Opinion
No. X05CV010185076S
November 19, 2002
Memorandum of Decision
The plaintiff filed a five count amended complaint, dated November 19, 2001 against defendants Dr. Robert Levine, Dr. Amy Knorr, Neurology Associates of Norwalk, P.C. (the P.C.), and Norwalk Hospital Association, d/b/a Norwalk Hospital. Plaintiff alleges medical malpractice against all defendants.
On July 8, 2002, the court heard argument on motions filed by each defendant which attack the validity and sufficiency of the good faith certificate filed by plaintiff as required pursuant to General Statutes § 52-190a (a). Defendants Levine and the P.C., and defendant Knorr each filed a motion entitled "Motion to Dismiss and/or Strike", while defendant Norwalk Hospital filed a "Motion to Strike and/or Motion for Summary Judgment".
General Statutes § 52-190a (a) provides:
No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, 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. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, 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. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney's fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney submitted the certificate.
The defendants all argue that the person consulted by plaintiff for the good faith certificate, David Papendick, M.D., of Wisconsin, does not meet the requirements of a "similar health care provider" under General Statutes § 52-184c, and therefore, the good faith certificate filed pursuant to § 52-190a (a) is invalid and insufficient.
General Statutes § 52-184c provides:
(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who: (1) Is 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.
(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider".
(d) 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 Cc) 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.
The plaintiff argues that defendants' motions are premature under the language of § 52-190a (a), procedurally improper, and that David Papendick, M.D., meets the definition of a similar health care provider under § 52-184c.
"[T]he general purpose of 52-190a is to discourage the filing of baseless lawsuits against health care providers. . . . The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to the defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence. . . . The purpose is . . . served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessarily akin to an essential allegation to support a cause of action." LeConche v. Elligers, 215 Conn. 701, 710-11 (1990). Section 52-190a (a) provides for sanctions against the person signing such a certificate, a represented party, or both, if the court determines, after the completion of discovery, that a certificate was not made in good faith.
In the present case, discovery is not completed. Defendants argue that they should be allowed to challenge the good faith certificate now in the interests of judicial economy and avoiding the expense of defending the action because the plaintiff already voluntarily disclosed the name of David Papendick, M.D., as the person relied on for the certificate and Papendick does not meet the requirements of a similar health care provider under § 52-184c.
In Hoe v. Corning, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 309736 (August 4, 1994, Vertefeuille, J.), the defendant physicians, before discovery had been completed, moved for an order of disclosure of the basis for the good faith certificate, including the written report of any health care provider consulted for the certificate. The court denied the defendants' motion stating, "General Statutes § 52-190a (a) clearly defers any inquiry concerning the sufficiency of the certificate or the pre-suit inquiry until after the completion of discovery. There is no exception on public policy or other grounds." The court in Hoe cited to another trial court decision,Zamstein v. Marvasti, Superior Court, judicial district of New Britain, Docket No. 457182 (October 21, 1993, Pittman, J.), where the court found that, "[r]ead as a whole, the statute seems to contemplate the following chronology: a) plaintiff files the action, b) discovery ensues, c) discovery, in the main, discloses little or no expert support for a claim of medical negligence, d) defendant, now having a good faith suspicion concerning the validity of the certificate, files discovery aimed at the certificate, and e) either plaintiff produces some evidence of reasonable inquiry, ending the controversy over the issue, or plaintiff is unable to support the certificate and the court entertains the issue of sanctions."
This court agrees with the above outlined chronology and finds that the chronology does not change even when the identity of the health care provider who gave the opinion for the good faith certificate is disclosed before discovery is completed. The discovery process can disclose expert support for the claims beyond that relied on for the certificate. If expert support for the claimed malpractice is disclosed in discovery, the lawsuit would, therefore, not be baseless and the purpose behind § 52-190a (a) would be served. The defendants would not have grounds to challenge the original certificate. Allowing an earlier inquiry into the validity of the certificate would transform the requirements of § 52-190a (a) from a reasonable precomplaint inquiry giving rise to a good faith belief in the defendant's negligence into that of precomplaint proof of defendant's negligence. Allowing such an inquiry before discovery is completed would cause the court and counsel to focus unnecessarily on what ultimately may be shown, through expert support disclosed in discovery, to be a valid claim.
Furthermore, § 52-190a (a) allows a plaintiff "to establish a reasonable precomplaint inquiry by references to factors beyond the certificate evidencing their good faith, and beyond any written expert opinion they may have secured." LeConche v. Elligers, supra, 215 Conn. 708-09. Thus, the court may look at more than the underlying opinion to determine plaintiff's good faith. "The statute [ 52-190a (a)], however, clearly requires a factual inquiry by the court regarding the sufficiency of the precomplaint investigation. That inquiry is to be undertaken after the completion of discovery. . . . The existence of a report by a medical expert may be, but is not necessarily, sufficient to establish the plaintiff's good faith belief." Id. Allowing an inquiry before discovery is completed, therefore, violates both the plain language and the purpose of the statute.
Although the defendants must wait until discovery is completed, the statute protects the defendants' interests by allowing the court to impose serious sanctions, including referral for disciplinary action, against an attorney if it determines that a certificate was not made in good faith. "Under the statute as enacted by the legislature, that is the Defendants' sole recourse." Hoe v. Corning, supra, Superior Court, Docket No. 309736.
For the foregoing reasons, the court finds that the defendants' challenge to the validity and sufficiency of the good faith certificate is premature.
Furthermore, the defendants' motions are not the proper procedural vehicles for addressing such a challenge to the validity and sufficiency of a good faith certificate. In LeConche v. Elligers, supra, 215 Conn. 711, the Supreme Court found that the lack of a good faith certificate does not deprive the court of subject matter jurisdiction but "renders the complaint subject to a motion to strike." Because the court in LeConche found that the good faith certificate is not a jurisdictional requirement, in the present case, a motion to dismiss is not procedurally appropriate. Similarly, in the present case a motion to strike is not procedurally appropriate because, unlike the situation in LeConche where there was no good faith certificate at all attached to the complaint, here there is a good faith certificate. Additionally, the defendants already have filed answers. Defendant Norwalk Hospital's motion sought, in the alternative, summary judgment, which may be appropriate at a later time, but is premature at this point in the proceedings.
Defendant Norwalk Hospital moved for summary judgment on the additional grounds that plaintiff's recently disclosed medical records from Dr. Phillips demonstrate that a good faith basis for plaintiff's action does not exist. For the reasons stated above, any inquiry into good faith is premature at this time. Accordingly, all of the defendants' motions are denied.
The plaintiff has asked the court, in her objections to defendants' motions, to impose sanctions and/or attorney's fees against the defendants for filing their motions. The plaintiff's request is denied.
___________________ CHASE T. ROGERS SUPERIOR COURT JUDGE