Alora Watkins ppa Gary Watkins et al. v. Amir Tulchinsky et al. (2010)

MEMORANDUM OF DECISION ON THE STATE OF CONNECTICUT'S MOTION TO DISMISS DATED OCTOBER 6, 2009

FACTS AND PROCEDURE:

The plaintiffs have brought this action in part because of problems that resulted allegedly from malpractice by the anesthesiologist team that was present for the surgery which occurred at the University of Connecticut Health Center in Farmington.   The State of Connecticut (hereinafter also the “State”) has filed a Motion to Dismiss against Count Six of the complaint which is against the University of Connecticut Health Center and the State of Connecticut;  against Count Seven which is against the State of Connecticut for Negligent Supervision.   Briefs were filed by the parties, and Oral Argument was held before this Court on September 7, 2010.

ISSUES AND FINDINGS:

1. Is the Motion to Dismiss Procedurally Proper?

The short answer is No.

The Court, Prescott, J., has already ruled on a Motion to Dismiss for Lack of Subject Matter Jurisdiction, claiming that the claims commissioner was incorrect in his findings.   Judge Prescott ruled in denying the Motion to Dismiss that he had no authority to take an appeal from the actions of the claims commissioner.   Further, he also ruled that negligent supervision as alleged in Count Seven is medical malpractice.

Under the Connecticut Practice Book a defendant cannot make a second Motion to Dismiss if the first Motion to Dismiss concerns the same issues in the second Motion to Dismiss.   Not all of the claims made by the State were brought out before Judge Prescott.   If this were a claim for Lack of Subject Matter Jurisdiction, it is possible that that would be proper because under the C.P.B. a party can always bring up subject matter jurisdiction.   However, the lack of a similar health provider's opinion as claimed in the Motion to Dismiss Count Six, the Appellate Court has ruled is not subject matter jurisdiction nor is Negligent Supervision as alleged in Count Seven, subject matter jurisdiction.   Most importantly, however, these issues could have been raised in the first Motion to Dismiss and were not.   A defendant is prohibited from raising in a second Motion to Dismiss the same issues that were in the first motion or issues that could have been raised in the first motion.   These motions now attacking Counts Six and Seven could have been raised in the first motion and were not.   The State is not entitled to a second bite of the apple.¹

2. Is the Opinion as Filed with the Complaint From a Similar Health Care Provider?

The short answer is Yes.

The State claims that the claim in Count Six is against Certified Registered Nurse Anesthetists and that the opinion from a Board Certified Anesthesiologist is not one provided by a “similar healthcare provider.”

First, this Court interprets C.G.S. § 52-190a which requires a reasonable inquiry and certificate of good faith and an opinion from a similar healthcare provider as being discretionary by the Court.   Subsection (c) states as follows:  “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.”  (Emphasis added.)   This Court has interpreted the word “grounds” for the dismissal as giving the Court discretion in whether or not to dismiss the action.   This Court has already ruled that the word grounds under Webster's English Discretionary is not mandatory by this statute, but gives the Court discretion as to whether or not to dismiss the action.   If it were otherwise, the wording would be “shall dismiss the action.”   Accordingly, this Court has discretion.

3. Is an Opinion by an Anesthesiologist (Physician) Sufficiently Similar to the Duties of a Certified Registered Nurse Anesthetist?  (Hereinafter also “CRNA”)?

The short answer is Yes.

Paragraph 28d of the complaint, Sixth Count, alleges that the nurse anesthetists did not communicate properly and timely with the anesthesiologist.   Certainly, an anesthesiologist would know whether the anesthetist failed to properly communicate on a timely basis information that the anesthesiologist would need.   You don't have to be an anesthetist to make that judgment.

It should also be noted that under Bennett v. New Milford Hospital, 117 Conn.App. 535, 548 footnote 9, the Court stated inter alia:

“In resolving the issues presented in this appeal, we need not address medical malpractice claims against institutional defendants.   We note, however, that there may be a gap in § 52-190a regarding such defendant 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.”  (The Court, therefore, in Bennett, supra, specifically limits its decision to healthcare providers who are physicians.   There is no question that the CRNA's were employees of the University of Connecticut Health Center and the State of Connecticut.)

4. Has a Case Been Made for Negligent Supervision in Count Seven?

The short answer is Yes.

In C.G.S. § 52-184c there is frequent reference to medical providers who are board certified.   Even though the anesthetists are called Registered Certified Nurse Anesthetists, that doesn't mean that they are board certified.

There are several Superior Court cases that hold that not every employee of the State has to be named, particularly at this stage of the proceedings, and there does not have to be a separate opinion for each.   The Court agrees with these opinions that were filed by Bellis, J., Berger, J., and Pitman, J., for whom the Court has respect as to their opinions.

Also, the plaintiffs in this case have only named the institutional defendant, the University of Connecticut Health Center and the State of Connecticut and have not named any hospital employee as a defendant.

All of that aside, the opinion by the anesthesiologist is sufficient for both counts because of his knowledge of the procedures that go on in an operating room in which he participates as an anesthesiologist.

There is no question that the plaintiffs have complied with the language and the spirit of C.G.S. § 52-190a which is designed to prevent frivolous medical malpractice claims.   As can be seen from the pleadings, these are not frivolous claims.

CONCLUSION:

For the foregoing reasons the Motion to Dismiss is denied.

Rittenband, JTR

FOOTNOTES

FN1. Further, the defendants have waived their right to object to the adequacy of the plaintiffs' written opinion under Practice Book § 10-32 by filing their motion to dismiss more than thirty days after their appearance and the defendants have waived their right to object to the adequacy of the plaintiffs' written opinion under the court's discretionary application of equitable principles of waiver by raising their objection an unreasonable time after the defect in the plaintiffs' opinion became reasonably knowable to the defendants..  FN1. Further, the defendants have waived their right to object to the adequacy of the plaintiffs' written opinion under Practice Book § 10-32 by filing their motion to dismiss more than thirty days after their appearance and the defendants have waived their right to object to the adequacy of the plaintiffs' written opinion under the court's discretionary application of equitable principles of waiver by raising their objection an unreasonable time after the defect in the plaintiffs' opinion became reasonably knowable to the defendants.

Rittenband, Richard M., J.T.R.