Opinion
No. CV06-5000857S
May 4, 2007
MEMORANDUM OF DECISION
This is a medical malpractice action brought by Chaz Walton, claiming that the defendant medical care providers were negligent in treating him, and caused him to sustain severe and permanent injuries. Attached to the complaint is a certificate of good faith signed by Attorney Joel H. Lichtenstein, of the plaintiff's law firm. Also attached is a three-page document entitled "Physician's opinion pursuant to C.G.S. section 51-190a." This document was prepared in the plaintiff's law firm. It begins with the sentence, "I am a board-certified psychiatrist and I am familiar with the standard of care as it related to the practice of psychiatry/psychology, and patients with a diagnosis of Bi-Polar disease, in the years 1999-2003 in the United States." The document sets out a list of the documents reviewed by the author, the author's opinion that there appears to be evidence of medical negligence on the part of the defendants, and the bases for the opinions.
The defendants move to dismiss the complaint for lack of subject matter jurisdiction on the grounds that plaintiff failed to comply with the requirements of Connecticut General Statute § 52-190a(a). Specifically, the defendants contend the opinion appended to the complaint does not comply with § 52-190a because (1) it was drafted by plaintiff's counsel, (2) it is not sufficiently detailed, and (3) it does not support the allegations contained in paragraphs 6(i) and 6(j) of the second count, directed toward Franklin medical group. The defendant Dr. Kreiger additionally claims that the expert, a psychiatrist, is not a similar health care provider as provided in Connecticut General Statutes § 52-184c.
Discussion
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Sullins v. Rodriguez, 281 Conn. 128, 132, 913 A.2d 415 (2007) "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 . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Internal citations omitted; internal quotation marks omitted.) Searles v. Dept. of Social Services, 96 Conn.App. 511, 513, 900 A.2d 598 (2006). A motion to dismiss is the proper procedural vehicle in this case, under § 52-190a(c), which provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
The first issue raised by the defendants is that the written opinion is not in the words of the health care provider but in the words of the plaintiff's attorney. Plaintiff's attorney admits that the document was drafted by the law firm, but he claims that the writing complies with the statutory requirement because it is the doctor's opinion, the doctor having signed the original.
The requirements for bringing an action against a medical care provider in Connecticut is set out in Connecticut General Statute § 52-190a as amended by Public Act No. 05-275. Subsection (a) provides: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made 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 section 52-184c, 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." (Emphasis added.)
Although there is no appellate court ruling on the import of the public act, several superior courts have addressed issues similar to those before the court. None, however, involved a motion to dismiss on the ground that the appended written opinion was not actually drafted or typed by the similar medical care provider. The defendants argue that both the legislative history and the language of the statute require that the opinion must be in the health care provider's own words and not those of plaintiff's counsel. A review of the legislative history of CT Page 6403 Public Act 05-275 discloses that the intention of the legislature in enacting the legislation was to provide additional protection against the filing of frivolous lawsuits.
Proposed Senate Bill 1052 came before the Judiciary Committee on April 8, 2005. Attorney Mike Neubert testified before the Committee on behalf of the Connecticut State Medical Society in connection with the proposed bill. With respect to the section requiring attaching the written opinion of the similar health care provider to the complaint, Attorney Neubert urged passage of the section:
"In our view, . . . this requirement would help ensure that there's a reasonable basis for filing a medical malpractice action under the circumstances.
It would help eliminate some of the more questionable and meritless claims filed under the present statutory scheme." (Proceedings before Judiciary Committee, April 8, 2005, p. 151.)
Attorney Neubert indicated that section of the Bill was targeting "[t]hose cases where attorneys, based on their own judgment and maybe in good faith have misread what an expert's told them, we don't know now what an expert's told them . . . Very often you hear what you want to hear as an attorney, or interpret what's been told to you as you want to interpret it . . . [I]f the doctor's not willing to sign on the dotted line, maybe that's a good indication that this isn't a good case to bring. We don't have that hammer, so to speak, over the plaintiff's counsel's head at this point. If [sic] part of what we're trying to do here is eliminate those cases which should not be in the system then I think this serves to do it." (P. 165.)
Summarizing the provisions of the Bill, Senator McDonald stated: "In Section 2 of the bill, Mr. President, we have modified the good faith certificate issue. This is an issue that requires a plaintiff's attorney to, under current law, to obtain a report from a qualified medical expert in a similar practice area, and to certify that, based upon that inquiry, the attorney believes that there is a good faith basis to believe that the standard of care has been breached in a particular case. Mr. President, this makes substantial improvements over the current system because it would require that the report be in writing and presented in a detailed fashion, and a copy of that report, with the name of the doctor supplying it expunged, would be attached to the complaint as an exhibit. The failure to attach such an opinion would require the court to dismiss the case." (Senate Proceedings on Substitute for S.B. Number 102, An Act Concerning Medical Malpractice, Favorable Report of the Committees on Judiciary, Insurance, Public Health, Legislative Management, and Appropriations, pp. 121-22, June 6, 2005.)
