Christine Royal v. Judith Mancuso et al. (2010)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS

BACKGROUND:

In this medical malpractice action, the plaintiff, Christine Royal, alleges as follows:  on July 18, 2007, she presented to the defendant, Hartford Medical Group [HMG], for a physical examination.   HMG's employee, defendant Judith Mancuso administered a hepatitis A shot to the plaintiff and left the plaintiff sitting alone on an examining table.   Subsequently, the plaintiff felt nauseous and fainted, falling to the floor, sustaining injuries.

Pursuant to General Statutes § 52-190a(a), the plaintiff filed a certificate of good faith with her complaint, together with a written opinion authored by a registered nurse who is “familiar with the standard of care as it related to the practice of nursing in the year of 2007 in the United States.”   The author further opined that the defendants committed medical negligence in the care and treatment of the plaintiff.

The defendants have moved to dismiss the complaint, claiming the written opinion was not by a “similar health care provider,” as required by General Statutes § 52-190a.   The basis of the defendants' claim is that the defendant Mancuso is a licensed practical nurse and the opinion's author is a registered nurse.

LEGAL STANDARD OF REVIEW:

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).

The standard governing a trial court's review of a motion to dismiss is well established.  “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).

“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.”  (Citations omitted;  internal quotation marks omitted.)  Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998).  “A claim that [the] court lacks subject matter jurisdiction [may be raised] at any time.”  (Internal quotation marks omitted.)  Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396 (1998).  “Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Citations omitted;  internal quotation marks omitted.)  Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).  “The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  Fink v. Golenbock, 238 Conn. 183, 199 n.13, 680 A.2d 1243 (1996).

When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light.   In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.   If the defendant submits no proof to rebut the plaintiff's jurisdictional allegations, the plaintiff need not supply evidence to support the complaint, but may rest on the jurisdictional allegations therein.  Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).

In particular, if the plaintiff has failed to comply with General Statutes § 52-190a(c), dismissal is the remedy.  Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 581-85, cert. denied, 292 Conn. 911 (2009).

ANALYSIS:

General Statutes § 52-190a states, in relevant part, “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.”

Connecticut General Statutes § 52-184c(b) is the relevant section where the expert is not board certified or does not hold herself out as a specialist.   In such instance, 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.”

Starkly put, the ultimate issue is whether a registered nurse is a health care provider similar enough to a licensed practical nurse to meet the requirements of General Statutes §§ 52-184c(b) and 52-190a.   There is not yet appellate authority on this issue which, it bears noting, concerns § 52-184c(b), not § 52-184c(c).¹  The court has reviewed approximately twenty trial court decisions in which the defendants contested a non-specialty, non-board certified opinion based upon § 52-184c(b).  None of these dealt with the issue of a claim that a registered nurse is a similar health care provider to a licensed practical nurse.   Based on the opinion submitted by the plaintiff with the complaint, the court does not reach that ultimate issue.

“The [legislative] purpose of § 52-190a is to discourage the filing of baseless lawsuits against health care providers.”  LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990).   The plaintiff has obtained the opinion of a registered nurse, whose educational requirements presumably exceed that of a licensed practical nurse.²  Nevertheless, the opinion must meet the requirements of the statute.

There are two prongs to be met in establishing an expert as a “similar health provider” in General Statutes § 52-184c(b).  “[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.”

I.

As to the first prong, the relevant portion of this statute states, “[A] ‘similar health care provider’ is one who ․ is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications ․” Both licensed practical nurses and registered nurses are licensed by the Connecticut Department of Public Health.  General Statutes § 20-93.   The plaintiff argues that General Statutes § 52-184c(b) provides for an opinion from an expert with “the same or greater qualifications.”   The defendant argues that this language refers to qualifications of another state.   The court agrees with the interpretation of the defendant.   A plain reading of this language is that a similar health care provider is one who is licensed in this state or is licensed in another state which requires the same or greater qualification.   It is not ambiguous.  “We will not torture language to find an ambiguity that the ordinary meaning does not disclose however, and simply because the parties contend for different meanings does not necessitate a conclusion that the language is ambiguous.”  Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 60, 588 A.2d 138 (1991).   To interpret the statute to mean that a similar health care provider is someone licensed in this state with the same or greater qualifications would torture the plain meaning of the statute.

However, none of that matters.   There is no language contained in the first prong which is exclusive when both the defendant and the other health care provider are licensed by the Connecticut Department of Public Health, as is the case here.   However, the plaintiff's opinion writer has failed to state that he or she is licensed by the Connecticut Department of Health.   If the writer is not licensed by Connecticut, the writer has not stated he or she is licensed by another state which requires the same or greater qualifications.   The court cannot speculate as to this requirement.   The plaintiff's opinion writer has failed to sufficiently meet the first prong of § 52-184c(b).  Upon that basis alone, the complaint is subject to dismissal.  General Statutes § 52-190a.

II.

The second prong of § 52-184c(b) requires that the similar health care provider be “trained and experienced in the same discipline or school of practice.”

