Anne Meleney–Distassio et al. v. David Weinstein, M.D. et al.

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Superior Court of Connecticut.

Anne Meleney–Distassio et al. v. David Weinstein, M.D. et al.

FSTCV136018746S

    Decided: October 16, 2013

MEMORANDUM OF DECISION

Presently before the court is a timely motion to dismiss dated July 19, 2013 filed by defendants Tracy Shevell, M.D. and Stamford Hospital in a medical malpractice action.   The motion claims that the plaintiffs failed to comply with the requirements of General Statutes § 52–190a.   In their complaint the plaintiffs allege that they conceived a baby and retained defendant Weinstein as the plaintiff's treating OB–GYN physician.   Defendant Shevell was a consulting physician employed by defendant Stamford Hospital to render ultrasound, amniocentesis procedures and genetic counseling.   On June 14, 2010, when plaintiff Meleney–Distassio was twenty-one weeks pregnant, defendant Shevell drew amniotic fluid from plaintiff Meleney–Distassio and her male fetus in order to test it for chromosomal abnormalities.   The amniotic fluid was sent to a lab and tested the following day.   The first test, known as insight analysis, revealed a serious chromosomal defect in the fetus.   This finding was issued in a report sent to defendants Shevell and Weinstein.   The report warned that the test result was preliminary and that no irreversible therapeutic action should be initiated on the basis of the abnormal screening results alone.   The report recommended a standard cytogenetic karyotype analysis and stated that if a karyotype analysis was ordered from the lab, the result was pending.   Neither the report nor the warning contained therein were provided to the plaintiffs.

The complaint further alleges that on June 15, 2010, defendant Weinstein contacted plaintiff Meleney–Distassio by telephone and informed her that the test results showed that the fetus had a serious chromosomal defect that would result in the baby's suffering and death before or shortly after birth.   The plaintiffs allege that defendant Weinstein urged plaintiff Meleney–Distassio to immediately terminate the pregnancy before she might be precluded by law from obtaining an abortion and provided her with the telephone number of a clinic that could perform the abortion.   Although plaintiff Meleney–Distassio called the clinic the same day, the procedure could not be immediately scheduled.   She later spoke to defendant Shevell, who referred her to Dr. Carol Presnick at Bridgeport Hospital who could perform the abortion immediately.   Dr. Presnick performed the abortion on plaintiff Meleney–Distassio on June 16, 2010 terminating the pregnancy.

On or about the day the abortion was performed the lab telephoned defendant Shevell and advised that the lab had experienced technical difficulties and that the test results previously provided by the lab should not be relied on.   Defendant Shevell called Dr. Presnick to advise plaintiff Meleney–Distassio not to have the abortion immediately, however, by that time the abortion has been completed.   On June 22, 2010, the lab issued a report after a full analysis, concluding that there were no detectable chromosomal abnormalities with the plaintiff's fetus.   The lab further noted that the results of the full analysis were different from the insight analysis performed on June 15, 2010 and that insight analysis is considered preliminary because it may give false results.   This report was forwarded to defendants Weinstein and Shevell.   Defendant Shevell later met with the plaintiffs and advised them that the test results demonstrated that the terminated pregnancy would, most likely, have resulted in the birth of a healthy baby.

The first count of the complaint alleges that the defendants breached the standard of care when they advised plaintiff Meleney–Distassio to obtain an abortion based on only the preliminary test results.   The second count of the complaint is asserted by plaintiff Distassio against the defendants based on the same alleged breaches of the standard of care and damages he experienced due to the loss of his son and the injuries to his wife resulting from the defendants' malpractice.

On July 19, 2013, defendants Shevell and Stamford Hospital filed a motion to dismiss the plaintiff's complaint (101.00) on the ground that the court lacks personal jurisdiction over the defendants because the plaintiffs failed to attach an adequate written opinion letter to their complaint in violation of § 52–190a.   On August 26, 2013, the plaintiffs filed a memorandum of law in opposition to the motion to dismiss.   The matter was heard at the short calendar on September 3, 2013.

DISCUSSION

“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 (2010).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47 (2001).  “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”  (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825 (2007).

In support of their motion to dismiss, defendants Shevell and Stamford Hospital claim that the written opinion letter is deficient in several respects.   They first claim that the opinion letter was not signed by a similar health care provider as required General Statutes § 52–190a(a).   They point out that defendant Shevell is not only board certified in obstetrics and gynecology, but also is board certified in maternal-fetal medicine.   They reason that the plaintiffs can only maintain this action if they obtain an opinion letter from a physician who is board certified in maternal-fetal medicine.   They claim that “[t]he author [of the opinion letter provided by the plaintiffs] is not trained and experienced in maternal-fetal medicine and does not specialize in maternal-fetal medicine.”

The moving defendants further claim that the credentials of the author of the opinion letter are not set forth within the body of the opinion letter itself, but rather in a separate document.   Finally, the moving defendants claim that the separate document containing author's credentials is neither “notarized, authenticated or certified.”

Section 52–190a(a) provides in relevant part:  “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 ․ [T]he claimant or the claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]52–184c ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

Section 52–190a(c) provides:  “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.”  “It is the failure to obtain and file the opinion letter which serves as a basis for the dismissal ․ The plain language of the statute clearly provides that the legislature contemplated a dismissal being filed early in the proceedings.”  Morgan v. Hartford Hospital, 301 Conn. 388, 396–97 (2011).  “[T]he written opinion letter, prepared in accordance with the dictates of § 52–190a ․ is akin to a pleading that must be attached to the complaint in order to commence properly the action.”  Id., 398.

