Denise Scarnati v. OB GYN (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS [# 104]

FACTS

On April 23, 2012, the plaintiff, Denise Scarnati, filed a four-count complaint against the defendants, OB–GYN Services, P.C., OB–GYN 340, LLC, David Kalla and the William W. Backus Hospital (hospital).   The plaintiff alleges the following facts, which are incorporated into all four counts.   On July 22, 2010, the plaintiff entered the hospital for a surgical procedure.   The surgery was performed by Kalla, an obstetrician and gynecologist.   Kalla treated patients, including the plaintiff, as part of his employment with OB–GYN Services, P.C., and OB–GYN 340, LLC. Kalla was also a member of the hospital's medical staff.   While performing the July 22, 2010 surgery, Kalla was unsuccessful in his many “attempts to insert a surgical trocar into the [p]laintiff's abdomen.”   Kalla performed an open abdominal hysterectomy after abandoning the robotic laparoscopic hysterectomy.   Following the procedure, the plaintiff was admitted to the hospital.   During her hospital stay, the plaintiff developed redness over her anterior abdominal wall and her abdomen became distended.

On July 24, 2010, the plaintiff had a general surgical consult and underwent a second surgery.   The July 24, 2010 surgery revealed multiple bowel perforations as well as bowel and intraabdominal contents leaking into her abdomen.   The surgeon removed purulent material and approximately one foot of the plaintiff's bowel.   After the second surgery, the plaintiff suffered respiratory failure and had to be maintained on a ventilator overnight.   The plaintiff was discharged from the hospital on August 1, 2010.

In counts two and three, which are at issue in the present motion, the plaintiff further alleges the following facts against the defendants OB–GYN Services, P.C., and OB–GYN 340, LLC (the defendants).¹  In count two, the plaintiff alleges that she suffered various injuries and damages as a result of the “negligence, carelessness and deviation from the accepted standard of care” by OB–GYN Services, P.C., its “physicians, medical staff and other agents and/or employees.”   OB–GYN Services, P.C., was negligent by failing to supervise, train, select, credential, and retain properly its physicians.   Additionally, OB–GYN Services, P.C., failed, inter alia, to have procedures in place to ensure proper care for the plaintiff following her first surgery, failed to train its physicians in the proper use of robotic surgical instruments and failed to train its physicians to ensure timely follow-up care.   In count three, the plaintiff makes the same allegations of negligence against OB–GYN 340, LLC. The complaint was accompanied by a good faith certificate signed by the plaintiff's attorney and a redacted opinion letter authored by a practicing, board certified obstetrician-gynecologist.

On June 7, 2012, the defendants moved to dismiss counts two and three pursuant to General Statutes § 52–190a ² on the ground that the plaintiff has failed to attach to the complaint a certificate of good faith and expert opinion letter as to these defendants.   On June 27, 2012, the plaintiff filed her memorandum of law in opposition.   The court heard argument on the motion at short calendar on August 13, 2012.

DISCUSSION

In a medical malpractice action, “[t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.”  (Citation omitted, internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401–02, 21 A.3d 451 (2011).  “[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).

“When a ․ court decides a ․ question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Internal quotation marks omitted.)  Id., 10–11.

In support of their motion to dismiss, the defendants argue that they are health care providers and the plaintiff's claims in counts two and three are for medical malpractice.   Thus, the defendants argue that the claims are within the scope of § 52–190a.   The defendants argue that the opinion letter attached to the complaint is insufficient to comply with the statute because the allegations of direct medical negligence against them are not addressed in the opinion letter and the allegations go beyond allegations of vicarious liability.   The plaintiff counters that her claims do not require an opinion letter because the defendants are institutional entities.   The plaintiff argues that there is a gap in the statute regarding institutional entities and requiring an opinion letter from an institutional defendant would be unworkable and would not serve the purpose of the statute.   The plaintiff argues in the alternative that the attached letter is sufficient to comply with the statute because the opinion letter is sufficient as to one of the defendants' employees.   At short calendar, the plaintiff argued that the allegations are not within the scope of § 52–190a because the facts alleged relate to negligence in administration rather than medical negligence.