Here, the plaintiff has attached a written document which purports to be the report of a board-certified psychiatrist. The fact that it is not in the doctor's handwriting or typed by the doctor on his or her letterhead is, in this court's opinion, of no consequence. It is a written report of a similar health care provider which states his or her opinions and the bases for them. The legislative requirement is fulfilled. Nothing in the legislative history of the statute as amended by the public act prohibits the plaintiff's attorney from putting the words to paper so long as the opinion expressed is that of the similar health care provider. The motion to dismiss is denied on this ground.
Subsection (a) of 52-190a permits the defendants to discover the identity of and question the similar health care provider if they question the validity of the document.
The defendants next contend that the complaint should be dismissed because the attached opinion is not sufficiently detailed. They argue that it contains no temporal references to the alleged deviations from the standard of care by the defendants, and it does not provide a sufficiently detailed basis for the physician's conclusions. They argue that opinion fails to apprise the defendants and their counsel as to the basis for the plaintiff's claim that there was medical malpractice. They contend that it mirrors the complaint. The plaintiff counters that any insufficiency in the opinion would not deprive the court of subject matter jurisdiction.
A number of superior courts have addressed the issue of whether the sufficiency or adequacy of the opinion appended to the complaint is properly raised by a motion to dismiss. Discussing the plain language of the statute as well as the legislative purpose in enacting P.A. 05-275, these courts have held that a motion to dismiss is not the proper vehicle to attack the sufficiency of the opinion. See e.g. 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]; Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) [ 42 Conn. L. Rptr. 163]; Lawlor v. Hagstrom, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 06 5002094 (December 29, 2006, Wiese, J.)
The language of § 52-190a does not specify the amount of detail required. In Ellegard v. Hennessey, Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. X03 CV 06 5008281, (Mar. 28, 2007, Langenbach, J.), the court recognized that "[b]ecause the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint." In Ranney v. New Britain General Hosp., No. HHB CV06 5000954, Superior Court, judicial district of New Britain at New Britain, 2006 Ct.Sup. 17021, (Sep. 18, 2006, Pittman, J.), the court observed "[T]he statute [does not] presuppose that the opinion expressed in the 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 plaintiffs who, the legislature determined, might otherwise institute meritless claims."
The author of the opinion appended to the complaint in this case listed the medical records and the pharmacy printout that he/she reviewed. Based upon that review, he/she listed several reasons why the author believes that the defendants deviated from the standard of care. In appending the opinion to the complaint, the plaintiff has apprised the defendants and their attorneys of the reasons for bringing the lawsuit. The requirement that the good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery. Moreover, the court finds the reasoning of the court in Ranney compelling. Although the detail should be such that cogent reasons underlying the author's opinion that a deviation from the standard of care occurred are set forth, it need not be such that plaintiffs are virtually precluded from bringing malpractice cases. The concern of the legislature was to prevent only frivolous lawsuits, those without merit. It is inconceivable that the intent was to divest the court of subject-matter jurisdiction based on one's subjective determination that the reasons supporting the opinion were not sufficiently detailed. "The United States Supreme Court has recognized that, embedded in the First Amendment right to petition the government for a redress of grievances, is entitlement to seek recompense from the courts." (Internal citations omitted; internal quotation marks omitted.) Lombardi Rest Home, Inc. v. Richter, 63 Conn.App. 646, 653, 778 A.2d 230 (2001). It seems to this court that the action urged by the defendants would contravene this constitutional guarantee.
The court finds that the question of the sufficiency of the detail in the opinion does not implicate subject-matter jurisdiction, and that, in any case, the detail in the opinion is sufficient to survive either a motion to dismiss or a motion to strike.
The defendant Franklin Medical Group correctly points out that the author did not state any opinion relative to the following allegations relative to it:
6(i) failed to promulgate and/or enforce rules, regulations, standards and protocols for the care and treatment of patients such as the plaintiff; and
6(j) failed to provide physicians and surgeons who possessed the requisite knowledge, skill, training and experience to adequately and properly care for, treat, monitor, diagnose and supervise the plaintiff, Chaz Walton.
As indicated above, the court finds that a challenge to the sufficiency of the opinion does not implicate subject-matter jurisdiction. A motion to strike is the appropriate vehicle to address this issue.
Dr. Krieger moves to dismiss the complaint against him on the additional ground that the author of the opinion appended to the complaint pursuant to § 52-190a is a psychiatrist, not a psychologist. The author states, however, that he is a board-certified psychiatrist "familiar with the standard of care as it related to the practice of psychiatry/psychology, and patients with a diagnosis of Bi-Polar disease in the years 1999-2003 in the United States." Pursuant to the provisions of § 52-184c(d), the author certainly may be a similar health care provider.
Sec. 52-184c. (d) provides: "Any health care provider may testify as an expert in any action if he: (1) Is a "similar health care provider" pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge 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.
Conclusion
The opinion appended to the plaintiff's complaint meets the requirements of Connecticut General Statutes § 52-190a.
Accordingly, the defendants' motion to dismiss for lack of subject matter jurisdiction is denied.