Opinion
No. CV 07-5008598
January 23, 2009
By complaint dated December 27, 2006, the plaintiff brought this case alleging medical negligence, and other counts, against Hartford Hospital, Dr. Richard Sheppard and Hartford Anesthesiology Associates, Inc. Attached to the original complaint was a good faith certificate of inquiry and opinion letters from a neurologist and an internist. The plaintiff filed, as of right, an amended complaint dated March 9, 2007. By separate motions the defendants have moved to dismiss the plaintiff's complaint for failure to comply with Conn. Gen. Stat. § 52-190a.
Motion to Dismiss Filed by Richard Sheppard, M.D. and Hartford Anesthesiology Associates, Inc.
It is undisputed that Dr. Richard Sheppard is a board certified anesthesiologist and that he practices with Hartford Anesthesiology Associates, Inc. These defendants claim that the opinion letters attached to the original complaint do not comply with § 52-190a because they are not furnished by healthcare providers who are similar to Dr. Sheppard. As noted, Dr. Sheppard is board certified in anesthesiology and the opinion letters are from a neurologist and an internist.
The plaintiff filed a memorandum dated August 17, 2007 in support of her objection to this motion to dismiss. Attached to that memorandum was an affidavit from Howard Schwartz, M.D., dated June 7, 2007. He identifies himself as a board certified internist and presumably' he is the author of the internist opinion which was attached to the plaintiff's complaint. The plaintiff also submitted with his memorandum an affidavit of Amiram Katz, M.D., dated June 14, 2007. He is a board certified neurologist and presumably he furnished the neurologist opinion attached to the original complaint. The plaintiff also submitted an affidavit from Alexander Weingarten, M.D., a board certified anesthesiologist. The affidavits of Howard Schwartz, M.D. and Amiram Katz, M.D. expand upon the opinions given in the letters which accompanied the original complaint. The affidavit of Alexander Weingarten, M.D. expresses agreement with the opinions of Dr. Katz and further opines that Dr. Katz would be a similar healthcare provider to an anesthesiologist. The defendants argue that the affidavits are outside the scope of the record and not properly before this court. The court agrees.
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) State v. Marsh McLennan Companies, 286 Conn. 454, 466, 944 A.2d 315 (2008). Although Practice Book § 10-31 allows the filing of affidavits as to facts not apparent on the record, the court concludes that the affidavits of Dr. Schwartz and Dr. Katz are not permitted under this section. The affidavits are in the nature of an amendment to the original letters. Such amendments should not be considered by the court prior to ruling on a motion to dismiss. See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) and Reed v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV 07 5003254 (May 13, 2008, Shaban, J.) [45 Conn. L. Rptr. 501]. The subsequent affidavits submitted by the plaintiff will not be relied upon in this ruling.
The opinion letters attached to the plaintiff's complaint are not from healthcare providers that are similar to the defendant, Dr. Richard Sheppard. In the following cases, three superior court judges have considered the issue of an opinion letter from a healthcare provider who is not similar to the defendant healthcare provider and have concluded that dismissal is required by § 52-190a. See Tobing v. Lange, Superior Court, judicial district of Hartford, Docket No. CV 06 5002163 (January 11, 2007, Shortall, J.) [43 Conn. L. Rptr. 251]; Cataldo v. Zuccala, Superior Court, judicial district of Waterbury, Docket No. CV 06 5004649 (September 27, 2007, Eveleigh, J.) [44 Conn. L. Rptr. 300]; and Beaudette v. Ryan, Superior Court, judicial district of Tolland, Docket No. CV 07 5002285 (October 17, 2008, Sferrazza, J.) [46 Conn. L. Rptr. 508]. The court adopts the rationale and reasoning of those cases and concludes that the plaintiff has not complied with the requirements of § 52-190a. As Judge Eveleigh noted in the Cataldo case: "An opinion derived from a doctor who is not a similar health care provider, and attached to the complaint, is effectively the same as no opinion at all for the purposes of conferring statutory jurisdiction upon the court."