Clearly, the plaintiff's registered nurse is not of the same school of practice as the defendant licensed practical nurse.   A registered nursing license requires at least two years of instruction, PHC § 20-90-46(a), and a registered nurse may perform a variety of functions under the direction of a licensed physician, dentist or advanced practice registered nurse.  General Statutes § 20-87a(a).   In contrast, the requirement for a license as a practical nurse is 12 months of instruction, General Statutes § 20-96, and a licensed practical nurse may perform selected tasks and sharing of responsibility under the direction of a registered nurse or an advanced practice registered nurse.  General Statutes § 20-87a(c).  In much the same way as a physician's assistant is not of the same school of practice as a physician, a licensed practical nurse is not of the same school of practice as a registered nurse.

That leaves the question of whether licensed practical nurses and registered nurses are “trained and experienced in the same discipline.”   This is the position of the plaintiff.

In Ogden v. Marlborough Health Care Ctr., Superior Court, Judicial District of New Britain, CV 09-5014553-S (May 26, 2010), Judge Swienton opined that a registered nurse was a similar health care provider to a certified nurse's aide.   In making that determination, the court examined the statutory criteria for each practitioner and found sufficient overlap.  “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).”

Key to Judge Swienton's decision to accept the registered nurse's opinion letter was the detail in the opinion letter as to the qualifications of the registered nurse as they related to the allegations against the certified nurse's aide.   In that case, the opinion writer had been a registered nurse for over ten years, had vast management experience in the related area and a number of certifications, along with other criteria.  Id.

Judge Lager had the same issue.   In Bell v. Hospital of St. Raphael, Superior Court, Judicial District of New Haven, CV-09-5032167S (May 25, 2010), the plaintiff submitted an opinion by a registered nurse in a medical malpractice action against a medical institution.   The opinion appears to be very similar to the one submitted in the present action as to setting forth the registered nurse's qualifications.   After first noting the two-prong requirement, Judge Lager stated:

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”).

In the present action, the only criteria set forth by the opinion writer is that the writer is a registered nurse and is familiar with the standard of care as it relates to the practice of nursing in 2007.   The opinion does not reveal the status of the writer's licensing, education, training or experience in the field occupied by the defendant.   The opinion does not even set forth that the writer's training and experience resulted from “the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the complaint” as set forth in the second prong of § 52-184c(b).

If this court was inclined to follow the reasoning of Judge Swienton in Ogden, supra, and hold that a registered nurse is a similar practitioner to a licensed practical nurse, it cannot do so based upon this particular opinion.   The court cannot infer the knowledge, training and experience of the opinion writer is sufficient or overlapping with that of the defendant to determine that the opinion writer is trained and experienced in the same discipline.   Without such information, the court is constrained to dismiss the plaintiff's complaint.

III

As the alleged liability of the institutional defendant, Hartford Medical Group, is vicarious in nature, the insufficiencies of the opinion letter equally apply to the claim against that defendant.   If the written opinion letter is sufficient as to at least one of the agents, servants and/or employees of an institutional defendant, the letter satisfies the requirements of § 52-190a.   See, Wilkins v. Connecticut Childbirth, Superior Court, Judicial District of Danbury, No. CV 09 5007713 S (Marano, J., Apr. 7, 2010) [49 Conn. L. Rptr. 655].   Here, the opinion letter is insufficient as to the employee of the institution.   The complaint as to the defendant, Hartford Medical Group is dismissed as well.

CONCLUSION:

The defendants' motion to dismiss is granted.

Robert E. Young, Judge

FOOTNOTES

FN1. General Statutes § 52-184c(c) concerns those experts who are board certified or hold themselves out as specialists..  FN1. General Statutes § 52-184c(c) concerns those experts who are board certified or hold themselves out as specialists.

FN2. General Statutes § 20-87a(a) defines a registered nurse as follows:The practice of nursing by a registered nurse is defined as the process of diagnosing human responses to actual or potential health problems, providing supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen, and executing the medical regimen under the direction of a licensed physician, dentist or advanced practice registered nurse.[P.A. 10-117 has amended this statute.   However, the amendment does not affect the issue presented here.]General Statutes § 20-87a(c) defines a licensed practical nurse as follows:The practice of nursing by a licensed practical nurse is defined as the performing of selected tasks and sharing of responsibility under the direction of a registered nurse or an advanced practice registered nurse and within the framework of supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen and executing the medical regimen under the direction of a licensed physician or dentist..  FN2. General Statutes § 20-87a(a) defines a registered nurse as follows:The practice of nursing by a registered nurse is defined as the process of diagnosing human responses to actual or potential health problems, providing supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen, and executing the medical regimen under the direction of a licensed physician, dentist or advanced practice registered nurse.[P.A. 10-117 has amended this statute.   However, the amendment does not affect the issue presented here.]General Statutes § 20-87a(c) defines a licensed practical nurse as follows:The practice of nursing by a licensed practical nurse is defined as the performing of selected tasks and sharing of responsibility under the direction of a registered nurse or an advanced practice registered nurse and within the framework of supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen and executing the medical regimen under the direction of a licensed physician or dentist.

Young, Robert E., J.