Noemi P. Rivera, Administratrix of the Estate of Ada Ramirez v. Eastern Connecticut Health Network, Inc. et al. (2011)

MEMORANDUM OF DECISION ON DEFENDANT ECHN'S SECOND MOTION TO DISMISS

PROCEDURAL HISTORY

On June 14, 2007, plaintiff Noemi P. Rivera, as administratrix of the Estate of Ada Ramirez, commenced the instant action by causing true and attested copies of her original writ, summons, and complaint to be served upon defendants Eastern Connecticut Health Network, Inc. (“ECHN”) and Dr. John Schifferdecker.   The complaint, which sounds in wrongful death by medical malpractice, contains three counts.   In count one, the plaintiff claims wrongful death by medical malpractice against ECHN based upon the alleged negligence of its agents and employees at the Rockville General Hospital, including, assertedly, Dr. Schifferdecker, in their care and treatment of her decedent, Ms. Ramirez, between the date of her admission on June 4, 2005 and the date of her death, nine days later, from an apparent drug overdose, on June 13, 2005.   In count two, the plaintiff claims wrongful death by medical malpractice against Dr. Schifferdecker individually based upon his alleged negligence in caring for and treating her decedent in that same time period.   Finally, in count three, she claims wrongful death by medical malpractice against ECHN based upon the theory that it is vicarously liable for the negligence of Dr. Schifferdecker in that same time period.

In support of the foregoing claims, the plaintiff alleges, more specifically, that Ms. Ramirez was admitted to the Rockville General Hospital in an unresponsive state on June 4, 2005, where she was found to be comatose and assessed as suffering from “metabolic encephalopathy due to metabolic acidosis and hypersmolarity (sic) provoked by diabetes mellitus, diabetic ketoacidosis.”   Complaint, Count I, ¶¶ 4–5.   Although her condition improved substantially between that time and June 13, 2005, she was found asystole at 1:15 a.m. and pronounced dead at approximately 1:30 a.m. on the latter date.   The plaintiff alleges that Ms. Ramirez “expired through sudden death associated with a foreign body granulomatous inflammation of heart and lungs, which findings are commonly seen with intravenous narcotism.”  Id., ¶ 12.   When she was found on June 13, 2005, a syringe containing an orange substance was found on the floor beside her.

Ms. Ramirez had a long history of substance abuse, depression and psychiatric care, of which, claims the plaintiff, the defendants either knew or should have known during the period of her final hospitalization at the Rockville General Hospital.  Id., ¶ 6.   As part of that history, of which Hospital staff allegedly knew and Dr. Schifferdecker allegedly should have known, Ms. Ramirez allegedly had a propensity for removing discarded needles from the “sharps container.”   In light of that history, the plaintiff claims that the defendants were negligent in failing to provide Ms. Ramirez with a psychiatric consult, failing to search her belongings to ensure that she had no items with which to harm herself during her hospitalization, failing to conduct daily mental status assessments of her, failing to properly observe her while she was in their care, and failing to address known safety concerns about her, including her known propensity for removing discarded needles from the sharps container.

The plaintiff attached to her complaint the written opinion of Dr. Sergio Mejia, a board-certified psychiatrist, who concluded that the defendants had breached the appropriate standard of care in their care and treatment of Ms. Ramirez.

On September 27, 2007, ECHN filed an initial motion to dismiss as to counts one and three.¹  The defendant argued in that motion that the Court must dismiss the challenged counts for lack of subject-matter jurisdiction based upon the plaintiff's alleged failure to comply with General Statutes § 52–190a(a).²  On that score, the defendant argued, inter alia, that since the author of the opinion letter attached to the plaintiff's complaint was a psychiatrist, he was not a similar health care provider to any of the doctors, nurses or Hospital staff upon whose alleged negligence the plaintiff's claims against it are based.   They argued, more specifically, that a psychiatrist could not be a similar health care provider to Dr. Schifferdecker, because he is not a psychiatrist but a specialist in family medicine.   On January 18, 2008, the plaintiff filed an opposition to that motion, to which the defendant replied on August 8, 2008.

