Lisa Callahan v. Bridgeport Hospital et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

There are presently pending before the court two motions arising out of this medical malpractice claim.   The plaintiff decedent's wife filed an initial complaint of negligent radiological and cardiac treatment her husband received at the Bridgeport Hospital which resulted in his death.   With respect to the radiological treatment, the defendants in the complaint were Dr. Greg B. Marrinan and his group, Advanced Radiological Consultants, LLC, as well as the Bridgeport Hospital, acting through its staff radiologist, Dr. Sonia Edwards.

Immediately after the complaint was returned to court, the defendants, Dr. Marrinan and Advanced Radiology Consultants, LLC, filed a motion to dismiss the complaint based on a claim that the attached opinion letter of a board-certified radiologist failed to comply with requirements of C.G.S. § 52–190a.

Within the required 30 days (P.B. § 10–59) the plaintiff filed an amended complaint with the same allegations of negligence but an amended opinion letter by the board-certified radiologist.   The same defendants have filed an objection to the amended complaint.

In the opinion letter, the board-certified radiologist indicates that he had reviewed the medical records Family Care, AMR Ambulance, Bridgeport Hospital, Cardiac Specialist, PC and St. Vincent's Hospital and concluded:

Based on my review of these records is my opinion that there appears to be evidence of medical negligence on the parts of Drs. Greg B. Marrinan and Sonia Edwards, and any persons or entities legally responsible for their actions, including Bridgeport Hospital and or Advanced Radiology Consultants and MRI centers, in the care and treatment of James Callahan April 2010.

Based on my review of these records, it is my opinion that there is a good faith basis to believe that there was medical negligence in the radiological care of as to Callahan, including;  a failure to properly read, interpret and report the results of April 3, 2010 computed tomography scan, including, a failure to properly detect and report an intramural hematoma and suspicion of dissection or impending dissection.

In Wilcox v. Schwartz, 303 Conn. 630, the Supreme Court recently decided and defined the “detailed basis” requirement of § 52–190a.   In that case the plaintiff was seeking damages for the alleged medical malpractice of the defendant surgeon while performing gallbladder surgery.   The opinion letter attached to the complaint indicated that the board-certified surgeon reviewed the relevant records and information provided to him with respect to the plaintiff.

“I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standard of care pertaining to the care and treatment of ․ Wilcox provided by (Schwartz) and the care and treatment provided by him was not provided in a manner consistent with the standard of care existing among general surgeons at the time of the incident ․ Specifically (Schwartz) failed to prevent injury to Wilcox's biliary structures during the laparoscopic gallbladder surgery and failed accurately to document the surgical procedure of March 12, 2006.   As a result of (Schwartz's) negligent treatment, Wilcox sustained severe painful and permanent injuries.”

The defendants filed a motion in lower court to dismiss the complaint alleging that the opinion was not detailed enough to satisfy the requirements of § 52–190a in that it was a conclusory statement of negligence and failed to provide an opinion as to how the defendant was negligent in the care of Wilcox and how he deviated from the standard of care.   The trial court dismissed the complaint ruling, in effect, that the detailed basis should include “some particulars as to what the defendant did that he was not supposed to do or fail to do that he was supposed to do,” that the author did not provide sufficient particularity to satisfy the requirements.

The Appellate Court concluded that the written opinion was sufficiently detailed to satisfy the requirements and that suffices to notify the reader that a similar health care provider is of the opinion that the medical negligence consisted of a failure to protect Wilcox's bile ducts from injury during surgery.   The court concluded that as long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint as the written opinion did in that case, the basis for the opinion is detailed enough to satisfy the statute and the statute's purpose.   The Supreme Court confirmed the opinion of the appellate court adopting the findings of the appellate court and concluding that the opinion letter, although concise, constituted a sufficiently clear detailed explication of what the defendant did or failed to do in breaching the applicable standard of care.  Wilcox v. Schwartz, 303 Conn. 630, 645, 646.

The defendants in this case claim simply that the opinion letter “does not give a detailed basis for the opinion.”   The court disagrees.

In Wilcox, the claim was based on a deviation from the standard of care which occurred during a surgical procedure involving a variety of standard requirements.   The board-certified surgeon identified one aspect of the surgery and indicated there was a “failure to protect the plaintiff's biliary structures during surgery” which constituted a breach of the standard of care failure.

In the present case, the standard of care for the defendant radiologists was singular, basic and obvious.   They were required to correctly interpret and report the results of the same (CT) scan.   According to the opinion letter of the board-certified radiologist the defendants committed medical negligence by failing to identify and report “an intramural hematoma and suspicion of dissection or impending dissection.”   The letter was succinct and more than functionally equivalent to the letter in Wilcox.   It provided a sufficient detailed basis as required under § 52–190a according to the analysis in the Wilcox case and it also addresses the allegations contained within the complaint.