The plaintiffs brought a prior action against the same defendants based on the same alleged acts of medical negligence.   That action was dismissed by the court (Adams, J.T.R.) because the opinion letter on which the plaintiffs relied was not signed by the author of the letter.   The court considered the defendants' claim that the plaintiffs' attempted compliance with § 52–190a was also deficient because the author's credentials were not contained within the opinion letter itself.   The court held that regardless of whether the statute mandated the inclusions of the credentials within the opinion letter, the requirement was not satisfied by the submission of a two-page unauthenticated curriculum vitae.   In the absence of any credentials to review, the court did not consider the defendants' final claim that the author of the opinion was a “similar health care provider.”

In the present case the opinion letter is signed by the author, and, further, an affirmation signed by the author of the opinion letter was also served with the complaint.   The affirmation authenticated both the opinion letter and the curriculum vitae of the author, both of which were attached to the affirmation as exhibits.   The curriculum vitae establishes that the author of the opinion letter was certified by the American Board of Obstetrics and Gynecology.

The moving defendants offer no authority for the claim that the author of the opinion letter is not a similar health care provider because, in addition to being board certified in the field of obstetrics and gynecology, the author does not also have, as defendant Shevell claims she is, additionally board certified in the field of maternal-fetal medicine.   It appears that maternal-fetal medicine is a sub-specialty of obstetrics and gynecology.   The cases cited by the moving defendants stand for the proposition that “a similar health provider” is not the same as a “qualified health care provider.”   In this case, however, there is nothing in the allegations of the plaintiff's complaint to suggest that the medical negligence of which the moving defendants stand accused are outside the scope the practice of obstetrics and gynecology and exclusively the domain of specialists in maternal-fetal medicine.   The allegations of the complaint are that Dr. Shevell advised the plaintiff mother to terminate her child's pregnancy on the basis of preliminary test results which expressly warned her that the test was not to be relied on for making any irreversible therapeutic decisions.   Accordingly, the court finds that the credentials of the author of the opinion letter are those of a similar health care provider as required by the statute.

The moving defendants also claim that the failure of the author of the opinion letter to include his credentials within the body of the letter is a fatal defect.   The moving defendants rely on Lucisano v. Bisson, 132 Conn.App. 459, 466 (2011), in which the court held:  “The only plausible application of the plain language of §§ 52–190a and 52–184c requires disclosure of qualifications in the opinion letter.”   In that case the court was faced with an opinion letter which failed to give any indication as to the qualifications of its author and was not supplemented with any disclosure including such information.   The Lucisano court held that the statute required disclosure of “adequate information that could be used to determine whether the author is a similar health care provider.”  Id.

Subsequent to our Appellate Court's ruling in Lucisano, several Superior Courts have considered whether the holding requires dismissal of all cases in which the credentials of the author of an opinion letter are not set forth within the four corners of the opinion letter itself.   In Cavanaugh v. Sherberg, Superior Court, judicial district of New Haven, Docket No. CV–11–6023677 (February 2, 2012, Fischer, J.), the court noted that in Lucisano the court was not provided with any information supplementing that set forth in the opinion letter.   The court held that when the plaintiff provides the information establishing that the author of the opinion letter has the requisite credentials, dismissal of the action is not warranted.   Similarly, in Demars v. Sfevinsky, Superior Court, judicial district of Windham, Docket No. CV 12 60005278 (October 12, 2012, Calmar, J.) (54 Conn. L. Rptr. 788), the court denied a motion to dismiss a malpractice action and allowed the plaintiff to amend his complaint to supply information regarding the credentials of the author of the opinion letter.

The court in Demars relied on Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, cert. denied 292 Conn. 911 (2009), in which the court held that a “plaintiff could not turn back the clock and attach by amendment an opinion of a similar health care provider which did not exist at the time of commencement of the action.”   The court in Votre observed that “[g]iven the fallibility existing in the legal profession ․ it is possible that a written opinion of a similar health care provider, existing at the time of commencement of the action, might be omitted through inadvertence.   In such a scenario, it is certainly within the discretionary power of the trial judge to permit an amendment to attach the opinion, and in so doing, deny a pending motion to dismiss.”  Id., 585.   The court in Demars also relied on Connecticut's strong public policy found in our constitution of court, open to all to provide remedies to those injured “without sale, denial or delay.”   (Internal quotation marks omitted.)  Demars v. Slevinsky, supra, Superior Court, 54 Conn. L. Rptr 789, quoting Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 562–64 (2012) (Bishop, J., concurring).   Finally, the court noted the existence of a public policy in favor of bringing about a trial on the merits of disputes whenever possible.  Id.

The court agrees with the courts in Cavanaugh and Demars and finds that the failure to include the credentials of the author of an opinion letter is not fatal to a plaintiff's claim as long as those credentials are adequately disclosed.

In this case the moving defendants also contest the adequacy of the disclosure of credentials made by the plaintiffs.   They claim, that the author's curriculum vitae is not “notarized, authenticated or certified.”   They do not point to any such requirement in the statute.   The opinion letter itself need only be written and signed.   In this case both the opinion letter and the affirmation of the author of the letter attesting to the contents of both the opinion letter and the curriculum vitae are signed.   The court finds no merit in the moving defendants' claim.

Having considered all of the moving defendants' arguments, the motion to dismiss is denied.

David R. Tobin, J.T.R.

Tobin, David R., J.T.R.

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