Opinion
No. CV09 5029048
July 19, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
The underlying two-count Complaint alleging a wrongful death from aspiration pneumonia and a bowel obstruction as a result of medical negligence by the defendants Norwalk Hospital and Robert Lincer, M.D. bears a return date of December 8, 2009. Attached to the Complaint was a document purporting to be a good faith opinion letter from healthcare provider. While the name of the author of the letter is not disclosed, the document bears the letterhead of Apex Medical Legal Consulting in Rocky Hill, Connecticut. A Motion to Dismiss was filed by Norwalk Hospital on January 26, 2010. The stated reasons for the filing of the Motion to Dismiss are that the plaintiff did not satisfy the requirements of General Statutes § 52-190a, by failing to attach to the Complaint: (a) a good faith certificate by counsel attesting that there is a good faith basis for the action against Norwalk Hospital; and (b) a sufficient good faith opinion letter of a similar health care provider.
The First Count alleges wrongful death caused by the negligence of the defendants. The Second Count is a claim for a loss of consortium by the decedent's husband.
Dr. Lincer filed a Motion to Dismiss on January 6, 2010. That motion was granted by the court (Arnold. J.) on March 15, 2010 by agreement of the plaintiff and without opposition by the plaintiff.
General Statutes § 52-190a regarding a prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider reads in relevant parts as follows:
(a) 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, initial pleading . . . or 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. 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, and any apportionment complainant or apportionment complainant'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 health care provider expunged, to such certificate . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith . . .
(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.
On February 25, 2010, the plaintiffs filed an Objection to the Motion to Dismiss stating that the substantive grounds upon which the defendant's motion to dismiss is based "have been cured" in a Motion for Leave to Amend Complaint, dated February 25, 2010, which was attached to the Objection to the Motion to Dismiss. The proposed Amended Complaint contains one count against Norwalk Hospital, alleging medical negligence regarding a fall from a wheelchair, which resulted in a broken hip. Attached to the proposed amended complaint was a good faith certificate dated February 25, 2010, signed by the plaintiffs' attorney. Also attached was a affidavit dated February 25, 2010 signed by the plaintiffs' attorney stating that the plaintiffs' opinion letter was authored by a registered nurse, familiar through experience and training with the nursing care of post-operative surgical patients, such as the plaintiffs' decedent.
A second affidavit dated March 10, 2010, which is identical to the affidavit dated February 25, 2010, was filed on March 10, 2010.
On March 10, 2010, in addition to a second filing of the attorney affidavit, the plaintiffs filed another Motion for Leave to Amend Complaint and a proposed Amended Complaint consisting of two counts. The First Count, similar to the original Complaint, alleges medical negligence resulting in the decedent's death and a Second Count alleging a loss of consortium. By a separate filing on the same date the plaintiff submitted another good faith certificate from her attorney and a document, which the court interprets as an amendment to the good faith opinion letter, stating that the author of the original good faith opinion letter is a registered nurse familiar with the appropriate standard of care as it relates to the field of nursing.
The plaintiffs have filed their objection to the motion to dismiss. The defendant, Norwalk Hospital has filed its objection to the plaintiffs' Request for Leave to Amend the Complaint and the proposed Amended Complaint. For the purposes of this decision the court will consider the last proposed Amended Complaint, dated March 10, 2010; the late-filed attorney's certificate of good faith; the original purported good faith opinion of a medical provider; and the document identifying the author of the medical opinion letter as a registered nurse.
I Motion to Dismiss
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). "In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).
Motions to dismiss are not limited to jurisdictional challenges. Rios v. CCCM Corp., 106 Conn.App. 810, 821 n. 8, 943 A.2d 544 (2008). "[S]tatutes of limitation are merely procedural when the right of action exists independently of the statute in which the limitation is found. Where, however, a specific limitation is contained in the statute which establishes the remedy, the remedy exists only during the prescribed period and not thereafter." (Internal quotation marks omitted.) (Citations omitted.) Votre v. County Obstetrics Gynecology Group, 113 Conn.App. 569, 583, 966 A.2d 813 (2009) "In such a situation, the statute of limitations is considered substantive or jurisdictional. Id. A motion to dismiss is a proper challenge to the insufficiency of an opinion letter in a medical malpractice action. Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009).
