Opinion
No. CV08 501 94 57 S
March 13, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
This is an action claiming medical negligence in the care and treatment of the plaintiff shortly after her birth. This motion to dismiss is brought on behalf of the defendants Richard Freedman, M.D. and Fairfield County Healthcare Associates, P.C., d/b/a Pediatric Healthcare Associates. The defendants claim that the medical opinion letter appended to the complaint failed to comply with the requirements of General Statutes § 52-190a. The defendants claim that the medical opinion letter attached to the complaint did not indicate whether it was authored by a "similar healthcare provider" and did not identify the corresponding claims of negligence with the individually named defendants.
Copy of medical opinion letter dated September 30, 2008.
OPINION LETTER
A party who files a medical malpractice action is required to file both, a certificate of good faith indicating that a "reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant," as well as the written opinion of a "similar health care provider, as defined in [General Statutes] § 52-184c 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). "The failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." General Statutes § 52-190a(c).
A motion to dismiss is not the proper vehicle for a defendant to contest the sufficiency of the opinion of a similar healthcare provider. See Scofield v. Quinn, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 08 6000897 (September 16, 2008, Brunetti, J.) ( 46 Conn. L. Rptr. 319); Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012152 (July 30, 2008, Berger, J.; Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV06 5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341); Ouellette v. Brook Hollow Healthcare Center, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, Holden, J.) ( 42 Conn. L. Rptr. 863); Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) ( 42 Conn. L. Rptr. 163).
Rios v. CCMC Corp., 106 Conn.App. 810, 821-22, 943 A.2d 544 (2008), cited by the defendant, did not involve a challenge to the sufficiency of an opinion letter. In Rios, the plaintiff had failed to file any opinion letter at any point. The court did not rule on the effect of a claim of an inadequate opinion letter.
"[U]nlike Rios, the issues here go to the sufficiency of those opinions. Although the court in Rios held that the failure to attach the opinion required by General Statutes § 52-190a to the complaint required dismissal of the medical malpractice action there, the court did not reach the issue of whether dismissal is required where an opinion is supplied but it is; arguably, not in conformance with all of the requirements of the statute. It has been held, however, that . . . nothing in the plain language of the statute or its legislative history indicates that an insufficient opinion letter is grounds for dismissal of the action." Draper v. Danbury Health Systems, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 08 5008854 (October 14, 2008, Scholl, J.) [ 46 Conn. L. Rptr. 462].
In the instant case, there is no claim that the plaintiff did not file a written opinion of a health care provider. The essence of the defendants' claim is that the medical opinion letter does not indicate that the author is a "similar health care provider" and is unclear as to whether the author is a practicing pediatrician, or a pediatrician board certified in neonatal-perinatal medicine, similar to the individually named defendants. They argue that for the medical opinion letter to be sufficient as a matter of law, the author must be board certified in the same specialty.
The complaint does not allege that Dr. Freedman was board certified, but rather that he holds himself out as a specialist in neonatal-perinatal medicine. Defendants attached to their memorandum documents from the internet as evidence that the defendant is board certified, and thereafter the plaintiff attached to its opposing memorandum a similar document indicating that the author of their medical opinion letter had the identical board certification. These submissions were not by way of affidavit, and nothing was presented to indicate that both parties agreed to the accuracy of their contents.
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Emphasis added; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"When issues of fact are necessary to the determination of a court's jurisdiction due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004). On the other hand, "the due process requirement of a hearing is required only when issues of facts are disputed." (Emphasis in original.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007); see Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994).
"A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists . . . When issues of fact are disputed, due process requires that an evidentiary hearing be held with the opportunity to present evidence and to cross-examine adverse witnesses . . . Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by the parties." (Citations omitted; emphasis added; internal quotation marks omitted.) Coughlin v. Waterbury, 61 Conn.App. 310, 315-16, 763 A.2d 1058 (2001).