On January 20, 2009, this Court, Wagner, JTR, issued a memorandum of decision denying the defendant's initial motion to dismiss [47 Conn. L. Rptr. 103].   In his decision, Judge Wagner addressed the opinion writer's similarity to Dr. Schifferdecker as follows:  “All of the plaintiff's negligence claims are derived from the same deviations from the standard of care identified by Mejia in his written opinion.   These negligence claims are all centered around the deceased's mental status and history of psychiatric health issues.   They are in the realm of psychiatry, not Schifferdecker's speciality of family medicine.   Therefore, pursuant to § 52–184c(c) Schifferdecker was ‘providing treatment or diagnosis for a condition which is not within his speciality.’   As a result, § 52–184c(c) demands the conclusion that Mejia, ‘a specialist trained in the treatment or diagnosis' for psychiatric health issues ‘be ․ considered a “similar health care provider’ “ to Schifferdecker.   It is concluded that Mejia qualifies as a similar health care provider to Schifferdecker pursuant to § 52–184c(c), and, therefore, the plaintiff has satisfied the requirement of § 52–190a.”   There is no discussion in Judge Wagner's decision as to whether the opinion writer is a “similar health care provider” to any other member of the defendant's Hospital staff.

On May 6, 2009, the plaintiff filed a revised complaint, which contains the same claims against the defendant as those set forth in her original complaint.   The revised complaint is now operative in this action.   On June 30, 2009, ECHN filed an answer to the revised complaint, in which it denied or left the plaintiff to her proof as to all claims of liability and damages against it.   Subsequently, on August 13, 2010, the defendant filed a motion for summary judgment as to counts one and three, arguing, inter alia, that Dr. Schifferdecker was not its employee or agent at the time of the challenged care and treatment, and thus it could not be held liable for his alleged negligence in treating Ms. Ramirez.   On September 15, 2010, the plaintiff filed an opposition to that motion, to which the defendant replied on September 24, 2010 and the plaintiff surreplied on October 12, 2010.   In a short-form order dated November 19, 2010, this Court, Robaina, J., denied the motion for summary judgment without opinion as to count one, wherein the plaintiff's claim of liability against ECHN is based upon alleged negligence by Dr. Schifferdecker and several other alleged members of ECHN's staff at Rockville General Hospital, but granted the motion as to count three, wherein ECHN's claimed liability was based solely upon the alleged negligence of Dr. Schifferdecker.

On December 28, 2010, with it now decided that ECHN cannot be found liable under count one based upon the alleged negligence of Dr. Schifferdecker, ECHN filed a second motion to dismiss count one on the ground that the plaintiff failed to attach to her complaint the written opinion of a health care provider who is similar to any other member of its staff upon whose alleged negligence the claim made against it is based.   ECHN supported its motion with an accompanying memorandum of law.   On March 11, 2011, the plaintiff filed a memorandum in opposition to this second motion to dismiss.   The matter was heard on the short calendar on March 14, 2011.

ANALYSIS

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ When a ․ court decides a ․ question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.   Moreover, when the legal issue presented in connection with a motion to dismiss is one of statutory construction, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”   (Citation omitted;  internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10–11, 12 A.3d 865 (2011).

In the present case, the defendant has brought a motion to dismiss on the ground that the plaintiff has not attached a written opinion of a health care provider similar to any member of its staff upon which the plaintiff's claim of liability against it may lawfully be established, as is required by General Statutes § 52–190a(a).   The defendant states that when dealing with an institutional defendant, such as itself, the opinion letter must be authored by a health care provider similar to an agent or employee of the defendant.   While the opinion letter in the present case was previously deemed to be sufficient because the author was a similar health care provider to Dr. Schifferdecker, the defendant argues that it is no longer sufficient because it has since been determined, through summary judgment, that Dr. Schifferdecker was not its employee or agent in the relevant time period.   The defendant claims that since the opinion letter was not authored by a health care provider who is similar to any of the nurses or other Hospital personnel upon whose negligence the plaintiff's remaining claim against it is now based, that claim, as pleaded in count one, must be dismissed pursuant to § 52–190a(c).

