Opinion
No. TTD CV 07-5001903-S
April 2, 2008
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE ON REARGUMENT
By decision dated February 5, 2008, the court found that, due to an insufficient opinion letter required by General Statutes § 52-190a, it lacked subject matter jurisdiction over this medical malpractice case, and ruled that it could not consider the proposed amendment. Accordingly, it treated the defendants' Motion to Strike as a Motion to Dismiss and ordered this case dismissed and sustained the Objection to the Request for Leave to Amend Complaint. By decision dated March 3, 2008, the court granted plaintiff's Motion To Reargue, but only to permit it to raise the issue of whether Conn. Gen. Stat. § 52-190a, if so applied, is unconstitutional under Connecticut Constitution, Article first, § 10. That constitutional provision is known as the remedy clause. For the following reasons, the court concludes that the statute is not unconstitutional. Accordingly, it reinstates its order dismissing this case and sustaining the Objection to the Request for Leave to Amend Complaint.
This provision is also known in the caselaw as the open courts provision.
I
This case is an action in two counts by the plaintiff, Deborah DeLude, Administratrix of the Estate of James DeLude, against David Young, M.D., and Yale-New Haven Hospital, Inc. The complaint alleges, inter alia, that the defendant and hospital were negligent in failing to prevent the death of James DeLude, who committed suicide in the hospital Emergency Department by hanging himself with his shoe laces when he was left alone for twenty minutes in a crisis intervention room. Defendants moved to strike the entire complaint, including all counts, due to an insufficient opinion letter required by General Statutes § 52-190a, and objected to plaintiff's effort to cure the defect by amendment.
As noted in the earlier decision dismissing the case, the requirement that a medical malpractice complaint must have attached a written opinion from a health care provider vouching for evidence of malpractice is contained in General Statutes § 52-190a, as amended by Public Acts 2005, No. 05-275. That statute provides, in pertinent part, as follows:
(a) No civil action . . . shall be filed to recover damages resulting from personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a healthcare provider, unless the attorney . . . 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. The complaint . . . shall contain a certificate of the attorney . . . 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 healthcare provider, as defined in section 52-184c . . . 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. The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar healthcare provider expunged, to such certificate . . .
General Statutes § 52-190a(a) (Emphasis added.)
The written opinion in this case reads, in toto, as follows:
I have reviewed the records from Yale-New Haven Hospital regarding James DeLude's care on May 24, 2005. Yale-New Haven Hospital deviated from the applicable standard of care in the treatment of Mr. DeLude in failing to protect him and taking reasonable precautions to ensure his safety.
Complaint, written opinion.
In this case, the court found that it is clear that the written opinion is not sufficiently detailed. It is entirely conclusory and provides no illumination as to what is the standard of care, who violated it and how or on what basis or when it was violated. It does not even reveal whether the writer is a health care provider, or what type. It does not even mention Dr. Young. It does not comply with the requirements of the statute. It also found that dismissal was the mandatory remedy for an insufficient opinion under subsection (c) of the statues, which provides as follows:
(c) 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 § 52-190a(c).
Accordingly, this court found that it lacked jurisdiction over the subject matter of the case, and concluded that it could not consider an amendment proposed to correct the deficiency. No reargument was permitted to revisit those points. However, the court did grant reargument to permit argument on whether the statute is unconstitutional under the remedy clause, if so applied.
II
The remedy clause, provides:
All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
Article first, § 10, Connecticut Constitution.
The issue for the court is whether the opinion letter requirement of General Statutes § 52-190a unconstitutionally interferes with a plaintiff's effort to bring a medical malpractice lawsuit under the remedy clause. "We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt . . . While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case . . . Every presumption is to be given in favor of the constitutionality of the statute." (Internal quotation marks omitted; citations omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 299, 664 A.2d 803, cert. denied 235 Conn. 925, 666 A.2d 1186 (1995). The statutory provision requiring a detailed, written opinion, and requiring dismissal if it is not included with the complaint, was added relatively recently — in Public Act 05-275. To date, there is no Connecticut case squarely on point, although other Superior Court judges have recognized the potential for the constitutional issue. See, e.g., Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06-5000664 (May 31, 2007, Gallagher, J.). Nor is there any illuminating constitutional debate documented. The provision was taken from the Mississippi Constitution of 1817. There was no debate on this provision in Connecticut in either of the Constitutional Conventions of 1818 or 1965. W. Horton, The Connecticut State Constitution (1993), p. 63.