From the documents presented with the memoranda of both sides, there does not appear to be any significant difference. Nothing, however, has been presented to indicate whether or not there is a dispute on this question. "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). However, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). Here, the plaintiff's complaint does not allege that Dr. Freedman was board certified, but rather that he holds himself out as a specialist in neonatal-perinatal medicine. Similarly, plaintiff's opinion letter indicates that the author is experienced and trained in the fields of pediatrics and neonatology. This statement, combined with the presumption in favor of jurisdiction is sufficient reason to deny the motion to dismiss. In addition, this court is in agreement with those decisions that allow more leeway in this choice of experts for opinion letters, recognizing that the role of the opinion writer is different than that of an expert witness under § 52-184c and, taking the allegations of the complaint as true the similarity between the physicians is sufficient and the motion should be denied.
"The court acknowledges that some superior court decisions have taken narrowly drawn positions in identifying `similar health care providers' under the rubric of §§ 52-190a and 52-184c, particularly with regards to board certification. See, e.g., Cataldo v. Zuccala, Superior Court, judicial district of Waterbury, Docket No. CV 06 5004649 (September 27, 2007, Eveleigh, J.) ( 44 Conn. L. Rptr. 300) (stating that `if the defendant is a board certified surgeon, plaintiff cannot attach the opinion of an internist or general practitioner'); Tobing v. Lange, Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 06 5002163 (January 11, 2007, Shortall, J.) ( 43 Conn. L. Rptr. 251) (granting motion to dismiss when defendant was board certified neurologist and plaintiff's expert was board certified neurosurgeon). More compelling than those decisions, however, is the pertinent analysis of Judge Adams in Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.): "One must also recognize that the opinion writer required by § 52-190a is not performing the same role as an expert witness under § 52-184c. There is certainly an overlap, but the opinion writer has the role of a gatekeeper in providing the underpinning for the plaintiff's attorney's certificate of good faith by stating there appears to be evidence of medical negligence, while the expert witness is called upon to testify to a reasonable degree of medical probability that there has been a breach of the prevailing professional standard of care . . . [T]he former standard is a lower standard permitting for instance a physician to find `evidence of medical negligence' in the conduct of certain health care providers without necessarily being sufficiently familiar with the standard of care applicable to each provider so as to be able to testify that such provider breached that standard." (Emphasis added.) Id. The plaintiff's expert is a similar health care provider for purposes of § 52-190a, even if his board certification is not in the exact same specialty as that of the agent whom the defendant has nominated for comparison, Dr. Weis. See Robbins v. Physicians for Women's Health, LLC, supra, 44 Conn. L. Rptr. 315 (denying motion to dismiss because defendant nurse-midwife and plaintiff's expert obstetrician-gynecologist were similar health care providers for purposes of General Statutes § 52-190a); Tutillo v. Day Kimball Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5009722 (November 26, 2007, Langenbach, J.) [ 44 Conn. L. Rptr. 570] (denying motion to dismiss by defendant's emergency room care providers and board certified family physician because plaintiff's "psychiatric expert" was similar health care provider in case where plaintiff alleged negligence for rendering of services outside of expertise and failure to properly refer decedent to a psychiatrist); Behling v. Aronow, supra, Superior Court, Docket No. CV 06 5001692 (rejecting defendant's argument that obstetrician-gynecologist is not a similar health care provider as a hospital). As Judge Langenbach aptly stated in Tutillo v. Day Kimball Hospital, supra, Superior Court, Docket No. X03 CV 06 5009722, "[t]he purpose of the amendment was not to require a plaintiff's attorney, based upon the limited information available before filing the action, to consult with experts in every conceivable specialty with respect to every possible health care provider who may have been involved in a claimant's treatment before the action is filed or any discovery is conducted . . . [A] single written opinion of a `similar health care provider' is sufficient to meet the requirements of § 52-190a as to all defendants with respect to a particular incident or course of treatment involving several health care providers that is the subject of a single complaint." (Emphasis added.) "The plaintiff's expert has extensive experience in the fields of surgical care and surgical emergencies, has taught at respected medical schools, has held posts as the director of emergency general surgery and surgical intensive care units, has sat on a wide variety of medical boards and committees including an emergency department observation committee, and has published numerous articles in the fields of thoracic surgery, critical care, and emergency medicine, among others. See generally, Robbins v. Physicians for Women's Health, LLC, supra, 44 Conn. L. Rptr. 315, 316-17 (comparing defendant's medical qualifications to those of the plaintiff's expert). The plaintiff's expert is highly qualified to opine on the standard of care regarding prompt diagnosis and treatment of an abdominal surgical emergency, as evidenced by his curriculum vitae, and fulfills the gatekeeper function in underpinning the plaintiff's attorney's certificate of good faith." Griffin v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005220 (Feb. 8, 2008, Hiller, J.) (Emphasis added.)
