Lisa Cefaratti v. Johnathan Aranow, M.D. (2011)

RULING ON THE DEFENDANT'S MOTIONS TO DISMISS # 101 AND # 121 AND THE DEFENDANT'S OBJECTION TO THE PLAINTIFF'S REQUEST TO AMEND THE COMPLAINT # 120

I PROCEDURAL HISTORY

On August 18, 2010, the plaintiff, Lisa Cefaratti, filed a four-count complaint sounding in medical malpractice and vicarious liability against the defendants, Dr. Johnathan Aranow, Shoreline Surgical Associates and Middlesex Hospital.   Pursuant to General Statutes § 52-190a, the plaintiff filed both a certificate of good faith and an opinion letter written by a general surgeon who reviewed the medical records and concluded that the care delivered by Dr. Aranow and the staff of Middlesex Hospital was negligent.

On October 7, 2010, Middlesex Hospital (the defendant) moved to dismiss paragraphs 13b through 13f of count two of the complaint on the ground that the plaintiff did not file an opinion letter written by a registered nurse.   Specifically, the defendant argued that paragraphs 13b through 13f allege that the nursing staff negligently breached the standard of care, and an opinion letter written by a general surgeon is insufficient to comply with § 52-190a because a general surgeon and a nurse are not “similar health care providers” as contemplated by the statute.

On November 30, 2010, the plaintiff filed a request to amend the complaint to include an opinion letter from a registered nurse.   On December 15, 2010, the defendant filed an opposition to the plaintiff's request to amend the complaint and a motion to dismiss paragraphs 13b through 13f of the second count of the amended complaint on the ground that the second opinion letter does not satisfy the requirements on § 52-190a because it came into existence after the commencement of the action.   On December 21, 2010, the plaintiff filed a reply to the defendant's opposition to the plaintiff's motion to amend and a memorandum in opposition to the defendant's motion to dismiss.

II DISCUSSION

A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating “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).  “A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim ․ However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy ․” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).  “[A]n action is subject to dismissal under [General Statutes [§ 52-190a(c) ] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066, cert. granted in part, 294 Conn. 916, 983 A.2d 849 (2009).

Furthermore, as the purpose of § 52-190a is to prevent groundless suits against health care providers, the plaintiff must obtain the opinion letter prior to the commencement of the action.  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 585-86.   Consequently, a plaintiff cannot amend the complaint and attach an opinion letter that did not exist at the time the action was commenced.   Duran v. Alias, Superior Court, judicial district of Waterbury, Docket No. CV 095014109 (February 25, 2010, Gallagher, J.) (49 Conn. L. Rptr. 394, 396);  see also Moore v. Southern Connecticut Internal Medicine, Superior Court, judicial district of New Haven, Docket No. CV 095028093 (November 6, 2009, Zoarski, J.) (dismissed plaintiffs malpractice action because original complaint lacked good faith certificate and opinion letter and opinion letter attached to amended complaint was dated one month after commencement of the action).

Nevertheless, an opinion letter is sufficient for a medical institution if it is sufficient for an agent or employee of that institution;  Strickland v. The Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (September 27, 2010, Swienton, J.) [50 Conn. L. Rptr. 641];  cf.   Royal v. Mancuso, Superior Court, judicial district of New Britain, Docket No. CV 09 5013496 (December 2, 2010, Young, J.).   It follows that “a plaintiff may file an amended complaint with a letter from a similar health care provider as long as the original complaint included a letter that reasonably complied with the statute.”   Dixon v. Med Now Family Walk-In & Industrial Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 08 5014898 (February 25, 2010, Gilardi, J.T.R.) (49 Conn. L. Rptr. 407, 409).

To reiterate, the defendant argues that the court should grant its motion to dismiss the aforementioned paragraphs in the original complaint because the plaintiff alleged negligence against the nursing staff and did not file an opinion letter written by a registered nurse.   It further argues that the court should dismiss the amended complaint because the opinion letter filed with that complaint came into existence after the commencement of the action.   In response, the plaintiff counters that the opinion letter filed with the original complaint sufficiently complies with § 52-190a, and even if that letter was insufficient, she properly attached an additional letter from a similar health care provider to her amended complaint.

The defendant's first argument is similar to the argument made by the defendant hospital in Barzottini v. Freedman, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019457 (March 13, 2009, Hiller, J.).   In that case, the hospital moved to dismiss the plaintiff's malpractice complaint on the ground that the opinion letter was written by a physician rather than a nurse, and the complaint contained allegations regarding nursing care.   The court, Hiller, J., observed that, while the Appellate Court has yet to address this issue, the Superior Court has repeatedly held that in an action in which the alleged medical malpractice of a hospital or similar entity is premised on the conduct of its individual physicians, a written opinion that only addresses the negligence of the physicians is sufficient to withstand a motion to dismiss,” and held that the opinion letter was sufficient to satisfy the requirements of § 52-190a.

As in Barzottini, the opinion letter written by the general surgeon and attached to both the original complaint and the amended complaint sufficiently addresses the alleged negligence of Dr. Aranow, who the plaintiff alleges acted as an agent of Middlesex Hospital.   That letter is, therefore, sufficient to satisfy the requirements of § 52-190a for the defendant.   Furthermore, the case relied on by the defendant, Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) (49 Conn. L. Rptr. 162), can be distinguished from the present case.   In that case, the court concluded the opinion letter, which was written by a physician, did not sufficiently comply with § 52-190a because the alleged negligence was attributable to a physician's assistant.  Id., 165.   By contrast, the opinion letter in the present case satisfies the requirements of § 52-190a for Dr. Aranow, and for the reasons previously stated, is, therefore, sufficient for Middlesex Hospital.

Finally, as the plaintiff's original complaint included an opinion letter that complied with § 52-190a, the plaintiff may properly amend her complaint and include an opinion letter from a registered nurse, even though that letter came into existence after the plaintiff commenced the present action.   See Dixon v. Med Now Family Walk-In & Industrial Medical Center, supra, 49 Conn. L. Rptr. 409.

Accordingly, the court denies the defendant's motions.

III CONCLUSION

The court denies all of the defendant's motions.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.