Francisco Ortiz v. Mabri Convalescent Center (2010)

MEMORANDUM OF DECISION

This is a decision on a motion to dismiss, dated August 27, 2009, filed by the defendant Mabri Convalescent Center, Inc. The plaintiff, Francisco Ortiz,¹ commenced this action by service of process against the defendant, Mabri Convalescent Center, Inc. dba Meriden Center, on July 6, 2009, which claimed money damages as a result of a fall down in the defendant's facility.

The plaintiff alleged the following facts in the one-count complaint.   On or about April 5, 2007, the defendant, a duly organized public nursing home, admitted the sixty-three-year-old decedent for monitoring, recovery and rehabilitative purposes related to bronchitis, congestive heart failure and pneumonia.   On or about April 6, 2007, at approximately 1:05 p.m., the decedent fell in the bathroom adjacent to his room in the defendant's facility and sustained injuries.   The complaint alleges that he was unattended and unsupervised at the time.

The decedent's cause of action sounded in negligence.   He alleged that the defendant's staff members, including nurses, nurse practitioners, physicians and physician assistants participated in the care and treatment rendered to the plaintiff.   He further alleges that those staff members and other agents, employees and/or servants failed to do the following:  take adequate steps to prevent the plaintiff from falling;  adequately assess the plaintiff as an individual likely to fall given his present medical condition;  adopt policies and procedures, such as direct and/or indirect supervision;  adequately train and supervise staff to ensure that said staff adequately supervised patients who were likely to fall;  adopt and execute a plan that was adequate to prevent the plaintiff from falling even though they knew or should have known that he was a candidate likely to fall;  and properly observe and oversee the plaintiff to prevent the plaintiff from falling.

Attached to the decedent's original complaint was a letter whose author stated an opinion that there was evidence of medical negligence.   The decedent did not attach, however, a certificate by his attorney attesting to a reasonable inquiry that gave rise to a good faith belief of grounds existing for the present action.

The defendant filed a motion to dismiss and an accompanying memorandum of law on August 27, 2009.   The plaintiff filed an objection to the defendant's motion to dismiss with an accompanying memorandum of law on October 22, 2009.   The plaintiff then filed a request to amend the complaint on November 19, 2009.²  The amendment that the plaintiff seeks to make to the complaint is the attachment of a good faith certificate and a written opinion that has been revised to include a paragraph describing the author's qualifications.   According to the paragraph, the author is a senior physician assistant at three hospitals, specifically in the emergency medicine departments of two, and serves as a “Quality Assurance Reviewer” at one.   This is a role in which the author “review[s] ․ procedures and/or update[s] the same on a regular basis to assure that the appropriate procedures are in place concerning fall prevention.”   The defendant objected to the request on November 20, 2009.   On the same day, the defendant also filed a reply regarding the motion to dismiss.   The court heard the matter at short calendar on November 23, 2009.   On the same day, the plaintiff filed a supplemental memorandum of law in support of its objection to the motion to dismiss.

I.

Even though this case is barely five months old, it already has a tortured procedural history.   The court, therefore, must first address the plaintiff's second request to amend the complaint.   The plaintiff argues in the request that the amendment will not change the substance of the complaint or the letter.   It further contends in its supplemental memorandum that the request does not prejudice the defendant because the action is “no more than three and a half months old.”   The defendant objects on the ground that the revised written opinion cannot relate back to the original complaint.  General Statutes § 52-190a requires a written opinion to be attached to a good faith certificate, and the defendant argues that the absence of the certificate from the original complaint precludes the relation back of the revised written opinion.   It further contends in its reply memorandum that the plaintiff improperly seeks to submit a second written opinion by a similar health care provider under the guise of the amendment.

Practice Book § 10-60(a)(3) provides in relevant part:  “[A] party may amend his or her pleadings ․ at any time subsequent to [the thirty-day period after the return date in which a plaintiff may amend a complaint as of right] ․ [b]y filing a request for leave to file such amendment, with the amendment appended, after service upon each party ․ and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by the consent of the adverse party.”   A party has timely filed an objection here.  “It is [nonetheless] within the discretion of the trial court to grant or deny an amendment” and “the trial court's decision will not be disturbed unless there is a clear abuse of discretion.”  Lord v. Mansfield, 50 Conn.App. 21, 31, 717 A.2d 267 (1998).

The defendant in the present case has not demonstrated that it will be prejudiced by the amendment and has even referenced the amended complaint in its reply memorandum.   The court therefore overrules the defendant's objection without prejudice because the objection essentially raises the same issue as the motion to dismiss, i.e., the statutory compliance of the plaintiff's written “similar health care provider” opinion.   Accordingly, the operative complaint is the second amended version filed on November 19, 2009.