ATTACHMENT A REDACTED
Dear Attorney LiCalzi:
At your kind request I have reviewed the medical records for Grace Barzottini, including:
Newborn records from Bridgeport Hospital (9/27/06 to 10/18/06);
Yale-New Haven Hospital
Laboratory records; and,
Child Neurology Associates.
Based upon my review of the above materials, as well as upon my experience and training in the field of pediatrics and neonatology, it is my opinion within a reasonable degree of medical certainty that there were departures from accepted standards of care while Grace was a patient at Bridgeport Hospital involving the failure to timely suspect, diagnose and treat methylmalonic acadamia/aciduria (MMA) cobalamin C type.
MMA is a metabollic disorder of amino acid metabolism. Stated simply, MMA is an inborn error of metabolism whereby the body does not properly metabolize vitamin B12 resulting in the accumulation of methylmalonic acid and homocysteine in the blood and urine.
Metabolism is the means by which the body derives energy and synthesizes molecules from the fat, carbohydrates and proteins we ingest through enzymatic reactions assisted by various minerals and vitamins. MMA encompasses a heterogeneous group of disorders that are characterized by an accumulation of methylmalonic acid and its by-products in biological fluid. These disorders are typically due to an absence of, or reduction in, an enzyme (apoenzyme deficiency) or a defect in the synthesis of adenosylcobalamin which is a derivative of vitamin B12 (coenzyme deficiency). An increase in methylmalonic acid can cause metabolic derangment, including metabolic acidosis whereby the body's acid-base balance is disturbed (the blood pH becomes abnoramlly low). Thus, if left undiagnosed and untreated, the excessive levels of methylmalonic acid can cause significant neurological damage which may manifest itself as physical, developmental and congnitive deficits and delays. However, if timely diagnosed and treated with the administration of vitamin B12 and a low-protein diet, the serious and permanent consequences of MMA can be avoided.
Grace ("Twin A") was delivered prematurely (at 32 weeks) along with her twin brother via Cesarean section on September 27, 2006, at Bridgeport Hospital. Her birth weight was 3 lbs. 6 oz., her length was 41 cm and her head circumference was 29 cm. All of these growth parameters are within the 25-50th percentile. She had Apgars of 3 (of 1 minute) and 8 (at 6 minutes). On September 28, 2006 a heel stick blood sample was drawn for a newborn screening analysis. Newborn screening is the process of testing newborn babies for treatable genetic, endorcrinologic, metabolic and hematologic diseases and conditions. Typically, a few drops of blood are obtained from a heel stick to fill a few circles on filter paper and the sample is then sent to a laboratory for testing.
By September 29th, Grace had developed an obvious metabolic acidosis as documented by serial arterial blood gases over the course of a number of days. Grace was treated for this condition with mutliple doses of I.V. sodium bicarbonate. Although there were some improvements in the acidosis, the monitoring of her acid-base status unexplainedly stopped on October 2, 2006.
On October 6, 2006, the newborn screening blood sample taken on September 28th was finally sent out for analysis. This is an unacceptable delay of 8 days and was a factor in the delayed diagnosis of MMA. Four days later the screening results were reported to the hospital and indicated that Grace had tested positive for MMA. Remarkably, no treatment was instituted for MMA at that time. Instead, the records contain only a note, dated October 10th, which states that the result was received and a new sample was "resent" that day. On that same day, Grace was progressed from total parenteral nutrition and partial feeds to full feeds. By October 13th, a sepsis work-up was instituted due to increasing lethargy. The work-up was, not surprisingly, negative since the lethargy was obviously secondary to the untreated MMA.
