Rose Benard–Kirk v. Michael Loiaconco, D.O. et al. (2011)

MEMORANDUM OF DECISION MOTION TO DISMISS # 105

FACTS

The present action arises out of alleged medical negligence stemming from a magnetic resonance imaging (MRI) study.   On November 17, 2010, the plaintiff, Rose Benard–Kirk, filed a six-count complaint against the defendants, Michael Loiacono, D.O., New Britain Anesthesia, P.C., Central Connecticut Health Alliance, Inc. (CCHA), and New Britain MRI Limited Partnership.   In her complaint, the plaintiff alleges the following facts.   Loiacono was a physician providing medical care, diagnosis and treatment specializing in the area of anesthesiology.   At all times mentioned herein, he was the agent of New Britain Anesthesia, a professional corporation specializing in anesthesiology.   On October 27, 2008, the plaintiff visited Loiacono for the administration of anesthesia while she was undergoing an MRI study being conducted by New Britain MRI at CCHA's hospital.   While under the affects of the anesthesia, the plaintiff suffered injuries including severe burns.   In count three, the plaintiff alleges that her injuries were caused by the negligence of New Britain Anesthesia, by and through its agent, Loiacono.¹  In count four, the plaintiff alleges a theory of recovery against New Britain Anesthesia under the doctrine of res ipsa loquitur.   With her complaint, the plaintiff submitted a two-page written opinion letter from a board certified anesthesiologist pursuant to General Statutes § 52–190a(a).

In the return of service attached to the complaint, state marshal Alan Zaniewski stated that, on October 28, 2010, he served process on New Britain Anesthesia by leaving process with and in the hands of Cathy Bartell, practice administrator of New Britain Anesthesia, “who is authorized to accept service [for] Kenneth Colliton, M.D., agent for service for [New Britain Anesthesia], at 100 Great Meadow Road, Suite 208” in Wethersfield.   On December 16, 2010, New Britain Anesthesia filed a motion to dismiss on the grounds that:  (1) the court lacks personal jurisdiction over it because it was not served in accordance with General Statutes § 52–57;  and (2) the written opinion letter submitted with the complaint is not sufficiently detailed in accordance with General Statutes § 52–190a.   On March 3, 2011, the plaintiff filed an objection to New Britain Anesthesia's motion to dismiss.   On March 29, 2011, New Britain Anesthesia filed a reply to the plaintiff's objection.   An evidentiary hearing was held at short calendar on May 23, 2011.

DISCUSSION

ISERVICE OF PROCESS

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).  “[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).  “The jurisdiction that is found lacking ․ is jurisdiction over the person ․” (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).

“[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ․ An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.”  (Citations omitted;  internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 652–54, 974 A.2d 669 (2009).  “As a general matter, the burden is placed on the defendant to disprove personal jurisdiction.   The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return.   When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction.   When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).

New Britain Anesthesia argues that it was not served in accordance with General Statutes § 52–57(c) because only one copy of the summons and complaint was provided to Bartell despite the fact that service was intended to be made upon Loiacono and New Britain Anesthesia.   In this regard, New Britain Anesthesia seems to contend that the one copy was intended for Loiacono and, therefore, it was never served with process.

The plaintiff counters that service of process upon New Britain Anesthesia is sufficient because service of process on Bartell as the practice administrator of New Britain Anesthesia complies with the requirements of § 52–57(c).  The plaintiff argues that, while New Britain Anesthesia denied that two copies of process were provided to Bartell, such denials are insufficient to overcome the presumption of truth stated in the officer's return, which indicates that Zaniewski provided Bartell with process for both Loiacono and New Britain Anesthesia.   The plaintiff further argues that, even if only one copy of process was delivered to Bartell, it was intended for New Britain Anesthesia and that, in any event, New Britain Anesthesia received notice of the instant proceedings as it has appeared.

In its reply, New Britain Anesthesia argues that a party's appearance does not waive any jurisdictional issues that may be raised, and further, that while service of process on Bartell as the practice administrator of New Britain Anesthesia complies with the requirements of § 52–57(c), service of process was made on Bartell as to Loiacono and not as to New Britain Anesthesia.