Many of the cases cited by the plaintiff in opposition to these motions have diminished applicability in view of the recent Appellate Court case of Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008). In Rios, the court held that it is proper to grant a dismissal where the plaintiff fails to provide a written opinion as required by § 52-190a. While the court acknowledges that several superior court cases have not followed the holding of Tobing, those cases can be distinguished from the instant case. See Griffin v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005220 (February 8, 2008, Hiller, J.) (Defendant was a medical facility and the emergency room doctor who treated the plaintiff was not a defendant; plaintiff's opinion letter was from an expert with a specialty in the diagnosis and treatment of emergencies); Delacruz v. Negbenebor, Superior Court, judicial district of Fairfield, Docket No. CV 07 5007236 (August 18, 2008, Frankel, J.) (On a motion to dismiss filed by defendant hospital, the court found the plaintiff submitted the opinion of a "highly qualified physician to assess negligence of the defendant"); Gallmonte v. Arkins, Superior Court, judicial district of New Haven, Docket No. CV 07 5014812 (September 24, 2008, Keegan, J.) (Plaintiff's treatment did not lie within one practice area, defendant doctors were providing pain management services, and plaintiff's expert was an anesthesiologist specializing in pain management).
The plaintiff has alleged in her complaint that Dr. Sheppard, an anesthesiologist, administered a spinal epidural catheter into her back as part of her anesthesia for her surgery. Furthermore, the plaintiff alleges that her injuries were caused by Dr. Sheppard's failure to exercise a degree of skill ordinarily used by anesthesiologists under all of the existing circumstances. The facts of this case require the court to conclude that the plaintiff must provide a written opinion from a similar healthcare provider, in this case an anesthesiologist, as required by § 52-190a. See Rios v. CCMC Corp., supra, 106 Conn.App. 810.
In addition to its claims of medical negligence against Dr. Sheppard and Hartford Anesthesiology Associates, Inc., the plaintiff has also included counts sounding in misrepresentation and assault. The court has considered these allegations and concludes they actually sound in medical malpractice. See Boone v. William W. Backus Hospital, 272 Conn. 551, 864 A.2d 1 (2005). Consequently, failure to comply with § 52-190a also requires dismissal of these counts.
Motion to Dismiss Filed by Hartford Hospital
In her complaint the plaintiff has filed counts of negligence, misrepresentation, and assault against Hartford Hospital. If the plaintiff's claims of negligence against Hartford Hospital only involved the alleged negligence of Dr. Sheppard, the claims would be subject to dismissal for failure to comply with § 52-190a for the reasons discussed above.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Germaine v. Labrie, 108 Conn.App. 587, 591 (2008).
The first count alleging negligence by Hartford Hospital includes the following paragraphs:
"10. On this same date (October 5, 2004), post operation, the plaintiff, Mary J. Williams, became more awake and was screaming in severe pain in her back and related areas and screamed for the recovery nurse who observed the plaintiff was wet from the leaking spinal epidural catheter that was in the plaintiff's back.
11. The nurse at that time, who was an employee, agent, a parent agent, representative and/or servant of Hartford Hospital, merely taped up the leaking spinal epidural catheter and attempted to administer more pain medication through said leaking spinal epidural catheter, causing that pain medication to leak upon the plaintiff, Mary J. Williams.
12. It was not until the next day, on or about October 6, 2004, that the Hartford Hospital staff, employee, agent, a parent agent, representative and/or servant realized that the spinal epidural catheter had broken and an approximate 5 centimeter remnant was remaining in the plaintiff's back and Dr. Richard Shepard, M.D. did not return after the surgery to reexamine, monitor or follow the plaintiff's condition."
These paragraphs may be construed to allege a claim for medical negligence on the part of the "recovery nurse" and other employees or agents of Hartford Hospital in the postoperative care of the plaintiff. The opinion letter of the neurologist does not address postoperative care provided by the hospital. The original opinion letter from the internist contains the following language:
"I have completed a review of the enclosed records in connection with Mary Williams' 10/5/04 admission to Hartford Hospital and her subsequent care following her discharge. Based upon review of those documents with my experience in hospital risk management and clinical care of patients for many years, I have an opinion that Hartford Hospital provided inferior care to Ms. Williams beginning on 10/5/04 with departures from accepted practice that caused her to suffer significant pain and discomfort."
