Opinion
No. CV 09 5007713 S
April 7, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
FACTS AND PROCEDURAL HISTORY
On June 7, 2009, the plaintiffs, Kristin Wilkins and Billy Wilkins, commenced this medical malpractice action against the defendants, Connecticut Childbirth Women's Center (Connecticut Childbirth) and Women's Health Associates, P.C. (Women's Health Associates). In the four count complaint, the plaintiffs allege the following facts. Commencing on or about April 17, 2007, and continuously to August 2, 2007, Connecticut Childbirth, a professional corporation specializing in obstetrics, and Women's Health Associates, which owned, operated, controlled, and/or had a financial interest in Connecticut Childbirth, undertook the care of Kristin Wilkins for her pregnancy, labor, delivery and postdelivery. While under the care of the defendants, as well as the care of their certified nurse-midwives and a registered nurse, who were "servants, agents, apparent agents and/or employees" of the defendants, Kristin Wilkins suffered severe and permanent injuries. The defendants, as well as their servants, agents, apparent agents and/or employees, caused Kristin Wilkins' injuries by failing to exercise reasonable care under all the circumstances. In addition to the counts of negligence alleged by Kristin Wilkins against the defendants and their servants, agents, apparent agents and/or employees, Billy Wilkins alleges loss of consortium against both defendants.
The plaintiffs specifically allege that Katy M. Maker, Catherine Parisi, Catherine Gallagher and Carly Detterman were servants, agents, apparent agents and/or employees of the defendants. The complaint further alleges that all of these individuals are certified nurse-midwives. The defendants' motion to dismiss argues that Carly Detterman is a registered nurse. The plaintiffs concede, in their objection to the defendants' motion to dismiss, that Carly Detterman was not a certified nurse-midwife at the time of the incident, but became certified on May 28, 2008.
Along with their complaint, the plaintiffs submitted a written opinion letter, as required by General Statutes § 52-190a(a), of a board certified obstetrician and gynecologist, who concluded that there appeared to be medical negligence on the part of Connecticut Childbirth and its servants, agents, apparent agents and/or employees. The opinion letter author stated that one of Connecticut Childbirth's servants, agents, apparent agents and/or employees departed from the accepted standard of care by failing to diagnose and repair Kristin Wilkins' injuries following the delivery or at subsequent postpartum visits. The author further stated that had the injury been recognized, the standard of care would have required Connecticut Childbirth's servant, agent, apparent agent and/or employee to summon the obstetrical attending, who would have immediately repaired the injury.
On March 16, 2009, pursuant to General Statutes § 52-190a(b), an automatic ninety-day extension of the statute was granted. On August 6, 2009, the defendants filed a motion to dismiss this action pursuant to General Statutes § 52-190a(c) on the grounds that physician opinion letter attached to the plaintiff's complaint failed to satisfy the requirements of General Statutes §§ 52-190a(a) and 52-184c(c). A memorandum of law was attached in support of the motion. On September 18, 2009, the plaintiffs filed an objection to the defendants' motion to dismiss. The defendants filed a reply memorandum on October 1, 2009. On November 2, 2009, following the Appellate Court decision Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009), the defendants filed a supplemental memorandum of law in support of the motion to dismiss. The matter was heard at short calendar on December 21, 2009.
This matter was originally scheduled for short calendar on September 21, 2009, the date on which Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, was to become available as an advance release opinion. As a result, the parties agreed to read the decision and return to this court at a later date to argue in light of Bennett.
DISCUSSION
General Statutes § 52-190a(a) provides in relevant part: "The complaint [or] initial pleading [in a personal injury action] . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . 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 §] 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." For health care providers who are board certified or hold themselves out as specialists, § 52-184c(c) defines "similar health care provider" as "one who: (1) [i]s trained and experienced in the same speciality; and (2) is certified by the appropriate American board in the same speciality . . ." For health care providers who are not board certified or do not hold themselves out as specialists, § 52-184c(b) defines "similar health care provider" as "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." General Statutes § 52-190a(c) provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action."
The Appellate Court has explained that "[a] plain reading of [§ 52-190a(c)] indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) if the written opinion is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 545. Moreover, the Appellate Court has stated that the plaintiff's "failure to comply with § 52-190a(a) is not a jurisdictional defect. A plaintiff's failure to comply with the requirements of § 52-190a does not destroy the court's subject matter jurisdiction over the claim . . . [nevertheless,] such a failure does render [the] complaint subject to dismissal pursuant to § 52-190a(c)." 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).
