Vaughn Dunn et al. v. Alice Chen, M.D. et al. (2011)

MEMORANDUM OF DECISION OBJECTION TO OFFERS OF COMPROMISE

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2010, the plaintiff Vaughn Dunn filed three separate offers of compromise, pursuant to § 52-192a to each defendant, Dino G. Zacharakos, M.D.;   Anesthesia Associates of Southern Connecticut LLC;  Alice Chen, M.D.;   Coastal Orthopedics, P.C.;   and Norwalk Hospital Association.   Each offer of compromise from Vaughn Dunn was for five million dollars.   The plaintiff, Jane Dunn, also filed three separate offers of compromise pursuant to General Statutes § 52-192a, to each defendant, that is, Dino G. Zacharakos, M.D., Anesthesia Associates of Southern Connecticut LLC;  Alice Chen M.D.;   Coastal Orthopedics, P.C.;   and the Norwalk Hospital Association.   Each offer of compromise was for two million five hundred thousand dollars.   The defendants filed objections to the plaintiffs' offers of compromise:  Anesthesia Associates of Southern Connecticut LLC filed its objection on March 12, 2010;  Alice Chen M.D. and Coastal Orthopedics, P.C. filed their objection on March 16, 2010;  and Dino G. Zacharakos, M.D. and Norwalk Hospital Association filed their respective objections on March 19, 2010.   The plaintiffs, Vaughn and Jane Dunn, filed a reply to the defendants' objection on March 29, 2010.   By letter dated December 15, 2010, the plaintiff provided the court with case law as to the issue of extending the time to respond to the offers of compromise.

The facts of this case were recently recited in the court's memorandum of decision regarding the defendant Norwalk Hospital's motion to strike (Dunn v. Chen, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5008536, December 17, 2010, Brazzel-Massaro, J.) The court assumes familiarity with these facts.

The parties have requested that the court rule on the objections to the offers of compromise on the papers submitted.

DISCUSSION

Offers of compromise made by plaintiffs are governed by § 52-192a ¹ and Practice Book §§ 17-14 and 17-17.²  Section 52-192a(a) states in relevant part that “[a]fter commencement of any civil action based upon contract or seeking the recovery of money damages ․ the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain.” ³  According to the statute, the defendant, or their attorney, has thirty days ⁴ after being notified of the offer of compromise to “file with the clerk of the court a written acceptance of the offer of compromise agreeing to settle the claim underlying the action for the sum certain specified in the plaintiff's offer of compromise.”   If the defendant fails to act within the allowable thirty-day period, “the offer of compromise shall be considered rejected and not subject to acceptance unless refiled.”

Section 52-192a(b),⁵ contains the language which is the subject of the dispute by the parties, states in relevant part that, “[i]n the case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to subsection (a) of this section shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with authorization to disclose medical records ․ and disclose any and all expert witnesses who will testify as to the prevailing profession standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages.”   (Emphasis added.)   The court has outlined the requirements of subsection (b), stating that “[a] plain reading of the text of § 52-192a (b) requires a plaintiff to:  (1) specifically state in the offer of compromise all damages known to the plaintiff upon which the action is based;  (2) provide the defendant with an authorization to disclose medical records that meets the privacy provisions of HIPAA;  (3) disclose all expert witnesses who will testify as to the professional standard of care;  and (4) file with the court a certification that the plaintiff has provided each defendant with all documentation supporting such damages.”   Downs v. Trias, M.D., Superior Court, complex litigation, judicial district of Waterbury, X10 Docket No. CV 075009295 (August 11, 2009, Scholl, J.).

The defendants contend that the plaintiffs have failed to comply with § 52-192a(b), mainly with its requirement for the plaintiff to “state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.”   The defendants argue that without an IRS authorization to fully investigate the claim of damages for lost wages and loss of earning capacity of Vaughn Dunn;  and without a more specific claim of damages related to the cost of the care and treatment of the plaintiff, the defense counsel cannot recommend the compromise of the claim.   The plaintiffs contend that they have complied with the procedural requirements of § 52-192a(b) and § 17-14A.   The plaintiffs argue that they have listed all of their known damages with the requisite specificity, and to require more specificity would require an expert opinion which the plaintiffs are not required to provide at this stage of recovery.   Further, the plaintiffs state that it would be excessively burdensome to require the plaintiffs to produce any and all authorizations supporting their damages claims.   In sum, the plaintiffs contend that § 52-192a(b) does not require the plaintiffs to provide authorizations supporting damages other than the medical authorizations specifically required by the statute.

