Opinion
HHDCV155039695S
02-22-2016
Jane Doe #2 v. Khosro Pourkavoos, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
FACTS
On June 1, 2015, the plaintiff, Jane Doe #2, filed a three-count complaint against the defendants, Khosro Pourkavoos, M.D., Pourkavoos Medical Center, LLC, and Saint Francis Care Medical Group, P.C. (Saint Francis). Counts one, two, and three allege medical malpractice against Dr. Pourkavoos, Pourkavoos Medical Center, LLC, and Saint Francis respectively. Presently before the court is a motion to dismiss count three raised by the defendant, Saint Francis. In count three the plaintiff alleges the following facts. In 2011, the plaintiff was referred to Dr. Pourkavoos by her male cousin who had been seeing Dr. Pourkavoos at his office in the Saint Francis Satellite Medical Office. On or about May 20 2013, the plaintiff met with Dr. Pourkavoos at his office in the Saint Care Office Building, to get treatment for a skin rash on her arms and legs. Dr. Pourkavoos asked the plaintiff to undress and he remained in the room while she did so. Dr. Pourkavoos then proceeded to examine her buttocks, breasts and vagina; there was no nurse or anyone else present during these examinations and Dr. Pourkavoos was not wearing gloves while performing the examinations. Subsequently, on June 26, 2013, the plaintiff returned to go over a blood test administered during her previous appointment, and during this visit Dr. Pourkavoos told her she was tired due to her anemia and that she was feeling some paralysis in her leg. Dr. Pourkavoos proceeded to tell the plaintiff to remove her clothing and remained in the room while she did so. Dr. Pourkavoos examined the plaintiff's back while she was in a seated position, he then unhooked and removed her bra while examining her spine for scoliosis. Dr. Pourkavoos then had the plaintiff lie down on her stomach, at which time he told her he was going to check for constipation; Dr. Pourkavoos then pulled down the plaintiff's underwear and performed a rectal and cervical exam. At no time during the rectal or cervical exam did Dr. Pourkavoos explain to the plaintiff what he was doing. Furthermore, in count three the plaintiff alleges that Saint Francis is vicariously liable for the acts of Dr. Pourkavoos as he is an agent, servant, or employee of Saint Francis.
In commencing this lawsuit, in support of her claims against all three defendants, the plaintiff attached one good faith certificate and one opinion letter by a board certified family practitioner, as required by General Statutes § 52-190a. Subsequently, on August 5, 2015, Saint Francis filed a motion to dismiss count three of the plaintiff's complaint on the ground that the opinion letter, from a board certified family practitioner, was insufficient as it applied to Saint Francis because Dr. Pourkavoos is not an agent, servant, or employee of Saint Francis. In support of its motion to dismiss, Saint Francis filed a memorandum of law and provided the following evidence: 1) an affidavit of Nancy Budds, and 2) unanswered requests for admissions directed to Dr. Pourkavoos. On August 19, 2015, Saint Francis filed a supplemental memorandum of law attaching Dr. Pourkavoos' responses to the defendant's request for admissions. On September 30, 2015, the plaintiff filed a memorandum of law in opposition to Saint Francis' motion to dismiss; the plaintiff did not provide any additional evidence to support her opposition. On October 21, 2015, Saint Francis filed a reply to the plaintiff's opposition and thereafter on October 23, 2015, the plaintiff filed a surrebuttal. This matter was heard at short calendar on October 26, 2015.
DISCUSSION
" [A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and . . . dismissal of a letter that does not comply with § 52-190a(c) is mandatory . . ." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). " [A]n action is subject to dismissal under [General Statutes § 52-190a(c)] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hosp., Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2008), aff'd, 300 Conn. 1, 12 A.3d 865 (2011). " [A] motion to dismiss is the proper procedural vehicle for challenging the sufficiency of an opinion letter and . . . an opinion letter must demonstrate that its author meets the qualifications of a similar health care provider." Bell v. Hosp. of St. Raphael, 133 Conn.App. 548, 561, 36 A.3d 297 (2012). " The failure to provide a written opinion letter or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of this court." Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [or] other types of undisputed evidence . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 651-52.
Saint Francis argues that the motion to dismiss count three of the plaintiff's complaint should be granted because Dr. Pourkavoos is not an agent, servant, or employee of Saint Francis Care and Medical Group, P.C. and the plaintiff only provided an opinion letter from a health care provider similar to Dr. Pourkavoos and not an opinion letter from a health care provider similar to Saint Francis. The plaintiff argues that Saint Francis' motion to dismiss should be denied because she provided an opinion letter that complies with the requirements of General Statutes § 52-190a as to the defendant, Dr. Pourkavoos, the apparent agent of Saint Francis.
