Vernon J. Leftridge, Jr. v. Christopher DiPasquale et al. (2010)

MEMORANDUM OF DECISION MOTION(S) TO DISMISS (NOS. 102, 104, AND 113)

The plaintiff, Vernon Leftridge, Jr., has brought a medical malpractice action which alleges that the defendant Michael E. Joyce a physician, and two physical therapists, Christopher DiPasquale and Adam Morgan, were negligent in treatment resulting from a ruptured Achilles' tendon.

Specifically, the plaintiff alleges that he had surgery performed by Dr. Joyce on or about June 5, 2008.   It is further alleged that Dr. Joyce failed to properly treat the Achilles' tendon, failed to perform an MRI exam, failed to diagnose a subsequent rupture of the tendon, and failed to monitor the progress of the plaintiff in physical therapy.   With respect to the defendants DiPasquale and Morgan, the allegations are essentially that they performed improper therapy which resulted in injury to the plaintiff.

The complaint alleges that “Doctor Kenneth R. Alleyne, Doctor Torry Westbrook and other healthcare providers will testify at trial and offer testimony.   Dr. Alleyne, is the orthopedic who discovered the re-injury as well as my former primary healthcare physician who cared for me after the discovery of negligence physical therapy treatments(sic).”

The defendants have each filed separate Motions to Dismiss and memoranda in support of those motions.   Briefly stated, the grounds of the motions are similar in that each claim that the plaintiff has failed to perform the “good-faith inquiry” required by Section 52-190a of the Connecticut General Statutes and failed to attach the required certificate containing a detailed written report by a similar healthcare provider expressing an opinion as to medical negligence.

Section 52-190a(a) mandates that before filing a personal injury action against a health care provider, 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 ․”

Further, the statute provides that the “complaint, initial pleading or apportionment 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 ․” General Statutes § 52-190a(a).

Up to the time of its amendment in 2005, the statute did not require a plaintiff to include with the complaint a written opinion of a similar health care provider attesting to a good faith basis for the action.   But as of October 1, 2005, the statute was amended by P.A. 05-275 to require, as a demonstration of good faith, that plaintiffs or their counsel, prior to filing suit, “ ․ obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and [which] 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.”   See Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009).

In this case, there is no certificate of good faith inquiry.   Nor is there a written opinion attached to the Complaint.

The only medical documentation in the file is in the form of two medical reports attached to the Plaintiff's Objection to the Motions to Dismiss.   The first is what appears to be a report of an MRI exam performed on July 30, 2009, by Connecticut Valley Radiology, PC. This report is void of any reference to negligence.   The report simply states the conclusion that there is “[e]vidence of Achilles tendon repair with tendinopathy and suspected recurrent intrasubstance tear ․” An examination of the report shows that it is in no way intended to be an opinion pursuant to the requirements of Section 52-190a.   The second document contained in this file is entitled “Medical Certificate.”   The caption of the document states “To be used by employee seeking family leave to care for a spouse, child, or parent with a ‘serious health condition/serious illness.’  “ Again, the document contains no opinion as to negligence.   Further, the doctor who appears to have signed the document, Dr. Alleyne, is not identified by specialty or area of practice and therefore, the document does not conform in any way to the requirements of the statue.

Accordingly, the Motion To Dismiss of the defendant Michael Joyce, M.D. is hereby GRANTED.   The Motion To Dismiss of the defendant Adam Morgan is hereby GRANTED.   The Motion To Dismiss of the defendants Christopher DiPasquale and Performance Physical Therapy and Sports Medicine is hereby GRANTED.

Robaina, J.

Robaina, Antonio C., J.