The court finds that the plaintiffs fulfilled the four statutory requirements for an offer of compromise pursuant to § 52-192a(b).  The first requirement regarding the specificity of the plaintiff's statement of damages is at issue between the parties and has been discussed herein in regard to the objection.   The plaintiffs have provided the medical damages and a recitation of all claims for damages.   The second requirement of providing the defendant with authorization to disclose medical records meeting the privacy requirements of HIPPA was fulfilled by the plaintiff, in that they provided the defendants with medical authorizations permitting the defendants to obtain medical records pertaining to Vaughn Dunn in letters from plaintiffs' counsel to the defendants' counsel dated October 8, 2008 and December 28, 2009 (Plaintiffs' reply to defendants' objections to offers of compromise Exhibit C).  Additionally, on December 28, 2009, pursuant to Practice Book § 13-4, the plaintiffs disclosed the standard of care expert witnesses, Dr. Jonathan R. Garvin, M.D., who may be called at trial to testify.   Lastly, on February 26, 2010, pursuant to § 52-192a(b), the plaintiffs filed the appropriate certification along with the offers of compromise.

In the offers of compromise, the plaintiff, Vaughn Dunn, claimed damages as a result of the defendants' negligence which included physical and mental pain and anguish, requirement of special care and assistance for the remainder of his life, loss of ability to enjoy life's activities, loss of earning and permanent loss of future earning capacity, and expenses which have and will be incurred for hospitalization, physicians' care, nursing care and other medical and supportive care.   The plaintiff, Jane Dunn, restated the damages of Vaughn Dunn, and additionally claimed damages for loss of consortium.   There is no case law which clarifies or interprets the language of § 52-192a(b) to require greater specificity than that which the plaintiffs in the present matter have already provided.   The plain language of the statute clearly requires the plaintiff to specifically state in the offer of compromise all damages known to the plaintiff upon which the action is based.   This requirement was fulfilled by the plaintiffs in the instant matter because the offer lists the damages known to them.   The plaintiffs are not mandated by the statue to acquire any further proof of the specific amount of damages particularly in this action where they would be required to have authorizations to IRS or estimates regarding the cost of care and treatment of the plaintiff Vaughn Dunn. This would require the plaintiffs to provide detailed discovery material that oftentimes would be subject to expert involvement.   This is contrary to the intent of an offer to compromise.

During the status conference on December 13, 2010, the defendants requested that as part of the ruling in relation to the objection to the offer of compromise that the court permit them an extension of time to respond if the court overrules the objections.⁶  The court invited counsel to provide legal authority as to this issue.   Counsel for the plaintiffs provided case law on the issue of whether the time to accept an offer of compromise, pursuant to § 52-192a may be extended by the Court.   Counsel for the defendants have not submitted a response or provided any case law in support of their position.

The case law is split as to the authority of the court to extend the time for response.   The majority of courts have found that the language is mandatory.⁷  See Prims v. Ciccarelli, M.D., Superior Court, judicial district of New Britain, Docket No. 05 5000530 (September 17, 2007, Shapiro, J.) [44 Conn. L. Rptr. 343] (denying defendant's extension of time and holding that the time limit is mandatory);  see also Cohen v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. 317327 (May 24, 1996 Levin, J.) [17 Conn. L. Rptr. 181];  Meyers v. Troncale, Superior Court, judicial district of New Haven, Docket No. 00 0439881 (January 2, 2002, Robinson, J.) [31 Conn. L. Rptr. 179];  Yi Lu Wu v. Lockhart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 07 5012213 (November 7, 2008, Bellis, J.) [46 Conn. L. Rptr. 571].   The court in Prims v. Ciccarelli, supra, noted that “[m]andatory time limitations ․ must be complied with absent an equitable reason for excusing compliance.”   The defendant in Prims argued that recent amendments to the time provision of § 52-192a established that an extension was warranted, as the changes to the statute did not apply to causes of action arising prior to October 1, 2005.

The court in Prims held that the defendant did not provide the requisite “compelling equitable reasons” for excusing compliance with the statutory time provision for response, and therefore overruled the request for extension of time.   The Prims court holding that an extension of time is permitted for equitable reasons has been recognized by other courts.   See Yi Lu Wu v. Lockhart, supra (reaffirming Prims v. Ciccarelli, excusing compliance with mandatory time limits for equitable reasons;  and granting defendant's motion for extension of time additional sixty days due to the defendant's aggressive efforts to be able to make a meaningful response to the offer, including pursuing discovery of the plaintiff, and the plaintiff's failure to produce medical records).

This court is persuaded to follow the majority, finding that the time limit is mandatory.   In so doing, the defendants must demonstrate that there are equitable reasons that would permit the extension of time.   Here, the plaintiffs submitted offers of compromise in February 2010, almost a year ago.   Unlike the defendants in Yi Lu Wu v. Lockhart, no action has been taken by the defendants since the objections were filed in March 2010 to address their concerns about responding to the offer.   Although almost a year has passed, the defendants appear to be in the same position for response as they were one year ago.   The defendants have an obligation to act diligently and pursue the appropriate discovery.   Given the offers of compromise, the defendants were responsible for obtaining any information through the discovery process that they believed necessary to respond although not required by the statute.   When evaluating the defendants' actions, it is important to note the purpose of § 52-192a, which is to “encourage pretrial settlements and, consequently, to conserve judicial resources ․ The strong public policy favoring the pretrial resolution of disputes ․ is substantially furthered by encouraging defendants to accept reasonable offers of judgment.”  (Internal quotations omitted).   Blakeslee Arpaia Chapman, Inc. v. EI Construction, Inc., 239 Conn. 708, 742, 687 A.2d 506 (1997).   In the present matter, the defendant's argument as to their objections as noted above are based upon a theory that has been decided contrary to the defendants' argument and contrary to the intent of an offer of compromise.   The purpose of an offer of compromise to encourage pre-trial settlements and conserving judicial resources would not be furthered by allowing the defendant more time to respond, especially since the defendants have allowed a significant amount of time to pass since the objections were filed before requesting adjudication.   The court cannot find that the defendants have provided an equitable basis for this court to extend the time for response to the offers of compromise.

