Steven Dallon, Administrator of the Estate of Judith Dallon v. Bristol Hospital et al. (2011)

MEMORANDUM OF DECISION ON MOTIONS TO DISMISS

The plaintiff brings this medical negligence action sounding in wrongful death as a result of the death of Judith Dallon.   The plaintiff alleges that the decedent's treatment when she presented to the defendant Bristol Hospital fell below the applicable standard of care.   Her care was overseen by the defendant Mark Safalow, M.D.

The dispute in this motion to dismiss centers on whether the plaintiff met the requirements of Conn. Gen.Stat. § 52-190a(a) by obtaining an opinion of negligence written by a similar health care provider before commencing this action.   The original summons and complaint in this matter had no written opinion from any health care provider appended to it when it was served on the defendants on March 17, 2010.   The return date on the summons was April 13, 2010.

On May 11, 2010, the two defendants, having appeared by counsel, each filed a Motion to Dismiss, raising as a grounds for dismissal the failure to append a written opinion of negligence.

Thereafter on May 12, 2010, the plaintiff filed a Notice of Filing an Amended Complaint as of Right, pursuant to Conn. P.B. 10-59.   The Amended Complaint included a written opinion letter signed by James Boffa, M.D., whom the plaintiff alleged to be a similar health care provider.   The written opinion was not dated.

The defendants each amended their motions to dismiss, alleging that the plaintiff's amended complaint was of no effect because an amendment could not cure the original defect of failure to append the written opinion to the complaint when it was first served.   The defendants also raised two other issues:  (I) whether the written opinion had in fact been obtained before the action was commenced, as required by-the statute;  and (2) whether the author of the written opinion was a “similar health care provider” to the defendant Mark Safalow.   Thereafter, both sides filed various affidavits and written memoranda addressing these issues.

Meanwhile however the law was in flux.   While a number of Superior Court judges (including the undersigned) had held that “similar” did not imply “identical” relative to the specialty of the health care provider, the Appellate Court disagreed, holding in Bennett v. New Milford Hospital, 117 Conn.App. 535, 979 A.2d 1066 (2009), that when the defendant held a specialty certification, the author of the written opinion had to hold an identical specialty certification.   In December 2009, the Connecticut Supreme Court granted certification to appeal.   The Supreme Court has now issued a slip opinion affirming the decision of the Appellate Court.

As to another issue, the issue of whether a plaintiff may cure certain defects by amending the pleadings, the law is in the plaintiff's favor.   It is within the court's discretion to allow a written medical opinion, existing at the time of commencement of an action but erroneously omitted from the original complaint, to be accepted by amendment after action is commenced.  Votre v. County Obstetrics & Gynecology Group.   P.C., 113 Conn.App. 569, 585 (2009).   That being so, this court is inclined to permit the amendment to cure any such defects, provided the requisite criteria for a valid written medical opinion are present.

When the amended motions to dismiss were first presented in this case, the plaintiff requested an evidentiary hearing in order to present evidence concerning the time sequence for obtaining the written opinion.   The defendants opposed the plaintiff's request and the court deferred a decision on whether to hold an evidentiary hearing until such time as it became clear that any disputes of fact were material to the ruling on this motion.   Counsel for plaintiff asserts in an affidavit filed with his papers opposing the motions to dismiss that he in fact obtained the written opinion letter before the suit was commenced but simply failed to append the opinion to the complaint when the action was served on the defendants and filed with the court.   The defendants point out that the written opinion has no date, giving rise to an inference that it was obtained contemporaneous in time to its attachment to the amended complaint, that is, after suit was commenced.

Thus arises the first disputed issue of fact:  was the written opinion letter obtained before the commencement of this action?   If it was, then this court can, and would, allow the amended complaint with the written opinion letter to survive the motion to dismiss, under the rule in Votre, supra.

The second issue in this case is the thorny problem of whether the written opinion is from a similar health care provider.   The defendants assert in their papers in support of their motions to dismiss that the defendant Dr. Safalow is an internist or “hospitalist.”   They further assert that the author of the written opinion letter is a surgeon not certified in any specialty possessed by the defendant doctor.   Thus arises the second potential disputed issue of fact:  is this a case in which a surgeon is rendering an opinion as to the medical negligence of an internist?   If so, then the action is subject to dismissal, at least as to the defendant doctor and probably as to the hospital as well.   On the other hand, if the two health care providers are “similar,” then the written opinion letter is sufficient and will survive the motion to dismiss of Dr. Safalow.

This presents a second issue of fact for the resolution:  is the author of the written opinion a similar health care provider to the defendant?   If not, the settled case law of Bennett would seem to indicate that a dismissal is mandatory as to the defendant doctor and likely as to the hospital as well.

Therefore the court orders a hearing, with the parties granted leave to present evidence if necessary-that is, if the essential facts are not subject to stipulation-on the two disputed issues stated above.   The court also permits rebriefing on any further legal issues related to the amended motions to dismiss that have been affected by appellate case law decided since the date of the original submission of those motions.

Counsel for the parties shall contact the civil caseflow office to schedule a hearing as soon as possible for a complete resolution of the two amended motions to dismiss.

Patty Jenkins Pittman, J.

Pittman, Patty Jenkins, J.