Shirley Bell, Administrator of the Estate of Carolyn McFadden v. Marrakech, Inc. (2013)

MEMORANDUM OF DECISION

FACTS

The plaintiff, Shirley Bell, the administrator of the estate of Carolyn McFadden, filed a three-count complaint on December 11, 2012, against Marrakech, Inc., the Vantage Group, Inc., and Peter O'Meara as the commissioner of the Department of Developmental Services.   The plaintiff amended the complaint on April 22, 2013, “to modify the allegations of negligence.”

On May 30, 2013, the Vantage Group filed a two-count apportionment complaint, against Antonio Lopez, a medical doctor, for negligence and against Family Practice & Internal Medicine, LLC, for vicarious liability of Dr. Lopez' alleged negligence.   Thereafter, the plaintiff filed a second amended complaint on July 2, 2013, adding counts four and five against Dr. Lopez and Family Practice & Internal Medicine, LLC.¹ The second amended complaint and the apportionment complaint allege the following facts.   The decedent suffered from “retardation, schizophrenia, and borderline personality disorder.”   She had two choking episodes while in the care and custody of Marrakech and the Vantage Group, who respectively ran the day/vocation and resident services at the decedent's care facility.   The first choking instance occurred at the facility on October 27, 2010, from which the decedent recovered.   After that incident, the decedent saw Dr. Lopez for the first time on October 29, 2010.   A second choking incident occurred on November 23, 2010, resulting in the decedent's death on November 25, 2010.

The plaintiffs allege that Dr. Lopez was negligent in his care of the decedent following her first incident of choking.   In so alleging, they make the following nine claims of negligence, stating that “he (a) failed to identify that [the decedent] was at risk of choking;  (b) failed to order a change in consistency of [the decedent's] meals to prevent choking;  (c) failed to issue a formal order to [the] Vantage Group, Inc. that [the decedent] required close supervision while eating to help prevent choking;  (d) failed to prescribe a change in [the decedent's] medications to reduce the risk of side effects including risk of choking;  (e) failed to order follow up with a specialist for a swallow study, study findings, and development of health care plan to include actions to prevent choking;  (f) failed to develop and implement an individual support plan to meet [the decedent's] individual needs with specialized services, including the assistance of a speech professional with dysphasia expertise and nutritionist;  (g) failed to act when [the decedent] exhibited signs and symptoms of extrapyramidal effects of psychotropic medications as required by accepted standards of practice;  (h) failed to respond to objective, measurable, and reliable behavioral data as bases for medication adjustments, contrary to accepted standards of practice;  and (i) failed to ensure reliable data collections germane to health care monitoring.”   Both the apportionment complaint and the second amended complaint are accompanied by the same good faith opinion letter from a similar health care provider pursuant to General Statutes § 52–190a.

On July 24, 2013, the defendants filed a motion to dismiss counts four and five of the second amended complaint and the entire apportionment complaint, counts one and two, on the grounds that the good faith opinion letter is not sufficiently detailed and does not support the allegations of negligence.   A memorandum of law in support accompanied the motion to dismiss.   The apportionment plaintiff and the plaintiff filed a memorandum of law in opposition on August 2, and August 13, 2013, respectively.   The court heard arguments on the matter at short calendar on September 9, 2013.

DISCUSSION

“Any defendant, wishing to contest the court's jurisdiction ․ must do so by filing a motion to dismiss ․” Practice Book § 10–30.  “[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.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 400–01, 21 A.3d 451 (2011).  “The general rule [puts] the burden of proof on the defendant as to jurisdictional issues ․” (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007).  “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, 974 A.2d 669 (2009).

The defendants move to dismiss counts four and five of the second amended complaint and the entire apportionment complaint on the ground that the accompanying good faith opinion letter does not satisfy the requirements of § 52–190a.   First, the defendants argue that the good faith letter lacks sufficient details because, as is acknowledged therein, the author did not have information on the second choking incident, the conclusion is missing a factual basis for the deviation from the standard of care, the information given does not state which records were relevant to the conclusions made, and the information about the decedent's ability to cooperate with a swallowing study and its potential benefit to the decedent is not included.   Second, the defendants argue that the good faith opinion letter does not support the allegations of negligence listed in the complaint and apportionment complaint because the letter only addresses one out of the nine allegations made.   In response, the plaintiffs counter that the opinion letter, by stating that Lopez deviated from the standard of care by failing to order a swallowing study after seeing the decedent following the choking incident on October 27, 2010, satisfies the purpose of the good faith letter.   The plaintiffs argue that the opinion letter is sufficiently detailed because the similar health care provider reviewed the decedent's entire medical records and—on the basis of that review, the author's training, and the author's experience as a board certified internal medicine physician—concluded that a swallowing study or a consultation with a speech pathologist/swallowing center would have been appropriate for the decedent after her first choking episode.