The plaintiff also argues that the motion to dismiss should be denied because the claim against Saint Francis sounds in ordinary negligence, not medical malpractice, and therefore is not subject to the requirements of General Statutes § 52-190a. This argument fails because the plaintiff currently has a pending action in Hartford Superior Court (Docket No. CV-15-5039480-S) for negligence against Saint Francis and, therefore, under the prior pending action doctrine must be dismissed. " [T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, a good cause for abatement." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 395, 973 A.2d 1229 (2009). " The only certain rule on this subject . . . is, where the parties are the same and the second suit is for the same matter, cause, and thing, or the same object is to be attained, as in the first suit and in the same jurisdiction, the second shall abate and be dismissed . . ." (Internal quotation marks omitted.) Id., 397.
General Statutes § 52-190a(a) provides in relevant part that " [n]o civil action. shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . The complaint. 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 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." General Statutes § 52-184b(a) defines health care provider as " 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."
In the present case the plaintiff failed to attach an opinion letter from a health care provider similar to Saint Francis. The plaintiff provided only one opinion letter to support her claims against Dr. Pourkavoos, Pourkavoos Medical Center, LLC, and Saint Francis. In her complaint, the plaintiff contends that Dr. Pourkavoos was an agent, employee or servant of Saint Francis, and if this was in fact true, the opinion letter would have sufficed for all three defendants, however, it is undisputed that Dr. Pourkavoos is not an agent, employee or servant of Saint Francis. Not only did Saint Francis provide an affidavit of Nancy Budds, a Risk Manager at Saint Francis Hospital and Medical Center, in which she states Dr. Pourkavoos was not an employee, agent, or servant of Saint Francis, but Dr. Pourkavoos himself admitted, in Saint Francis' request for admissions, that he is not an agent, servant or employee of Saint Francis. Thus, in order to have satisfied the requirements of General Statutes § 52-190a the plaintiff would have had to attach an opinion letter from a health care provider similar to Saint Francis, which the plaintiff has failed to do. The opinion letter only discusses violations of the standard of care on the part of Dr. Pourkavoos and not on the part of Saint Francis. The opinion letter is also written by a board certified family practice physician, not a hospital.
Dr. Pourkavoos objected to the request for admission insofar as it stated a conclusion of law; notwithstanding his objection, and without waiving the same, Dr. Pourkavoos admitted that he was not an agent, servant, of employee of Saint Francis. Furthermore, the plaintiff did not submit any evidence to undermine Saint Francis' argument that Dr. Pourkavoos is not an agent, servant or employee of Saint Francis. " The burden of proving agency is on the party asserting its existence." Lee v. Duncan, 88 Conn.App. 319, 324, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005). Thus, this court finds it undisputed that Dr. Pourkavoos is not an agent, servant, or employee of Saint Francis.
Furthermore, in her opposition to Saint Francis' motion to dismiss the plaintiff argues that Dr. Pourkavoos was the apparent agent of Saint Francis because of their referral service, however, this claim is inconsistent with current Connecticut case law. In Mullen v. Horton, 46 Conn.App. 759, 771-72, 700 A.2d 1377 (1997), the Appellate Court declined to use the doctrine of apparent agency to hold a principle vicariously liable for the harm caused to a third person by a lack of care or skill of his agent or servant. Even more recently in Cefaratti v. Aranow, 154 Conn.App. 1, 45, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015), the Appellate Court held that the doctrine of apparent authority did not apply in the context of tort liability and found the hospital could not be held liable for the acts of the physician. Thus, the plaintiff's argument fails as a matter of law.
The plaintiff in the present case asks the court to delay in issuing an opinion until the Supreme Court renders an opinion in Cefaratti v. Aranow, 154 Conn.App. 1, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015), however, this court cannot overlook binding appellate authority. " It is axiomatic that [a] decision of [an appellate court] is controlling precedent until overruled or qualified." (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 44 Conn.App. 439, 443, 689 A.2d 1150 (1997), aff'd, 244 Conn. 189, 708 A.2d 1371 (1998). " Since our Supreme Court has not yet decided the issue, we must follow the law as it currently exists." State v. Sailor, 33 Conn.App. 409, 415 n.10, 635 A.2d 1237, cert. denied, 229 Conn. 911, 642 A.2d 1208 (1994).
Thus, because Dr. Pourkavoos is not an agent, servant or employee of Saint Francis, the opinion letter provided, which was from a similar health care provider to Dr. Pourkavoos and detailed his negligence, was insufficient as to Saint Francis. Since the opinion letter was insufficient as to Saint Francis, they are not subject to the jurisdiction of this court.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted.