Jaslyn Squire et al. v. Women's Health Care of Milford, P.C. et al. (2013)

MEMORANDUM OF DECISION

This is a decision on a motion to dismiss filed by the defendant, Milford Hospital.   Specifically, the defendant argues that the court should dismiss those portions of counts seven, eight and nine which assert claims against unidentified “servants, agents apparent agents and/or employees” of Milford Hospital because the plaintiffs only attached the written opinion of an obstetrician/gynecologist to their complaint.   As such, the defendant hospital claims the plaintiffs failed to comply with the requirements of § 52–190a(a), by not having a written opinion signed by a similar health care provider to support a medical malpractice action, which is grounds for dismissal.¹  The defendant filed its motion to dismiss on October 19, 2012.   On November 27, 2012, the plaintiffs filed an objection and memorandum of law in opposition to the motion, and on February 7, 2013, the defendant filed a reply brief.   The matter was heard on the short calendar on June 18, 2013.

On July 26, 2012, the plaintiffs, Jaslyn Squire, ppa Sarah Jennings and Victor Squire, and Sarah Jennings and Victor Squire, individually, filed a nine-count complaint against the defendants, Milford Hospital (the hospital), Jerry Ferrentino, M.D., and Women's Healthcare of Milford, P.C. Counts seven through nine are directed to the defendant Milford Hospital.   In count seven, Jaslyn Squire brings an action through her parents, as next friends, sounding in medical negligence against the hospital.   In count eight, Sarah Jennings brings an action sounding in medical negligence against the hospital.   In count nine, Victor Squire and Sarah Jennings, as parents of Jaslyn Squire, bring an action for medical negligence against the hospital seeking reimbursement of past and future medical and educational expenses.

In those counts directed to Milford Hospital, the plaintiffs allege that beginning on September 17, 2010 and until September 19, 2010, the defendant, Milford Hospital and its servants, agents, apparent agents and/or employees, undertook the care, treatment, monitoring, diagnosing and supervision of, Jaslyn Squire, then in utero, and Sarah Jennings, for pregnancy, labor, delivery and post-delivery care.   The co-defendant, Jerry Ferrentino was a servant, agent, apparent agent and/or employee of the defendant, Milford Hospital.   While under the care, treatment, monitoring, diagnosing and supervision of the defendant, Milford Hospital, its servants, agents, apparent agents and/or employees, Jaslyn Squire suffered severe, serious, painful and permanent conditions, including shoulder dystocia, right arm brachial plexus palsy, right brachial plexus dysfunction, decrease elbow flexion, limited right wrist extension, limitation of biceps function, and psychological, physiological and neurological sequelae.

The plaintiffs further allege that the said injuries were caused by the failure of the defendant, Milford Hospital and its servants, agents, apparent agents and/or employees to exercise reasonable care in that they failed to adequately and properly care for, treat, monitor, diagnose and supervise Jaslyn Squire, then in utero, and Sarah Jennings during pregnancy, labor and delivery.   More specifically, the plaintiffs allege the hospital's servants, agents and employees failed to recognize and identify that Sarah Jennings was at increased risk for delivering a baby with cephalopelvic disproportion, failed to recognize that Sarah Jennings was at increased risk for cephalopelvic disproportion, failed to anticipate or prepare for a difficult delivery due to macrosomia, failed to perform an ultrasound following a failed induction, failed to recognize that Sarah Jennings was at risk for a delivery complicated by macrosomia, failed to recognize that Jaslyn Squire was at risk for shoulder dystocia, failed to properly consider Sarah Jennings's medical history, failed to accurately document the delivery summary, as to the description of the delivery, failed to discuss options for delivery and risks and benefits of a cesarean section versus a vaginal birth, failed to adequately and properly assess Sarah Jennings's ability to deliver vaginally, failed to make safe treatment choices for the delivery of Jaslyn Squire, failed to safely deliver Jaslyn Squire, failed to timely diagnose and treat the shoulder dystocia, failed to properly use acceptable delivery maneuvers, employed dangerous and improper delivery maneuvers, applied excessive traction, pressure and/or torsion to Jaslyn Squire during delivery, failed to perform a cesarean section, failed to properly supervise delivery room personnel, failed to utilize the shoulder dystocia drill, failed to have personnel experienced with shoulder dystocia in the delivery room, failed to provide physicians and surgeons who possessed the requisite knowledge, skill and experience to adequately and properly care for, treat, diagnose, monitor, and supervise Jaslyn Squire, then in utero, and Sarah Jennings, during pregnancy, labor and post-delivery care, and failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of patients such as Jaslyn Squire, then in utero, and the mother, Sarah Jennings.

