Opinion
No. X07 CV 07 5012152-S
June 4, 2009
MEMORANDUM OF DECISION
I
This matter involves allegations of medical malpractice by the plaintiff, Vayle Nelson, through her parents and next friends, Susan Birk and Glen Nelson, against the codefendants, Karen S. Dettmer, M.D., Litchfield County Pediatrics, LLC, and Charlotte Hungerford Hospital. The plaintiff alleges the following facts in her complaint. On April 30, 2005, Birk gave birth to the plaintiff at Charlotte Hungerford Hospital. Dettmer evaluated and treated the plaintiff who required transport to another hospital due to her serious medical condition. 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 it would dispatch at 7:30 a.m. unless it was notified that the plaintiff's condition deteriorated. The transport team did not arrive until 8:50 a.m. As a result of the delay, among other things, the plaintiff sustained severe, permanent brain damage. On February 2, 2009, the plaintiff filed an offer of judgment as to Dettmer and Litchfield County Pediatrics, LLC, for $14 million. The defendants filed an objection to the offer of judgment on February 13, 2009 arguing that the plaintiff's offer does not comply with Practice Book § 17-14A. The plaintiff filed a reply on March 31, 2009 arguing that because her cause of action accrued before October 1, 2005, she is not required to comply with the requirements of § 17-14A according to General Statutes § 52-192b. On April 15, 2009, the defendants filed a surreply maintaining that § 52-192b is unconstitutional because it violates the separation of powers doctrine. The plaintiff filed a surreply on April 30, 2009 and this court heard oral argument on May 4, 2009.
This court granted the motion to dismiss of two additional codefendants, John Dempsey Hospital and the University of Connecticut Health Center, on November 13, 2008. The plaintiff appealed this ruling on February 26, 2009 and the appeal is pending.
The plaintiff also filed an offer of judgment of $14 million as to Charlotte Hungerford Hospital, but it has not objected to the offer. Thus, for purposes of this memorandum of decision, Dettmer and Litchfield County Pediatrics, LLC, are the only defendants involved and are hereinafter referred to collectively as the defendants.
Practice Book § 17-14A provides: "In the case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to Section 17-14 shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based. At least sixty days prior to filing such offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with an authorization to disclose medical records that meets the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) (HIPAA), as amended from time to time, or regulations adopted thereunder, and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care. The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages."
II
The crux of the defendants' argument is that the Practice Book rules and the statutes conflict because there is no Practice Book rule that explicitly mirrors § 52-192b. The statute continues the offer of judgment scheme for claims that accrued prior to October 1, 2005 by providing that "[s]ections 52-192a to 52-195, inclusive, of the general statutes, revision of 1958, revised to January 1, 2005, shall be applicable to any cause of action accruing prior to October 1, 2005." On the other hand, the applicable Practice Book Sections, §§ 17-14 and 17-14A reflecting General Statutes § 52-192a as amended by § 4 of No. 05-275 of the 2005 Public Acts, pertain to offers of compromise and do not specify any such time limitation or explanation concerning offers of compromise versus offers of judgment. Thus, the defendants argue that all offers of judgment in medical malpractice cases, regardless of when the actions accrued, are now offers of compromise subject to the requirements of § 17-14A.
Section 17-14 provides: "After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before the commencement of jury selection in a jury trial or the commencement of evidence in a court trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain. For the purposes of this section, such plaintiff includes a counterclaim plaintiff under General Statutes § 8-132. The plaintiff shall give notice of such offer of compromise to the defendant's attorney, or if the defendant is not represented by an attorney, to the defendant."
The defendants further argue that, as the judges of the Superior Court have both the inherent constitutional; see Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968); as well as the statutory authority; see General Statutes § 51-14(a); to establish procedural rules, any intrusion by the legislature into the procedural realm would be unconstitutional under the separation of powers doctrine. Implicit in this argument is that the offer of judgment or compromise legislation is procedural. See Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn.App. 640, 651, 579 A.2d 545 ("[w]e deem § 52-192a to be a similarly procedural rule, punitive in nature, and enacted to promote fair and reasonable pretrial compromises of litigation"), cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). Therefore, the defendants argue that because § 52-192a has been held to be procedural, § 17-14A must govern the present action and take precedence over § 52-192b.
