Rosemary Derose et al. v. Marrakech, Inc.
-- October 04, 2011
MEMORANDUM OF DECISION
On February 1, 2011, the plaintiff Rosemary DeRose, individually, and through her guardians, the plaintiffs Valentine DeRose and Suzanne Malucci, filed a one count complaint against the defendant, Marrakech, Inc. The following facts are alleged in the complaint. The defendant, at all relevant times, was a Connecticut corporation with a business address in Woodbridge, which provided long-term care services for patients. On or about September 23, 2008, Rosemary DeRose resided in a long-term care facility and was a recipient of managed care through the defendant. “On said date, the defendant acting by and through its actual and/or apparent agents, servants and/or employees, discontinued [Rosemary DeRose's] maintenance medication of Synthroid/levothyroxine.” Rosemary DeRose sustained injuries, losses and damages through the carelessness and negligence of the defendant, which included physical symptoms and emotional pain and suffering. In addition, Rosemary DeRose had to expend money on hospitalization, consultation and treatment. On August 2, 2010, the court granted a petition to extend the statute of limitations. Accompanying the complaint was a “certificate of reasonable inquiry” and two purported opinion letters pursuant to General Statutes § 52–190a.
On March 14, 2011, the defendant filed a motion to dismiss the complaint, on the ground that the opinion letters do not comply with § 52–190a, accompanied by a memorandum of law in support thereof. The plaintiffs filed a memorandum in opposition to the motion to dismiss on May 18, 2011. Oral arguments were heard at the short calendar on July 5, 2011.
Practice Book § 10–30 provides in relevant part: “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs.”
“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.” (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). “The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process.” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31. “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, 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.” (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651–52.
In its memorandum of law in support of the motion to dismiss, the defendant argues that because the defendant was a health care provider according to General Statutes § 52–190a and the complaint alleges that Rosemary DeRose was a victim of negligence while receiving care and treatment from these providers, the plaintiffs were required to comply with § 52–190a. The defendant asserts that “[t]he plaintiffs failed to obtain written and signed opinions as required by § 52–190a.” (Emphasis in original.)
The defendant maintains: “Despite allegedly being from two different authors, the opinion letters are identical in every respect apart from the introductory description of each medical specialty and the purported author's familiarity with the standard of care applicable thereto and the conclusion that there appears to be evidence of medical negligence by the ‘nursing staff of Marrakech’ and more generally the ‘staff of Marrakech’ respectively ․ Each opinion letter's description of the underlying events, Ms. DeRose's alleged injuries and the basis for each purported author's opinion is otherwise word for word identical. Also evidence of the fact that the opinion letters were not drafted by the purported individual authors is the fact that they are typed on plaintiffs' counsel's pleading paper. The opinion letters appear to have been drafted by the same individual, whether plaintiffs' counsel or someone else. In any event, on their face the opinion letters do not appear to have been drafted by the individual registered nurse and board certified internist as purported.” (Citation omitted.)
The defendant also argues that the opinion letters “are also not signed, with the signature expunged” in contravention of § 52–190a. The defendant contends that pursuant to § 52–190a, the counsel for the plaintiffs must keep the original written and signed opinion and include with the complaint a copy with the author's name and signature expunged. According to the defendant, “there is no indication that the opinion letters were ever signed by either the registered nurse or board certified internist who purportedly authored them.” The defendant maintains that without any indication that the “opinion letters were written and signed as purported,” the purpose behind § 52–190a has not been fulfilled. In its memorandum, the defendant indicates that it is not seeking discovery of the opinion letter at this time. Nevertheless at oral argument at the short calendar, counsel for the defendant indicated that it was seeking in camera review of the letters.
In their memorandum of law in opposition to their motion to dismiss, the plaintiffs assert that the opinion letters were signed by a board certified internist and a licensed nurse, respectively, and that the signature lines were redacted according to the statute. The plaintiffs argue that they complied with the requirements of § 52–190a. According to the plaintiffs, the Superior Court has already addressed this issue and determined that according to the statutory language and legislative history, the “plaintiff's attorney is not prevented from putting the words to paper so long as the opinion expressed is that of a similar healthcare provider.”
General Statutes § 52–190a provides in relevant part: “(a) No civil action or apportionment complaint 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 or apportionment complaint 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 apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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 ․ 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 or 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 attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate ․ The Supreme Court has determined that a motion to dismiss is the appropriate procedural vehicle to address a deficient opinion letter.” Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 28–31, 12 A.3d 865 (2011).
In Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000857 (May 4, 2007, Gallagher, J.) (43 Conn. L. Rptr. 341), the opinion letter that the plaintiff attached to his complaint was challenged by the defendants via motion to dismiss, with the defendants arguing, inter alia, that the opinion letter was “drafted by plaintiff's counsel.” Id. The court examined the legislative history of § 52–190a and stated: “Here, the plaintiff has attached a written document which purports to be the report of a board-certified psychiatrist. The fact that it is not in the doctor's handwriting or typed by the doctor on his or her letterhead is, in this court's opinion, of no consequence. It is a written report of a similar health care provider which states his or her opinions and the bases for them. The legislative requirement is fulfilled. Nothing in the legislative history of the statute as amended by the public act prohibits the plaintiff's attorney from putting the words to paper so long as the opinion expressed is that of the similar health care provider. The motion to dismiss is denied on this ground.” Walton v. Caffrey, supra, 43 Conn. L. Rptr. 342–43. In a footnote, the court mentioned that § 52–190a “permit[ted] the defendants to discover the identity of and question the similar health care provider if they question[ed] the validity of the document.” Walton v. Caffrey, supra, 43 Conn. L.Rptr. 344 n.2.