The Supreme Court has stated that “[w]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576.   Service of process over a private corporation in a civil action is governed by General Statutes § 52–57(c), which provides in relevant part;  “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located ․

In the present case, Zaniewski stated that he served process on New Britain Anesthesia by leaving process with Bartell, practice administrator of New Britain Anesthesia, “who is authorized to accept service [for] Kenneth Colliton, M.D., agent for service for [New Britain Anesthesia].”   There is no dispute that Bartell is authorized to accept service for New Britain Anesthesia under § 52–57(c).  Nevertheless, there is an issue as to whether Zaniewski served two copies of the writ, summons and complaint on Bartell and, if not, whether the one copy was intended for New Britain Anesthesia.   After a hearing in which both Zaniewski and Bartell testified before the court, this court finds the testimony of Bartell to be credible.   She testified in a manner that reflected a specific recollection of the events on the date of the service of process and the court finds that Zaniewski served only one copy of the writ, summons and complaint on Bartell and it was intended for New Britain Anesthesia.   Further, although Bartell testified that she had received legal documents, such as foreclosure notices, for New Britain Anesthesia previously, she was not authorized to receive process on behalf of Loiacono.   Therefore, this court finds the one copy of the writ, summons and complaint was intended for New Britain Anesthesia and was properly served upon Bartell pursuant to § 52–57(c).

II

THE OPINION LETTER

A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion letter 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).  “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.”  General Statutes § 52–190a(c).  In Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011), the court further provided that “an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”   In particular, “[t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court.”  Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “Because ․ the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction.”  Id., 402.

As a preliminary matter, the plaintiff argues that she may not even be required to file a written opinion letter because the facts demonstrate that “some standard of care was clearly breached” and “[t]he nature of the injuries alone, are sufficient to support a good faith belief that grounds [exist] for a claim against [New Britain Anesthesia].”   In reply, New Britain Anesthesia argues that there is no dispute that this is a medical malpractice action and that, as such, a written opinion letter is required and the plaintiff's injuries cannot “speak for themselves.”

“[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”  (Internal quotation marks omitted.)  Selimoglu v. Phimvongsa, 119 Conn.App. 645, 652, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).   Nevertheless, “if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52–190a.”  Shortell v. Cavanagh, 300 Conn. 383, 393, 15 A.3d 1042 (2011).   One such circumstance is where the courts have decided for public policy reasons that expert medical testimony is not required for the standard of care, such as in the case of informed consent.   See id., 391.   Another such circumstance is “where the professional negligence is so gross as to be clear even to a lay person.”  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).   Based upon a review of the complaint, neither of these circumstances is present and that, under the three-part test, the plaintiff's claim sounds in medical malpractice.   Therefore, an opinion letter was required pursuant to § 52–190a.

In its memorandum of law, New Britain Anesthesia argues that the written opinion letter attached to the complaint is not sufficiently detailed because it does not indicate any departure from the standard of care by New Britain Anesthesia and does not allege a good faith basis to believe that the plaintiff's alleged injuries resulted from any departure from the standard of care.

In particular, New Britain Anesthesia contends that the opinion letter does not even identify New Britain Anesthesia or any of its employees and indicates that the injuries could occur despite appropriate care.

The plaintiff counters that the opinion letter attached to the complaint meets the statutory requirements because it “found evidence for medical negligence” on behalf of Loiacono, which may be imputed to New Britain Anesthesia.   The plaintiff further argues that the opinion letter need not “render legal opinions concerning the rights and liabilities of the parties.”   In this regard, the plaintiff contends that the opinion letter “articulated the standard of care” through a series of FDA guidelines and noted that “[a]nyone of these points may have been breached.”

Section 52–190a(a) provides in relevant part:  “No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 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.”  (Emphasis added.)

The Supreme Court has concluded “that the phrase ‘medical negligence,’ as used in § 52–190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.”  Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009).   Therefore, “in order to fulfill the requirement of § 52–190a(a) and to provide assurance that there appears to be evidence of medical negligence, a claimant's written opinion from a similar health care provider need not address the issue of causation.”   (Internal quotation marks omitted.)  Wilcox v. Schwartz, 119 Conn.App. 808, 815, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).  “The ultimate purpose of this requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52–184c, state in written form that there appears to be evidence of a breach of the applicable standard of care.   So 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.

The author of the written opinion letter is a board certified anesthesiologist.   The author states that “[t]he FDA provides guidelines on how to prevent cable and electrode burns during MRI.” The author proceeds to list the guidelines.²  Thereafter, the author states that the guidelines are the standard of care and that “[o]ne or more of [the guidelines was] not followed while Benard–Kirk was undergoing an MRI.” In her complaint, the plaintiff alleges that her injuries were caused by the negligence of New Britain Anesthesia.   The allegations of negligence include the failure to comply with a number of guidelines listed by the author of the opinion letter.   Compare footnote 1 with footnote 2.