Looking to other jurisdictions, it is clear that there is no correlative federal constitutional right to a remedy, but similar clauses exist in the state constitutions of forty other states. T.R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U.L. Rev. 1309, 1310 (2003). States that have upheld similar statutes with expert opinions of merit prerequisites like that in General Statute § 52-190a against remedy clause challenges include Herra v. Seton Northwest Hospital. 212 S.W.3d 452 (Tex.Ct. of App., 2006); Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503 (Mo. 1991) and McAlister v. Schick, 147 Ill.2d 84 588 N.E.2d 1151 (1992). States that have found such requirements unconstitutional in remedy clause challenges include Zeier v. Zimmer, Inc., 152 P.3d 861 (OK. 2007). Decisions from other states are, of course, not binding on this court. Moreover, they are of limited value even by analogy in this circumstance. Modern state interpretations of remedy clauses employ widely divergent approaches to the issue. There is no uniform understandable standard that is practically capable of predictable application, according to some scholars. The Constitutional Right to a Remedy, supra, 78 N.Y.U.L.Rev. 1334-39.
Nevertheless, in Connecticut, there are certain landmarks along the path of the law in this area. In Stein v. Katz, 213 Conn. 282, 567 A.2d 1183 (1989), our Supreme Court summarized that the remedy clause prohibits the legislature from abrogating any common-law rights of action that existed in 1818 when what is now Article first, § 10 was first adopted, unless the legislature creates a reasonable alternative. Id. at 287. Under this rule, the no-fault automobile insurance system that barred lawsuits was found to be not unconstitutional because the legislature provided a reasonable alternative to lawsuits — insurance — in Gentile v. Altermatt, 169 Conn. 267, 294, 363 A.2d 1 (1975), app. dismissed, 423 U.S. 1041 (1976). And a statute of repose that barred an employee from bringing a product liability suit was not unconstitutional where the legislature had provided a reasonable alternative — workers' compensation — in Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986). More recently, in a case where there was no alternative remedy, Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 785 A.2d 234, cert. denied 259 Conn. 902, 789 A.2d 990 (2001), our Appellate Court held that a statute of repose that barred a medical malpractice case did not abridge or abolish the plaintiff's right to redress in that case. Rather, the court found that the legislature had imposed only a reasonable condition that was not unconstitutional under the remedy clause:
Reasonable conditions on a cause of action do not amount to a violation of the constitution . . . A strict and inflexible interpretation of article first, § 10, could affect the legislature's ability to pass, enact and repeal laws. Such an encumbrance upon the legislature would freeze common law rights in perpetuity . . . The plaintiff is not deprived entirely of his right to redress. His right to redress is limited . . . [The statute] restricts the right to bring an action for medical negligence only to the extent that it restricts the time for bringing the action, which we conclude is reasonable . . .
Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 537; accord Neuhaus v. DeCholnoky, 83 Conn.App. 576, 590, 850 A.2d 1106 (2004) rev'd, in part, on other grounds, 280 Conn. 190, 905 A.2d 1135.
In the instant case, the constitutional provision is clearly applicable. Medical negligence existed as a cause of action at common law prior to 1818 and thus became incorporated into the Connecticut Constitution by the adoption of Article first, § 10. Such a claim could be brought under the cause of action then called trespass on the case. Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 534. Also, there is no alternative remedy. However, General Statute § 52-190a does not appear to be constitutionally infirm under the remedy clause. First, that statute does not abolish the ability to bring a medical negligence case. It merely requires plaintiffs to document the fact that there is evidence to support such a claim before bringing suit. There is nothing insurmountable about this requirement. Second, it is certainly reasonable. General Statutes § 52-190a was enacted "to discourage the filing of baseless lawsuits against health care providers" by requiring attorneys to file a good faith certificate with medical negligence complaints, which could be shown to exist if the claimant or his attorney received a written opinion of a similar health care provider finding evidence of medical negligence. LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). The purpose of the 2005 legislation was to make "substantial improvements" in that effort by requiring 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." 48 S.Proc., Pt. 14, 2005 Sess., p. 4411, remarks of Senator Andrew J. McDonald. Moreover, plaintiff cannot claim a pre-constitutional right to have an attorney bring a groundless lawsuit. Indeed, in pre-constitutional times, attorneys could be liable for "dishonest or unwarrantable practices" in the conduct of a suit on behalf of a client. See 2 Z. Swift, A System of the Laws of the State of Connecticut (1795), p. 115. Accordingly, General Statutes § 52-190a does not abridge or abrogate any pre-constitutional rights of action of the plaintiff. It passes constitutional muster.
III
For all of the foregoing reasons, and for the reasons explained in the court's decisions dated February 5 and March 3, 2008, the court, following reargument, treats the defendants' Motion to Strike as a Motion to Dismiss and orders this case dismissed and sustains the Objection to the Request for Leave to Amend Complaint.