c) indicates that this is grounds for dismissal of the action. They also contend that the failure to attach an adequate medical opinion is not a curable defect, and, therefore, the plaintiff's amended complaint, attaching the opinion of an OB/GYN, is not properly before the court. Furthermore, even if the amendment were effective, the defendants argue that the second opinion provided is sparse and is insufficient to meet the statutory requirement that the opinion "include a detailed basis for the formation of such opinion." Section 52-190a(a). They also point out that the legislative history of § 52-190a demonstrates the "high jurisdictional hurdle" the statute was meant to impose on medical malpractice cases.
Since the original opinion is sufficient to confer subject matter jurisdiction, this court need not address this argument.
The plaintiff counters that whether the author of the written opinion is technically a "similar health care provider" is not properly addressed in a motion to dismiss since it does not implicate the jurisdiction of the court. Once a written opinion is supplied in good faith, the plaintiff maintains, the jurisdictional hurdle is satisfied, and attacks on the sufficiency of the opinion must await the conclusion of discovery.
Section 52-190a was amended by Public Acts 2005, No. 05-275. Prior to its amendment, plaintiffs were not required to submit the written opinion of a similar health care provider to their complaints; additionally, there was no provision that failure to attach the opinion would be "grounds for dismissal." See General Statutes (Rev, to 1987) § 52-190a. The appellate courts have not yet addressed either the "written opinion" requirement or the "grounds for dismissal" provision of the statute as amended. The Superior Court, however, has done so on numerous occasions, and has repeatedly held that the attachment of a written opinion of a health care provider to the complaint is sufficient to clear the jurisdictional hurdle, notwithstanding the possibility that its content does not conform to the specific requirements of the statute. While several decisions have dismissed cases based on a failure to comply with § 52-190a, the plaintiffs in each had failed to attach a written opinion at all.
See, e.g., Doherty v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV 06 5001040 (February 22, 2007, Thim, J.); Lyon v. Yeager, Superior Court, judicial district of Windham, Docket No. CV 06 5000150 (February 20, 2007, Martin, J.); Greer v. Norbert, Superior Court, judicial district of Hartford, Docket No. CV 06 05004859 (February 7, 2007, Rittenband, J.) [ 42 Conn. L. Rptr. 806]; Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket CV 06 5001663 (January 25, 2007, Prestley, J.) [ 42 Conn. L. Rptr. 724]; Tutillo v. Day Kimball Health Care, Inc., Superior Court, judicial district of Windham, Docket No. CV 06 5000096 (November 7, 2006, Martin, J.) ( 43 Conn. L. Rptr. 367); Gallo v. Hunter's Ambulance Service, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000924 (January 9, 2007, Rubinow, J.) ( 42 Conn. L. Rptr. 632); Lawlor v. Hagstrom, Superior Court, judicial district of Hartford, Docket No. CV 06 5002094 (December 29, 2006, Wiese, J.; Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) ( 42 Conn. L. Rptr. 163); Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.); Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001608 (October 2, 2006, Adams, J.); Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 222).
See, e.g., Kirkpatrick v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 4011523 (December 14, 2006, Pittman, J.) ( 42 Conn. L. Rptr. 519); Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001000 (October 25, 2006, Hiller, J.) ( 42 Conn. L. Rptr. 244); Continuing Care v. Byczajka, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4008605 (October 25, 2006, Adams, J.); Kudera v. Ridgefield Physical Therapy, LLC, Superior Court, judicial district of Danbury, Docket No. CV 06 5000993 (September 18, 2006, Shaban, J.); Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 695); Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) ( 41 Conn. L. Rptr. 504).
One of the earliest cases to consider the issue of whether an insufficient written opinion is grounds for dismissal is Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 222). In denying the defendant's motion to dismiss, the court reviewed the legislative history of the amendment, noting that "the requirement of obtaining and filing an opinion was intended as a jurisdictional hurdle for medical malpractice actions. Nothing in the plain language of [§ 52-190a] or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action. Because this court cannot read something into [this] statute . . . nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature . . . this court should not interpret the amended statute . . . [as creating] a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion." (Emphasis added.) Id., 225.
More recent cases have adopted much the same reasoning. In Greer v. Norbert, Superior judicial district of Hartford, Docket No. CV 06 05004859 (February 7, 2007, Rittenband, J.) [ 42 Conn. L. Rptr. 806], the court expressly agreed with the majority opinion that a purportedly defective opinion is not a jurisdictional defect but should be addressed post-discovery. In doing so, the court referenced the policy expressed in Evans v. General Motors Corp., 277 Conn. 496, 523 (2006) ("[there is a] policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure").
In the absence of appellate authority, the ever increasing list of Superior Court cases holding that the sufficiency of an opinion submitted pursuant to § 52-190a is not properly addressed by a motion to dismiss is highly persuasive.
The purpose of the opinion is primarily to evidence the attorney's good faith inquiry that the claim is a meritorious one.
It is also worth noting that the legislative history reveals that another important goal of the written opinion requirement was to give the defendants earlier and more detailed notice of the nature and scope of the claims against them. Senator Kissell, for example, remarked that the written opinion would allow "the defense counsel [to] review the nuts and bolts of what's in there." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 18, 2005 Sess., p. 5545. The opinion supplied by the plaintiff is four pages in length and scrupulously detailed. Regardless of whether the plaintiff's expert qualifies as a "similar health care provider" under § 52-184c, it cannot be said that the defendants are unaware of the basis of the claims against them.
Conclusion
For the foregoing reasons, the defendants' motions to dismiss (#105, 106 and 139.65 ) are denied.