Joanne Montalto, Executrix of the Estate of Antoinette Vissicchio v. CSC (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 103)

Procedural History

The plaintiff, Joanne Montalto, executrix of the estate of Antoinette Vissicchio, filed the present case against the defendant, CSC Enterprises, Inc., on December 8, 2010.   The complaint alleges that Vissicchio died on September 30, 2008, and that her death was caused by the medical negligence of the defendant.   The gravamen of the plaintiff's complaint is that the defendant failed to respond in an adequate and timely manner to the decedent's medical needs.   Most notably, it has been alleged that the defendant failed to properly assess the decedent's medical condition and recommend discharge to a hospital when additional care was required.

On January 27, 2011, the defendant filed a motion to dismiss pursuant to § 52–190a.   The plaintiff filed an objection to the motion on February 24, 2011.   On March 16, 2011, the defendant filed a reply brief.   The plaintiff filed a surreply on March 25, 2011.   Oral argument on this motion was heard by the court on March 28, 2011.¹

Discussion

Section 52–190a(a) provides, in relevant part:  “No civil action ․ 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 ․ 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 ․ shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]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 ․ “ General Statutes § 52–190a(c) provides:  “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.”

The defendant argues that the opinion letter provided by the plaintiff is deficient because:  (1) it does not address a majority of the allegations contained within the complaint and (2) it is insufficiently detailed.   These arguments shall be addressed in turn.²

I

The defendant argues that the opinion letter attached to the complaint is deficient because “more than half of the plaintiff's allegations of negligence are not explicitly assessed by the author of the written opinion as breaches in the standard of care.”   However, “[A] majority of [Superior Court] decisions have held that the opinion letter need not serve as a template for the complaint, nor must it address every allegation of negligence.”   Skewes v. Ocean Radiology Associates, Superior Court, judicial district of New London, Docket No. CV 10 6006135 (March 2, 2011, Martin, J.).   Indeed, § 52–190 “[n]either explicitly nor implicitly ․ require[s] the letter of opinion accompanying the good faith certificate to identify each and every allegation of negligence to be included in the complaint, nor does it authorize or mandate dismissal of any allegations of negligence not mentioned in such letter of opinion.”  Id.;  see also Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.);   Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.);   DeJesus v. Children's Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 06 5003390 (May 17, 2007, Hale, J.T.R.) (43 Conn. L. Rptr. 420).

The standard governing this question was discussed extensively in Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366, cert. granted 296 Conn. 908, 993 A.2d 469 (2010).   In that case, our Appellate Court stated that:  “So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint ․ the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose.”  Id., 816.   The Appellate Court has not indicated that this standard is quantitative rather than qualitative in nature.   Indeed, the Appellate Court's focus on a single allegation forecloses such a reading.³  The defendant's contention that the opinion letter is deficient simply because it fails to address a majority of the allegations set forth in the complaint is therefore without merit.

II

The defendant characterizes its second argument as follows:  “[the letter] fails to identify any specific conduct that constitutes a deviation from the standard of care.   Instead, the opinion merely sets forth a list of vague and generic nursing duties that the author claims were not fulfilled.”   The plaintiff responds by arguing that the opinion letter contains all of the information required by § 52–190a.

The resolution of this question may again be obtained by looking toward our Appellate Court's ruling in Wilcox.   The contents of the opinion letter in that case were described as follows:  “The opinion first states the author's conclusion, ‘to a reasonable degree of medical probability,’ that there were ‘deviations from the applicable standards of care’ by [the defendants] and that the care and treatment provided ․'was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident.'   The opinion continues:  ‘Specifically, [the defendants] failed to prevent injury to ․ biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure of March 12, 2006.”  Id., 815.   This language was found to be sufficient.   Id., 817.

The opinion letter in the present case is functionally equivalent to the letter analyzed in Wilcox.   The opinion letter explicitly states that the author:  “believe[s] to [a] reasonable [degree of] medical probability that [the defendant] violated the nursing standard of care by failing to:  monitor, assess, collect data, advocate for the patient, identify and monitor known adverse drug interactions, timely notify the physician of changes in the patient, perform timely and necessary labs, timely recommend discharge to a hospital, know the patient's baseline conditions and recognize the declines from baseline, identify, clarify and reconcile conflicts with physician order sheet and MD progress notes.”   The letter identifies the dates on which the decedent was under the defendant's care ⁴ and enumerates the medical conditions suffered by the decedent at the time.⁵  The contents of this letter sufficiently address the allegations contained within the complaint.⁶  Consequently, the defendant's second argument also fails.