On October 17th, the results from the second newborn screening sample were reported back and once again were positive for MMA. Grace's feedings were then changed (restricted protein diet) and she was transferred to Yale-New Haven Hospital the following day. On October 17th, another blood sample was obtained and sent to the Department of Genetics at Yale University School of Medicine for further analysis. The results, reported on October 19th, were markedly abnormal — Grace's plasma methylmalonic acid levels were 162.00 pm. The range of normal for plasma methylomalonic acid was reportedly 0.00 to 0.76 pm.
While at Yale-New Haven Hosptial, Grace's lethargy and generalized hypotonia improved. An MRI performed on November 10th at the hospital demostrated "widening of the extraaxial CSF spaces and a small amount of subacute blood in the posterior interhomispheric region likely a small subdural hematoma. [The] subdural [was] believed to be secondary to hyperhomocystelnemia . . ." These MRI findings were indicative of cerebral atrophy. There was no evidence of seizure activity at Yale-New Haven, but Grace did have two abnormal EEGs (gross suppression of cerebral rhythms and generalized slowing with low voltages).
Following her discharge from Yale-New Haven Hospital, Grace has been followed by Child Neurology Associates. Grace continues to be maintained a restrictive protein diet and receives various medications for her MMA. She qualified for and has received early intervention services including physical, vision (she is legally blind) and speech therapies, as well as special education. Her head circumference has consistently been noted to be below the 5th percentile which is indicative of a secondary microcepahly. Grace is also noted to suffer from generalized hypotonia, visual delays and global developmental delays. By early 2008, clinical signs and symptoms of a seizure disorder were noted and Grace was started on Phenobarbital.
It is my opinion stated with a reasonable degree of medical certainty that the physicians, nursing and hospital staff, including Drs. Freedman, Manzies, Herzlinger and Jacobs, caring for Grace at Bridgeport Hospital after her delivery deviated from accepted standards of care in failing to commence treatment for MMA on October 10th in the face of the newborn screening results, including an appropriate nutrition regimen. Given the potential adverse consequences, including permanent neurological deficits, good and accepted practice required that such results be presumed valid and treatment for MMA be instituted immediately even re-testing was going to be performed. Furthermore, there was an 8 day delay from the time that the first newborn screening blood was obtained and when it was out for analysis.
It is also my opinion stated with a reasonable degree of medical certainty that the physicians, nursing and hospital staff, including Drs. Freedman, Manzies, Herzlinger and Jacobs, caring for Grace at Bridgeport Hospital after her delivery deviated from accepted standards of care in failing to perform work-up for inborn errors of metabolism when the baby was suffering from unexplained metabolic acidosis. Thus, the physicians, nursing staff and hospital personnel caring for a newborn infant who is suffering from unexplained metabolic acidosis must consider an inborn error of metabolism in a differential diagnosis and proceed to either rule-in or rule-out same.
It is also my opinion stated with a reasonable degree of medical certainty that the physicians, nursing and hospital staff, including Dr. Freedman, Manzies, Herzlinger and Jacobs, caring for Grace at Bridgeport Hospital after her delivery deviated from accepted standards of care by prematurely stopping blood gas testing on October 2, 2006. Such testing was obviously stopped because Grace's metabolic acidosis was controlled via the administration of sodium bicarbonate, however, the cause of the acidosis was never properly investigated or determined. Furthermore, this child's continued lethargy mandated additional testing and investigation.
It is further my opinion stated with a reasonable degree of medical certainty that the aforementioned departures from accepted standards of practice were substantial contributing factors in causing a delay in diagnosis and treatment of Grace's MMA which, in turn, led her to suffer neurologic damage as a result of markedly elevated levels of methylmalonic acid.
These opinions may be amended and/or supplemented based upon review of additional documentation or materials. If you have any other questions, please do not hesitate to call.
