Susan Sims v. Thomas Bell et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 124) AND (# 127)

FACTS

The defendants, Thomas Bell, William W. Backus Hospital (Backus Hospital), Jason Allard, and Chelsea Clinic, LLC (Chelsea Clinic), moved to dismiss the medical malpractice action of the plaintiff, Susan Sims, on the ground that the good faith opinion letter required by General Statutes § 52–190a is insufficiently detailed.

The four-count amended complaint, filed by Sims on July 22, 2011, alleges the following facts.   On April 22, 2009, Sims saw Bell at Chelsea Clinic with complaints of an upset stomach over the prior months.   Bell recommended a gallbladder removal procedure, which occurred at Backus Hospital on May 22, 2009.   Bell performed the procedure with assistance from Allard.   Bell and/or Allard provided negligent medical treatment during Sims' gallbladder removal procedure, causing a clip injury to the common hepatic duct, and this negligence caused the plaintiff multiple injuries.   At all times relevant to the amended complaint, Bell was an “employee, agent and/or officer” of both Backus Hospital and Chelsea Clinic.   Allard was an “employee, agent and/or apparent agent” of Backus Hospital.   The following four counts comprise the complaint.   Count one is against Bell and alleges negligence.   Count two is against Backus Hospital and alleges negligence, specifically that Backus Hospital failed to ensure that existing policies were followed relevant to the plaintiff's treatment and/or failed to supervise the operation of the physicians and the physicians' assistants to ensure that they were practicing in a safe manner without deviating from the standard of care.   Count three is against Allard and alleges negligence.   Count four is against Chelsea Clinic and alleges that Chelsea Clinic is liable under the doctrine of respondeat superior for any damages caused by Bell, while acting within the scope of his employment for the benefit of his employer, Chelsea Clinic, and that Chelsea Clinic failed to adequately and properly “care for, treat and supervise the plaintiff's needs;  and/or failed to adequately and properly treat the plaintiff.”

Bell and Chelsea Clinic filed their present motion to dismiss the amended complaint and accompanying memorandum of law on August 15, 2011.   Backus Hospital and Allard filed their present motion to dismiss the amended complaint and accompanying memorandum of law on August 22, 2011.   In regard to each motion to dismiss, Sims filed a request to extend time to respond and then, she filed objections to the motions to dismiss and memoranda of law in opposition on September 12, 2011.   The matter was heard at short calendar on October 3, 2011.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).   Under General Statutes § 52–190a(a), a claimant in a medical malpractice action is required to obtain a written and signed opinion of a similar health care provider that there appears to be evidence of medical negligence and the opinion must include a detailed basis for its formation.  Section 52–190a(c) provides that failing to obtain and to file the written opinion shall be grounds for the dismissal of a plaintiff's action.  “[A] motion to dismiss pursuant to § 52–190a (c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and ․ dismissal of a letter that does not comply with § 52–190a(c) is mandatory ․” Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011).

Bell and Chelsea Clinic moved to dismiss counts one and four of Sims' amended complaint on the ground that the attached good faith medical opinion letter fails to sufficiently set forth a detailed basis for the opinion that Bell or Chelsea Clinic breached the standard of care, thereby failing to satisfy one of the requirements to bringing a medical malpractice action.   Bell and Chelsea Clinic argue that in order to comply with § 52–190a, at a minimum Sims' medical opinion letter must state the applicable standard of care and that the defendant breached that standard of care.   Bell and Chelsea Clinic argue that Sims' letter does not identify the standard of care for a general surgeon performing a laparoscopic gallbladder surgery, instead the letter contains a conclusory statement that Sims' type of injury is below the standard of care;  Sims' letter offers by way of example a technique that can be utilized in this type of surgery but does not indicate that the standard of care requires its use nor does the letter indicate that its nonuse is a deviation from the standard of care.   Consequently, Bell and Chelsea Clinic argue that Sims' attached letter does not sufficiently set forth the detailed basis for the opinion and does not satisfy the statute.

Backus Hospital and Allard moved to dismiss counts two and three of Sims' amended complaint on the ground that the good faith medical expert opinion letter attached to the complaint fails to satisfy the requirements of § 52–190a for bringing a medical malpractice action.   Backus Hospital and Allard argue that the medical opinion letter fails to set forth a detailed basis for the opinion that the defendants breached the standard of care and the letter only opines that the injury is below the standard of care for a general surgeon without addressing the standard of care.

In opposition, Sims argues that the good faith letter attached to the amended complaint provides a good faith basis for the belief that Bell and/or Allard “failed to properly care for the plaintiff leading to her bile duct stricture, failed to utilize proper techniques to avoid such an injury, failed to recognize the tear as such techniques were not used and failed to identify a variation of the gallbladder by using testing procedures, an example of which is outlined by the plaintiff's health care provider, or other techniques which are well-known.” ¹  Sims argues that the opinion letter, stating that an intra-operative cholangiogram is an example of a technique that should be used, “is not only instructive of what should be done but is also a standard of care which is cited as what should be done when there is any doubt as to the anatomy of the gallbladder hilum and the ductal structures that can be distorted by inflammation.”   Sims argues that the opinion letter goes beyond the minimum required because the letter states that the injury is below the standard of care, states why the injury is below the standard of care and further states that other techniques could have been used to avoid this injury, even providing an example.

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 ․ 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's attorney ․ shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․ and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider ․ shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.”