The writer thereafter stated: "It is my opinion that there was additional delay in recognition of the torn catheter since the patient's back and supporting surface would be soaked from leakage of infused liquid. Such moisture would have been evident on the gown and obvious to the nurse providing care. There was failure to remove the retained sheered catheter remnant in a timely way.
In addition, there was substandard care in a nursing delay to report the problem that was not addressed until the following day. There is evidence of additional substandard care in failing to remove the retained catheter during that hospitalization. As a result of this failure to remove the catheter, Mary suffered a pain syndrome that was a source of substantial discomfort to her."
The bulk of the internist's opinion is directed toward the actions of Dr. Sheppard. However, it is clear that the writer is also expressing an opinion regarding negligence in the plaintiff's nursing care. In its motion to dismiss, Hartford Hospital states that: "To the extent the plaintiff is alleging Hartford Hospital was negligent with regard to the nursing care and treatment rendered, the plaintiff's attesting physicians do not qualify." It cites to the case of Markland v. Abrams, Superior Court, judicial district of Fairfield, Docket No. CV 02 0391472 (March 15, 2006, Arnold, J.) [41 Conn. L. Rptr. 303] wherein the court determined that a physician who was not a licensed member of the nursing profession could not testify as to the standard of care for nurses. The court notes that no nurses from Hartford Hospital have been named as individual defendants in this case. The plaintiff has alleged that Hartford Hospital provided care to her.
As discussed above, the opinion letter regarding the actions of Dr. Sheppard must be from a similar healthcare provider, an anesthesiologist. In regards to Hartford Hospital, the court is concerned with the sufficiency of the opinion letters as to the care the plaintiff received. The case of Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) is instructive. In that case the plaintiff alleged malpractice on the part of Stamford Hospital. In discussing the similar healthcare provider requirement of § 52-190a, Judge Adams noted: "Hospitals do not issue written opinions." In Behling, the court concluded that an obstetrician-gynecologist was qualified to give an opinion regarding the induction of labor and a cesarian section which took place at Stamford Hospital.
As noted earlier, the plaintiff claims Hartford Hospital was negligent in its postoperative nursing care of the plaintiff. The postoperative care provided by Hartford Hospital was not extensively discussed in the internist's opinion, however, he did give details as to what he believed was substandard care. Although the opinion writer did not provide a large amount of detail regarding his qualifications, he does state that he has experience in hospital risk management and clinical care. As Judge Adams addressed: "One must also recognize that the opinion writer required by § 52-190a is not performing the same role as an expert witness under § 52-184c. There is certainly an overlap, but the opinion writer has the role of a gatekeeper in providing the underpinning for the plaintiff's attorney's certificate of good faith by stating there appears to be evidence of medical negligence, while the expert witness is called upon to testify to a reasonable degree of medical probability that there has been a breach of the prevailing professional standard of care. This court believes the former standard is a lower standard permitting for instance a physician to find `evidence of medical negligence' in the conduct of certain healthcare providers without necessarily being sufficiently familiar with the standard of care applicable to each provider so as to be able to testify that such provider breached that standard." Behling v. Aronow, supra, Superior Court, Docket No. CV 06 5001692.
Compliance with § 52-190a implicates subject matter jurisdiction. See Rios v. CCMC Corp., supra, 106 Conn.App. 810. "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006). Assisted by the foregoing presumption, the court concludes that the opinion letter submitted by the internist is sufficient to enable the plaintiff's complaint to survive Hartford Hospital's motion to dismiss.
For the foregoing reasons, the motion to dismiss filed by Richard Sheppard M.D. and Hartford Anesthesiology (#108) is granted. The motion to dismiss filed by Hartford Hospital (#110) is denied.