Michael Lorme v. Waterbury Hospital et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

Preliminary Statement

This medical malpractice case arises out of the defendants' treatment of the plaintiff Michael Lorme.   As required by statute, attached to the complaint was a certificate of good faith signed by plaintiff's counsel as well as four opinion letters from various health care providers in which opinions are offered that medical negligence occurred in the care and treatment of the plaintiff.   The defendant, Michael Harma M.D., an internist whose practice group is affiliated with or has privileges at Waterbury Hospital, filed a motion to dismiss on the grounds that the opinion letter of the “similar health care provider” was insufficient under Conn. Gen.Stat. § 52–190(a) insofar as it did not specifically name him as having committed any acts of negligence toward the plaintiff.   The plaintiff objects and argues that the requirements of the statute have been met.   For the reasons set forth below, the motion to dismiss is DENIED.

Discussion

“In ruling upon whether a complaint survives a motion to dismiss, 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.”  (Internal quotation marks omitted.)  Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 183 (1999).

Conn. Gen.Stat. § 52–190a(a) requires a party bring a medical malpractice action 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.”  General Statutes § 52–190a(a).  “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 ․ 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, cert. denied, 292 Conn. 911 (2009).¹

Here, as to the defendant Michael Harma, M.D., the plaintiff alleges negligence in the care and treatment of the plaintiff.   Harma is an internist who has privileges at and works at co-defendant Waterbury Hospital.   Attached to the complaint was an opinion letter written by a doctor “certified in Internal Medicine through the American Board of Internal Medicine” who both teaches and practices internal medicine at a “large metropolitan University Hospital.”   The opinion states as follows:

3.  I have reviewed the medical records relating to Michael Lorme's treatment at Waterbury Hospital from his admission of February 28, 2009 through March 3, 2009 and thereafter.

4. It is my opinion that there are grounds for a good faith belief that there has been negligence in the care or treatment of Mr. Lorme by an internist and/or internal medicine residents during his hospitalization from February 28, 2009 through March 3, 2009 at Waterbury Hospital.

The reasons for this conclusion are then set forth in greater detail, the adequacy of which are not raised in the instant motion.   The complaint against Harma alleges that Harma held himself out as a physician specializing in Internal Medicine.   It alleges that he was an agent or employee of Waterbury Hospital acting within the scope of his employment and with the consent of Waterbury Hospital while treating the plaintiff.   The complaint alleges that the plaintiff was admitted to the hospital “to Dr. Michael Harma's service.”   At count two, the plaintiff avers that Dr. Harma failed to adequately evaluate, diagnose and treat the plaintiff's condition resulting in substantial and severe personal injury.

Harma now argues that the complaint against him should be dismissed in light of the fact that the opinion letter fails to specifically identify him as having committed acts of negligence in the care and treatment of the plaintiff.   This court disagrees.

General Statutes § 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 the 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 defendant relies, in part, upon the emphasized language to support his argument.   However, in looking at this statutory language, it is clear that the mandate regarding “each named defendant” is in reference to the certificate of good faith which is a mandate to the attorney filing the complaint.   The statute contains no requirement that the opinion letter address each named defendant.   The author of the letter must only opine that “there appears to be evidence of medical negligence” as well as a detailed basis for that opinion.   Under those circumstances, the requirements of the statute are met.  “Our role is to interpret statutes as they are written ․ [We] cannot, by [judicial] construction, read into statutes provisions [that] are not clearly stated.”  (Internal quotation marks omitted.)  State v. Rupar, 293 Conn. 489, 511, 978 A.2d 502 (2009).”  Thomas v. Department of Developmental Services, 297 Conn. 391, 412 (2010).

While not addressed, as yet, by our appellate courts, the superior courts who have looked at this and similar issues have largely held that the failure to specifically name a defendant in an opinion letter did not render the letter insufficient.   See, e.g., Wood v. Caldwell, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 07 500584 (January 23, 2008, Scholl, J.) (rejecting the defendant's argument that motion to dismiss should be analyzed as if no opinion letter attached when defendant not referenced therein);  Jaboin v. Bridgeport Hospital, judicial district of Fairfield, Dkt. No. CV 09–5023443 (September 11, 2009, Bellis, J.) (The statutory language does not mandate that the opinion letter specifically reference the conduct of each of the defendants);  Sarfatti v. Hoffman, judicial district of New Britain, Dkt. No. 06 5000903 (August 18, 2006, Robinson, J.) (“[i]f a health care provider's statement demonstrates that grounds exist for an action against a defendant without specifically naming such defendant, the statement establishes the requisite foundation for the attorney's certificate, and, therefore comports with the statute”);  Mersereau v. State, judicial district of Hartford, Dkt. No. CV 08 5017933 (September 5, 2008, Dubay, J.) (same).

