Wendy Ogden, Administrator of the Estate of Harold George Cooley and Mildred Cooley v. Marlborough Health Care Center Inc. et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, # 114

The defendants have filed a motion to dismiss the plaintiffs' amended complaint on the ground that the plaintiffs have failed to comply with the requirements of General Statutes § 52-190a(a), namely that the opinion letter attached to the plaintiffs' amended complaint is not authored by a similar health care provider as defined in General Statutes § 52-184c.

FACTS

The basis of the present action is the alleged wrongful death of the decedent, Harold Cooley, following his fall at a nursing home, which purportedly resulted in a fractured hip and eventually, his death.   The plaintiffs, Wendy Ogden, daughter and administrator of the estate of the decedent and Mildred Cooley, surviving spouse of the decedent, commenced this action against the defendants, Marlborough Health Care Center, Inc. (Marlborough), the nursing home, and National Health Care Associates, Inc., the alleged owner of the nursing home.

The plaintiffs' amended complaint, filed on January 5, 2010, consists of two counts, wrongful death and loss of consortium, each of which are directed at both defendants.   The amended complaint alleges that only one certified nurse's aide was assisting the decedent from his bed to a wheelchair when he fell.   Having only one staff member assist in the transfer allegedly violated the decedent's Minimum Data Set (MDS), a federally-mandated patient care plan, which in the case of the decedent, supposedly required two staff members for such transfers.   Apart from claiming that the nurse's aide was negligent for failing to follow patient transfer procedures, the complaint makes numerous allegations of negligence against other, unnamed members of the defendants' staff.   The plaintiffs allege, inter alia, the defendants failed to inform the nurse's aide staff of this requirement, failed to have a registered nurse properly assess the decedent following his fall, and failed to provide sufficient staffing.   Pursuant to General Statutes § 52-190a(a), the amended complaint includes a lengthy, written opinion of an unidentified registered nurse dated September 14, 2009, concluding that the staff at Marlborough neglected to provide adequate or safe care for the decedent.¹

On January 14, 2010, the defendants moved to dismiss the amended complaint on the grounds that the written opinion was not authored by a similar health care provider in accordance with § 52-190a(a) and General Statutes § 52-184c(b).  On February 11, 2010, the plaintiffs filed an objection to the defendants' motion to dismiss, and the parties filed subsequent reply briefs.

DISCUSSION

A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating “that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”  General Statutes § 52-190a(a).  “A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim ․ However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy ․” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).  “[A]n action is subject to dismissal under [General Statutes § 52-190a(c) ] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009).

When the defendant health care provider is not a specialist, the plaintiff's choice of a health care provider for the written opinion must comply with § 52-184c(b).  Section 52-184c(b) states in relevant part:  “[A] ‘similar health care provider’ is one who ․ (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.”

The defendants raise two grounds for dismissal.   First, the defendants contend that the “discipline or school of practice” at issue here is long-term care, and the plaintiffs' opinion writer is not trained in long-term care.   Second, they argue that the “discipline or school of practice” of a nurse is not the same as a nurse's aide and the opinion writer does not identify any other specific defendant to whom he or she is similar.   The fact that the defendants are institutions, the defendants claim, does not save the plaintiffs from identifying a specific health care provider to whom the opinion writer is similar.

The defendants' first ground fails because their characterization of the “discipline or school of practice” as “long-term care” is overly narrow.   Both the complaint and the written opinion center on the failure of the defendants to adhere to the patient's requirement to have at least two staff members for ambulation, the failure to follow procedures, and the lack of appropriate staffing, among other claims.   Furthermore, the allegation of negligence against the nurse's aide for failure to follow patient transfer procedures is not unique to a long-term care facility;  it could occur at any hospital, for example.

The defendants' second ground fails because appropriately qualified registered nurses can be “similar health care providers” with respect to certified nurse's aides for the purposes of § 52-184c(b).  Though nurse's aides and registered nurses have different education and certification requirements, nurse's aides perform the same duties as nurses, albeit under a nurse's supervision.   General Statutes § 20-102aa defines a “nurse's aide” as “an individual providing nursing or nursing-related services to residents in a chronic and convalescent nursing home or rest home with nursing supervision ․” Consequently, nurses and nurse's aides both perform nursing duties and therefore adhere to the same standard of care regarding their patients.   Given that the written opinion only needs to address whether there was a likely breach of a standard of care;  Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009);  a registered nurse can opine as to the standard of care of a nurse's aide for the purposes of § 52-190a(a) and § 52-184c(b).²

The particular registered nurse who drafted the written opinion in this case is sufficiently qualified for the purposes of § 52-184c(b).  The opinion writer states that he or she has been a registered nurse in Connecticut for almost eleven years, including acute, sub-acute and long-term care nursing, with a number of certifications including quality assurance and risk management.   The writer's experience includes instructing nursing staff on compliance with state and federal regulations.   Moreover, the opinion writer has significant, senior management experience with long-term care facilities, serving as director of nursing for three of them.

As for the defendants' claim that the plaintiffs have not identified a specific health care provider to which their opinion writer is similar, this issue is resolved by this court's conclusion that the opinion writer is a similar health care provider to the certified nurse's aide.   As the defendants concede, numerous decisions hold that “[Section 52-190a(a) ] does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion.   Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides ․ Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions.”   Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.).   Therefore, this court does not need to reach the issue of whether the written opinion would be sufficient as to the other, unnamed employees of the defendants.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss is denied.

FOOTNOTES

FN1. A shorter written opinion from the same author was filed with the original complaint.   The defendants did not object to the plaintiffs' amended complaint or the substitution of the written opinion..  FN1. A shorter written opinion from the same author was filed with the original complaint.   The defendants did not object to the plaintiffs' amended complaint or the substitution of the written opinion.

FN2. Though two Superior Court decisions have held that a physician is not a similar health care provider with respect to a physician's assistant pursuant to § 52-184c(b), this court reaches a different conclusion.   See Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) [49 Conn. L. Rptr. 162];  Xicohtencatl v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.)..  FN2. Though two Superior Court decisions have held that a physician is not a similar health care provider with respect to a physician's assistant pursuant to § 52-184c(b), this court reaches a different conclusion.   See Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) [49 Conn. L. Rptr. 162];  Xicohtencatl v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.).

Swienton, Cynthia K., J.