Sincerely,
Redacted
DETAILS REQUIRED
The defendants also complain that the opinion letter was not sufficiently detailed and overly broad. Superior Courts have "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." Robbins v. Physicians for Women's Health, LLC, supra, 44 Conn. L. Rptr. 315, 316 (citing to eleven such opinions as examples). "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." Torres v. Carrese, Superior Court, judicial district of New Haven, Docket No. CV 06 5006514 (April 16, 2007, Jones, J.) ( 43 Conn. L. Rptr. 270, 271). "Nothing in the plain language of the statute or its legislative history indicates . . . that an insufficient opinion is grounds for dismissal of the action." Ellegard v. Hennessey, Superior Court, judicial district of New Britain, Docket No. CV 06 5001158 (September 22, 2006, Robinson, J.), citing 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).
Legislative history indicates that the purpose of the written opinion requirement and "grounds for dismissal" language in § 52-190a(c) was to "[set] up . . . a procedural rule requiring plaintiffs to provide mandatory information or discovery at the inception of litigation without the need for the defendant to move for such information." Doe v. Priority Care, Inc., 50 Conn.Sup. 385, 391-92, 933 A.2d 755 (2007); see Schachter v. Evanko, Superior Court, judicial district of New Haven, Docket No. CV 06 5007552 (September 24, 2007, Holden, J.) ( 44 Conn. L. Rptr. 210, 211) (reasoning that "[t]he statute was designed to put the defendant on notice and facilitate discovery"); Quellette v. Brook Hollow Health Care Center, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, Holden, J.) ( 42 Conn. L. Rptr. 863); Andrikis v. Phoenix Internal Medicine, supra, 41 Conn. L. Rptr. 222. "[T]he judge has discretion as to whether the action should be dismissed for failure to supply an opinion of sufficient detail, but that does not implicate subject matter jurisdiction." Doe v. Priority Care, Inc., supra, 50 Conn.Sup. 388. "[W]hat we are dealing with is the power of a trial court to render a discretionary dismissal." Id., 396.
In this case, the opinion provided is sufficient to satisfy the requirement of § 52-190a and is sufficient to overcome a motion to dismiss.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
This is an action claiming medical negligence in the care and treatment of the plaintiff shortly after her birth. This motion to dismiss is brought on behalf of the defendant Bridgeport Hospital. The defendant claims that the medical opinion letter appended to the complaint failed to comply with the requirements of General Statutes § 52-190a because it is not authored by a nurse and the complaint contains allegations regarding nursing care.
Copy of medical opinion letter dated September 30, 2008.
ATTACHMENT A REDACTED
Dear Attorney LiCalzi:
At your kind request I have reviewed the medical records for Grace Barzottini, including:
Newborn records from Bridgeport Hospital (9/27/06 to 10/18/06);
Yale-New Haven Hospital
Laboratory records; and,
Child Neurology Associates.
Based upon my review of the above materials, as well as upon my experience and training in the field of pediatrics and neonatology, it is my opinion within a reasonable degree of medical certainty that there were departures from accepted standards of care while Grace was a patient at Bridgeport Hospital involving the failure to timely suspect, diagnose and treat methylmalonic acadamia/aciduria (MMA) cobalamin C type.
MMA is a metabollic disorder of amino acid metabolism. Stated simply, MMA is an inborn error of metabolism whereby the body does not properly metabolize vitamin B12 resulting in the accumulation of methylmalonic acid and homocysteine in the blood and urine.
Metabolism is the means by which the body derives energy and synthesizes molecules from the fat, carbohydrates and proteins we ingest through enzymatic reactions assisted by various minerals and vitamins. MMA encompasses a heterogeneous group of disorders that are characterized by an accumulation of methylmalonic acid and its by-products in biological fluid. These disorders are typically due to an absence of, or reduction in, an enzyme (apoenzyme deficiency) or a defect in the synthesis of adenosylcobalamin which is a derivative of vitamin B12 (coenzyme deficiency). An increase in methylmalonic acid can cause metabolic derangment, including metabolic acidosis whereby the body's acid-base balance is disturbed (the blood pH becomes abnoramlly low). Thus, if left undiagnosed and untreated, the excessive levels of methylmalonic acid can cause significant neurological damage which may manifest itself as physical, developmental and congnitive deficits and delays. However, if timely diagnosed and treated with the administration of vitamin B12 and a low-protein diet, the serious and permanent consequences of MMA can be avoided.