II.

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).   A court deciding a motion to dismiss “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.)   State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).

Section 52-190a(a) provides in relevant part:  “The complaint [or] initial pleading [in a personal injury action] ․ 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 [General Statutes § ]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.”   According to § 52-190a(c), “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.”   The underlying purpose of the legislature in enacting ․ § 52-190a was to discourage the filing of baseless lawsuits against health care providers, LeConche v. Elligers, 215 Conn. 701, 710-11 (1990).

III.

The principal claim in defendant's motion is that the plaintiff failed to provide an opinion from a similar health care provider.   Two recent Connecticut appellate court have discussed the sufficiency of opinion letters in medical negligence cases.   The first case is Votre v. County Obstetrics & Gynecology Group, 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), in which the Appellate Court determined that “a failure [“to comply with the requirements of § 52-190a(a)”] does render [a] complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading.”   The second case is Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), in which the Appellate Court again determined that “[a] plain reading of [§ 52-190a(c) ] indicates that the letter must comply with subsection (a) to avoid potential dismissal.   Thus, an action is subject to dismissal under subsection (c) if the written opinion is not from a similar health care provider or does not give a detailed basis for the opinion.”

In the instant case, however, the plaintiff has brought an action against an institutional defendant, the Mabri Convalescent Center, Inc. The plaintiff alleges negligence of the “defendant's staff members, including nurses, nurse practitioners, physicians and physician assistants (who) participated in the care and treatment rendered to the plaintiff,” which resulted in a fall on April 6, 2007.   In a medical malpractice action in which the named defendant was an institutional entity, the Supreme Court held that the “relevant health care provider” under § 52-184c “could have been either the defendant, as the corporate entity providing health care services to the plaintiff, or [a nurse-midwife], as the individual caregiver and an employee of the defendant.”   Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 152-53, 801 A.2d 775 (2002).

The Appellate Court in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, also touched upon the issue of defining an institutional defendant as a “health care provider.”   It limited its statement that “the similar health care provider contemplated in § 52-190a(a) is one defined in either subsection (b) or (c) of § 52-184c” by virtue of “the plain language of the statutes” to “a defendant health care provider who is a physician.”   Id., 548-49.   It then noted in dicta that “there may be a gap in § 52-190a regarding [institutional] defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation.”   Id., n.10.

In interpreting the applicable statute for this case, the court is faced with the question as to who is qualified to author an opinion letter of a similar convalescent center or nursing home.   This is certainly an unworkable requirement confronted by plaintiff's attorneys, because, as stated by Judge Adams in Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 06 5001692S (March 12, 2007, Adams, J.), nursing homes “do not issue written opinions.”

In this matter, the written opinion author is a senior physician assistant who works at three hospitals.   At two, he or she works in the emergency medicine department, and at one, he or she has been a “Quality Assurance Reviewer” since 2000, a role in which he or she has the “responsibility to review the quality assurance for the nurses and the PA's at the hospital which includes fall prevention procedures.”   The allegations of the complaint allege a fall and negligence by the facility, its servants agents and employees, which includes physician's assistants.   The statute does not require, under these circumstances, individual opinion letters from an administrator, physician, nurse, various aids, and maintenance personnel which would document all of the allegations of negligence contained in the complaint.   The opinion letter from a physician's assistant qualified in quality assurance and fall prevention is sufficient to satisfy the underlying purpose of the legislature in enacting § 52-190a.

Accordingly, the motion to dismiss is denied.

Matasavage, J.

FOOTNOTES

FN1. The plaintiff, Francisco Ortiz is now deceased.   On August 27, 2009, Dolores Ortiz, as administratrix of the estate of Francisco Ortiz, Jr., filed a motion to be cited into this action as a party plaintiff.   The court, B. Fischer, J., granted her motion on September 17, 2009..  FN1. The plaintiff, Francisco Ortiz is now deceased.   On August 27, 2009, Dolores Ortiz, as administratrix of the estate of Francisco Ortiz, Jr., filed a motion to be cited into this action as a party plaintiff.   The court, B. Fischer, J., granted her motion on September 17, 2009.

FN2. The plaintiff previously filed a request to amend the complaint on October 6, 2009.   Attached to the proposed amended complaint was a good faith certificate.   The defendant filed an objection to the request on October 16, 2009, which it withdrew on November 23, 2009..  FN2. The plaintiff previously filed a request to amend the complaint on October 6, 2009.   Attached to the proposed amended complaint was a good faith certificate.   The defendant filed an objection to the request on October 16, 2009, which it withdrew on November 23, 2009.

Matasavage, Paul, J.