Marshaun W. Bell et al. v. Hospital of St. Raphael (2010)

RULING ON MOTION TO DISMISS (# 102)

This action in two counts, alleging wrongful death premised on medical negligence and seeking reimbursement for hospital and funeral costs, was brought against the defendant Hospital of Saint Raphael (HSR) only.   The plaintiff alleges that on June 23, 2007 her decedent, Clara Ann Woods (Woods) “presented to the defendant's Emergency Room with pain in her lower extremities, difficulty breathing, a history of hypertension and a resting blood pressure of 139/133” (¶ 4), that HSR rendered health care service to Woods in the emergency room and monitored Woods' blood pressure, which remained elevated over a three-hour period (¶¶ 5, 6) and that subsequently, Woods “was found to be unresponsive and in severe respiratory distress.” (¶ 7).   The complaint alleges that Woods “suffered a massive hemorrhagic stroke which resulted in her death” (¶ 8) as a result of ten alleged negligent acts or omission on the part of HSR (¶ 9) ¹ Appended to the complaint were a good faith certificate and a two-page document captioned “Health Care Provider's Opinion Pursuant to C.G.S. Section 51-190a.”

HSR immediately moved to dismiss the complaint, pursuant to General Statutes § 52-190a,² on the ground that the plaintiff “failed to append to the complaint a written opinion of a similar health care provider indicating that there is evidence of medical negligence on the part of the [HSR's] Emergency Department.” (# 102).  As elaborated in its original memorandum of law in support of the motion to dismiss, HSR's principal argument was that the written opinion letter which plaintiff attached to her good faith certificate did not comply with General Statutes § 52-190a(a) because the opinion writer, a registered nurse, did not fall within the relevant statutory definition of a similar health care provider under General Statutes § 52-184c.   Relying analogously on Bennett v. New Milford Hospital, Inc., 117 Conn. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009), as well as a number of Superior Court decisions, HSR maintained that because the alleged medical negligence occurred in its Emergency Department, the plaintiff was required to provide an opinion letter from an individual trained, experienced and board certified in emergency medicine pursuant to § 52-184c(c).³  It recently bolstered this position by filing an affidavit averring that its Emergency Department is a designated Level II trauma center held out as a specialized area of the hospital and managed by either an Emergency Department physician or physician's assistant.  (Affidavit of Alan S. Kliger, M.D., # 113).

In response, the plaintiff maintained that because she had brought an action against an institutional defendant only and had not identified any specific health care providers in HSR's emergency department as negligent actors, this case falls within a “gap in Section 52-190a regarding [institutional] defendants” which the Bennett court noted would be “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., 117 Conn.App. 548, n. 10.   Elaborating on this position in a subsequent memorandum, the plaintiff argued that the practical impossibility of applying the “similar health care provider” criteria of § 52-184c to an institutional defendant excuses strict compliance with General Statutes § 52-190a(a) by default.  (Plaintiffs Response to Defendant's Reply Brief).   Finally, the plaintiff argued that in the absence of clear direction, either legislatively or judicially, as to what constitutes a “similar health care provider” for the purposes of § 52-190a(a), in this case, when the only named defendant is an institution and the allegations of negligence include the failure to monitor, attend to and generally provide appropriate care for Woods' elevated blood pressure while she was in the emergency department, the relevant definition of a “similar health care provider” is found in § 52-184c(b).⁴

Choosing to bring suit solely against an institutional defendant does not excuse a plaintiff from complying with § 52-190a(a).   A hospital is a licensed institution and a health care provider.   See General Statutes §§ 19a-490(a), (b), 19a-491(a), 52-184b(a), 184e(a)(1).   A wrongful death case premised on medical negligence against a hospital is subject to dismissal in the absence of a “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.”  General Statutes § 52-190a(a) and (c).  However, to determine whether the definition of “similar health care provider” in subsection (c) or (b) of General Statutes § 52-184c applies in this case, the court is required to look at the allegations of the complaint, construed in their most favorable light.   See Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

Broadly construed, the complaint alleges negligence that can be attributed to any number of unidentified emergency department health care providers including emergency department physicians, whether board certified or not, physician's assistants, registered nurses, certified nurses, aides and others.   The allegations of negligence include failing to discover Woods' condition, failing to act appropriately to address her elevated blood pressure, failing to notify appropriate staff of her condition, failing to monitor her progress, and failing to take her medical history in account to formulate an appropriate plan of care.   In similar circumstances, written opinions of any number of appropriately experienced similar health care providers have been found sufficient to comply with § 52-190a as to an institutional defendant.   See, e.g., Sicignano v. Mid-Town Auto Body, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 6000611 (July 31, 2009, Tyina, J.);   Scheurich v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 08 5016766 (March 9, 2009, Hiller, J.) (47 Conn. L. Rptr. 332);  Behling v. Aronow, judicial district of Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) For example, in Sicignano, the court rejected an argument similar to the one HSR asserts here that the plaintiff was required to provide an opinion letter from an individual trained, experienced and board certified in emergency medicine pursuant to § 52-184c(c).  Without expressly stating its reliance on § 52-184c(b), the court nonetheless concluded that submission of the opinion letter of a registered nurse sufficed to satisfy § 52-190a with respect to allegations of negligence against a hospital's emergency department.

