Julio Matos, Administrator v. Midstate Medical Center et al. (2011)

MEMORANDUM OF DECISION

FACTS

On June 30, 2010, Julio Matos, individually and in his capacity as the administrator of the estate of Josephina Matos, filed an eight-count complaint ¹ against the defendants, MidState Medical Center (MidState), Meriden-Wallingford Anesthesia Group, P.C. (MWA), Keith Boldon, a board certified anesthesiologist, and David Moskal, a certified registered nurse anesthetist (CRNA).²  The complaint alleges that on July 22, 2008, Josephina Matos, the decedent, presented herself to MidState for the removal of kidney stones.   The surgery required total intravenous anesthesia.   During the course of the procedure, the decedent experienced complications which required emergency resuscitative efforts.   At some point during the surgery, the decedent suffered severe and permanent brain injuries which eventually caused her death on February 2, 2010.   The complaint alleges that the defendants were negligent in the following ways:  failure to properly evaluate and determine anesthesia requirements and risks;  failure to properly monitor during procedure;  failure to timely recognize and treat the decedent's bradycardia;  failure to timely recognize and treat the decedent's respiratory depression;  failure to timely recognize and treat the decedent's hypoxia, and failure to properly and/or timely resuscitate the decedent.   The complaint further alleges that Boldon failed to properly supervise the agents, servants and/or employees of MidState and MWA that were involved in monitoring decedent for purposes of providing appropriate anesthesiological care and that he failed to properly supervise the agents, servants and/or employees of MidState and MWA who actually provided anesthesia services to the decedent.   The counts against MidState and MWA are alleged under a theory of vicarious liability for their staff, including Boldon and Moskal.

To comply with the requirements of General Statutes § 52-190a for filing a medical malpractice action, the plaintiff attached to the complaint a certificate of good faith and a letter from a physician certified in anesthesiology, who stated that Boldon, Moskal and the staff of MidState and MWA had violated various standards of care in the treatment of the decedent.

On July 20, 2010, Boldon, Moskal and MWA filed separate motions to dismiss, with supporting memoranda of law, on the grounds that the plaintiff failed to comply with the requirements of § 52-190a.   Boldon and MWA filed their motions on the ground that the opinion letter does not contain a sufficiently detailed statement of the claims.   Moskal filed his motion to dismiss on the grounds that the opinion letter does not contain a sufficiently detailed statement of the claims and that the opinion writer is not a similar health care provider as is required by § 52-184c.   MidState's motion to dismiss, filed on July 23, 2010 with a supporting memorandum of law, seeks to dismiss the first count of the complaint on the ground that the plaintiff's written opinion from an anesthesiologist is insufficient as to Moskal and the unnamed staff of MidState, who may not be physicians.

The plaintiff filed objections to Boldon, Moskal and MWA on September 24, 2010 and to MidState on October 4, 2010.   MidState filed a reply to the plaintiff on October 14, 2010.   Boldon, Moskal and MWA filed a joint reply to the plaintiff on October 15, 2010.   The matter was heard at short calendar on November 1, 2010.

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, 294 Conn. 916, 983 A.2d 849 (2009).

The defendants raise three grounds for dismissal.   First, Boldon, Moskal and MWA argue that the opinion letter is not sufficiently detailed because it does not indicate:  (1) the appropriate standard of care that should have been used;  (2) the documents reviewed;  (3) which defendant is implicated;  (4) how the author comes to his conclusions;  and (5) what the defendants failed to do.   Additionally, Moskal argues that an anesthesiologist is not similar to a CRNA as is contemplated by General Statutes § 52-184c(b).  Third, MidState argues that, though the opinion letter is sufficient as to Boldon, it is not sufficient as to the other MidState staff who are mentioned in the complaint.   MidState asserts that written opinions should have been attached for those other staff members.

