Joann Smith, Administratrix, Estate of Shane R. Smith et al. v. Midstate Medical Center (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 138)

PROCEDURAL AND FACTUAL BACKGROUND

The present action is brought by the plaintiff, Joann Smith, as the decedent's mother and administratrix of the decedent's estate, alleging that various defendants are liable for Shane R. Smith's death on or about August 8, 2008.¹  At issue is the motion to dismiss filed by defendants John Stephens Hayes, certified registered nurse anesthetist (CRNA), Guy Aliotta, M.D. and Meriden–Wallingford Anesthesia Group, P.C. (the anesthesia group).²  Because these defendants are represented by the same attorney, they will be collectively referred to as “the defendants.”

In both the original and the revised complaints, the plaintiff alleges the following.   On or about August 7, 2008, at or about 11:18 p.m., Shane Smith was brought to MidState Medical Center (MidState), where it was determined that he was in need of surgery.   On or about August 8, at or about 2:12 a.m., he was placed under anesthesia for the surgery.   After an uneventful surgery, he was transferred to the post-anesthesia care unit at 5:54 a.m. At or about 6:00 a.m., Aliotta, an anesthesiologist who was acting as an agent, servant and/or employee of the anesthesia group at all relevant times, ordered 0.6 mg of pain medication “via PCA pump.”   At various points during that morning, he was given doses of pain medication without his vital signs having been checked.   At or about 3:00 p.m., however, Smith was noted to be unresponsive and without a pulse.   Despite efforts to resuscitate him, he was declared dead at 3:55 p.m. At all relevant times, Hayes, a CRNA engaged in the practice of anesthesiology at various locations including MidState, was acting as an agent, servant and/or employee of the anesthesia group and/or MidState.

In the third count of the original and the revised complaints, the plaintiff alleges that her son's injuries and damages were caused directly and proximately by the defendants' negligence and malpractice.   The plaintiff has filed four medical opinion letters from the following authors:  (1) a board certified anesthesiologist with a subspecialty in pain management;  (2) a board certified orthopaedic surgeon;  (3) a registered nurse;  and (4) a pathologist.   The plaintiff concedes that the only pertinent opinion letter for the purposes of the motion at issue is the one written by the anesthesiologist.

On August 24, 2010, the defendants filed a motion to dismiss the original complaint, with a supporting memorandum of law, on the grounds that the present action is barred by the statute of limitations and that the plaintiff has failed to comply with General Statutes § 52–190a(a).   After the plaintiff filed her revised complaint on January 14, 2011, the defendants moved to dismiss the revised complaint based on the same grounds on February 14, 2011.   The motion is supported by a memorandum of law.   The plaintiff filed a memorandum of law in opposition to the motion to dismiss on February 24, 2011.   The defendants filed a reply memorandum of law on February 25, 2011.³  The matter was heard at short calendar on February 28, 2011.

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 includ[ing] a detailed basis for the formation of such opinion.”  General Statutes § 52–190a(a).   The Supreme Court concluded that “the good faith certificate requirement was not subject matter jurisdictional in nature because traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action, and there was no indication in the language or legislative history of § 52–190a that the certificate was intended to be a subject matter jurisdictional barrier.”  (Internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 26–27 (2011).   Nevertheless, “the legislature has provided that such a failure [to comply with § 52–190a] does render [the] 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).

In their motion to dismiss, the defendants argue that the medical opinions filed by the plaintiff in support of her causes of action are not completed by “similar health care providers” pursuant to General Statutes § 52–184c.   More specifically, the defendants argue that because the plaintiff has not filed a medical opinion letter written by a CRNA, the present action against Hayes should be dismissed.   Additionally, they argue that because the author of the medical opinion letter filed in support of her action against Aliotta is an anesthesiologist with a subspecialty in pain management, the author's training and experience are significantly different from those of Aliotta.   As a result, the defendants argue that the present case should be dismissed.

In the plaintiff's objection to the defendants' motion to dismiss, she argues that § 52–184c(c) does not require health care providers to be identical, and therefore, Aliotta and the attesting anesthesiologist are similar health care providers because they are both board certified anesthesiologists, regardless of the attesting anesthesiologist's subspecialty in pain management.   Additionally, with respect to Hayes, the plaintiff argues that because Hayes is not a board certified specialist, the author of the written opinion must meet the requirements of § 52–184c(b).  Thus, she argues that the written opinion by the attesting anesthesiologist sufficiently meets the requirements of §§ 52–184c(b) and 52–190a.

