Opinion
No. X07 CV 07 5012152 S
July 30, 2008
MEMORANDUM OF DECISION
I
In this action, the plaintiff, Vayle Nelson, through her parents and next friends, Susan Birk and Glen Nelson, seeks to recover damages for personal injuries sustained allegedly as a result of the medical malpractice of the defendants, Karen S. Dettmer, M.D., Litchfield County Pediatrics, LLC, Charlotte Hungerford Hospital, John Dempsey Hospital and the University of Connecticut Health Center. The plaintiff alleges the following facts in her complaint. In the early morning hours of April 30, 2005, Birk gave birth to the plaintiff at Charlotte Hungerford Hospital. Immediately after she was born, Dettmer evaluated and treated the plaintiff. Due to her serious medical condition, she required transport to another hospital. Dettmer contacted the transport team for John Dempsey Hospital and the University of Connecticut Health Center at 3:45 a.m. The transport team notified Dettmer that they would dispatch at 7:30 a.m. unless the plaintiff's condition deteriorated. The transport team did not arrive until 8:50 a.m. As a result of the delay, the plaintiff sustained severe, permanent brain damage, among other things.
The plaintiff filed this action on August 3, 2007. On September 4, 2007, the defendants, Dettmer and the medical practice with which she works, Litchfield County Pediatrics, LLC (collectively, Dettmer), moved to dismiss this action, pursuant to § 52-190a(c),1 on the grounds that the written opinion attached to the complaint fails to set forth a detailed basis for the expert's opinion and to address the causal link between the alleged negligence and the plaintiff's injuries. On October 15, 2007, the plaintiff filed a memorandum of law in opposition to the motion and, on October 25, 2007, Charlotte Hungerford Hospital joined the Dettmer motion. The court heard oral argument on this motion on April 14, 2008.
II
The issue is the sufficiency of the plaintiff's § 52-190a written opinions of similar health care providers. "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 a written opinion of a similar health care provider, as defined in § 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Citation omitted; internal quotation marks omitted.) Griffin v. Saint Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005220 (February 8, 2008, Hiller, J.). "The failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." General Statutes § 52-190a(c); see also Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008). The defendants argue in their motion to dismiss that the plaintiff's written opinions do not provide sufficient detail and, thus, her action must be dismissed.
The Superior Court bench has written extensively on the subject of how much detail in a written opinion is sufficient. See Harrison v. Trusheim, Superior Court, judicial district of Danbury, Docket No. CV 07 5003727 (March 7, 2008, Sheedy, J.) (listing Superior Court decisions addressing whether insufficient opinion letter of similar health care provider defeats otherwise valid jurisdiction). "The underlying purpose of the legislature in enacting . . . § 52-190a was to discourage the filing of baseless lawsuits against health care providers, LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990), and to assure that a plaintiff has in fact made a reasonable pre-complaint inquiry giving him a good faith belief in the defendant's negligence." (Internal quotation marks omitted.) Nieves v. Midstate Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 5002604 (March 7, 2008, Gilligan, J.). "The language of § 52-190a does not specify the amount of detail required." Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) (43 Conn. L. Rptr. 341, 343). "Because the statute requires the attachment of this opinion to a complaint, such an opinion is necessarily rendered based upon limited documentation that may be available to a plaintiff prior to the filing of a complaint." Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) (43 Conn. L. Rptr. 195, 196). "[T]he statute [does not] presuppose that the opinion expressed in the writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit. Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions. As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiffs who, the legislature determined, might otherwise institute meritless claims." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.). "The requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery." Walton v. Caffrey, supra, 43 Conn. L. Rptr. 343.
In the present case, the subject opinions, according to the letters, are offered by "a physician board-certified in pediatrics and neonatal-perinatal medicine" and "a nurse specializing in pediatrics, nursery and newborn nursing care" who are familiar with the standards of care for pediatrics, neonatology and newborn nursing care in the United States in 2005. Moreover, these opinions are based upon a review of the prenatal, labor, delivery and nursery records from Charlotte Hungerford Hospital and the admission and transport records from John Dempsey Hospital and/or the University of Connecticut Health Center.