In opposition, the plaintiff argues that the Court previously ruled that she was in compliance with the statute at the commencement of the suit, and that is all that is required of her.   The plaintiff further argues that, because she is required only to attach the opinion of a health care provider similar to one employee or agent of an institutional defendant, she did not need to attach any further “backup” opinions at the commencement of the action.   For these reasons, the plaintiff contends the Court should deny the defendant's second motion to dismiss.³

To bring civil action based upon allegations of medical malpractice, a plaintiff must demonstrate that she has a good faith basis for so doing.   General Statutes § 52–190a states, in the relevant part, that:  “The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment 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 ․ (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”  “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;  it does not affect the power of the court to hear her medical malpractice action.   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 for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading.”  Votre v. County Obstetrics & Gynecology Group, 113 Conn.App. 569, 583–84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   Further, “[t]he plain language of this new statutory subsection [of General Statutes § 52–190a(c) ], ․ expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52–190a(a).”  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).   When dealing with an institutional defendant, it has been the majority rule in the Superior Court 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.”   Barrett v. Eastern Connecticut Health Network, Inc., Superior Court, judicial district of Hartford, Docket No. CV 10 6006126 (January 28, 2011, Peck, J.) [51 Conn. L. Rptr. 404].

With this case law and statutory language as background, the threshold question presently before the court is:  In the case of an institutional defendant, if a plaintiff provides an adequate written opinion by an author who is similar to one alleged member of the defendant's staff, thereby satisfying the statute as to the institutional defendant, is the claim subject to dismissal at some later point if it is determined that the institutional defendant may not be held liable for the actions of the person to whom the opinion writer was similar?   The plain language of § 52–190a makes clear that the statutory requirements relative to the written opinion must be fulfilled at the time of “[t]he complaint, initial pleading or apportionment complaint.” § 52–190a(a).   There is nothing in the language of the statute to suggest that this defense may be raised at later stage of litigation based on amendments to the “initial pleading” or other changes of circumstances in the case.

Further, to grant a motion to dismiss in a case such as this would lead to unworkable results.   In Behling v. Aronow, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.), the Court addressed the issue of whether a plaintiff was required to file multiple opinion letters in an action against an institutional defendant.   The Court ruled that such a course was unnecessary, stating:  “At this stage of the litigation the plaintiff is presumed to have a basis for alleging negligence but not necessarily, particularly in the case of an institution like a hospital, a basis for alleging which agent of the hospital was responsible.   Neither § 52–190a or our rules of pleading require the plaintiff to identify every agent who acted on behalf of the Hospital.   It is alleged that the plaintiff was under the care of the hospital, but it is premature to expect at this stage identification of exactly which agent or what aspect of care was responsible for not treating or not recognizing the [defendant's condition].   As [the defendant] indicates, it could be a nurse.   On the other hand, it could be a physician's assistant or a physician.   It would be unwieldy at best, not to say unnecessary and unhelpful 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.   While § 52–190a as amended was intended to add a significant hurdle there is no indication of an intent to make the hurdle to filing a medical malpractice case insurmountable, or unnecessarily difficult.”  Id. If the defendant's argument were to prevail in the present case, a plaintiff who, without the advantage of discovery, is uncertain exactly whose negligence caused her decedent's death would be compelled to file just such a “blizzard of opinion letters from a physician, a physician's assistant and a nurse,” to ensure that the entire suit would not be subject to dismissal.   This would create an insurmountable or unnecessarily difficult hurdle for the plaintiff of the type the Court in Behling specifically sought to avoid.   For that reason, the plain meaning of the statute requires that a written opinion, if sufficient at the time of the initial pleading, is sufficient to satisfy the requirements of § 52–190a(a).