The defendant's reliance on Ribeiro v. Elfenbein, judicial district of Danbury, Dkt. No. CV 09 5006155, (October 16, 2009, Shaban, J.) is misplaced.   The decision in Ribeiro, with which this court agrees, turned on whether the author of the opinion letter was a “similar healthcare provider.”  Id. *5. There, the opinion letter was completely silent as to the qualifications, education and experience of the letter's author.   As such, under the holding of Bennett v. New Milford Hospital, 117 Conn.App. 535 (2009), the court could not determine whether the letter was from a “similar health care provider” and so dismissed the allegations against the defendant.   Although the letter did not identify any defendant by name, this was not the basis upon which the dismissal was entered.  Id. *6.

Similarly, the defendant's reliance upon Noel v. Lawrence & Memorial Hospital, judicial district of New London, Dkt. No. CV 10 6002479 (September 9, 2011, Cosgrove, J.) is misplaced.   There, the opinion letter addressed a hospital's failure to implement and follow certain policies and protocols in treatment of the plaintiff.   The letter was silent as to whether such policies and protocols were applicable to the entity which was seeking the dismissal—the physician's group.   Thus, there was nothing in the opinion letter tying the standard of care discussed in the opinion letter to the entity which was seeking dismissal.   Notably, the court only dismissed the allegations of direct negligence against this defendant, leaving extant, the allegations premised on vicarious liability.

Here, the defendant seeking dismissal is an internist.   The opinion letter is written by an internist.   The letter opines negligence by an internist in the care and treatment of the plaintiff.   The complaint alleges that the defendant was the plaintiff's internist.   The statutory mandates have been satisfied.

The motion to dismiss is DENIED.

K. DOOLEY, J.

FOOTNOTES

FN1. Preliminarily, the plaintiff argues that the sufficiency, as opposed to the absence, of the opinion letter is not properly raised in a motion to dismiss.   This court disagrees.   See, Bennet v. New Milford Hospital, Inc., 117 Conn.App. 535 (2009) (“An action is subject to dismissal ․ if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion” therein);  Votre v. County Obsetetrics & Gynecology Group, P.C., supra (failure to comply with the requirements of the statute render the complaint subject to dismissal);  Dias v. Grady, 292 Conn. 350 (Supreme Court considered the sufficiency of an opinion letter in the context of a motion to dismiss);  Jaboin v. Bridgeport Hospital, judicial district of Fairfield, Dkt. No. CV 5023443 (September 11, 2009, Bellis, J.) [48 Conn. L. Rptr. 469];  Mitchell v. Yale New Haven Hospital, judicial district of New Haven, Dkt. No. CV 10–6015881S (May 13, 2011, Fischer, J.) [51 Conn. L. Rptr. 896]..  FN1. Preliminarily, the plaintiff argues that the sufficiency, as opposed to the absence, of the opinion letter is not properly raised in a motion to dismiss.   This court disagrees.   See, Bennet v. New Milford Hospital, Inc., 117 Conn.App. 535 (2009) (“An action is subject to dismissal ․ if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion” therein);  Votre v. County Obsetetrics & Gynecology Group, P.C., supra (failure to comply with the requirements of the statute render the complaint subject to dismissal);  Dias v. Grady, 292 Conn. 350 (Supreme Court considered the sufficiency of an opinion letter in the context of a motion to dismiss);  Jaboin v. Bridgeport Hospital, judicial district of Fairfield, Dkt. No. CV 5023443 (September 11, 2009, Bellis, J.) [48 Conn. L. Rptr. 469];  Mitchell v. Yale New Haven Hospital, judicial district of New Haven, Dkt. No. CV 10–6015881S (May 13, 2011, Fischer, J.) [51 Conn. L. Rptr. 896].

Dooley, Kari A., J.