Sherry Outlaw, Administratrix of the Estate of James L. Moore v. Saint Francis Care, Inc. dba Saint Francis Hospital and Medical Center et al. (2014)

Ruling on Motion to Dismiss

Defendant St. Francis Care, Inc., d/b/a St. Francis Hospital and Medical Center, and defendant St. Francis Group, Inc., move to dismiss this medical malpractice/wrongful death lawsuit of plaintiff Sherry Outlaw, administratrix of the Estate of James L. Moore, on the ground that the written opinion letters attached to the complaint do not satisfy the requirements of General Statutes §§ 52–190a and 52–184c.   The main issue is whether the letters meet the requirement of § 52–184(c)(1) that the expert must be “trained and experienced” in the same speciality as the defendant doctor.   For the reasons explained below, the court denies the motion to dismiss.

I

The complaint is in three counts.   Counts one and two are against the moving defendants.   Count three names a third defendant, Prime Healthcare, P.C. The plaintiff attached to the complaint his lawyer's certificate of good faith, as required by § 52–190a(a), as well as six, similarly-worded opinion letters:  four directed against the moving defendants and the remaining two against Prime Healthcare, P.C. The plaintiff subsequently withdrew the case against Prime Healthcare, P.C. Thus, only the sufficiency of the first four opinion letters is presently in dispute.   According to the complaint, the St. Francis Hospital emergency department admitted the decedent on March 11, 2013 for severe hyperthyroidism and other medical conditions.   The following day, the hospital staff found the decedent unresponsive on the bathroom floor of his room, having apparently sustained an unwitnessed cardiac arrest.   The decedent remained comatose on a mechanical ventilator until the removal of his life support and his death on April 1, 2013.

Section 52–190a(a) requires that, in any medical malpractice action, the claimant, “[t]o show the existence of good faith,” must, in addition to submitting a lawyer's certificate of good faith, “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.” ¹  Under subsection (c) of § 52–190a, “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.”   Dismissal, or at least a dismissal without prejudice to refiling, is the appropriate remedy not only for the failure to obtain and file the opinion letter, as is squarely addressed by § 52–190a(c), but also for a complaint accompanied by a letter that otherwise fails to comply with the requirements of § 52–190a(a).   See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29–31, 12 A.3d 865 (2011).

Section 52–184c, in turn, contains different requirements for the similar health care provider depending on whether the defendant is board certified (subsection (c)), or not (subsection (b)).  In this case, the complaint alleges malpractice against the moving, corporate defendants as a result of the negligence of the “internal medicine, cardiovascular, and endocrinology physicians” and “hospital medicine physicians” who treated the plaintiff's decedent, as alleged in paragraphs three and five of counts one and two.   The parties do not dispute that the opinion letters in this case must satisfy subsection (c) of General Statutes § 52–184c because these physicians were “certified by the appropriate American board as ․ [specialists].”

II

Subsection (c) requires an expert claimed as a “similar health care provider” to be one who:  “(1) Is trained and experienced in the same speciality;  and (2) is certified by the appropriate American board in the same speciality ․” ² The defendants initially challenge the sufficiency of information in the opinion letters to establish that the experts, who were indisputably board-certified, were also “trained and experienced” in the same speciality as the defendants' doctors.   The use of the word “and” to connect requirements (1) and (2) clearly means that they are separate and independent rather than synonymous.   See Lopa v. Brinker International, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010) (“Because [e]very word and phrase [of a statute] is presumed to have meaning ․ [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”  [Internal quotation marks omitted.] ).   Thus, the years of training and experience necessary to graduate medical school, complete a residency, and obtain board certification cannot, in themselves, satisfy the “training and experience” requirement of subsection (c).

The concern of the legislature in enacting a separate training and experience requirement for doctors who are already board certified could logically have been that some doctors, after obtaining board certification, might practice in a different area and thus lack the subsequent training and experience in that field to enable them to provide a valid expert opinion on a case that occurred years after their board certification.   The plaintiff claims to have addressed that concern with the statement in each opinion letter that the doctor is familiar with the standard of care for his field of medicine “that existed in 2013,” when this incident occurred.   It seems true that, in order for the doctor to have familiarity with the current standard of care, he or she must have recent training and experience in the area, thus satisfying the statutory concern.   The opinion letters also state for each expert doctor that, based upon his or her review of the medical records “as well as my training, knowledge, and experience,” he believes that the defendants' doctors departed from the standard of care.   This statement at least suggests that the expert has training and experience sufficient to allow him to express an opinion about the relevant standard of care in 2013 and any deviation therefrom.   Therefore, while these statements are not the clearest evidence of training and experience, and the plaintiff should have supplemented it with more specific evidence, the opinion letters minimally suffice to satisfy § 52–184c(c).