II Discussion
The defendant maintains that the action should be dismissed for the plaintiff's failure to attach a good faith certificate to the complaint in violation of General Statutes § 52-190a and because the plaintiff did not attach a sufficient good faith opinion letter of a similar health care provider. The defendant specifically argues that the good faith opinion letter that was attached to the original complaint does not disclose the identity of the author, making it impossible to ascertain whether the author is a similar healthcare provider. The defendant also argues that the good faith letter fails to provide a detailed basis for the formation of the opinion that there appears to be evidence of medical negligence. The defendant has objected to the plaintiff's attempt to amend the complaint and requests a dismissal pursuant to General Statutes § 52-190a(a)(c).
The plaintiff in her Objection to the Motion to Dismiss, which is dated February 25, 2010, argues that the substantive grounds upon which the motion to dismiss is based have been cured in her motion for leave to file an amended complaint, also dated February 25, 2010. The defendant has objected to the plaintiff's Motion to Amend the complaint stating that the court is without the discretion to entertain the Motion to Amend, while the defendant's Motion to Dismiss challenging subject matter jurisdiction is pending. See. F.D.I.C. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), citing Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).
A review of the original complaint dated October 28, 2009 reveals that no good faith certificate from the plaintiff's attorney was attached. A five-page good faith opinion letter was attached. The identity of the author of the opinion letter was not revealed, although the opinion letter carried the name of Apex Medical Legal Consulting with an address and telephone number in Rocky Hill, Connecticut. It also carried an e-mail address. The opinion letter, which was detailed, did not reveal the medical field, license, certification or specialty of the author. The letter concluded that the decedent Brown died due to aspiration pneumonia caused by a bowel obstruction. The letter stated that the defendant facility breached "applicable standards of care" by (1) failing to monitor Brown's respiratory rate prior to the administration of Morphine Sulphate; (2) failing to carry out the "stat physician's" order for the CT of the abdomen in a timely manner; and (3) the failure of Dr. Lincer to take appropriate action after he was notified that the July 30, 2007 CT scan of the abdomen identified the development of a "large bowel obstruction with a transition point in the proximal descending colon and a probable contained microperforation."
On March 10, 2010, plaintiff's attorney filed an affidavit signed by himself stating that he was familiar with the author's qualifications. The author was represented as being a registered nurse, possessing a Master's Degree in public health. The attorney stated the author is familiar through experience and training with the nursing care of post-operative surgical patients, such as the decedent. Also, on March 10, 2009, an amendment to the opinion letter was filed, setting forth the author's medical credentials and that the author was familiar with the standard of care as it relates to the practice of nursing in the United States in 2007.
The initial issue for the court is whether the court can entertain the motion for leave to amend and consider the amendments which attempt to remedy the defects raised by the defendant, which include the lack of an attorney's good faith certificate and an opinion letter that: (1) did not disclose the identity of the author or the author's medical specialty; and (2) did not state that the author was familiar with the prevailing standard of care for any particular healthcare provider specialty or profession.
Practice Book § 10-59 provides in relevant part: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day . . ." The plaintiff could not avail herself of Section 10-59, as the first attempt to amend the original complaint February 25, 2010 was filed on February 25, 2010, more than thirty days following the return date of December 8, 2009. Practice Book § 10-60(a) provides in relevant part: "[A] party may amend his or her pleadings . . . at any time subsequent to that stated in the proceeding section in the following manner . . . (3) By filing a request for leave to file such amendment . . ."
The plaintiffs filed a Motion for Leave to Amend Complaint on February 25, 2010. Attached o the motion was a proposed amended complaint, and an attorney's good faith certificate. A second Motion for Leave to Amend Complaint was filed on March 10, 2010. No amended complaint was attached, but a supplement to the good faith opinion letter identifying the author as a registered nurse was attached. This supplement document also stated the registered nurse was familiar with the standard of care for nursing in the United States in 2007. All attempts by the plaintiff to amend her complaint, the opinion letter and to attach an attorney's good faith certificate, were subsequent to the filing of the defendant's motion to dismiss, dated January 26, 2010.