“The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred.  [P]rofessional negligence or malpractice ․ [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”  (Emphasis in original;  internal quotation marks omitted.)  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).³

“[A]n action brought against a medical provider in its capacity primarily as an employer does not require a certificate of good faith.”   Jolly v. Smudin, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000597 (April 16, 2007, Upson, J.).  “Courts have found that negligence is of a specialized medical nature where a health care provider neglects to take precautions that are necessary to address a patient's particular medical condition ․

“An act or omission is of a specialized medical nature when it directly concerns a plaintiff's particular medical ailment.”  (Citations omitted;  internal quotation marks omitted.)   Souza v. Maxim Healthcare Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 12 6027871 (July 27, 2012, Young, J.) [54 Conn. L. Rptr. 450].   Nevertheless, “[c]ourts have held that negligence is not of a specialized medical nature where a health care provider neglects to follow or implement an administrative or routine procedure not directly related to a patient's medical care ․

“[C]onduct which is primarily administrative and not medical is not of a specialized medical nature.”  (Citations omitted;  internal quotation marks omitted.)  Id. “The proper oversight of employees ․ does not necessarily make [a] negligence action one of medical malpractice.   The court must still consider whether the alleged negligent supervision pertains to treatment and the omission or failure of its employees to perform a treatment or other medical procedure.”  (Internal quotation marks omitted.)   Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011, Burke, J.).

In Jolly v. Smudin, supra, Superior Court, Docket No. CV 06 5000597, the plaintiff alleged that the decedent “became very ill and ultimately died as a result of medications obtained from Smudin [a pharmacist] on prescriptions he forged and filled through other improper means.”   The plaintiff sued Smudin and Stop and Shop in its capacity as a pharmacy.  Id. The defendant Stop and Shop moved to dismiss and argued that the allegations against it sounded in medical malpractice, therefore, requiring an opinion letter.  Id. The plaintiff countered that the allegations sounded in ordinary negligence.   Id. The trial court agreed with the plaintiff and reasoned that “the claims against Stop & Shop do not sound in medical malpractice, because (1) Stop & Shop is being sued in its capacity as an employer, not as a medical professional;  (2) the negligence allegedly arises out of the employer employee relationship between Stop & Shop and Smudin, and is not of a specialized medical nature arising out of a medical professional-patient relationship;  and (3) the complaint alleges negligence on the part of Stop & Shop in its supervision of its employees and in its failure to have monitoring procedures in place which would have prevented the events that occurred not in conduct by Stop & Shop related to medical diagnosis or treatment or in Stop & Shop's exercise of medical judgment.”  Id.

In the present case, the allegations of negligence against the defendants relate to general issues of staffing and administrative policies of the defendants rather than allegations specifically related to the plaintiff's care while a patient at the hospital.   The allegations involving failures to train, supervise and have proper procedures in place to prevent harm to the plaintiff are not related directly to the treatment of the plaintiff's medical condition by the defendants and do not require the exercise of medical judgment by the defendants.   The allegations of negligence against the defendants focus on the defendants' relationship with their staffs and agents, including Kalla, as employers rather than as medical providers who are providing medical treatment to the plaintiff.   Although the plaintiff alleges a deviation from the accepted standard of care, counts two and three sound in ordinary negligence not medical malpractice.   Therefore, the allegations are not within the scope of § 52–190a and a written opinion letter is not required.   Accordingly, the defendants' motion to dismiss is denied.

CONCLUSION

Based on the foregoing reasons, the defendants' motion to dismiss is denied.

Martin, J.

FOOTNOTES

FN1. Hereinafter, the term “the defendants” will refer to OB–GYN Services, P.C., and OB–GYN 340, LLC, only.   The defendant Kalla and the defendant hospital are not parties to the present motion.   The defendant hospital also filed a motion to dismiss, which will be addressed in a separate memorandum of decision regarding motion to dismiss number 106..  FN1. Hereinafter, the term “the defendants” will refer to OB–GYN Services, P.C., and OB–GYN 340, LLC, only.   The defendant Kalla and the defendant hospital are not parties to the present motion.   The defendant hospital also filed a motion to dismiss, which will be addressed in a separate memorandum of decision regarding motion to dismiss number 106.

FN2. 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 ․ whether in tort or in contract, 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 claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”  “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”  General Statutes § 52–190a(c)..  FN2. 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 ․ whether in tort or in contract, 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 claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”  “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”  General Statutes § 52–190a(c).

FN3. Following the Supreme Court's decision in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011), Superior Courts have found that whether allegations are for medical negligence under the three-part test is irrelevant and “the requirements for § 52–190a will not apply when (1) the courts have decided for other reasons that expert medical testimony is not required for the standard of care, as in cases like informed consent;  and (2) in cases of gross negligence where the standard of care would be obvious to a lay person.”   Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011, Burke, J.).   Neither exception is applicable here, and the court will apply the three-part test..  FN3. Following the Supreme Court's decision in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011), Superior Courts have found that whether allegations are for medical negligence under the three-part test is irrelevant and “the requirements for § 52–190a will not apply when (1) the courts have decided for other reasons that expert medical testimony is not required for the standard of care, as in cases like informed consent;  and (2) in cases of gross negligence where the standard of care would be obvious to a lay person.”   Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011, Burke, J.).   Neither exception is applicable here, and the court will apply the three-part test.

Martin, Robert A., J.