In Scofield v. Quinn, Superior Court, judicial district of Waterbury, Docket No. CV 08 6000897 (September 16, 2008, Brunetti, J.) (46 Conn. L. Rptr. 319, 320), a medical malpractice action, the defendants filed separate motions to dismiss, with all of the defendants arguing that the good faith certificates that the plaintiff filed pursuant to § 52–190a were defective. The defendants argued that the certificates were defective because, inter alia, “they [were] not signed by a similar health care provider, but appear to be prepared by plaintiff's counsel.” Scofield v. Quinn, supra, 46 Conn. L. Rptr. 320. The plaintiff's three opinion letters in that case were almost identical. Id. “The defendants argue[d] that these certificates [were] insufficient because they were prepared by the plaintiff's attorney. They [were] typed with the same font size, the first and last paragraphs [were] identical, the reasons for the alleged malpractice in the certificates merely recite[d] the allegations in the complaint, they [were] not on the physician's letterhead and [were] not signed by the physician.” Id. Thus, according to the defendants, the letters were not compliant with § 52–190a. Scofield v. Quinn, supra, 46 Conn. L. Rptr. 320. The court in Scofield examined the legislative history of § 52–190a and other Superior Court cases, including Walton. Utilizing the same logic that the court used in Walton, the court denied the motions to dismiss on this ground. Scofield v. Quinn, supra, 46 Conn. L. Rptr. 320, 321.1
In Draper v. Danbury Health Systems, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 08 5008854 (October 14, 2008, Scholl, J.) (46 Conn. L. Rptr. 462, 463), the defendants moved to dismiss because the opinion letters appended to the complaint appeared to have been drafted by counsel for the plaintiffs instead of the attesting physician.2 The defendants argued that the opinion letters paraphrased select parts of the physicians' opinions, thus depriving the defendants of the full opinions. Id., 464–65. The plaintiffs argued that the defendants did not offer evidence to support their position. Id., 465. The court agreed with the plaintiffs, stating, “[t]he Defendants' claim is premised on the assumption that the opinions attached to the complaint are not copies of the actual opinions of the physicians but simply the Plaintiffs' attorney's restatement of those opinions. This claim raises a factual issue which would require evidence to resolve. The court cannot simply assume from the format and wording of the opinions that they were drafted by the Plaintiffs' counsel and not the physicians. The statute provides that the ‘written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.’ Thus discovery can be used where the validity of the certificate is challenged and in order to provide the evidentiary basis for a claim such as that being made by the Defendants here. Yet apparently such discovery has not been pursued in this case and therefore the court has no basis to reach the conclusion proffered by the Defendants.” Id., 465. The court quoted language from Walton and cited to Scofield and stated: “Although this court agrees that the fact that an attorney may have drafted the opinion for the doctor's signature may not defeat the sufficiency of the opinion as long as it is signed by the doctor, this court does believe, as the Defendants argue, that the statute requires that what should be attached to the complaint is a copy of that actual signed opinion, as appropriately redacted. However, in the absence of any evidence to the contrary, this court cannot conclude that the opinions attached to the complaint here are not copies of the actual original signed opinions.” Draper v. Danbury Health Systems, Inc., supra, 46 Conn. L. Rptr. 465.
It does not appear that any of the defendants in the Superior Court cases cited above sought discovery with regard to the opinion letters. Furthermore, since the time when the cases discussed above were decided, the Supreme Court has determined that “the failure to attach a proper written opinion letter pursuant to § 52–190a constitutes insufficient service of process ․” Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011). The Supreme Court further concluded that the lack of “a proper written opinion letter ․ implicates personal jurisdiction.” Id. Accordingly, as it is now clear that defendants must raise this type of challenge to personal jurisdiction within the time provided by Practice Book § 10–30, which the defendant in this case has done, they are generally not free to raise the issue later in the proceedings after discovery has been completed.
In the present case, as noted above, although the defendant stated in its memorandum of law in support of its motion to dismiss that it was not seeking discovery at this time, at oral argument, it indicated that it was seeking from the court in camera review of the original opinion letters. “The granting or denial of a discovery request rests in the sound discretion of the court ․ That discretion is limited, however, by the provisions of the rules pertaining to discovery ․” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57–58, 459 A.2d 503 (1983). “The court's discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power ․” Standard Tallow Corp. v. Jowdy, supra, 59–60.
The trial court has the discretion as to whether to grant or deny request for in camera review. See State v. McClelland, 113 Conn.App. 142, 144, 159, 165, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009) (affirming trial court's ruling that criminal defendant not entitled to in camera court review of department of children and families' records). Given that the court has the discretion to conduct an in camera review, that the defendant, through its counsel, has requested such review at short calendar, and that the language of General Statutes § 52–190a provides that “[s]uch written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.” This court finds that it should conduct an in camera review of the original opinion letters.
The court, in the exercise of its discretion, therefore orders that an in camera review of the original opinion letters must be conducted by this court.
Howard F. Zoarski
Judge Trial Referee
1. FN1. The court in Scofield did not specifically mention the lack of physicians' signatures on the opinion letters in its resolution of the motions to dismiss.
2. FN2. Some of the defendants also moved to dismiss on other grounds as well. Draper v. Danbury Health Systems, Inc., supra, 46 Conn. L. Rptr. 463.
Zoarski, Howard F., J.T.R.