HSR concedes that the plaintiff's opinion letter was written by a registered nurse.  (Transcript of oral argument, Feb. 16, 2010, pp. 3-4.)   The scope of practice of a registered nurse includes “the process of diagnosing human responses to actual or potential health problems ․ collaborating in the implementation of the total health care regimen, and executing the medical regimen under the direction of a licensed physician ․ or advanced practice registered nurse.”  General Statutes § 20-87a(a).   These practice areas subsume some of the areas of negligence alleged in the complaint.   In light of those allegations, the court agrees with the plaintiff that she was not required to submit an opinion letter, pursuant to § 52-184c(c), of a board certified emergency department physician in this case.   This conclusion, however, does not automatically lead to the conclusion that the author of the opinion letter is qualified to express an opinion regarding breach of the standard of care.   See Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009).

“The purpose of [§ 52-190a(a) ] is to discourage frivolous lawsuits against health care providers ․ One of the mechanisms introduced in the amendments to the statute of 2005 was the written opinion requirement.   The ultimate purpose of this 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 ․ The person rendering this opinion is not required by § 52-190a(a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff.”  (Citation omitted;  emphasis supplied) Wilcox v. Schwartz, 119 Conn. 808, 816, 990 A.2d 366 (2010).   The remaining question, then, is whether the author of the submitted opinion letter satisfies the requirements of § 52-184c(b) so as to serve as similar health care provider within the meaning of § 52-190a(a).⁵

A qualified witness under § 52-184c(b) must meet two distinct requirements:  (1) appropriate licensing and (2) training and experience “in the same discipline or school of practice [as the defendant health care provider] ․ 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.”   See n. 4, supra.   The court has reviewed the written opinion letter with care in order to determine whether the writer meets the two requirements.   Other than containing a series of initials at the conclusion of the letter, specifically “RN, BSN, ICP,” the letter does not set forth any of the author's qualifications.   For example, it does not state whether the author is licensed or where, does not describe the author's training and experience and does not indicate whether the author has been actively involved in the practice or teaching of emergency medicine or any field of medicine in the relevant time period.   Faced with similar inadequacies, courts have granted § 52-190a motions to dismiss.   See Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (Oct. 16, 2009, Shaban, J.) (“letter completely devoid of any reference to the qualifications of the author.   There is no mention of the author's area of practice, level of experience or degree of education ․ There is simply no way to know, or even infer, from the text of the letter whether it was authored by a similar health care provider”);  Vanalstyne v. Tolland, Superior Court, judicial district of Tolland, CV 08 60000326 (Sept. 25, 2009, Sferrazza, J.) (“The opinion letter omits any reference to its author's qualifications, specialties or certifications.”)

Plaintiff's counsel has sought to remedy the defects in the opinion letter by submitting her own affidavit in which she avers that the author of the opinion letter has been a registered nurse in Connecticut for eleven years, is licensed in Connecticut, hold a bachelor's degree from an accredited university in this state and had professional experience including “over ten years of acute, sub-acute and long-term nursing care, including working in a trauma center in Connecticut.” (# 109) It is not clear that counsel can, by way of affidavit, supplement the requisite opinion letter.   See Figueroa v. Donahue, Superior Court, Judicial District of New Britain, Docket No. CV 07 5003920 (Sept. 19, 2007, Pittman, J.) [44 Conn. L. Rptr. 243] (“the court finds no authority for the proposition that counsel, through counsel's own statements, can supply missing elements of the required opinion letter”).   Nonetheless, even when the court takes counsel's representations into account, they fail to satisfy the court that the author of the opinion letter has been actively involved in the practice of nursing care relevant to the opinion rendered, regarding breach of the standard of care by an emergency department,⁶ within the five-year period before the incident giving rise to the claim, as required by § 52-184c(b)(2).   The court is unable to infer that the author of the opinion letter has the requisite training and experience to opine as to the standard of care applicable to HSR's emergency department at the time of Woods' admission and treatment.   Accordingly, the court cannot conclude that the registered nurse who authored the opinion letter is a qualified witness within the meaning of § 52-184c(b) and thus a “similar health care provider” to the institutional defendant within the meaning of § 52-190a(a).

In sum, the court concludes that a plaintiff who brings a medical negligence action solely against an institutional defendant must comply with the requirements of General Statutes § 52-190a(a) to obtain and append to the complaint a written and signed opinion letter of a similar health care provider as defined in General Statutes § 52-184c.   Under the allegations of the complaint in this case, broadly construed, a similar health care provider is defined by the terms of General Statutes § 52-184c(b).  The submitted opinion letter, even when supplemented with counsel's affidavit, does not contain sufficient facts to satisfy the court that the author of the letter meets the requirements of § 52-184c(b) to qualify as a “similar health care provider” to the defendant.   Accordingly, the court must dismiss this case pursuant to General Statutes § 52-190a(c).

