Nelson Rodriguez v. Hartford Clinical Associates, P.C. et al. (2013)

RULING RE DEFENDANT HARTFORD HOSPITAL MOTION TO DISMISS # 105

On June 18, 2012, the plaintiff filed a complaint consisting of two counts.   Count one is against Robert C. Gallagher, M.D., who is a physician duly licensed and engaged in the practice of surgery with an office located in the city of Hartford, Connecticut.   The second count is against The Hartford Clinical Associates, P.C. a professional corporation with a business address in Hartford, Connecticut.   The Hartford Clinical Associates, P.C., employ physicians and other healthcare providers including the defendant, Robert C. Gallagher, M.D., who provided medical care and treatment to the plaintiff at Hartford Hospital.

The defendant, Hartford Hospital, pursuant to General Statutes § 52–190a(c) and Practice Book § 10–31 timely filed a motion to dismiss the plaintiff's complaint against it.   Hartford Hospital essentially raises two issues.   It first argues that the opinion letter attached with the complaint was not authored by a similar health care provider, so it does not comply with the General Statutes § 52–190a.

Hartford Hospital's second argument is that Doctor Gallagher is not an employee of the Hartford Hospital as alleged in the complaint.   The defendant submits an affidavit of Allison M. Reynolds, Director of Medical Claims Management/Risk Management of Hartford Hospital.   In her affidavit, Ms. Reynolds claims that in March 2010, Doctor Gallagher was not the employee of the Hartford Hospital, but had privileges to practice medicine and surgery at Hartford Hospital.

On September 26, 2012, the plaintiff filed a revised complaint comprised of three counts.   The first count against Robert C. Gallagher, M.D., alleges medical malpractice.   The second count is filed against The Hartford Clinical Associates, P.C. on the basis that Doctor Gallagher was acting as agent, servant or an employee of the defendant.   The third count is against the Hartford Hospital, based on the theory of vicarious liability.

On May 6, 2013 the court heard arguments from the parties.   During the argument, the court was apprised that Dr. Gallagher has been deposed by the plaintiff.   The defendant Hartford Hospital argues that Dr. Gallagher's deposition sheds light on whether he was an employee of the Hartford Hospital.

Hartford Hospital argues that the plaintiff has plead his claim based on the principle of actual agency, not the agency by estoppel.   In support of its' claim Hartford Hospital asserts that Connecticut does not recognize the doctrine of agency by estoppel and cites the following cases;  (1) L And V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662 (2012), (2) Davies v. General Tours, Inc., 63 Conn.App. 17 (2001), and (3) Mullen v. Horton, 46 Conn.App. 759 (1997).

The plaintiff argues that the revised complaint sufficiently asserts a medical malpractice claim against Dr. Gallagher individually and as an agent, servant or employee of the Hospital.   The plaintiff concedes that he is not asserting a malpractice claim against any other unknown employees, i.e., unidentified nurses and operating room staff.   Lastly, the plaintiff argues that the revised complaint states a viable claim against the Hartford Hospital based upon the theory of vicarious liability for the actions of Dr. Gallagher.

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in this motion are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

The court will address whether the opinion letter provided by the plaintiff meets the statutory prerequisite of C.G.S. § 52–190(a).

1. Opinion Letter

The Connecticut Supreme Court very recently addressed the issue of opinion letter, as follows;  under the language of General Statues Section 52–190a(c) “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds of dismissal for the action.”   See Santorso v. Bristol Hospital, 308 Conn. 338 (2013).   The Supreme Court in Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011), addressed whether a motion to dismiss was an appropriate vehicle for challenging not only a failure to obtain and file the opinion letter, as squarely addressed by § 52–190a(c), but also a complaint accompanied by a letter that otherwise fails to comply with the requirements of § 52–190a(a).   In Bennett, the plaintiff filed an opinion letter with the complaint, but the defendant contended that letter's author did not qualify as a “similar health care provider” within the meaning of § 52–190a(a).  Id., 7. The Supreme court concluded that, “[i]nasmuch as the legislative history indicates that a motion to dismiss pursuant to § 52–190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and that dismissal of letter that does not comply with § 52–190a(c) is mandatory.”

In the present case, the opinion letter is authored by a cardiothoracic surgeon and Dr. Gallagher is also a cardiothoracic surgeon.   The plaintiff in his revised complaint has withdrawn any malpractice claim against unknown nurses and/or other hospital staff except Dr. Gallagher.   Therefore, having reviewed the record and listening the oral arguments the court finds that opinion letter was authored by a similar health care provider as Dr. Gallagher.

In light of all of the foregoing the motion to dismiss is denied.

The remaining issues such as (1) whether Dr. Gallagher was an employee of the Hartford Hospital at the time he performed surgery on the plaintiff. (2) whether the Hartford Hospital is vicariously liable for the actions of Dr. Gallagher do not implicate jurisdiction of the court.

M. Nawaz Wahla, J.

Wahla, M. Nawaz, J.