Julio Sanchez v. Jeffrey A. Miller, D.O. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 104)

The defendant asserts that the plaintiff has failed to attach “an adequate written opinion of a similar healthcare provider to support his certificate of good faith indicating that there was evidence of negligence in the defendant's medical care and treatment.”   As such they seek the dismissal of this action pursuant to statute.   In order to resolve the issues presented by this motion, the court must review the procedural history of this matter.

The plaintiffs Julio and Gail Sanchez brought suit against the defendant Dr. Jeffrey A. Miller and Shaw's Cove Orthopedics, LLC by a writ, summons and complaint which had a return date of April 19, 2011.   On May 19, 2011, the defendants filed a motion to dismiss (No. 101).   The defendants asserted that the plaintiff had failed to attach an adequate written opinion of a similar healthcare provider as required by General Statutes § 52–190a.   On June 15, 2011, the plaintiff requested leave to amend their complaint pursuant to § 10–60 of the General Statutes.   The defendants did not file any objection to the plaintiff's amendment and therefore 15 days after the filing of the request for leave to amend the complaint, the amendment was deemed to have been filed by consent of the adverse party.   See Practice Book § 10–60(3).  Practice Book § 61 provides:  “When any pleading is amended, the adverse party may plead thereto within the time provided by § 10–8 or, if the adverse party has already pleaded, alter such pleading, if desired, within ten days after such amendment or such other time as the rules of practice or the judicial authority may prescribe, and thereafter pleadings shall advance in the time provided by that section.   If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”

On August 4, 2011, the defendants moved for an extension of time to file pleadings to the plaintiff's amended complaint.   Thereafter, on August 5, 2011, the defendants filed the instant motion to dismiss asserting that the amended complaint did not cure the claimed deficiency of the good faith letter which is required by § 52–190a of the General Statutes.

The plaintiff opposes the motion to dismiss on several grounds.   First, the plaintiff claims that the defendants have failed to raise the alleged defective process commencing this action because they have failed to raise these arguments within the time frame set out by Practice Book §§ 10–30, 10–31 and 10–32.   They argue that their amended complaint became effective, absent objection on June 30, 2011 and that commenced the 30–day period for the filing of the motion to dismiss.   Since the defendants did not file their motion for an extension of time until August 4, 2011, after the 30–day period had expired, the defendants had waived their right to challenge the court's exercise of personal jurisdiction over the defendants.

Pursuant to Practice Book § 10–61, the defendants had the option to rely on the earlier motion to dismiss and could have asked the court to apply the initial motion to dismiss to the amended complaint.   The defendants, however, chose to file a new motion to dismiss, No. 104.   This motion raises substantially the same arguments raised in the earlier motion.   The court is not persuaded by the plaintiff's arguments that this conduct amounted to a waiver of the defendants' right to object to the exercise of personal jurisdiction.   The initial motion was filed in a timely manner and, therefore, the court will consider the arguments raised by the defendants in reviewing the amended complaint and the amended good faith letter as required by § 52–190a.

The letter attached to the amended complaint is provided by a board certified orthopedic surgeon with 35 years of surgical experience.   It states in relevant part:  “Review of the medical records which includes multiple EMG's, MRI of the brachial plexus, neurology and neurosurgical consultations indicates that Mr. Sanchez sustained a traction injury to the entire brachial plexus at the time of surgery.   Review of the medical literature and my clinical experience indicates that this is a highly unusual injury and does not meet the standard of care.”   The letter filed by the same physician with the initial complaint stated, “This result noted immediately after the shoulder surgery on May 20, 2009 indicates that the shoulder surgery was not done properly and does not meet the standard of care.”   The complaint to which these letters were appended describes that the plaintiff went to the defendant Jeffrey Miller for medical treatment.   The plaintiff was examined by the defendant and it was found that he was neurovascularly intact (paragraph 5);  that on May 20, 2009, the defendant Miller performed a shoulder replacement operation on the plaintiff's left shoulder (paragraph 6);  that in the course of performing the shoulder surgery Dr. Miller was negligent when he produced an extensive injury to the brachial plexus of the plaintiff's left upper extremity (paragraphs 7 and 8);  and that immediately following the surgery the plaintiff had severe pain, paralysis and loss of sensation in his left upper extremity (paragraph 9);  and that the defendant Miller was negligent and deviated from the standard of care in producing an extensive injury to the left brachial plexus (paragraph 10).

The Appellate Courts of this state have considered what is necessary for a plaintiff to comply with the statutory mandates of § 52–190a(a) of the General Statutes.   It provides in relevant part:  “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 healthcare provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․” See Diaz v. Grady, 292 Conn. 350 (2009) and Wilcox v. Schwartz, 119 Conn.App. 808 (2010).  “So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint, as this opinion does, the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose.”  Wilcox v. Schwartz, 119 Conn.App. 808, 816 (2010).

This court is satisfied that requirements of § 52–190a(a) have been met in this case.   The opinion letter, read in conjunction with the allegations of the complaint, indicates that prior to the surgery the plaintiff was neurovascularly intact;  that during the performance of the shoulder replacement surgery the plaintiff suffered a traction injury to his brachial plexus;  and that immediately after the surgery the plaintiff had pain paralysis and loss of sensation in his left upper extremity.   The board certified orthopedic surgeon reviewed the medical records related to the May 20, 2009 left shoulder surgery.   He further reviewed medical literature and reached the opinion that the traction injury would not have occurred had the surgery been performed within the applicable standard of care as it relates to the amount of traction that may be exerted on the brachial plexus during the course of the surgery.   While the opinion letter is not prolix it does directly and by inference assert that an excessive amount of traction was exerted during the course of the surgery.

Motion to dismiss is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.