In the present case, the defendants argue that the written opinion letter has not met the requirements of §§ 52-184c and 52-190a because the author of the written opinion letter attached to the plaintiffs' complaint is a board certified obstetrician and gynecologist and is not trained, experienced or certified in midwifery or nursing, as were the individuals who treated Kristin Wilkins. As a result, the defendants contend that the author of the opinion is not a "similar healthcare provider" within the meaning of §§ 52-184c(c) and 52-190a(a), and that pursuant to § 52-190a(c), the plaintiffs' complaint should be dismissed.
The recent Appellate Court decision of Bennett v. New Milford Hospital, Inc. is instructive in the present case, as the Appellate Court interpreted the meaning of the phrase "similar healthcare provider" in the context of a motion to dismiss under § 52-190a. In Bennett, the plaintiff brought an action against a hospital and the physician who treated the plaintiff in the hospital's emergency department. Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 538-39. The physician, who specialized in emergency medicine, moved to dismiss pursuant to § 52-190a(c) on the grounds that author of the opinion letter was not a similar health care provider because the author, although "a practicing and [b]oard certified [g]eneral [s]urgeon with added qualifications in [s]urgical [c]ritical [c]are, and engaged in the practice of trauma surgery . . . [who] regularly evaluate[d] and treate[d] injured patients in the [e]mergency [d]epartment," was not board certified in emergency medicine. Id., 539-40.
The Appellate Court upheld the trial court's dismissal of the complaint, holding that the opinion letter from a board certified general surgeon was insufficient in an action against a physician specializing in emergency medicine. Id., 545-47. The Appellate Court stated that the opinion of the general surgeon was insufficient because "pursuant to the plain language of §§ 52-190a(a) and 52-184c(c), a `similar health care provider' with respect to [the defendant physician] would be one who is trained and experienced in emergency medicine and is certified in emergency medicine." (Emphasis in original.) Id., 546-47.
The Appellate Court acknowledged that the purpose of § 52-190a was to discourage the filing of baseless lawsuits against healthcare providers. See id., 544; see also LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990); Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 383, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). Nevertheless, the Appellate Court concluded that although "the plaintiff's position appears to have merit, particularly in light of the statutory scheme and its underlying purpose in ensuring good faith in the filing of malpractice actions . . . [t]he plain language of the statute . . . belies the plaintiff's policy argument." Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 548. According to the Appellate Court, "when establishing the guidelines for the opinion letter, the legislature clearly and unambiguously referred to a `similar health care provider.' By the plain language of the statutes, as to a defendant health care provider who is a physician, the similar health care provider contemplated in § 52-190a(a) is one defined in either subsection (b) or (c) of § 52-184c." Id., 548-49.
While the defendants argue that Bennett is controlling, the plaintiffs argue that it is not, as the defendants are institutional defendants. In Bennett, the Appellate Court specifically declined to "address medical malpractice claims against institutional defendants." Id., 548 n. 10. The Appellate Court noted, in fact, that "there may be a gap in § 52-190a regarding [institutional] defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation." Id.
However, in a medical malpractice action in which the named defendant was an institutional entity, our Supreme Court has held that the relevant health care provider under § 52-184c "could have been either the defendant, as the corporate entity providing health care services to the plaintiff, or a [nurse-midwife], as the individual caregiver and employee of the defendant." Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 152-53, 801 A.2d 775 (2002). In fact, the Supreme Court noted that "`health care provider' is a statutorily defined term, meaning `any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.' (Emphasis added.) General Statutes § 52-184b(a)." Id., 152. Additionally, 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).
In the present case, the relevant health care providers, under Ali and § 52-184c, could also be the individual caregivers and employees of the defendants. The plaintiffs specifically allege that Kristin Wilkins was under the care of and suffered severe and permanent injuries as a result of the negligence of not only the defendants but their "servants, agents, apparent agents and/or employees." Consequently, in the present case, the relevant health care providers, for the purposes of §§ 52-190a and 52-184c, are the employees of the institutional defendants. The defendants' employees are certified nurse-midwives and a registered nurse. Under Bennett, and pursuant to the plain language of §§ 52-190a and 52-184c, a "similar health care provider," with respect to the defendants' employees, would be an individual who is trained, experienced and certified in midwifery or nursing. The author of the opinion letter attached to the plaintiffs' complaint, however, is board certified in obstetrics and gynecology. As a result, the opinion letter is not authored by a similar health care provider under § 52-184c, and, therefore, the plaintiffs have failed to comply with § 52-190a, rendering their complaint subject to dismissal under § 52-190a(c).
In describing his or her qualifications, the author states the following: "This case falls within the realm of my expertise as a board-certified Obstetrician/Gynecologist. In the course of my office and hospital practice, I have instructed and supervised certified nurse midwives and am familiar with the standard of care."
Accordingly, for the reasons stated, this court hereby grants the defendants' motion to dismiss.