Donald Newburry, Administrator of the Estate of Donna May Newburry v. The Bristol Hospital, Inc. et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT BRISTOL HOSPITAL'S MOTION TO DISMISS, # 110

The issue before the court is whether a written opinion from a physician is sufficient to demonstrate that a good faith basis exists for a medical malpractice action against an institution for vicarious liability of unidentified health care providers.

FACTS

The present action, sounding in medical malpractice, is brought by the plaintiff, Donald Newburry, in his capacity as the administrator of the estate of Donna May Newburry, against the defendants, Bristol Hospital, (the “Hospital”), Balasubramanian Shanmugam, M.D., and his practice, Greater Bristol Primary Care Group, P.C., Elizabeth Tillman, M.D., and her practice, Hospital Internists of Bristol, LLC. The complaint, dated May 31, 2011, alleges that the defendant, Bristol Hospital, its agents, servants, and/or employees failed to timely diagnose and treat a spontaneous bleed sustained by the plaintiff's decedent, while a patient under the care of the Hospital's internal medicine, critical care and hospitalist physician between April 17, and April 26, 2009.   Following emergency department admission for nausea, vomiting and weakness, the decedent's condition deteriorated over the course of nine days to cardiopulmonary arrest and her ultimate death.

In the first count of the complaint directed at the Hospital, the plaintiff alleges that Donna May Newburry's death was caused by the failure of the Hospital, its agents, servants, and/or employee physician or physicians to exercise reasonable care under all of the circumstances present in that they failed to properly treat and diagnose the decedent's condition.   In the fourth paragraph of the complaint, the plaintiff identified the Hospital's agents, servants, and/or employees as health care providers within the speciality fields of internal medicine, critical care medicine, and hospital medicine and attached to his complaint a Certificate of Good Faith along with three physician's opinion reports.   Two of the reports specifically identified the good faith belief of the existence of medical negligence on behalf of the Hospital, its agents, servants and/or employees, and were authored by two physicians, both board certified in internal medicine, one who is also certified in critical care medicine and pulmonary disease, and the other who also is a practicing hospitalist and a director of internal medicine hospitalist program at a community hospital.

The Hospital filed a motion to dismiss the plaintiff's claims on the basis that the opinion letters are insufficient because each report does not specifically identify the name of each agent, servant, and/or employee of the hospital or which subspecialist agent, servant, and/or employee is claimed to be negligent in treating the decent during her nine-day admission.   Thus, the claim against the Hospital in count one of the plaintiff's complaint should be dismissed due to a lack of the necessary opinion letter that would be evidence of the good faith of the plaintiff that these unidentified individuals were negligent.

The plaintiff counters that the letters submitted are sufficient, arguing that (1) § 52–190a does not require the plaintiff to name each and every health care provider of an institutional defendant and provide separate written opinions for all of them, and (2) he has filed multiple physicians' opinions of similar health care provider.

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 includes a detailed basis for the formation of such opinion.”  General Statutes § 52–190(a).  “A plaintiff's failure to comply with the requirements of § 52–190(a) does not destroy the court's subject matter jurisdiction over the claim ․ 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 ․” 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).  “[A]n action is subject to dismissal under [General Statutes § 52–190a(c) ] if the opinion letter is not from a similar health care provider or does not give detailed basis for the opinion.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009).

This court addressed this issue in the case of Strickland v. Bristol Hospital, Inc. et al, Superior Court, judicial district of Hartford, Docket No. 09 5014599 (September 27, 2010) [50 Conn. L. Rptr. 641], and found that an opinion letter was sufficient to maintain a medical malpractice action against a hospital and its unidentified hospital staff members.   In Strickland, the court agreed with the reasoning of the majority of superior court decisions which hold that the written opinion letter is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution.

“The statute does not require the plaintiff to identify the name of each individual who acted on behalf of the 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 in such a lawsuit.   Were there to be either of those requirements, plaintiffs would likely face insurmountable barriers to commencing and maintaining medical malpractice actions.   As the new legislation and its history make clear, the legislature intended to place significant, but not insurmountable, obstacles in the path of plaintiff who, the legislature determined, might otherwise institute meritless claims.”   Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006).   See also Ryan v. Litchfield, Docket No. CV 085003164 (October 22, 2008);  DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 5010472 (August 5, 2008) (46 Conn. L. Rptr. 121);  Guido v. Hughes, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5004889 (October 17, 2007) (44 Conn. L. Rptr. 347);  Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007).

In this case, the plaintiff has complied with General Statutes § 52–190a, whose scope and purpose is to insure that prior to filing a lawsuit, a plaintiff has undertaken a presuit inquiry with similar health care providers that has created a good faith belief in the existence of negligence in the care and treatment rendered.   The opinion letters of the physicians filed in this case clearly comport with the requirements of § 52–190a by identifying negligence in the areas of internal medicine, critical care, and hospitalist care on behalf of Bristol Hospital, its agents, servants, and/or employees in the treatment of the decedent.

CONCLUSION

For the foregoing reasons, Bristol Hospital's motion to dismiss is denied.

Swienton, J.

Swienton, Cynthia K., J.