New Britain Anesthesia argues, however, that the opinion letter does not indicate any departure from the standard of care by New Britain Anesthesia and does not allege a good faith basis to believe that the plaintiff's alleged injuries resulted from any departure from the standard of care.   With regard to the first argument, the opinion letter does not reference New Britain Anesthesia or any of its agents.   Rather, the opinion letter states “[w]hen a MRI is being conducted under anesthesia, the anesthesiologist and/or technician usually attach the monitors to the patient.”   Nevertheless,”[t]here is no requirement in the statute, Wilcox or any other appellate case stating that a written opinion must refer to a particular defendant by name when discussing how he or she was negligent.”   Steinmann v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV 11 6017158 (May 24, 2011, Wilson, J.).   Furthermore, § 52–190a(a) “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 ․ 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.).

With regard to the second argument, the opinion letter does not state the cause of the plaintiff's injuries.   Rather, the opinion letter simply states that “[b]urns may occur from the looping of cables, placing cables near the wall surface of the MRI, allergic reaction to the electrode gel, dry electrode gel, lack of electrode gel, loosened or partially contacting electrodes, use of small (pediatric instead of adult) electrodes, or the heating of the electrode gel.”   Nevertheless, “a claimant's written opinion from a similar health care provider need not address the issue of causation.”  Wilcox v. Schwartz, supra, 119 Conn.App. 815;  see also Dias v. Grady, supra, 292 Conn. 359 (“[A] requirement that the plaintiff attach a written opinion of a similar healthcare provider that there appears to be evidence of proximate causation would, in many cases, be an insurmountable obstacle to bringing an action”).

Therefore, the plaintiff has complied with the requirements of § 52–190a in that the opinion letter states that there appears to be evidence of a breach of the applicable standard of care, which sufficiently addresses the allegations of negligence pleaded in the plaintiff's complaint.

CONCLUSION

For the foregoing reasons, New Britain Anesthesia's motion to dismiss is denied.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. In particular, the plaintiff alleges that her injuries occurred because, during the MRI study, New Britain Anesthesia:  (1) allowed incompatible and improperly sized monitoring electrodes to be used;  (2) failed to ensure that the monitoring electrodes were not past the expiration date;  (3) failed to ensure that the monitoring electrodes were in complete contact with the plaintiff's skin;  (4) failed to prevent looping of the cords connecting the monitoring electrodes to the monitoring devices;  (5) failed to implement adequate procedures for the placement of monitoring electrodes and cables;  (6) failed to prevent contact between cables used and the plaintiff's skin;  (7) failed to properly train its agents;  (5) failed to properly and timely treat the severe burns caused to the plaintiff and (9) failed to stop the MRI machine when it knew or should have known that the plaintiff was being burned..  FN1. In particular, the plaintiff alleges that her injuries occurred because, during the MRI study, New Britain Anesthesia:  (1) allowed incompatible and improperly sized monitoring electrodes to be used;  (2) failed to ensure that the monitoring electrodes were not past the expiration date;  (3) failed to ensure that the monitoring electrodes were in complete contact with the plaintiff's skin;  (4) failed to prevent looping of the cords connecting the monitoring electrodes to the monitoring devices;  (5) failed to implement adequate procedures for the placement of monitoring electrodes and cables;  (6) failed to prevent contact between cables used and the plaintiff's skin;  (7) failed to properly train its agents;  (5) failed to properly and timely treat the severe burns caused to the plaintiff and (9) failed to stop the MRI machine when it knew or should have known that the plaintiff was being burned.

FN2. In particular, the author states:  (1) “Electrodes should be cleared for use in the MRI environment (proper size, compatible)”;  (2) “Electrodes should not be used past their expiration date (dry, lack of gel)”;  (3) “Even if electrodes and cables are approved for use during an MRI, a serious burn can still develop if the electrodes aren't in complete contact with the skin surface (an air gap between the electrode and the skin)”;  (4) “Cables should not form a loop”;  (5) “Cables should be kept off the patient's skin by placing a blanket under them”;  and (6) “After the MRI study is complete, patients should be examined for possible burns or reddening of the skin under the electrodes.”.  FN2. In particular, the author states:  (1) “Electrodes should be cleared for use in the MRI environment (proper size, compatible)”;  (2) “Electrodes should not be used past their expiration date (dry, lack of gel)”;  (3) “Even if electrodes and cables are approved for use during an MRI, a serious burn can still develop if the electrodes aren't in complete contact with the skin surface (an air gap between the electrode and the skin)”;  (4) “Cables should not form a loop”;  (5) “Cables should be kept off the patient's skin by placing a blanket under them”;  and (6) “After the MRI study is complete, patients should be examined for possible burns or reddening of the skin under the electrodes.”

Markle, Denise D., J.