In his objections to the motions to dismiss, the plaintiff counters that:  (1) as to Boldon, Moskal and MWA, the opinion letter is sufficient and that the defendants are seeking information that will be available through discovery;  (2) as to Moskal, the opinion writer is qualified to submit an opinion because he has “the same or greater qualifications;” and (3) as to MidState, the written opinion is sufficient as to Moskal and that there is no requirement that the plaintiff provide a written opinion for each type of health care provider.

In its reply, MidState asserts that the opinion writer fails to satisfy the “trained and experienced in the same discipline or school of practice” condition of § 52-184c(b) and that additional opinions should have been submitted by a CRNA and a nurse.   The reply by Boldon, Moskal and MWA refutes the plaintiff's objections.

A. Motion to Dismiss as to Boldon

Boldon asserts that the suit should be dismissed because the opinion letter fails to provide sufficient detail as is required by § 52-190a.  Section 52-190a(a) provides in relevant part:  “[T]he 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 ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

The Connecticut Appellate Court in Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010), recently addressed the issue of the level of detail required to render an opinion letter sufficient under § 52-190a.   In that case, the letter opined that “to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of [the plaintiff] provided by [the defendant] and that the care and treatment provided by [the defendant] was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident.”  (Internal quotation marks omitted.)  Id., 811.   The author further opined that the defendant “failed to prevent injury to [the plaintiff's] biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure ․” (Internal quotation marks omitted.)  Id. The court found that the structure of the document was sufficient to reveal the writer's statement of the prevailing standard of care and that it was sufficient to notify the reader that a similar health care provider believed that there was medical negligence.  Id., 815-16.   Moreover, the court held that “[s]o long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint ․ the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose.”  Id., 816.

In the present case, the author of the opinion letter states that he is “familiar with the standard of care for physicians who are practicing in the field of anesthesiology.”   He further states that after a review of the medical files of Josephina Matos, he finds that the “standard of care was violated in the following manner ․ [t]he anesthesia team failed to thoroughly and properly evaluate the patient's risk for respiratory insufficiency during sedation ․ failed to properly monitor the patient and failed to promptly recognize and treat the patient for respiratory depression which resulted in the patient suffering from severe hypoxia [and] ․ failed to accurately document the patient's condition on the anesthesia record.”   The structure of the author's opinion reveals the prevailing standard of care.  Wilson v. Schwartz, supra, 119 Conn.App. 815.   As the complaint alleges that Boldon was negligent in his failure to properly evaluate and determine anesthesia requirements and risks, to properly monitor during the procedure;  and to recognize and treat the decedent's bradycardia, respiratory depression and hypoxia in a timely fashion, the opinion letter sufficiently addresses the allegations of the complaint, and thus, is detailed enough to satisfy the statute and the statute's purpose.  Id., 816.   Thus, the opinion letter is sufficiently detailed as to Boldon, and therefore, the motion to dismiss is denied.

B. Motion to Dismiss as to Moskal

Moskal argues that the author of the opinion letter, an anesthesiologist, is not a similar health care provider to a CRNA and that the letter is not sufficiently detailed.   When the defendant health care provider is “neither board certified nor in some way a specialist,” the qualifications for whether an opinion writer is a similar health care provider is established by § 52-184c(b).  Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011).   Section 52-184c(b) states in relevant part:  “[A] ‘similar health care provider’ is one who:  (1)[i]s 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.”

Pursuant to General Statutes § 20-94a(a), a CRNA is an advanced practice registered nurse (APRN) who:  “(1) [m]aintains a license as a registered nurse in this state ․ (2) holds and maintains current certification as ․ a nurse anesthetist from ․ the American Association of Nurse Anesthetists ․ (3) has completed thirty hours of education in pharmacology for advanced nursing practice;  and (4) if first certified by one of the foregoing certifying bodies after December 31, 1994, holds a master's degree in ․ a ․ field recognized for certification as ․ a nurse anesthetist by one of the foregoing certifying bodies.”