III

As demonstrated above, the opinion letter submitted by the plaintiff contains the information required by § 52–190a.   For this reason, the motion to dismiss is denied.

Wilson, J.

FOOTNOTES

FN1. With the permission of the court, the defendant also filed a supplemental memorandum on April 11, 2011..  FN1. With the permission of the court, the defendant also filed a supplemental memorandum on April 11, 2011.

FN2. The defendant also argues that the court may not consider a supplemental affidavit from the author of the opinion letter.   Although resolution of this issue is not necessary to the conclusion reached below, it should be noted that consideration of this affidavit is likely within the discretion of this court.   Mitchell v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 10 6015881 (May 13, 2011, Fischer, J.);   Jaboin v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5023443 (September 11, 2009, Bellis, J.) (48 Conn. L. Rptr. 469);  Murphy v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 09 5008059 (January 26, 2010, Marano, J.) (49 Conn. L. Rptr. 257)..  FN2. The defendant also argues that the court may not consider a supplemental affidavit from the author of the opinion letter.   Although resolution of this issue is not necessary to the conclusion reached below, it should be noted that consideration of this affidavit is likely within the discretion of this court.   Mitchell v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 10 6015881 (May 13, 2011, Fischer, J.);   Jaboin v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5023443 (September 11, 2009, Bellis, J.) (48 Conn. L. Rptr. 469);  Murphy v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 09 5008059 (January 26, 2010, Marano, J.) (49 Conn. L. Rptr. 257).

FN3. “Here, the plaintiffs' opinion fulfills the purpose of the requirement.   The complaint alleges only one specification of negligence pertaining to the actual performance of the surgery:  that [the defendants] ‘failed to prevent injury to ․ biliary structures during the laparoscopic cholecystectomy.’   The defendants have been given sufficient notice that a similar health care provider is willing to state his opinion that the standard of care was breached during this surgical procedure.”   Id., 817..  FN3. “Here, the plaintiffs' opinion fulfills the purpose of the requirement.   The complaint alleges only one specification of negligence pertaining to the actual performance of the surgery:  that [the defendants] ‘failed to prevent injury to ․ biliary structures during the laparoscopic cholecystectomy.’   The defendants have been given sufficient notice that a similar health care provider is willing to state his opinion that the standard of care was breached during this surgical procedure.”   Id., 817.

FN4. According to the letter, the decedent was under the care of the defendants from August 29, 2008 to September 14, 2008.   After this time, the decedent was brought to a hospital for more intensive care..  FN4. According to the letter, the decedent was under the care of the defendants from August 29, 2008 to September 14, 2008.   After this time, the decedent was brought to a hospital for more intensive care.

FN5. “[The decedent] had significant life-threatening abnormalities.   These included an extremely elevated lNR of 43.6, a BNP of 1020, low bicarbonate of 15, BUN 57, CR 3.0, BP 95/31, Lower and upper extremity edema, abnormal urinalysis, C. Diff. with diarrhea, acute and chronic renal failure, acidosis, hyponatremia and coagulapathy.”.  FN5. “[The decedent] had significant life-threatening abnormalities.   These included an extremely elevated lNR of 43.6, a BNP of 1020, low bicarbonate of 15, BUN 57, CR 3.0, BP 95/31, Lower and upper extremity edema, abnormal urinalysis, C. Diff. with diarrhea, acute and chronic renal failure, acidosis, hyponatremia and coagulapathy.”

FN6. Although additional facts will undoubtedly be revealed through the process of discovery, including the cause of the decedent's death and the precise facts surrounding the alleged breach, § 52–190a does not require these facts to be set forth within the opinion letter.   Indeed, the defendants in Wilcox presented a similar argument.  Wilcox v. Schwartz, supra, 119 Conn.App. 812 (“[The defendants argue that] the opining physician simply provides a conclusory statement of negligence, and fails to provide an opinion as to how the defendants were negligent in their care of [the plaintiff], i.e., how the defendants deviated from the standard of care.”  [Emphasis in original.] ).   That argument proved unpersuasive..  FN6. Although additional facts will undoubtedly be revealed through the process of discovery, including the cause of the decedent's death and the precise facts surrounding the alleged breach, § 52–190a does not require these facts to be set forth within the opinion letter.   Indeed, the defendants in Wilcox presented a similar argument.  Wilcox v. Schwartz, supra, 119 Conn.App. 812 (“[The defendants argue that] the opining physician simply provides a conclusory statement of negligence, and fails to provide an opinion as to how the defendants were negligent in their care of [the plaintiff], i.e., how the defendants deviated from the standard of care.”  [Emphasis in original.] ).   That argument proved unpersuasive.

Wilson, Robin L., J.