The second basis for the motion to dismiss is that the opinion letter makes no distinction between Dr. Marrinan and Dr. Edwards.   This claim is more akin to a request to revise then a motion to dismiss.   Dr. Marrinan claims that by stating there was evidence of medical negligence on the part of doctors Greg B. Marrinan and Sonia and Woods “it is impossible for Dr. Marrinan to understand the basis of the claim of negligence against him.”

The reason the board-certified radiologist indicated mutual medical negligence on the part of both Dr. Marrinan and Dr. Edwards is that both radiologists examined the same (CT) scan and both failed to correctly interpret and report the results as well as they additionally failed to properly detect and report an intramural hematoma and suspicion of dissection or impending dissection.   With respect to the claim that Dr. Marrinan does not know individual claims made against him individually, the complaint solves his problem.   There are separate counts against Dr. Marrinan and his radiological group and against Bridgeport Hospital acting through its staff radiologist, Dr. Edwards.   The allegations of negligence in the separate counts against the two radiologists are exactly the same as is aptly described in the opinion letter.

Another claimed basis for seeking dismissal was that the author did not indicate he reviewed the (CT) scan nor does the author offer an alternative interpretation of the (CT) scan.   The claim is not that the author did not review the (CT) scan or did not provide an alternative interpretation of the (CT) scan, is that he specifically did not say so.   The claim is simply an unfounded observation which has nothing to do with the sufficiency of the opinion letter.

The radiologist in this case reported that among other things he reviewed the records of Bridgeport Hospital and the records of Cardiac Specialists which would have obviously included the (CT) scan.   He indicated that the radiologists failed to properly detect and report an intramural hematoma and suspicion of dissection or impending dissection and it is again obvious that this was his interpretation of the (CT) scan.

The court would finally submit that it is common opinion letters filed in medical malpractice claims begin with the notation by the author that they have reviewed the records of the patient.   For example, in Wilcox v. Schwartz, at 303 Connecticut 630, 634, the author of the opinion letter which was approved by both the Appellate Court and the Supreme Court provides:  “I have reviewed the relevant records and information that were provided to me with regard to ․ Wilcox.”   As opposed to the letter in the present case, the author did not even identify which records he reviewed which was irrelevant with respect to the confirmation by the Supreme Court as to the contents of the letter, as it is in the present case.

A final claim is that the opinion does not address the allegations of negligence pleaded in paragraph 74(app) of counts seven of the complaint, which was an allegation the defendants failed to recommend further testing and monitoring to rule out cardiac impairment abnormal malady or dysfunction.

The same issue was raised in Montalto v. CSC Enterprises, No. CV 106016396S (May 24, 2011) [52 Conn. L. Rptr. 26], Judge Wilson noted:

“The defendant argued that the opinion letter attached to the complaint is deficient “more than half of the play is allegations of negligence are not explicitly accessed by the author of the written opinion letter as breaches of the standard of care” however, “[A] majority of superior court decisions have held that the opinion letter need not serve as a template for the complaint, nor must it, address every allegation of negligence.”   Skewes v. Ocean Radiology Associates, Superior Court, judicial district of New London, Docket No. CV 10 6006135 (March 2, 2011, Martin, J.).   Indeed § 52–190 “neither explicitly nor implicitly requires a letter of opinion accompanied a 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 an allegation of negligence not mentioned in such a letter.”  Id.;  see also Ribeiro v. Elfenbein, Superior Court judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaben, J.), Hernandez v. Moss, Superior Court judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.), DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 065003390, Hale, J.T.R.).

“The standard governing this question was discussed extensively in Wilcox v. Schwartz, 119 Conn.App. 808, certiorari granted, 296 Conn. 908, (2010).   In that case our Appellate Court stated:  “so long as a good-faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint ․ the base of the opinion is detailed enough to satisfy the statute and the statutes and the statute's purpose Id., 816.   The Appellate Court has not indicated that this standard is quantum rather than qualitative in nature.   Indeed, the Appellate Court's focus on a single allegation forecloses such a reading (fn3) the defendant's contention that the opinion letter is deficient simply because it fails to address the majority allegations set forth in the complaint is therefore without merit.”   See also Maccarone v. Golioto, judicial district of Hartford at Hartford, Docket No. CV 11 6019721–S (September 16, 2011, Peck, J.) [52 Conn. L. Rptr. 628].

The motion to dismiss is denied.

GILARDI, J.T.R.

Gilardi, Richard P., J.T.R.