Once certified, a CRNA, pursuant to General Statutes § 20-94b, “may prescribe, dispense and administer drugs, including controlled substances in schedule II, III, IV, or V. An advanced practice registered nurse licensed pursuant to section 20-94a who does not maintain current certification from the American Association of Nurse Anesthetists may prescribe, dispense, and administer drugs, including controlled substances in schedule IV or V, except that such an advanced practice registered nurse may also prescribe controlled substances in schedule II or III that are expressly specified in written collaborative agreements pursuant to subsection (b) of section 20-87a.”   Additionally, General Statutes § 20-87a provides that a CRNA can perform “acts of diagnosis and treatment of alterations in health status, as described in subsection (a) of this section, and shall collaborate with a physician licensed to practice medicine in this state.   In all settings, the advanced practice registered nurse may, in collaboration with a physician licensed to practice medicine in this state, prescribe, dispense and administer medical therapeutics and corrective measures and may request, sign for, receive and dispense drugs in the form of professional samples in accordance with sections 20-14c to 20-14e, inclusive, except that an advanced practice registered nurse licensed pursuant to section 20-94a and maintaining current certification from the American Association of Nurse Anesthetists who is prescribing and administrating medical therapeutics during surgery may only do so if the physician who is medically directing the prescriptive activity is physically present in the institution, clinic or other setting where the surgery is being performed.   For purposes of this subsection, ‘collaboration’ means a mutually agreed upon relationship between an advanced practice registered nurse and a physician who is educated, trained or has relevant experience that is related to the work of such advanced practice registered nurse.”

Thus, like an anesthesiologist, a CRNA must be skilled in the administration of anesthesia, have obtained advanced education in anesthesiology and be registered by the state.   Like an anesthesiologist, a CRNA can independently administer anesthesia.   Moreover, an anesthesiologist is suited to collaborate with a CRNA because the physician is “educated, trained or has relevant experience that is related to the work of a CRNA. Accordingly, an anesthesiologist is “trained and experienced in the same discipline or school of practice,” namely, anesthesiology.³

Thus, in the present case, the author of the opinion letter is a similar health care provider as it pertains to Moskal.⁴  Furthermore, as was found above, the letter is sufficiently detailed.   Therefore, the motion to dismiss as to Moskal is denied.

C. Motion to Dismiss as to MidState and MWA

MidState asserts that the plaintiff has not complied with § 52-190a because, though conceding that the letter supplied is sufficient as to Boldon, the plaintiff has not provided opinion letters from a CRNA and a nurse.   MWA argues that the opinion letter is not sufficiently detailed as to the employees of MWA. Connecticut's Appellate Court has not reached the issue of whether a single opinion letter is sufficient to attest to institutional defendant's vicarious liability for the actions of other, unnamed hospital staff, and Superior Court decisions are not unanimous.   The majority of decisions, however, hold that the written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution.  “The statute does not require the plaintiff to identify the name of each individual who acted on behalf of a corporate defendant, either in the complaint or in the written opinion.   Nor does the statute presuppose that the opinion expressed in writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit.   Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions.”   Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.).   See also Strickland v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (September 27, 2010, Swienton, J.) [50 Conn. L. Rptr. 641];  DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 06 5010472 (August 5, 2008, Berger, J.) (46 Conn. L. Rptr. 121);  Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007, Scholl, J.) (44 Conn. L. Rptr. 347);  Hernandez v. Moss, supra, Superior Court, Docket No. CV 06 5000664;  Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.) (“It would be unwieldy at best ․ to have a blizzard of opinion letters from a physician, a physician's assistant and a nurse all opining, probably hypothetically, about evidence of negligence”);  Sarfatti v. Hoffman, Superior Court, judicial district of New Britain, Docket No. CV 06 5000903 (August 18, 2006, Robinson, J.) (“if a health care provider's statement demonstrates that grounds exist for an action against a defendant without specifically naming such defendant, the statement establishes the requisite foundation for the attorney's certificate, and, therefore, comports with the statutory requirements”).   But see London v. Jiminez, Superior Court, judicial district of Hartford, Docket No. CV 07 5011354 (March 27, 2008, Miller, J.) (45 Conn. L. Rptr. 251) (holding that separate opinion letters are required when allegations of negligence against medical institution go beyond its vicarious liability for negligence of health care provider for whom proper opinion letter exists);  Behling v. Aronow, supra, Superior Court, Docket No. CV 06 5001692 (in dicta:  “If the allegations of the complaint indicated that the alleged negligence arose from other areas of medical care provided by the hospital then an opinion by an obstetrician/gynecologist might not meet the requirements, but that is not the case here”).