Grace ("Twin A") was delivered prematurely (at 32 weeks) along with her twin brother via Cesarean section on September 27, 2006, at Bridgeport Hospital. Her birth weight was 3 lbs. 6 oz., her length was 41 cm and her head circumference was 29 cm. All of these growth parameters are within the 25-50th percentile. She had Apgars of 3 (at 1 minute) and 8 (at 6 minutes). On September 28, 2006 a heel stick blood sample was drawn for a newborn screening analysis. Newborn screening is the process of testing newborn babies for treatable genetic, endorcrinologic, metabolic and hematologic diseases and conditions. Typically, a few drops of blood are obtained from a heel stick to fill a few circles on filter paper and the sample is then sent to a laboratory for testing.
By September 29th, Grace had developed an obvious metabolic acidosis as documented by serial arterial blood gases over the course of a number of days. Grace was treated for this condition with mutliple doses of I.V. sodium bicarbonate. Although there were some improvements in the acidosis, the monitoring of her acid-base status unexplainedly stopped on October 2, 2006.
On October 6, 2006, the newborn screening blood sample taken on September 28th was finally sent out for analysis. This is an unacceptable delay of 8 days and was a factor in the delayed diagnosis of MMA. Four days later the screening results were reported to the hospital and indicated that Grace had tested positive for MMA. Remarkably, no treatment was instituted for MMA at that time. Instead, the records contain only a note, dated October 10th, which states that the result was received and a new sample was "resent" that day. On that same day, Grace was progressed from total parenteral nutrition and partial feeds to full feeds. By October 13th, a sepsis work-up was instituted due to increasing lethargy. The work-up was, not surprisingly, negative since the lethargy was obviously secondary to the untreated MMA.
On October 17th, the results from the second newborn screening sample were reported back and once again were positive for MMA. Grace's feedings were then changed (restricted protein diet) and she was transferred to Yale-New Haven Hospital the following day. On October 17th, another blood sample was obtained and sent to the Department of Genetics at Yale University School of Medicine for further analysis. The results, reported on October 19th, were markedly abnormal — Grace's plasma methylmalonic acid levels were 162.00 pm. The range of normal for plasma methylomalonic acid was reportedly 0.00 to 0.76 pm.
While at Yale-New Haven Hosptial, Grace's lethargy and generalized hypotonia improved. An MRI performed on November 10th at the hospital demostrated "widening of the extraaxial CSF spaces and a small amount of subacute blood in the posterior interhomispheric region likely a small subdural hematoma. [The] subdural [was] believed to be secondary to hyperhomocystelnemia . . ." These MRI findings were indicative of cerebral atrophy. There was no evidence of seizure activity at Yale-New Haven, but Grace did have two abnormal EEGs (gross suppression of cerebral rhythms and generalized slowing with low voltages).
Following her discharge from Yale-New Haven Hospital, Grace has been followed by Child Neurology Associates. Grace continues to be maintained a restrictive protein diet and receives various medications for her MMA. She qualified for and has received early intervention services including physical, vision (she is legally blind) and speech therapies, as well as special education. Her head circumference has consistently been noted to be below the 5th percentile which is indicative of a secondary microcepahly. Grace is also noted to suffer from generalized hypotonia, visual delays and global developmental delays. By early 2008, clinical signs and symptoms of a seizure disorder were noted and Grace was started on Phenobarbital.
It is my opinion stated with a reasonable degree of medical certainty that the physicians, nursing and hospital staff, including Drs. Freedman, Manzies, Herzlinger and Jacobs, caring for Grace at Bridgeport Hospital after her delivery deviated from accepted standards of care in failing to commence treatment for MMA on October 10th in the face of the newborn screening results, including an appropriate nutrition regimen. Given the potential adverse consequences, including permanent neurological deficits, good and accepted practice required that such results be presumed valid and treatment for MMA be instituted immediately even re-testing was going to be performed. Furthermore, there was an 8 day delay from the time that the first newborn screening blood was obtained and when it was out for analysis.