III

The defendants next argue that the opinion letters do not satisfy the requirement of General Statutes § 52–190a(a) that the letter include “a detailed basis for the formation of such opinion.”   In Wilcox v. Schwartz, 303 Conn. 630, 37 A.3d 133 (2012), our Supreme Court held that a written opinion satisfies the “detailed basis” requirement if it:  “sets forth the basis of the similar health care provider's opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care.   In other words, 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 Court held that the plaintiff in that case met the detailed basis requirement with the expert's statement that he or she had “conclude[d] ․ to a reasonable degree of medical probability that, on the basis of his education, training and experience as a physician, and [an] examination of ․ Wilcox's medical records, Schwartz had deviat[ed] from the applicable [standard] of care and, therefore, was negligent in his treatment of Wilcox in fail[ing] to prevent injury to ․ Wilcox's biliary structures during laparoscopic [gallbladder] surgery ․” (Internal quotation marks omitted.)  Id., 645.   The Court reasoned:  “the written opinion sets forth the author's professional medical judgment that, consistent with the allegations of the complaint, the applicable standard of care required Schwartz to protect the biliary structures during surgery and that his failure to do so constituted a breach of that standard of care.”  Id.

The court is bound by the Wilcox decision, which sets a relatively lenient standard for the required “detailed basis.”   The opinion letters in the present case state that the defendants' doctors departed from the standard of care by “failing to timely transfer the plaintiff's decedent to the defendant's hospital's intensive care unit for critical care of his hyperthyroidism, failing to properly monitor the plaintiff's decedent's medication dosages prior to his cardiovascular arrest, improperly administering the incorrect combination and/or dosage amounts of medication to the plaintiff's decedent prior to his cardiovascular arrest,” and, in two of the opinion letters, “failing to properly adjust the plaintiff's decedent medications following their March 12, 2013 evaluation of the plaintiff's decedent.”   A comparison reveals that these opinion letters provide at least the same level of detail as the written opinion in Wilcox.   Accordingly, the court rejects the defendants' second claim.

IV

Finally, the defendants claim that the opinion letters were not “authored and signed” by the experts writing the letters.   The defendants observe that the plaintiffs attached a total of six written opinions that are virtually identical in substance and that essentially track the allegations of the complaint.   The defendants, for good reason, suggest that these facts reveal that defendants' counsel, rather than the doctors themselves, drafted or authored the letters.

Initially, section 52–190a(a) does not use the term “author” or “authored” but rather provides that the plaintiff shall obtain a “written and signed opinion” of a similar health care provider ․” Our appellate courts, however, have occasionally used the term “author” or “authored” in this context.   See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 23–24 (“[W]e conclude that the Appellate Court properly determined that the opinion letter in this case had to be, but was not, authored by a similar health care provider as defined by § 52–184c(c)”);  Lucisano v. Bisson, 132 Conn.App. 459, 466, 34 A.3d 983 (2011) (“Our Supreme Court recently held that § 52–190a(a) requires a plaintiff to provide an opinion letter authored by a similar health care provider, as defined by § 52–184c, in medical malpractice cases against specialists”).

Even if there is no difference between the words “written” and “authored,” the main concern of the legislature would seem to have been whether the expert agreed with the substance of the letter, rather than the more technical concern of whether he or she drafted the letter.   Indeed, our Supreme Court has observed that the legislative history of the opinion letter requirement, which came into our law in 2005, reveals that it was “intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts.”  Dias v. Grady, 292 Conn. 350, 357–58, 972 A.2d 715 (2009).   In this case, the plaintiff has filed a supplemental affidavit stating that the experts provided the substance of and the medical opinions in the opinion letters.   While the plaintiff could have avoided this issue by having each doctor write his or her own letter, the supplemental affidavit supplied by the plaintiff provides some measure of assurance that the doctors, rather than counsel, supplied the substance of the letters.

An additional assurance that the experts agreed with the substance of the letters would come from their signing them.   Presumably, an expert physician would not sign an opinion letter accusing another physician of malpractice if the expert did not agree with the substance of the letter.  Section 52–190a(a) provides that the claimant must obtain a “written and signed” opinion letter, although the claimant “shall retain the original opinion and shall attach a copy of such written opinion, with the name and the signature of the similar health care provider expunged, to the certificate [of good faith.]”   The plaintiff's supplemental affidavit in this case reveals that the plaintiff has followed this procedure and that, although the letters submitted in the plaintiff's opposition papers are unsigned, the experts have in fact signed the original opinion letters.   The fact that the experts have signed the opinion letters provides an additional indication that the plaintiff has met the substance of the “written and signed” requirement of § 52–190a(a).   For these reasons, the opinion letters in the present case meet the minimum requirements of the statute.

V

The court denies the motion to dismiss.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. Section 52–190a(a) provides in full:  “(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, 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, initial pleading or apportionment 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 or for an apportionment complaint against each named apportionment defendant.   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, 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.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.”.  FN1. Section 52–190a(a) provides in full:  “(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, 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, initial pleading or apportionment 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 or for an apportionment complaint against each named apportionment defendant.   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, 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.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.”

FN2. Section 52–184c(c) provides in full:  “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a “similar health care provider” is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “.  FN2. Section 52–184c(c) provides in full:  “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a “similar health care provider” is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “

Schuman, Carl J., J.