The defendant filed a motion to dismiss the plaintiff's medical malpractice action as to counts seven, eight and nine, pursuant to General Statutes § 52–190a(c), on the ground that the written opinion attached to the plaintiff's complaint was not authored by a “similar health care provider,” as required by General Statutes § 52–190a(a).

I.

“The grounds which may be asserted in [a motion to dismiss] 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 (1985), citing Practice Book § 143, which is now § 10–31.  “The 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 (2011).  “[A]n action is subject to dismissal under [General Statutes § 52–190a(c) ] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545 (2009).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

II.

The defendant filed a motion to dismiss the plaintiff's medical malpractice action, pursuant to General Statutes § 52–190a(c), on the ground that the written opinion attached to the plaintiff's complaint was not authored by a “similar health care provider,” as required by General Statutes § 52–190a (a).²  Specifically, the defendant moves to dismiss counts seven, eight and nine because the plaintiffs' complaint attaches a written opinion which is only that of a board certified obstetrician/gynecologist.   Because the claims against the hospital potentially include that of nurses, nurse's aids, medical assistants and other doctors not board certified in OB/Gyn, the hospital claims that no requisite written report was filed which would cover those additional specialties, and the complaint must then be dismissed as to the other hospital servants, agents and employees.

In considering this motion, the court must consider the allegations of the complaint in their most favorable light in favor of the pleader.   The complaint alleges in paragraph 2 of counts seven, eight and nine that “the co-defendant, Jerry Ferrentino was a servant, agent, apparent agent and/or employee of the defendant, Milford Hospital.”   Further in paragraphs 5 and 6, the plaintiffs allege that “Jaslyn Squire suffered severe, serious, painful and permanent conditions [that were] caused by the failure of the defendant, Milford Hospital and its servants, agents, apparent agents and/or employees to exercise reasonable care under all of the facts and circumstances.”   In viewing the allegations of the complaint in a light most favorable to the plaintiffs, the plaintiffs are proceeding against the hospital based upon a claim for vicarious liability.

Although not yet addressed directly by our Appellate Courts, the vast majority of Superior Court decisions have held that a “written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution.”   See Matos v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV10–6012490 (February 3, 2011, Woods, J.);   Porucznik v. Spitz, judicial district of New London, Docket No. CV12–6013244 (November 19, 2012, Cosgrove, J.) [55 Conn. L. Rptr. 62];  Strickland v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV09–5014599 (September 27, 2010, Swienton, J.) (50 Conn. L. Rptr. 641);  DeRosa v. Warner, Superior Court, judicial district of New Haven, Docket No. CV08–5020564 (December 8, 2008, Zoarski, J.T.R.);   Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV08–5003164 (October 22, 2008, Pickard, J.);   DeMaio v. John Dempsey Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV06–5010472 (August 5, 2008, Berger, J.) (46 Conn. L. Rptr. 121);  Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV06–5000954 (September 18, 2006, Pittman, J.).

While the hospital has cited two cases which holds the opposite view, this court views the opinions in the majority of superior court cases to be a more reasoned analysis.   As such, this court adopts the view that a written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution.   Since Dr. Ferrentino is alleged to be an agent or employee of the hospital, the written opinion claiming negligence by Dr. Ferrentino is sufficient to satisfy the statutory requirement as to the hospital.³

Therefore, the motion to dismiss is denied.

Matasavage, J.

FOOTNOTES

FN1. C.G.S. § 52–190a(c) provides:  “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”.  FN1. C.G.S. § 52–190a(c) provides:  “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

FN2. Section 52–190a(a) provides “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 or apportionment complaint 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 or apportionment complaint 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 the 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.”.  FN2. Section 52–190a(a) provides “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 or apportionment complaint 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 or apportionment complaint 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 the 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.”

FN3. Since the court finds that a written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution, the court need not address defendant's claim that the opinion itself is lacking in detail and insufficient as to other agents or employees of the hospital..  FN3. Since the court finds that a written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution, the court need not address defendant's claim that the opinion itself is lacking in detail and insufficient as to other agents or employees of the hospital.

Matasavage, Paul, J.