CONCLUSION

Based upon the above, the court overrules the objection to the offers of compromise and finds the plaintiffs have satisfied the statutory requirements of § 52-192a(a) and (b).

The court finds that the defendants have failed to provide an equitable basis for extending the time to respond to the offer of compromise and therefore denies the request for an extension of time to respond to the offers of compromise.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. The Connecticut Supreme Court has held that the purpose of § 52-192a is to promote “fair and reasonable pretrial compromises of litigation by penalizing defendants who do not settle cases prior to trial.”  Nunno v. Wixner, 257 Conn. 671, 684, 778 A.2d 145, 153 (2001)..  FN1. The Connecticut Supreme Court has held that the purpose of § 52-192a is to promote “fair and reasonable pretrial compromises of litigation by penalizing defendants who do not settle cases prior to trial.”  Nunno v. Wixner, 257 Conn. 671, 684, 778 A.2d 145, 153 (2001).

FN2. Sections 17-14 through 17-17 of the Practice Book essentially restate the requirements for offers of compromise set forth in § 52-192a..  FN2. Sections 17-14 through 17-17 of the Practice Book essentially restate the requirements for offers of compromise set forth in § 52-192a.

FN3. The plaintiffs in the present matter have complied with the requirements of subsection (a), filing their offers of compromise on February 26, 2010, not earlier than one hundred eighty days after service of process was made upon the defendant on August 25, 2008..  FN3. The plaintiffs in the present matter have complied with the requirements of subsection (a), filing their offers of compromise on February 26, 2010, not earlier than one hundred eighty days after service of process was made upon the defendant on August 25, 2008.

FN4. It is important to note that “[t]he length of time available for the defendant to accept the offer [of compromise] was increased from thirty to sixty days by Public Act 01-71, and then decreased back to [the present period of] thirty days by Public Act 05-275.”   Yi Lu Wu v. Lockhart, Superior Court, judicial district of Fairfield, Docket No. 07 5012213S (November 7, 2008, Bellis, J.) [46 Conn. L. Rptr. 571]..  FN4. It is important to note that “[t]he length of time available for the defendant to accept the offer [of compromise] was increased from thirty to sixty days by Public Act 01-71, and then decreased back to [the present period of] thirty days by Public Act 05-275.”   Yi Lu Wu v. Lockhart, Superior Court, judicial district of Fairfield, Docket No. 07 5012213S (November 7, 2008, Bellis, J.) [46 Conn. L. Rptr. 571].

FN5. Practice Book § 17-14A sets forth the same requisite conditions as § 52-192a(b).  Section 17-14A mandates:  “[i]n a case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to Section 17-14 shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendants' attorney with an authorization to disclose medical records ․ and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages.”.  FN5. Practice Book § 17-14A sets forth the same requisite conditions as § 52-192a(b).  Section 17-14A mandates:  “[i]n a case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to Section 17-14 shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendants' attorney with an authorization to disclose medical records ․ and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages.”

FN6. The defendants submitted an objection to the offers of compromise in March 2010.   The defendants did not file a request for adjudication until November 2010 and thereafter on December 13, 2010, the parties raise the issue of having the court rule upon the objection..  FN6. The defendants submitted an objection to the offers of compromise in March 2010.   The defendants did not file a request for adjudication until November 2010 and thereafter on December 13, 2010, the parties raise the issue of having the court rule upon the objection.

FN7. In determining whether a statute is mandatory or discretionary, the court has looked to “whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ․ If it is a matter of substance, the statutory provision is mandatory.   If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.”  (Internal quotation marks omitted.)   Prims v. Ciccarelli, M.D., Superior Court, judicial district of New Britain, Docket No. 05 5000530 (September 17, 2007, Shapiro, J.) [44 Conn. L. Rptr. 343] (citing State v. Pare, 253 Conn. 611, 622-23, 755 A.2d 180 (2000))..  FN7. In determining whether a statute is mandatory or discretionary, the court has looked to “whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ․ If it is a matter of substance, the statutory provision is mandatory.   If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.”  (Internal quotation marks omitted.)   Prims v. Ciccarelli, M.D., Superior Court, judicial district of New Britain, Docket No. 05 5000530 (September 17, 2007, Shapiro, J.) [44 Conn. L. Rptr. 343] (citing State v. Pare, 253 Conn. 611, 622-23, 755 A.2d 180 (2000)).

Brazzel-Massaro, Barbara, J.