"Article second of the constitution of Connecticut, as amended by article eighteen of the amendments, provides in relevant part: `The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another . . .' We have recognized that [t]he primary purpose of [the separation of powers] doctrine is to prevent commingling of different powers of government in the same hands . . . The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch's independence and performance of assigned powers . . . It is axiomatic that no branch of government organized under a constitution may exercise any power that is not explicitly bestowed by that constitution or that is not essential to the exercise thereof . . . Nevertheless, we are mindful that the branches of government frequently overlap, and . . . the doctrine of the separation of powers cannot be applied rigidly." (Citations omitted; internal quotation marks omitted.) Washington v. Commissioner of Corrections, 287 Conn. 792, 826-27, 950 A.2d 1220 (2008).
As noted, § 52-192b specifies that actions accruing prior to October 1, 2005 are controlled by the applicable statutes in effect as of January 1, 2005. It is undisputed that the plaintiff's cause of action accrued before October 1, 2005. Hence, under § 52-192b, the plaintiff is not required to comply with General Statutes § 52-192a(b), which is identical to § 17-14A. Still, the defendants argue that the plaintiff must comply with § 17-14A because the Practice Book does not contain the explicit date restriction of § 52-192b separating offers of judgment from offers of compromise.
This court does not agree that the Practice Book and the statutes conflict. As amended by § 4 of No. 05-275 of the 2005 Public Acts, the offer of judgment was replaced by the offer of compromise. Public Act, No. 05-275, § 4, became effective on October 1, 2005 and is "applicable to actions accruing on or after said date." Public Acts 2006, No. 06-40, § 1, which is codified at § 52-192b, made clear that the offer of judgment process was still in effect for claims that accrued prior to October 1, 2005. It was approved and became effective on May 8, 2006. Practice Book §§ 17-14 and 17-14A were not adopted by the judges of the Superior Court until June 26, 2006 and became effective on January 1, 2007. Therefore, the judges' actions in adopting the language of the statutes took place after the legislature had clarified that the offer of judgment scheme applied to claims that accrued before October 1, 2005.
Indeed, Senator Andrew J. McDonald remarked, "Mr. President, I'm certain nobody in the Circle can forget that last year we had an opportunity to address some of the issues associated with medical malpractice reforms.
"And one of the elements of that package of reforms was to eliminate what we traditionally call the Offer of Judgment Statute and replace it with an Offer of Compromise Statute.
"The distinction really is that in an Offer of Judgment situation, the plaintiff offers to the defendant an opportunity to accept a judgment against him or herself for a certain sum of money, and if the defendant wishes to accept that offer, a judgment does in fact enter against the defendant.
"It was our opinion at that time that the system would probably be more conducive to having people settle their claims if it was not a judgment, but, rather, an Offer of Compromise. And if accepted, the case would actually be withdrawn, and the defendant wouldn't have a judgment of record in the system.
"That bill was effective on October 1, 2005, and I thought it was, frankly, very clear that the Offer of Compromise system would apply to causes of action that accrue on or after October 1, 2005.
"Unfortunately, there apparently is some confusion in the trial court level on that issue, and this bill is intended to clarify what should have already been apparent, and that is that offers of judgment apply to cases that accrued before October 1, 2005, and the offers of compromise revisions would apply to all causes of action that accrue on or after October 1, 2005." (Emphasis added.) 49 S. Proc. Pt. 4, 2006 Sess., pp. 1179-80.
It is explicitly noted that, when the legislature passed P.A. 05-275, § 4, it repealed the existing § 52-192a providing for offers of judgment and substituting offers of compromise. Thus, from October 1, 2005, the effective date of P.A. 05-275, § 4, until the legislature passed P.A. 06-40, § 1, on May 8, 2006, the offer of judgment process was apparently without legislative authority. Nevertheless, when §§ 17-14 and 17-14A were passed by the judges of the Superior Court on June 26, 2006, the legislature had statutorily restored offers of judgment.
Additionally, there is nothing in the Practice Book rules to suggest that the judiciary intended a process different from that established by the legislature. Indeed, "as a fundamental principle of adjudication . . . [j]ust as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law — both common and statutory — remains coherent and consistent." (Internal quotation marks omitted.) Loughlin v. Loughlin, 280 Conn. 632, 640, 910 A.2d 963 (2006). Consequently, while it would be ideal if the Practice Book was explicit about the October 1, 2005 date separating offers of judgment from offers of compromise, this court must presume that the judiciary intended the procedural rules to be consistent with the statutes and discharge its responsibility to ensure that the Practice Book rules and the statutes remain harmonious.
Furthermore, this court agrees with the reasoning in Prims v. Ciccarelli, Superior Court, judicial district of New Britain, Docket No. CV 05 5000530 (September 21, 2007, Shapiro, J.) (44 Conn. L. Rptr. 343). In Prims, the court rejected the same arguments made by the same defense counsel as here. Id. As in the present case, the cause of action accrued before October 1, 2005 and thus implicated General Statutes § 52-192b. Id., 344. The court found that § 17-14A should be construed consistently with § 52-192b and that § 17-14A is not applicable to personal injury or wrongful death actions accruing prior to October 1, 2005. Id., citing C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 59 n. 5, 919 A.2d 1002 (2007).