The court agrees with the reasoning of the majority of decisions which hold that if a written opinion is sufficient for at least one agent or employee of a medical institution, it is sufficient for the medical institution under a theory of vicarious liability.   Since MidState concedes that the opinion letter is sufficient as to Boldon and the court has found that the opinion letter is sufficient as to Boldon and Moskal the court need not find that an opinion letter is needed for other employees at MidState and MWA. Thus, the motions to dismiss as to Midstate and MWA are denied.

CONCLUSION

For the foregoing reasons, the motions to dismiss are denied.

Woods, J.

FOOTNOTES

FN1. The plaintiff filed an amended complaint on December 22, 2010.   On January 13, 2011, MidState filed a timely objection to the amended complaint, which appeared on the non-arguable calendar on January 24, 2011.   The court, Silbert, J., marked this objection off to give the parties additional time to respond.   As the objection has not been ruled on, the operative complaint remains the original complaint.   See Estrada v. Stamford Board of Education, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 06 5002313 (November 19, 2010, Tobin, J.).  FN1. The plaintiff filed an amended complaint on December 22, 2010.   On January 13, 2011, MidState filed a timely objection to the amended complaint, which appeared on the non-arguable calendar on January 24, 2011.   The court, Silbert, J., marked this objection off to give the parties additional time to respond.   As the objection has not been ruled on, the operative complaint remains the original complaint.   See Estrada v. Stamford Board of Education, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 06 5002313 (November 19, 2010, Tobin, J.)

FN2. Counts one through four consist of a cause of action for negligence.   Counts five through eight consist of a cause of action for loss of consortium.   Each defendant is alleged to be guilty of negligence and loss of consortium..  FN2. Counts one through four consist of a cause of action for negligence.   Counts five through eight consist of a cause of action for loss of consortium.   Each defendant is alleged to be guilty of negligence and loss of consortium.

FN3. The court in Fontaine v. Clement, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005261 (October 22, 2007, Alvord, J.) [44 Conn. L. Rptr. 471], came to a different conclusion.   That decision, however, was based on the premise that § 52-184c(c) applied to a CRNA. It is submitted, and the parties do not contest, that the appropriate subsection to apply to an opinion letter for a CRNA is § 52-184c(b)..  FN3. The court in Fontaine v. Clement, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005261 (October 22, 2007, Alvord, J.) [44 Conn. L. Rptr. 471], came to a different conclusion.   That decision, however, was based on the premise that § 52-184c(c) applied to a CRNA. It is submitted, and the parties do not contest, that the appropriate subsection to apply to an opinion letter for a CRNA is § 52-184c(b).

FN4. The parties, in their briefs and at oral arguments, argued whether the opinion writer has the “same or greater qualifications” as Moskal.   The reference in § 52-184c(b)(1) refers to the requirements for licensure of the regulatory agency in another state.   If an opinion writer is licensed in another state, the licensing qualifications in that state must be the same or greater than those required by Connecticut.   Since the arguments raised under subsection (1) are misplaced, it is submitted that the court will not consider them..  FN4. The parties, in their briefs and at oral arguments, argued whether the opinion writer has the “same or greater qualifications” as Moskal.   The reference in § 52-184c(b)(1) refers to the requirements for licensure of the regulatory agency in another state.   If an opinion writer is licensed in another state, the licensing qualifications in that state must be the same or greater than those required by Connecticut.   Since the arguments raised under subsection (1) are misplaced, it is submitted that the court will not consider them.

Woods, Glenn A., J.