The court agrees with the defendant that it is without discretion to entertain the plaintiff's attempts to amend her complaint while a Motion to Dismiss is pending. "It is axiomatic that once the issue of subject matter jurisdiction has been raised, it must be immediately acted upon by the court." (Citations omitted.) F.D.I.C. v. Peabody, N.E., Inc., supra, 239 Conn. 99. This court is obligated to construe the initial complaint only in resolving the defendant's challenge to subject matter jurisdiction and cannot allow the amendment before ruling on the motion to dismiss. Id., citing Gurliacci v. Mayer, supra, 218 Conn. 531 ("the trial court should not have allowed the amendment [to the complaint] before ruling on the motion to dismiss [for lack of subject matter jurisdiction]"); see also Rodriguez v. Yale New Haven Hospital, Superior Court, judicial district of New Haven at New Haven, Docket No. 08 5021657 (Mar. 12, 2009, Robinson, J.) (motion to amend for failure to attach an opinion letter of a similar healthcare provider); Gowlis v. St. Mary's Hospital, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 08 5009513 (Dec. 16, 2008, Alvord, J.) (Motion to Amend to add the attorney's certificate of good faith.).
"Section 52-190a(a) provides in relevant part that the claimant in a medical malpractice action "shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]52a-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . ." Wilcox v. Schwartz, 119 Conn.App. 808, 812, 990 A.2d 366, cert. granted 296 Conn. 908 (2010). The good faith certificate requirement, "serves as an assurance to a defendant 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.) LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990); Wilcox v. Schwartz, supra, 119 Conn.App. 814. "The ultimate purpose of the written opinion requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care." Wilcox v. Schwartz, supra, 119 Conn.App. 817. The failure to obtain and file a written opinion is grounds for the dismissal of the action. General Statutes § 52-190a(c).
General Statutes § 52-184c provides in relevant parts, as follows:
(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: he 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' . . .
General Statutes § 52-190a requires that the certificate of good faith signed by the plaintiff's attorney be attached and contained within the initial complaint filed with the clerk. There is no question in this matter, that this was not done by the plaintiff. The opinion letter that was attached, did not identify the medical specialty of the author, making it impossible to ascertain if the author was, in fact, a similar healthcare provider. See. § 52-184c. The opinion letter, while stating the defendant breached the applicable standards of care, did not state that the author was familiar with the standards of care for any particular medical specialty. Although the letter was detailed in describing the circumstances of the decedent's care and death, the court cannot ascertain from reading it, that the negligence alleged is associated with claims involving negligent nursing care. As such, the opinion letter attached to the original complaint is insufficient. See. Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544. "In establishing the requirements of the pre-litigation opinion letter, § 52-190a(a) specifically requires that the opinion be authored by a similar health care provider as defined in § 52-184c." Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 542. "[A]n action is subject to dismissal under subsection (c) of § 52-190a not only when a party fails to attach an opinion letter to the complaint, but also if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Id., 545; see also, Cataldo v. Zuccala, Superior Court, judicial district of Waterbury at Waterbury, Docket No. X02-CV 06-5004649 (Sept. 27, 2007, Eveleigh, J.), 44 Conn. L. Rptr. 300.
The term "filed" refers to the bringing of a complaint or other pleading to the clerk of the court, General Statutes 52-190a applies to the complaint, which failed to comply with the provisions of that act. Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008).
The enormity of the loss of the decedent's life is easily comprehensible to the court. The court, armed with such knowledge, however, is not relieved of its obligation to apply the law applicable to the plaintiff's complaint and the state of the pleadings. Votre v. County Obstetrics Gynecology Group, supra, 113 Conn.App. 571. For the above-stated reasons and pursuant to General Statutes 52-190a(c), the motion to dismiss is hereby granted.