Moreover, the court rejected the defendant's argument that the procedural pronouncement of Paine Webber Jackson Curtis, Inc. v. Winters, supra, 22 Conn.App. 640, applied because, at that time, § 52-192a did not apply to negligence and medical malpractice cases and because there was no choice of law issue. Id., 345. The court further relied on Judge Levin's analysis of the question of whether § 52-192a was procedural or substantive in Hernandez v. Marquez, Superior Court, judicial district of Fairfield, Docket No. 377482 (January 5, 2004, Levin, J.) (36 Conn. L. Rptr. 351, 353-54): "As between the powers of the legislature and those of the judiciary, . . . the matter of prejudgment interest is manifestly `substantive.' . . . First, prejudgment interest is a matter that has traditionally been within the domain of the legislature; . . . not the judiciary. Second, far from interfering with the orderly functioning of the court's judicial role, the Supreme Court has characterized § 52-192a as a statute that imposes a penalty for wasting this state's judicial resources . . . [and serves as] an indigenous procedural device for promoting judicial economy . . . Since the enactment of § 52-192a was within the constitutional domain of the legislature, its terms may not be modified or abridged by a rule of practice . . .
"The Superior Court is empowered to adopt and promulgate rules regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits . . . Just as the general assembly lacks the power to enact rules governing procedure that is exclusively within the power of the courts . . . so do the courts lack the power to promulgate rules governing substantive rights and remedies . . . [Section] 52-192a confers a substantive right to interest . . ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Prims v. Ciccarelli, supra, 44 Conn. L. Rptr. 345; see also Frenette v. Vickery, 522 F.Sup. 1098, 1100 (D.Conn. 1981) ("[General Statutes] § 52-192a clearly creates a substantive statutory right in persons suing in the Connecticut courts. Rather than governing merely the manner and means of pursuing a claim in court, the law creates a right in all civil plaintiffs to claim interest on responsible settlement offers formally made prior to the commencement of the trial"). The Prims court thus concluded that "[s]ince § 52-192a confers a substantive right to interest, the presumption that procedural rules of practice ordinarily apply retroactively to all actions whether pending or not at the time the rule became effective, in the absence of any expressed intent to the contrary, is not applicable." Prims v. Ciccarelli, supra, 44 Conn. L. Rptr. 345.
The Prims court did not address the constitutional argument, raised in the exact same manner as in this case, because the defendant failed to address the factors listed in State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992). See Prims v. Ciccarelli, supra, 44 Conn. L. Rptr. 344, citing Aselton v. East Hartford, 277 Conn. 120, 153, 890 A.2d 1250 (2006). This court likewise declines to review the argument notwithstanding the defendants' position that they need not address those factors to a trial court.
Finally, even though the Practice Book does not specifically mention offers of judgment, a party is not precluded from using the statutory process. In Water Pollution Control Authority of Bridgeport v. Professional Services Group, Superior Court, judicial district of Fairfield, Docket No. CV 399294 (July 26, 2004, Levitt, J.), the court stated, "[T]here is no appellate authority for the proposition . . . that a Practice Book rule must exist before a party may invoke a statutory right. General Statutes § 51-14(a) provides in part that the Practice Book `rules shall not abridge, enlarge or modify any substantive right [or] the jurisdiction of any of the courts.'" The court thus found that the lack of a Practice Book provision was no impediment where the substantive process was laid out by the legislature. Id.
Still other courts have noted that "[w]here a statute and a practice book rule are in conflict on a matter of substance, the provisions of the statute must prevail." Embalmer's Supply Co. v. Giannitti, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0183763 (September 3, 2004, Tobin, J.) (37 Conn. L. Rptr. 835, 836), rev'd on other grounds, 103 Conn.App. 20, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007); see also State v. Morrison, 39 Conn.App. 632, 635, 665 A.2d 1372 (holding that trial court properly denied defendant's motion to reduce his sentence because statute took precedence over conflicting Practice Book rule), cert. denied, 235 Conn. 939, 668 A.2d 376 (1995).
In sum, the legislature, in passing P.A. 06-40, § 1, authorized an offer of judgment process for causes of action accruing prior to October 1, 2005. The present case involves a cause of action that accrued prior to that date. Therefore, the plaintiff's offer of judgment is appropriate and the defendants' objection is overruled.