Joan Rulli, Executrix of the Estate of Samuel J. Rulli et al. v. James F. Devanney et al. (2011)

MEMORANDUM OF DECISION

In this wrongful death medical malpractice action, the defendants, James McKay, M.D. and D. James McKay, M.D., P.C., have moved to dismiss the plaintiffs' claims against them for lack of personal jurisdiction due to insufficiencies in the written opinion attached to the complaint.   They have also moved to dismiss the derivative loss of consortium claim for the same reasons.   The motion must be denied.   The court's reasoning will be set forth briefly below.

The first reason for the motion to dismiss is that the written opinion does not discuss all of the many allegations of negligence set forth in the complaint.   The written opinion specifically states that the defendants departed from the standard of care, and that:  “Said departures include, but are not limited to, failing to timely perform a digital rectal examination during the above time frame, failing to order a PSA during 2008, failing to properly co-manage the plaintiff decedent's care with the consulting urologist, and failing to timely recommend the plaintiff's decedent undergo a biopsy.”   These four allegations of negligence are included in the complaint together with several other allegations of negligence.   The defendants argue that the complaint must be dismissed because it fails to provide a “detailed basis” for each and every one of the alleged deviations from the standard of care.

The plaintiff responds that there is no basis in law or fact to support this motion.   I agree.   No attempt will be made to lay out all of the existing law on this much-litigated topic.   It is enough to restate that the purpose of § 52–190a is “to discourage frivolous lawsuits against health care providers.”   Wilcox v. Schwartz, 119 Conn.App. 808, 816 (2010).  “The written opinion now required, like the certificate, provides the defendant with some evidence that the plaintiff conducted an inquiry prior to filing the complaint and that the inquiry gave the plaintiff a good faith belief that the defendant was negligent.”  Bennett v. New Milford Hospital, 117 Conn.App. 535, 543 (2009).   Using this language as the measuring stick, the written opinion in this case is sufficient because it means that the suit is not frivolous in that the plaintiff has obtained the opinion of a similar health care provider that the defendants were negligent.   I agree with Judge Gallagher that a opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence.   Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. 065000664 (May 31, 2007, Gallagher, J.).   I also agree with Judge Hale that C.G.S. § 52–190a “neither explicitly nor implicitly ․ require[s] the letter accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter.”   Dejesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. 065003390 (May 17, 2007, Hale, J.T.R.) [43 Conn. L. Rptr. 420].   The written opinion attached to the complaint in this case provides a detailed basis for the allegations set forth.

The defendants also argue that the written opinion is insufficient because it was “clearly ghost written, and therefore cannot be considered as being provided by a similar healthcare provider.”   As with their first argument, the defendants have nothing to support this argument.   The court has no basis to determine that the written opinion does not reflect the opinion of the reviewing doctor.   The Superior Court judges who have considered similar arguments have rejected them.   See, e.g., Walton v. Caffrey, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 065000857 (May 4, 2007, Gallagher, J.) [43 Conn. L. Rptr. 341];  Draper v. Danbury Health Sys., Superior Court, judicial district of Waterbury at Waterbury, Docket No. 085008854 (Oct. 14, 2008, Scholl, J.) [47 Conn. L. Rptr. 500];  Scofield v. Quinn, Superior Court, judicial district of Waterbury, Docket No. 08000897 (Sept. 16, 2008, Brunetti, J.) [46 Conn. L. Rptr. 319].

The motion to dismiss is denied.

BY THE COURT,

John W. Pickard

Pickard, John W., J.