In the defendants' reply memorandum, they reassert the same arguments raised in their motion to dismiss.   Additionally, the defendants contend that in light of the Supreme Court's decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, the plaintiff has failed to meet the requirements of § 52–190a.

General Statutes § 52–190a(a) provides in pertinent part:  “No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, 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, unless 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.   The 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 ․ To show the existence of such good faith, the 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, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

The Supreme Court construes “ § 52–184c(b) as establishing the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and § 52–184c(c) as establishing those qualifications when the defendant is board certified, trained and experienced in a medical specialty, or holds himself out as a specialist ․” (Internal quotation marks omitted.)  Bennett v. New Milford Hospital Inc., supra, 300 Conn. 23.

A

MOTION TO DISMISS AS TO ALIOTTA

Pursuant to § 52–184c(c), if the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself as a specialist, a similar health care provider is one who “(1) [i]s trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “

In the present case, the plaintiff alleges that Aliotta is a physician engaged in the practice of anesthesiology.⁴  The plaintiff has filed a written opinion of a board certified anesthesiologist with a subspecialty in pain management in order to comply with § 52–190a.   The court finds that the author of the opinion letter is a similar health care provider to Aliotta pursuant to § 52–184c(c) because as a board certified anesthesiologist, he has been trained and has experience in the same specialty of anesthesiology and has been certified by the appropriate American board in the same specialty of anesthesiology as Aliotta, notwithstanding his additional qualifications in pain management.   Thus, that the plaintiff has complied with § 52–190a(a).   Accordingly, the motion to dismiss as to Aliotta is denied.

B

MOTION TO DISMISS AS TO HAYES

The defendant, Hayes argues that the author of the opinion letter, an anesthesiologist with a subspecialty in pain management, is not a similar health care provider to a CRNA. General Statutes § 52–184c(b) provides that with respect to a defendant health care provider who is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, 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.”

General Statutes § 20–10 provides in relevant part:  “[E]ach person applying for a license [to practice medicine or surgery] shall certify to the Department of Public Health that the applicant:  (1)(A) [i]s a graduate of medical school located in the United States or Canada accredited by the Liaison Committee on Medical Education or of a medical education program accredited by the American Osteopathic Association ․ (2) has successfully completed not less than two years of progressive graduate medical training as a resident physician in a program accredited by the Accreditation Council for Graduate Medical Education, the American Osteopathic Association or an equivalent program approved by the board with the consent of the department;  and (3) has passed an examination prescribed by the department with the advice and consent of the appropriate examining board.”

On the other hand, pursuant to General Statutes § 20–94a(a), a CRNA is an advanced practice registered nurse 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 related field recognized for certification as ․ a nurse anesthetist by one of the foregoing certifying bodies.”

Here, the plaintiff has filed an opinion letter by a board certified anesthesiologist with subspecialty qualifications in pain management in order to comply with § 52–190a in support of her action against Hayes.   Because Hayes is not a board certified specialist, pursuant to § 52–184c(b), a similar health care provider is someone who is licensed by the appropriate regulatory agency and is trained and experienced in the same discipline or school of practice as Hayes.   A board certified anesthesiologist, whose qualifications must comply with § 20–10, cannot be said to have training and experience in the same discipline or school of practice as Hayes, a CRNA, who must comply with the qualifications set forth in § 20–94a (a).   Therefore, the anesthesiologist who authored the opinion letter is not a similar health care provider under § 52–184c(b), and as a result, the plaintiff has failed to comply with § 52–190a.⁵  Accordingly, the defendants' motion to dismiss as to Hayes is granted pursuant to § 52–190a (c).

C

MOTION TO DISMISS AS TO THE ANESTHESIA GROUP

The Appellate Court noted that “[i]n resolving the issues presented in this appeal, [the court] need not address medical malpractice claims against institutional defendants.  [The court notes], however, that there may be a gap in § 52–190a regarding such defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 548 n.10, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1 (2011).   Nevertheless, “[t]he majority of Superior Court decisions have held that where the counts sought to be dismissed contain allegations of the principal being vicariously liable for its agent, whether stated expressly or by incorporation of prior counts, if the opinion letter is sufficient as to the agent physician, it is also sufficient to satisfy § 52–190a(a) as to the principal non-individual defendants.”  (Internal quotation marks omitted).   Helfant v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 08 5018960 (April 6, 2010, Wilson, J.) (50 Conn. L. Rptr. 557).