The physician's opinion, in relevant part, states: "Based on my review of these records, it is my opinion that there is evidence of medical negligence on the part of Dr. Karen Sue Dettmer and the other medical and nursing staff of the Charlotte Hungerford Hospital who participated in Vayle Nelson's evaluation and treatment. There is a good faith basis to believe these health care providers were negligent in their medical management, care and treatment of Vayle Nelson, as follows: failing to adequately monitor Vayle Nelson from the time of her birth to the time she was transported to the John Dempsey Hospital andlor The University of Connecticut Health Center; failing to properly assess Vayle Nelson's respiratory and medical status while at Charlotte Hungerford; failing to properly respond to and treat Vayle Nelson's respiratory and medical status while at Charlotte Hungerford; failing to properly communicate with representatives of The John Dempsey Hospital and/or The University of Connecticut Health Center Transport Team about Vayle Nelson's condition and need to be transferred; and, failing to take adequate steps to ensure timely transfer of Vayle Nelson to John Dempsey Hospital and/or The University of Connecticut Health Center or another appropriate medical center."
The nurse's opinion, in relevant part, states: "Based on my review of these records, it is my opinion that there is evidence of negligence on the part of the Charlotte Hungerford Hospital nursing staff who participated in Vayle Nelson's evaluation, monitoring and treatment. There is a good faith basis to believe the nurse (or nurses) was (or were) negligent in the management, care and treatment of Vayle Nelson, as follows: failing to adequately observe, evaluate and monitor Vayle Nelson from the time of her birth to the time she was transported to The John Dempsey Hospital and/or The University of Connecticut Heath Center; and, failing to properly communicate with the physicians taking care of Vayle Nelson at the Charlotte Hungerford Hospital about Vayle Nelson's condition."
These opinions satisfy the purpose of § 52-190a that was discussed in LeConche. See LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990). They provide sufficient detail by a physician board-certified in pediatrics and neonatal-perinatal medicine and a nurse specializing in pediatrics who are familiar with the standards of care in their respective fields in the United States in 2005. Both opinions state that there is evidence of medical negligence in this case. They list several specific areas of alleged deviation from the standards of care and, thus, provide a detailed basis for the formation of such opinions. Accordingly, the motion to dismiss is denied.3
"A number of superior court cases have addressed whether the proper vehicle for contesting the qualifications of the author or sufficiency of the contents of the written opinion is a motion to dismiss or a motion to strike. Several cases have held that dismissal is appropriate only when the plaintiff completely fails to attach a good faith certificate, written opinion or both, and a motion to strike is the appropriate pleading for addressing issues such as the author's qualifications of the sufficiency of the contents when the plaintiff has filed the good faith certificate with the attached written opinion." Ellegard v. Hennessey, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) (43 Conn L. Rptr. 195, 195).
Recently, our Appellate Court addressed the issue of whether a motion to strike or a motion to dismiss is the appropriate procedural vehicle to attack the failure to attach any opinion letter. See Rios v. CCMC Corp., supra, 106 Conn.App. 820-21. In Rios, the plaintiffs cited LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), for their argument that a motion to dismiss is not proper vehicle to challenge the sufficiency of a good faith certificate. Id., 821. The court noted that LeConche was decided prior to the 2005 legislative amendment, P.A. 05-275, which added, among other things, that "[t]he failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." Id., 821-22. The court affirmed the trial court's granting of a motion to dismiss because the plaintiffs failed to include any opinion of a similar health care provider. Id., 817-20.
In the present case, the issue is not the failure to include any opinion, but, rather, it is the contents of the opinions. Therefore, Rios does not assist in resolving this dispute.
In Ellegard, the court found that "regardless of whether the sufficiency of the contents and qualifications of the author are raised in a motion to dismiss or a motion to strike, the written opinion attached to the plaintiff's complaint comports with the purpose and requirements of § 52-190a." Ellegard v. Hennessey, supra, 43 Conn. L. Rptr. 195. The same is true in this case. Because the court finds that the written opinions attached to the plaintiff's complaint serve the purpose and meet the requirements of § 52-190a, it is irrelevant whether the sufficiency of the contents of the written opinions is raised in a motion to dismiss or a motion to strike.