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. In paragraph 9 of the complaint, plaintiff alleged:The defendant, Hospital of Saint Raphael, breached its duty and the standard of care through the acts, conduct or omissions of its employees, servants, agents and apparent agents, or any one or more of them, as follows:(a) in that it failed to take appropriate steps to address the plaintiffs decendent's critically high blood pressure on admission;(b) in that it failed to notify appropriate staff of the critically elevated nature of the plaintiff's decedent's blood pressure;(c) in that it failed to take any steps to lower the blood pressure despite consecutive and critically elevated blood pressure readings while the plaintiff's decedent was still conscious and responsive in the emergency room;(d) in that it failed to ensure the administration of appropriate medication to lower the plaintiff's decedent's blood pressure or to notify appropriate staff of the severity of the plaintiff's decedent's vital signs;(e) in that it failed to monitor the plaintiff's decedent's progress, resulting in a significant lapse of time during which the plaintiff's decedent was unconscious, in severe respiratory distress and unattended by staff;(f) in that it failed to discover the plaintiff's decedent's condition;(g) in that it failed to take any precautions to prevent the plaintiff's decedent from suffering a stroke;(h) in that it failed to take into consideration the plaintiff's decedent's history of hypertension and preexisting conditions in formulating an appropriate plan of care;(j) failed to promulgate or reinforce rules, regulations, standards, protocols and bylaws for the care of patients such as the plaintiff's decedent;  and(i) in that it failed to act in a reasonable and prudent fashion in light of the circumstances and conditions then and there prevailing..  FN1. In paragraph 9 of the complaint, plaintiff alleged:The defendant, Hospital of Saint Raphael, breached its duty and the standard of care through the acts, conduct or omissions of its employees, servants, agents and apparent agents, or any one or more of them, as follows:(a) in that it failed to take appropriate steps to address the plaintiffs decendent's critically high blood pressure on admission;(b) in that it failed to notify appropriate staff of the critically elevated nature of the plaintiff's decedent's blood pressure;(c) in that it failed to take any steps to lower the blood pressure despite consecutive and critically elevated blood pressure readings while the plaintiff's decedent was still conscious and responsive in the emergency room;(d) in that it failed to ensure the administration of appropriate medication to lower the plaintiff's decedent's blood pressure or to notify appropriate staff of the severity of the plaintiff's decedent's vital signs;(e) in that it failed to monitor the plaintiff's decedent's progress, resulting in a significant lapse of time during which the plaintiff's decedent was unconscious, in severe respiratory distress and unattended by staff;(f) in that it failed to discover the plaintiff's decedent's condition;(g) in that it failed to take any precautions to prevent the plaintiff's decedent from suffering a stroke;(h) in that it failed to take into consideration the plaintiff's decedent's history of hypertension and preexisting conditions in formulating an appropriate plan of care;(j) failed to promulgate or reinforce rules, regulations, standards, protocols and bylaws for the care of patients such as the plaintiff's decedent;  and(i) in that it failed to act in a reasonable and prudent fashion in light of the circumstances and conditions then and there prevailing.

FN2. General Statutes § 52-190a(a) provides, in relevant part:  “No civil action ․ 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 ․ 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 ․ 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.”General Statutes § 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.”.  FN2. General Statutes § 52-190a(a) provides, in relevant part:  “No civil action ․ 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 ․ 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 ․ 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.”General Statutes § 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.”

FN3. General Statutes § 52-184c(c) provides:  “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.’ “.  FN3. General Statutes § 52-184c(c) provides:  “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.’ “

FN4. General Statutes § 52-184c(b) provides:  “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.”.  FN4. General Statutes § 52-184c(b) provides:  “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.”

FN5. The court originally heard oral argument on the motion to dismiss on February 16, 2010.   The parties were directed to obtain the relevant legislative history, if any, regarding institutional defendants, and to submit additional briefs.   The court also asked the parties to address the question of whether the submitted opinion letter set forth the writer's requisite statutory qualifications for rendering an opinion under § 52-184c(b).  Having granted a number of continuances, the court heard argument for a second time on May 24, 2010..  FN5. The court originally heard oral argument on the motion to dismiss on February 16, 2010.   The parties were directed to obtain the relevant legislative history, if any, regarding institutional defendants, and to submit additional briefs.   The court also asked the parties to address the question of whether the submitted opinion letter set forth the writer's requisite statutory qualifications for rendering an opinion under § 52-184c(b).  Having granted a number of continuances, the court heard argument for a second time on May 24, 2010.

FN6. The specific opinion, the detail of which has not been challenged, is that “significant lack of intervention for critical vital signs is clear source of deviation from a standard of emergency medical care ․” (Emphasis supplied.).  FN6. The specific opinion, the detail of which has not been challenged, is that “significant lack of intervention for critical vital signs is clear source of deviation from a standard of emergency medical care ․” (Emphasis supplied.)

Lager, Linda K., J.