In the plaintiff's original and revised complaints, she alleges that Aliotta and Hayes were acting as agents, servants and/or employees of the anesthesia group and/or MidState.   Additionally, in count three of both the original and revised complaints, the plaintiff alleges that the decedent's injuries and damages were caused directly and proximately by the negligence and malpractice of the anesthesia group, Aliotta, Hayes, their agents, servants and/or employees.   In construing the complaints in the plaintiff's favor, she only alleges a cause of action against the anesthesia group based on the theory of vicarious liability.   Therefore, since the court finds the opinion letter by the board certified anesthesiologist sufficient under § 52–190a as to Aliotta, the court also finds it sufficient as to the anesthesia group as Aliotta's principal and/or employer.   Therefore, the motion to dismiss as to the anesthesia group is denied.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss as to Aliotta and the anesthesia group is denied.   The motion to dismiss as to Hayes is granted.

Wilson, J.

FOOTNOTES

FN1. On August 17, 2010, the plaintiff filed a five-count complaint against MidState Medical Center, Kristin Ohler–Zullo, R.N., Mary Ann Thorpe, L.P.N., Scoff Crowley, P.A., Jon C. Driscoll, M.D., his agents, servants and/or employees, Meriden–Wallingford Anesthesia Group, P.C., Guy Aliotta, M.D., John Stephens Hayes, a certified registered nurse anesthetist, their agents, servants and/or employees.   On January 14, 2011, the plaintiff filed a seven-count revised complaint against the same defendants..  FN1. On August 17, 2010, the plaintiff filed a five-count complaint against MidState Medical Center, Kristin Ohler–Zullo, R.N., Mary Ann Thorpe, L.P.N., Scoff Crowley, P.A., Jon C. Driscoll, M.D., his agents, servants and/or employees, Meriden–Wallingford Anesthesia Group, P.C., Guy Aliotta, M.D., John Stephens Hayes, a certified registered nurse anesthetist, their agents, servants and/or employees.   On January 14, 2011, the plaintiff filed a seven-count revised complaint against the same defendants.

FN2. The defendants filed their motion to dismiss the original complaint on August 24, 2010.   Their motion to dismiss the plaintiff's revised complaint was filed on February 14, 2011..  FN2. The defendants filed their motion to dismiss the original complaint on August 24, 2010.   Their motion to dismiss the plaintiff's revised complaint was filed on February 14, 2011.

FN3. In their reply memorandum of law, the defendants have withdrawn the statute of limitations ground for their motion to dismiss..  FN3. In their reply memorandum of law, the defendants have withdrawn the statute of limitations ground for their motion to dismiss.

FN4. Although neither the original nor the revised complaint states specifically that Aliotta is certified by the appropriate American board as a specialist, all parties at oral argument were in agreement that § 52–184c(c) is the applicable subsection with respect to Aliotta..  FN4. Although neither the original nor the revised complaint states specifically that Aliotta is certified by the appropriate American board as a specialist, all parties at oral argument were in agreement that § 52–184c(c) is the applicable subsection with respect to Aliotta.

FN5. The court in Matos v. MidState Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 10 6012490 (February 3, 2011, Woods, J.), came to a different conclusion by holding that an anesthesiologist has been trained and has experience in the same discipline or school of practice as a CRNA. Additionally, 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), concluded that § 52–184c(c) should apply to a CRNA. In the present case, however, the parties have argued at the short calendar and in their memoranda of law that the appropriate subsection to apply to an opinion letter for a CRNA is § 52–184c(b).  Moreover, Superior Court decisions are not binding on this court..  FN5. The court in Matos v. MidState Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 10 6012490 (February 3, 2011, Woods, J.), came to a different conclusion by holding that an anesthesiologist has been trained and has experience in the same discipline or school of practice as a CRNA. Additionally, 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), concluded that § 52–184c(c) should apply to a CRNA. In the present case, however, the parties have argued at the short calendar and in their memoranda of law that the appropriate subsection to apply to an opinion letter for a CRNA is § 52–184c(b).  Moreover, Superior Court decisions are not binding on this court.

Wilson, Robin L., J.