Yvonne Wightman v. Michael Sposato et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT OF DISMISSAL (# 146)

PROCEDURAL HISTORY

This action was originally commenced by the plaintiff, Yvonne Wightman, against the defendants, Michael Sposato, Midstate Medical Center, Midstate Medical Group Walk-In Center and Midstate Medical Group, P.C., on December 30, 2008.   The plaintiff's action stems from the alleged negligent medical care that she received from Sposato, a licensed physician assistant.   In compliance with General Statutes § 52-190a, the plaintiff attached a certification and a written opinion from a healthcare provider to her complaint.   On May 18, 2009, the defendants moved to dismiss the plaintiff's complaint on the ground that the plaintiff failed to file a detailed written opinion from a similar health care provider, as required by General Statutes § 52-190a(a).   In support of that motion, the defendants argued that the expert opinion, authored by a physician who is board certified in emergency medicine and family practice, failed to comport with the requirements set forth in § 52-190a.   Specifically, they argued that the written opinion was not authored by a similar health care provider and did not articulate a detailed basis for the formation of the opinion.   That motion to dismiss was granted by this court on December 4, 2009, over the plaintiff's objection.   On January 4, 2010, this court denied the plaintiff's motion for reargument and for reconsideration of the judgment for dismissal.   Subsequently, the plaintiff filed a motion for articulation, which was denied on January 21, 2010.

Thereafter, on January 29, 2010, the plaintiff filed a motion to review the decision denying her motion to articulate.   The Appellate Court denied that motion without prejudice on April 28, 2010, based upon its decision in Brycki v. Brycki, 91 Conn.App. 579, 881 A.2d 1056 (2005).¹

The plaintiff filed the present motion, a motion to reopen the judgment of dismissal, with this court on March 29, 2010.   The plaintiff requests that this court reopen its judgment of dismissal and “consider reversal of its previous judgment of dismissal based upon the holding in” Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366 (2010), an Appellate Court decision released after this court's judgment of dismissal, which addressed whether a written opinion letter is sufficiently detailed, per the requirements set forth in § 52-190a.   The defendants filed an objection to that motion on March 29, 2010.   The plaintiff then filed a disclosure of documents and records to be submitted into evidence.   In addition, on April 22, 2010, the plaintiff sent a letter to this court and opposing counsel to inform this court that she intended to present live testimony from an expert witness.   The defendants wrote to express their objection on April 23, 2010.   In response, this court informed both parties that consideration of the plaintiff's motion to reopen would be limited to whether the court should open its previous judgment of dismissal in light of Wilcox.   Thereafter, on May 10, 2010, the plaintiff filed a brief in support of her motion to reopen.   The motion was argued at Short Calendar on May 10, 2010.   At that time, this court reiterated the limited scope of its consideration of the plaintiff's motion to reopen.

DISCUSSION

Practice Book § 17-4(a) provides in relevant part:  “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent.”   The plaintiff's motion to reopen the judgment of dismissal is in compliance with § 17-4(a) because this court's order granting the dismissal was entered on December 4, 2010, less than four months prior to the plaintiff's filing of her motion to reopen on March 29, 2010.   As a result, the court may move to the substantive issue before it:  whether the written opinion letter that was originally attached to the plaintiff's complaint meets the requirements set forth in § 52-190a(a), in light of the Appellate Court's ruling in Wilcox.

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 ․ 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 dismissal of the action.”

In support of her motion to reopen, the plaintiff argues that the court should reopen its judgment of dismissal because Wilcox “is directly on point ․” She asserts that the “factual contents of the ․ medical opinion letter [at issue in Wilcox ] are substantially the same ․ and Wilcox is binding authority to the facts at bar.”   The plaintiff argues that the written opinion that she attached to her complaint is sufficiently detailed to satisfy the requirements and intent of § 52-190a(a), as set forth in Wilcox.   The defendants object to the plaintiff's motion and argue that the written opinion at issue in this action is substantially less detailed than the written opinion submitted by the plaintiff in Wilcox.   They assert that dismissal of the plaintiff's action is required, pursuant to § 52-190a.