It is also my opinion stated with a reasonable degree of medical certainty that the physicians, nursing and hospital staff, including Drs. Freedman, Manzies, Herzlinger and Jacobs, caring for Grace at Bridgeport Hospital after her delivery deviated from accepted standards of care in failing to perform work-up for inborn errors of metabolism when the baby was suffering from unexplained metabolic acidosis. Thus, the physicians, nursing staff and hospital personnel caring for a newborn infant who is suffering from unexplained metabolic acidosis must consider an inborn error of metabolism in a differential diagnosis and proceed to either rule-in or rule-out same.
It is also my opinion stated with a reasonable degree of medical certainty that the physicians, nursing and hospital staff, including Dr. Freedman, Manzies, Herzlinger and Jacobs, caring for Grace at Bridgeport Hospital after her delivery deviated from accepted standards of care by prematurely stopping blood gas testing on October 2, 2006. Such testing was obviously stopped because Grace's metabolic acidosis was controlled via the administration of sodium bicarbonate, however, the cause of the acidosis was never properly investigated or determined. Furthermore, this child's continued lethargy mandated additional testing and investigation.
It is further my opinion stated with a reasonable degree of medical certainty that the aforementioned departures from accepted standards of practice were substantial contributing factors in causing a delay in diagnosis and treatment of Grace's MMA which, in turn, led her to suffer neurologic damage as a result of markedly elevated levels of methylmalonic acid.
These opinions may be amended and/or supplemented based upon review of additional documentation or materials. If you have any other questions, please do not hesitate to call.
Sincerely,
Redacted
A party who files a medical malpractice action is required to file both a certificate of good faith indicating that a "reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant," as well as the written opinion of a "similar health care provider, as defined in [General Statutes] § 52-184c . . . 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). "The failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." General Statutes § 52-190a(c).
A motion to dismiss is not the proper vehicle for a defendant to contest the sufficiency of the opinion of a similar healthcare provider. See Scofield v. Quinn, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 08 6000897 (September 16, 2008, Brunetti, J.) ( 46 Conn. L. Rptr. 319); Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012152 (July 30, 2008, Berger, J.); Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV06 5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341); Ouellette v. Brook Hollow Healthcare Center, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, Holden, J.) ( 42 Conn. L. Rptr. 863); Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Packard, J.) ( 42 Conn. L. Rptr. 163).
The motion to dismiss claim does not contend that no opinion letter was provided with the complaint, but rather claims it insufficient because it is not authored by a nurse. Although the appellate courts have not addressed the issue, several judges of the Superior Court have determined that in an action in which the alleged medical malpractice of a hospital or similar entity is premised on the conduct of its individual physicians, a written opinion that only addresses the negligence of the physicians is sufficient to withstand a motion to dismiss. See, e.g., DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 06 5010472 (August 5, 2008, Berger, J.) ( 46 Conn. L. Rptr. 121) (letter from orthopedic surgeon sufficient as to nursing staff of defendant hospital); Robbins v. Physicians for Women's Health, LLC, Superior Court, judicial district of New London, Docket No. CV 06 5002633 (October 16, 2007, Hurley, J.T.R.) ( 44 Conn. L. Rptr. 315) (denying motion to dismiss because defendant nurse-midwife and plaintiff's expert obstetrician-gynecologist were similar health care providers for purposes of General Statutes § 52-190a); Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) (holding that obstetrician/gynecologist proper opinion writer in case arising out of induction of labor and cesarean section, as against individual physician and hospital, including physicians, nurses and other staff); Derosa v. Warner, Superior Court, judicial district of New Haven, Docket No. CV 08 5020564 (December 8, 2008, Zoarski, J.T.R.); Draper v. Danbury Health Systems, Inc., supra, 46 Conn. L. Rptr. 462; Jarett v. Midstate Radiology, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5003115 (November 26, 2008, Fischer, J.); Mersereau v. State of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV 08 5017933 (September 5, 2008, Dubay, 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); Maitan v. Access Ambulance Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5003252 (October 18, 2007, Nadeau, J.) ( 44 Conn. L. Rptr. 436); Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.).
In this case, the opinion provided is sufficient to satisfy the requirement of § 52-190a and is sufficient to overcome a motion to dismiss.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.