PPA v. Frank Fortunati, Jr., M.D. (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S OCTOBER 22, 2009 MOTION DISMISS, COURT DOCKET # 108 AS SUPPLEMENTED BY DEFENDANT'S JANUARY 15, 2010 MEMORANDUM, COURT DOCKET # 118

The defendant's October 22, 2009 motion to dismiss, docket # 108, as supplemented and expanded by the January 15, 2010 Supplemental Brief to Defendant's Motion to Dismiss, docket # 118, is denied as to Count One paragraphs 34(f) and 34(g), Count Five and Count Seven and granted as to Counts Four and Six because the plaintiff John Doe has failed to comply with the requirements of CGS 52-190a.

The plaintiff's August 19, 2009 Complaint alleges seven theories of the defendant's legal liability on behalf of two plaintiffs.   As to the plaintiff Jane Doe, counts one through three respectively sound in negligence, recklessness and negligent infliction of emotional harm.   As to the plaintiff, John Doe, counts four through seven respectively sound in negligence, recklessness, negligent infliction of emotional harm and slander.

The defendant asserts that the plaintiffs fail to comply with the requirements of CGS 52-190a and move to dismiss two subparagraphs of allegations of negligence in Count One and to dismiss the entirety of Counts Four through Seven.

Section 52-190a (a) provides in relevant part that the claimant in a medical malpractice action ‘shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]52a-184c ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․” Wilcox v. Schwartz, 119 Conn.App. 808, 813 (2009).  “Effective October 1, 2005, the statute was amended by P.A. 05-275 to require, to demonstrate good faith, that plaintiffs or their counsel, prior to filing suit, “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(a).   The amended statute also provides that plaintiffs or their counsel “shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate ․” General Statutes § 52-190a(a).   Subsection (c) of § 52-190a, which was added by P.A. 05-275, § 2, provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 542-3 (2009).

The allegations found in Count One, paragraph 34(f) and (g) allege, respectively, a failure by the defendant to provide a report within a reasonable time and/or the defendant's provision of a report more than three (3) months after making his contrary verbal representation to DCF. The “good faith certificate”-the written and signed opinion of the similar health care provider that there appears to be evidence of medical negligence and include a detailed basis for the formation of such opinion-makes no mention of either the failure of the defendant to provide a report within a reasonable time nor the provision of a report more than three (3) months after making his contrary verbal representations to DCF as the detailed basis for the opinion that the defendant deviated from the accepted standard of care.

However, the statute provides only for a “dismissal of the action” when there is a failure to comply with the statute and no authority is given for the court to dismiss subparagraphs of alleged medical negligence when the allegations of medical negligence are broader than the “good faith certificate.”   Counsel cited no such authority.  “When we interpret a statute,” [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other Page 542 statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007).   Here the statute is plain and unambiguous and provides no authority for the court to dismiss subparagraphs of alleged negligence though such allegations appear to be outside the scope of the statutorily required “good faith certificate.”

The defendant has adequate procedural and evidentiary remedies, other than a dismissal pursuant to CGS 52-190a, to limit the proof at trial.

Therefore, as the statute does not empower the court to dismiss subparagraphs of alleged negligence, the motion to dismiss subparagraphs 34(f) and 34(g) of Count One is denied.

Counts Five and Seven, entitled “recklessness” and “slander,” respectively, address causes of action beyond the scope of CGS 52-190a.  General Statutes § 52-190a(a) provides:  “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless ․” As Counts Five and Seven do not allege “that such injury or death resulted from the negligence of a health care provider,” CGS 52-190a is inapplicable.   The motion to dismiss those counts based on the operation of CGS 52-190a is therefore denied.   Counts Four and Six, entitled negligence and negligent infliction of emotional harm on behalf of plaintiff John Doe, are dismissed for failure to comply with the requirements of CGS 52-190a.   No certificate of good faith was provided with respect to these counts.

Plaintiff John Doe asserts that the he is not alleging “medical negligence” in these counts but only claims of negligence against a defendant who happens to be a health care provider.

Recently the Court clarified the meaning of “medical negligence” in the context of CGS 52-190a, Diaz v. Grady, 292 Conn. 350, 358-9 (2009), concluding that phrase means “means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.”

In the instant case John Doe alleges in Counts Four and Six, paragraph 46(a) through (j), that the defendant, “a licensed physician,” paragraph 4 of the Complaint, who was “board certified in the field of Psychiatry,” paragraph 5 of the Complaint, breached the standard of care in various ways arising out of his performance of a psychiatric evaluation of Jane Doe, paragraphs 11, 13, 15 and 16 proximately resulting in damage to John Doe.

The gravamen of the causes of action in Counts Four and Six arise out of the defendant's conduct as a psychiatrist performing a psychiatric evaluation of Jane Doe. The allegations of negligence are found only in paragraph 46 of each count:

46.  The plaintiff, John's injures and damages were caused as a direct and proximate result of the carelessness, negligence and breach of the applicable standard of care of the defendant in one or more of the following manners:

a.  In that he conducted an incomplete psychiatric evaluation by failing to include an interview of John;  ․

b.-h. are allegations of negligent reporting in connection with the aforementioned psychiatric evaluation,

i.-j. are allegations of negligently performing the psychiatric evaluation.

The allegations of negligence arise out of an alleged breach of the standard of care for a health care provider, alleged to be a board certified psychiatrist, who was allegedly performing a psychiatric evaluation of Jane Doe.

The actionable conduct alleged in Counts Four and Six arise out of “medical negligence.”  CGS 52-190a requires a statutorily compliant certificate of good faith accompany the action or provide that the case be dismissed.

As the plaintiff John Doe has failed to file a good faith certificate in compliance with CGS 52-190a, Counts Four and Six are dismissed.

Wherefore, the defendant's motion to dismiss is denied as to Count One, paragraph 34(f) and 34(g), Counts Five and Seven and granted as to Counts Four and Six.

Zemetis, J.

Zemetis, Terence A., J.