Section 52–190a provides in relevant part, “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 ․ To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․” General Statutes 52–190a(a).   Thus, this statute requires “that the complaint be accompanied by an opinion letter from a similar health care provider.”  Santorso v. Bristol Hospital, supra, 308 Conn. 356.   In this way, “the written opinion letter, prepared in accordance with the dictates of § 52–190a ․ is akin to a pleading that must be attached to the complaint in order to commence properly the action.”  Morgan v. Hartford Hospital, supra, 301 Conn. 398.  “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.)  Id., 401–02.  “The plain language of [§ 52–190a(c) ] ․ expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52–190a(a).”  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).

With respect to the defendants' first argument that the opinion letter is not sufficiently detailed, § 52–190a provides that a complaint or apportionment complaint in a medical malpractice case must have an accompanying good faith opinion letter from “a similar health care provider ․ [showing] that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”  (Emphasis added;  internal quotation marks omitted.)  Santorso v. Bristol Hospital, supra, 308 Conn. 341 n.3. The “language [of § 52–190a] offers no specific guidance with respect to the level of detail that a written opinion must contain ․” Wilcox v. Schwartz, 303 Conn. 630, 639, 37 A.3d 133 (2012).  “Upon consideration of the statutory language in light of [the] legislative history,” however, the Supreme Court has interpreted the statutory mandate of “a detailed basis” as requiring that “the written opinion must state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care.”  Id., 643.   The Supreme Court further clarified that a “detailed basis” in the context of § 52–190a is “a statement setting forth the facts then known to the health care provider on which that opinion of medical negligence is predicated.”  Id., 644.   The letter need not provide the factual setting but simply provide the factual sources upon which the similar health care provider based his or her opinion.   Id., 645.   For example, in Wilcox the Supreme Court upheld a good faith opinion letter where the similar health care provider stated his or opinion as to the standard of care “on the basis of his education, training and experience as a physician, and [an] examination of ․ [the plaintiff's] medical records ․” (Internal quotation marks omitted.)  Id.

In the present case, the defendants argue that the good faith opinion letter lacks sufficient detail because its conclusions are unsupported by factual details and because the similar health care provider concedes not having two pieces of information that the defendants view as essential.   In the letter, the similar health care provider states that he or she did not have the details of the second choking incident that led to the decedent's death, nor “information about [the decedent's] specific abilities to cooperate with and benefit from the findings of a swallowing evaluation.”   The list of other facts known to the similar health care provider, however, is extensive;  the letter specifically states, “I am a Board-certified general internist with considerable experience in taking care of people with cognitive difficulties, including people with other mental handicaps ․ and psychiatric disorders ․ I have reviewed [the decedent's] medical records as contained in her overall records maintained by the Vantage Group, Inc., including physician orders, history and physical and other examinations ․ I have also clarified through a telephone conversation with ․ Vantage the caregiving situation in which [the decedent] resided and the specifics of her day program.”   Based on these facts, the similar health care provider concluded “that a swallowing study or a consultation with a speech pathologist/swallowing center would have been appropriate for [the decedent] after her first episode of dysphagia, and that Dr. Antonio Lopez deviated from the standard of care by not arranging one of these after the choking incident ․” (Emphasis added.)   This letter matches the requirements set forth by the Supreme Court in that it provides the standard of care, the opinion that the standard of care was breached, and the factual basis for this opinion.   In fact, the list of facts upon which the opinion is based is longer and more detailed than the letter approved by the Supreme Court in Wilcox.   See id.

Additionally, when read in a light most favorable to the plaintiffs, the two pieces of information that the similar health care provider concedes he or she did not have do not detract from the conclusion regarding the standard of care.   In particular, details about the second choking incident have no bearing on the standard of care after the first choking incident.   Moreover, the standard of care presented by the similar health care provider is an “or” statement not exclusively requiring a swallow study—regarding which the similar health care provider lacked information—but also including the possibility of consulting with an expert.   Because the detailed basis provided in the good faith opinion letter matches the standard provided by the Supreme Court's interpretation of § 52–190a, the opinion letter is sufficiently detailed.