It might be argued that, under the foregoing interpretation, a plaintiff could easily circumvent the requirements of the statute by naming, as a putative employee or agent of an institutional defendant, either a person known not to have been such an agent or employee of the defendant at the time or a person known not to have been involved in rendering the challenged care and treatment which allegedly caused the plaintiff's or her decedent's complained-of injuries and/or death.   The plaintiff, it might be argued, could then attach a written opinion authored by a health care provider similar to the non-agent or other uninvolved person, knowing all the while that any claim against the defendant based upon the alleged negligence of that person would later be removed from the action.   This would allow the plaintiff to satisfy the statutory requirements in form but not in substance without ever supporting its claim against the defendant with an appropriate opinion letter.   While such a scenario is of course not inconceivable, an institutional defendant hailed into court in such circumstances would not be without remedy because the statute expressly states that the certificate must be made “in good faith.”   If the defendant suspects the plaintiff of a bad-faith attempt to circumvent the statute's requirements by offering an opinion letter as to the negligence of a non-agent or an uninvolved person, it could confirm that suspicion in discovery and, if appropriate, file a motion to dismiss based upon the plaintiff's bad-faith filing of a malpractice claim based upon a knowingly deficient opinion letter.   Even prior to the 2005 amendments to § 52–190a, which were intended to create significant hurdles for plaintiffs seeking to prosecute medical malpractice claims, a defendant could seek to dismiss such a claim based upon the plaintiff's proven bad faith.   See, e.g., Yale Diagnostic Radiology v. Kluczinsky, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 95 0052811 (June 5, 1998, Corradino, J.) (22 Conn. L. Rptr. 221, 223) (where the Court, while not granting the motion to dismiss, stated that, “[a]t least where dismissal is the sought after sanction, the purpose of § 52–190a(a) was to provide a method in its sanctions procedure for dealing with sharp practice and intentional misrepresentation—in certain circumstances a dismissal, discretionary with the court, would be permissible”).

In the present case, the Court has previously ruled that the written opinion letter filed with the plaintiff's initial complaint satisfied the requirements of § 52–190a(a).   Absent any claim that the plaintiff obtained or submitted that opinion letter as a basis for pursuing claims against defendant ECHN in bad faith, no further inquiry into the appropriateness of the letter or its sufficiency to satisfy the statute is required.   For these reasons, defendant ECHN's second motion to dismiss must be DENIED.

IT IS SO ORDERED this 20th day of April 2011.

Michael R. Sheldon, J.

FOOTNOTES

FN1. A motion to dismiss was also filed by Dr. Schifferdecker on August 10, 2007.   That motion challenged only the claim directed personally at him, as pleaded in the second count of the complaint..  FN1. A motion to dismiss was also filed by Dr. Schifferdecker on August 10, 2007.   That motion challenged only the claim directed personally at him, as pleaded in the second count of the complaint.

FN2. At all times relevant to this case, Section 52–190a(a) provided as follows:(a) No civil action or apportionment complaint 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.   This period shall be in addition to other tolling periods.(c) The failure to obtain and file the written opinion required by subsection (a) of this Section shall be grounds for the dismissal of the action..  FN2. At all times relevant to this case, Section 52–190a(a) provided as follows:(a) No civil action or apportionment complaint 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 or apportionment complaint 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.   This period shall be in addition to other tolling periods.(c) The failure to obtain and file the written opinion required by subsection (a) of this Section shall be grounds for the dismissal of the action.

FN3. The plaintiff has also argued that the opinion letter addressing the doctor and the institutional defendant are sufficient because no nurses were named defendants.   The Court need not address this argument..  FN3. The plaintiff has also argued that the opinion letter addressing the doctor and the institutional defendant are sufficient because no nurses were named defendants.   The Court need not address this argument.

Sheldon, Michael R., J.