At the motion to dismiss stage of a case, the level of scrutiny that the trial court should apply to a good faith opinion letter has yet to be explicitly resolved by the Supreme Court.   The first appellate authority to address the level of detail required in an opinion letter determined that “[s]o 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.”  Wilcox v. Schwartz, 119 Conn.App. 808, 816, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).²  “The person rendering this opinion is not required by § 52–190a(a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff.   Lack of such a statutory requirement that the good faith expert also be used at trial, evinces a legislative intent that the opinion's detail need not be as exhaustive as that of a trial expert on medical negligence disclosed under the provisions of Practice Book § 13–4(b)(1) and (2).”   Id.

The purpose behind the statutory requirements of the attorney certificate of good faith and the medical opinion letter is to deter frivolous lawsuits.   See id., 813.   The statute, in this court's opinion, also recognizes Connecticut's policy to try a case on its merit;  see Thurlow v. Hulten, 130 Conn.App. 1, 8, 21 A.3d 535, cert. denied, 302 Conn. 925, 28 A.3d 337 (2011) (“policy preference to bring about a trial on the merits of a dispute whenever possible”);  because the statute recognizes that at the commencement of a medical negligence action, the attorney or claimant need only make 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 and treatment of the claimant.”(Emphasis added.)  General Statutes § 52–190a(a).   With regard to the opinion letter by a similar health care provider, which is an additional requirement added later by the legislature to further ensure that there is a good faith basis for the litigation, the statute does not require the opinion to be in terms of a reasonable degree of medical certainty, rather the statute requires that “there appears to be evidence of medical negligence.”   Furthermore, the statute notes that in determining good faith “the court may consider other factors.”

The referenced statutory language support this court's position that the level of scrutiny applied to the opinion letter as attached to the complaint is different and less rigorous than the standard applied to an expert's opinion of medical negligence presented at trial.   The legislature's use of the language “appears to be evidence of medical negligence” rather than “a reasonable degree of medical certainty” reflects the legislative balancing of the need to prevent frivolous lawsuits with the ability of plaintiffs to pursue nonfrivolous claims of medical malpractice.

The text of the statute continues:  “If the court determines, after the completion of discovery, that such good faith certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction ․” General Statutes § 52–190a(a).   The legislature thus created an additional provision within the statute that authorizes the court to impose sanctions as an additional deterrent for knowingly filing a frivolous lawsuit.

In the present case, the opinion letter, read in conjunction with the allegations of the complaint, suffices to notify the defendants that a similar health care provider is of the opinion that the medical negligence that occurred in this case consisted of a failure to prevent a stricture to the plaintiff's bile duct during her gallbladder removal surgery.   The structure of the written opinion indicates that the standard of care was (1) to recognize that the anatomy of the gallbladder hilum is variable and that ductal structures can be distorted by inflammation and (2) to utilize techniques, such as an intra-operative cholangiogram, when there is any doubt as to the anatomy.   The author gives his or her opinion that Bell's conduct fell below the standard of care for a general surgeon performing a gallbladder procedure by failing to prevent an operative injury to Sims' left hepatic duct.   The opinion letter does not have to address all the allegations of negligence alleged in the complaint and this opinion letter addresses the allegation of negligent conduct that was central to the gallbladder removal procedure that allegedly caused Sims' injuries.   Accordingly, the opinion letter attached to Sims' amended complaint is sufficiently detailed in order to comply with § 52–190a.

CONCLUSION

For the foregoing reasons, the defendants' motions to dismiss are denied.

Cosgrove, J.

FOOTNOTES

FN1. In both of Sims' memoranda in opposition, she addresses the issue of whether the opinion letter was authored by a similar health care provider.   This argument was raised in all of the defendants' original motions to dismiss but was abandoned in the present motions to dismiss and counsel for the defendants conceded that it was no longer an issue during oral argument..  FN1. In both of Sims' memoranda in opposition, she addresses the issue of whether the opinion letter was authored by a similar health care provider.   This argument was raised in all of the defendants' original motions to dismiss but was abandoned in the present motions to dismiss and counsel for the defendants conceded that it was no longer an issue during oral argument.

FN2. In another Superior Court case, Judge Wilson interpreted Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010), as requiring that “the written opinion need only contain a restatement of the relevant allegations of negligence and the author's opinion that, for the reasons contained in those allegations, the defendant's conduct fell below the standard of care.   Moreover, the standard of care does not need to be explicitly stated if it may be inferred from the ‘structure’ of the written opinion ․ [and it was] strongly suggest[ed] that a written opinion need only address the allegations of negligent conduct that are central to the procedure that allegedly caused the plaintiff's injury.”  (Citation omitted.)   Steinmann v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV 11 6017158 (May 24, 2011, Wilson, J.)..  FN2. In another Superior Court case, Judge Wilson interpreted Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010), as requiring that “the written opinion need only contain a restatement of the relevant allegations of negligence and the author's opinion that, for the reasons contained in those allegations, the defendant's conduct fell below the standard of care.   Moreover, the standard of care does not need to be explicitly stated if it may be inferred from the ‘structure’ of the written opinion ․ [and it was] strongly suggest[ed] that a written opinion need only address the allegations of negligent conduct that are central to the procedure that allegedly caused the plaintiff's injury.”  (Citation omitted.)   Steinmann v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV 11 6017158 (May 24, 2011, Wilson, J.).

Cosgrove, Emmet L., J.