With respect to the defendants' second argument that the letter does not support the allegations of negligence in the second amended complaint and apportionment complaint, § 52–190a(a) requires that a cause of action for medical malpractice have “a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence ․” “[T]he phrase ‘medical negligence,’ as used in § 52–190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.”  Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009).   Thus, “the provision does not require the additional opinion that the medical negligence was the cause of the injury.”  Wilcox v. Schwartz, supra, 303 Conn. 644.   The Supreme Court clarified that “to comply with § 52–190a(a), the written opinion necessarily will mirror at least some of the allegations in the complaint;  if it does not, it will not fulfill its purpose of substantiating the plaintiff's good faith belief that reasonable grounds exist for the action.   Moreover, to the extent that a complaint alleges facts sufficient to support a claim of medical malpractice, a written opinion that tracks those allegations ordinarily will suffice for purposes of § 52–190a(a).”   Id., 646 n.9. This requirement is not, however, to be strictly construed;  the Supreme Court explained that “the legislature did not intend to bar a potentially meritorious claim merely because a similar health care provider, although able to determine that there appears to be evidence of a breach of the standard of care, is unable to identify the specific negligent act or omission involved.”  Id., 645.   Thus, while a good faith opinion letter should be “consistent with the allegations of the complaint”;  id., 645;  it satisfies the statute “when the information contained therein [is] sufficient to place the defendants on notice of the nature of the alleged medical negligence.”  Id., 648.

Again, Wilcox provides an illustrative example.   In that case, the plaintiff made three allegations of negligence in the complaint:  the medical doctor “(1) failed to [ensure] the adequate and accurate identification of [the plaintiff's] internal anatomy prior to proceeding with the [gallbladder surgery], (2) failed to prevent injury to [the plaintiff's] biliary structures during the [gallbladder surgery] and (3) failed to accurately document the surgical procedure ․” Wilcox v. Schwartz, supra, 303 Conn. 634.   The accompanying good faith opinion letter stated that the medical doctor failed to meet the appropriate standard of care;  “[s]pecifically [the medical doctor] failed to prevent injury to ․ [the plaintiff's] biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure ․” (Internal quotation marks omitted.)  Id., 635.   Although there was not an exact match between the allegations in the complaint and the breach of the standard of care claimed in the good faith opinion letter, the Supreme Court validated this good faith opinion letter, saying that “[t]his explanation, although concise, constitutes a sufficiently clear arid detailed explication of what the defendant did or failed to do in breaching the applicable standard of care.”  Id., 645–46.

In the present case, the plaintiffs allege nine claims of negligence on the part of the defendants for what should have been done after the first choking incident that could have prevented the second, fatal choking incident.   The breach of the standard of care set forth in the good faith opinion letter does not exactly mirror the allegations in the complaint and the apportionment complaint.   Regarding the standard of care, the good faith opinion letter states, “[M]y opinion is that a swallowing study or a consultation with a speech pathologist/swallowing center would have been appropriate for [the decedent] after her first episode of dysphagia, and that Dr. Antonio Lopez deviated from the standard of care by not arranging one of these after the [first] choking incident ․” Although the variance between the complaint and the good faith opinion letter is greater here than in Wilcox, the pattern is the same.   Viewing the complaint in a light most favorable to the plaintiffs, the allegations all arise from the same event in which the good faith opinion letter finds a breach of the standard of care.   In other words, while not an exact match, the good faith opinion letter is consistent with the allegations in the complaint, and it is sufficient to put the defendants on notice of the nature of the alleged negligence.   Therefore, the good faith opinion letter meets the requirements of § 52–190a in supporting the allegations of negligence found in the second amended complaint and the apportionment complaint.

CONCLUSION

For the forgoing reasons, the defendants' motion to dismiss counts four and five of the second amended complaint and the apportionment complaint, counts one and two is denied.

Brian T. Fischer, Judge

FOOTNOTES

FN1. Dr. Lopez and Family Practice & Internal Medicine, LLC, are the defendants who filed the motion to dismiss counts four and five of the second amended complaint and the entire apportionment complaint.   For clarity, this memorandum will refer to Dr. Lopez and Family Practice & Internal Medicine, LLC, collectively as the defendants.   Additionally, because their complaints and arguments in their objection to the motion to dismiss are identical, this memorandum will refer to the plaintiff and the apportionment plaintiff (the Vantage Group) collectively as the plaintiffs..  FN1. Dr. Lopez and Family Practice & Internal Medicine, LLC, are the defendants who filed the motion to dismiss counts four and five of the second amended complaint and the entire apportionment complaint.   For clarity, this memorandum will refer to Dr. Lopez and Family Practice & Internal Medicine, LLC, collectively as the defendants.   Additionally, because their complaints and arguments in their objection to the motion to dismiss are identical, this memorandum will refer to the plaintiff and the apportionment plaintiff (the Vantage Group) collectively as the plaintiffs.

Fischer, Brian T., J.