In Wilcox, the Appellate Court addressed for the first time whether a written opinion submitted by a claimant, pursuant to § 52-190a(a), was sufficiently detailed for the purposes of that statute.   The letter at issue in Wilcox contained both the author's statement of the prevailing standard of care and an opinion that such standard was breached by the defendant.   Furthermore, the author specified the conduct which constituted a breach of the standard of care.  Id., 815.   As a threshold matter, the court stated that “in order to fulfill the [substantive] requirement of § 52-190a(a) and to provide assurance that there appears to be evidence of medical negligence, a claimant's written opinion from a similar health care provider ․ must indicate that there appears to be evidence of a breach of the standard of care.”  (Internal quotation marks omitted.)  Id., 815.   The court then reviewed the opinion letter submitted by the plaintiff mindful of the “ultimate purpose” of § 52-190a(a);  namely, to “demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness ․ state in written form that there appears to be evidence of a breach of the applicable standard of care.”  Id., 816.   In light of such purpose, the court stated that “[s]o long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint ․ the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose.”  Id. The court held, inter alia, that because the opinion letter submitted by the plaintiff addressed the allegations of negligence as pleaded in the complaint, it was detailed enough to satisfy the requirements of § 52-190a(a) and provided the defendants with notice “that a similar health care provider is willing to state his opinion that the standard of care was breached during [the] surgical procedure.”  Id., 816-17.

Here, the opinion letter submitted by the plaintiff pursuant to § 52-190a(a), states in relevant part:  “I ․ am familiar with the standard of care regarding appropriate identification of [e]mergency and [u]rgent [c]are [d]epartment personnel ․ Based upon my review of [various medical records] ․ and my experiences, it is my opinion that there appears to be evidence of medical negligence on the part of Michael Sposato ․” In addition, the letter contains the vague and conclusory statement that, had “proper care, treatment and diagnosis been rendered within the standard of care, it is more likely than not, that Ms. Wightman would not have suffered the painful consequences ․” In its judgment of dismissal, this court held that the written opinion submitted by the plaintiff was deficient because “[t]he opinion does not state an appropriate standard of care or discuss, even in the briefest manner, how Sposato deviated from that standard.”

This court is unpersuaded by the plaintiff's arguments in support of her motion to reopen the prior judgment of dismissal based upon Wilcox.   In her complaint, the plaintiff pleaded numerous specific allegations of negligence, including the following:  Sposato “diagnosed the plaintiff with gout and prescribed Indomethacin to the plaintiff although no x-rays or other tests were taken to rule out any other conditions”;  the plaintiff was advised by Sposato that “walking was alright and permissible”;  Sposato never corrected the plaintiff, who referred to him as “doctor” throughout the visit;  and Sposato “compounded and aggravated the plaintiff's injury ․ by prescribing improper treatment and further advising plaintiff she could walk upon her left foot and leg ․” The written opinion does not address any of the specific allegations of negligence pleaded by the plaintiff in her complaint.   Moreover, the author did not specify the standard of care or discuss, in any detail, how such standard of care was breached by Sposato.   Consequently, in accordance with the Appellate Court's holding in Wilcox, the basis of the opinion is not sufficiently detailed enough to satisfy the requirements or purpose of § 52-190a(a) and therefore, does not notify the reader that a similar health care provider is of the opinion that Sposato committed medical negligence.   Pursuant to § 52-190a(c), the plaintiff's complaint is subject to dismissal for failure to file a written opinion that complies with the requirements of § 52-190a(a).

CONCLUSION

For the foregoing reasons, the plaintiff's motion to reopen this court's judgment of dismissal is denied.

Wilson, J.

FOOTNOTES

FN1. In that case the court held, inter alia, “[b]ecause the plaintiff's motion for articulation was filed and denied by the trial court prior to the plaintiff's filing his appeal, he could obtain no relief by way of a motion for review of that denial.   In order to obtain relief by this court ordering the trial court to articulate its decision ․ the plaintiff would have had to file another motion for articulation, this one pursuant to Practice Book § 66-5, once he had filed his appeal.   He failed to do so and left this court with a record that is inadequate for resolution of his claim.”  Brycki v. Brycki, supra, 91 Conn.App. 593-94..  FN1. In that case the court held, inter alia, “[b]ecause the plaintiff's motion for articulation was filed and denied by the trial court prior to the plaintiff's filing his appeal, he could obtain no relief by way of a motion for review of that denial.   In order to obtain relief by this court ordering the trial court to articulate its decision ․ the plaintiff would have had to file another motion for articulation, this one pursuant to Practice Book § 66-5, once he had filed his appeal.   He failed to do so and left this court with a record that is inadequate for resolution of his claim.”  Brycki v. Brycki, supra, 91 Conn.App. 593-94.

Wilson, Robin L., J.