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

MEMORANDUM OF DECISION MOTION TO DISMISS # 108

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 CCHA, a corporation, which operates a hospital and provides medical care and treatment.   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 six, the plaintiff alleges that her injuries were caused by the negligence of CCHA, by and through its agents.¹  With her complaint, the plaintiff submitted a two-page written opinion letter from a board certified anesthesiologist pursuant to General Statutes § 52–190a(a).

On December 23, 2010, CCHA filed a motion to dismiss on the ground that the written opinion letter submitted with the complaint is not sufficiently detailed in accordance with General Statutes § 52–190a.   On March 4, 2011, the plaintiff filed an objection to CCHA's motion to dismiss.   The matter was heard at short calendar on May 23, 2011.

DISCUSSION

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 [CCHA].” CCHA argues that § 52–190a is applicable because the defendants are sued in their capacities as medical professionals, the alleged negligence is of a nature that arises out of the professional-patient relationship and the alleged negligence is substantially related to medical diagnosis or treatment and involves the exercise of judgment.

“[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.

The defendant, CCHA, argues that the written opinion letter attached to the complaint is not sufficiently detailed because it does not indicate any departure of the standard of care by any defendant or elect one of many possible causes of the plaintiff's injuries as the most likely to have occurred.   In this regard, CCHA argues that “an inadequate opinion that references only general standards but fails to delineate who allegedly breached those standards and how should not serve as the foundation for a medical negligence suit.”

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 CCHA's agents, which may be imputed to CCHA. 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 CCHA. 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.

CCHA argues, however, that the written opinion letter attached to the complaint is not sufficiently detailed because it does not indicate any departure of the standard of care by any defendant or elect one of many possible causes of the plaintiff's injuries as the most likely to have occurred.   With regard to the first argument, the opinion letter does not reference CCHA 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, CCHA'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, CCHA:  (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;  (8) 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, CCHA:  (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;  (8) 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.