2010 Ct. Sup. 8323, 49 CLR 594
No. CV 09 5031448 SConnecticut Superior Court Judicial District of New Haven at New Haven
April 6, 2010
MEMORANDUM OF DECISION IN RE MOTIONS TO DISMISS (#102 #104)
WILSON, J.
FACTS AND PROCEDURAL HISTORY
On August 25, 2009, the plaintiff, Edmund H. Lohnes, filed a single-count complaint against the Hospital of St. Raphael and Vinu Verghese, an emergency room physician. In his complaint, the plaintiff alleges that on June 22, 2007, he arrived at the hospital complaining of shortness of breath associated with chest pains and tightness. He further alleges that despite having notified Verghese and the hospital staff that he was allergic to non-sterodial anti-inflammatory drugs (NSAIDS) and would likely suffer an adverse allergic reaction, Verghese prescribed to him and he ingested a NSAID. As a result, the plaintiff alleges that he required intubation and subsequently, was placed on a mechanical ventilator for acute, hypercapnic respiratory failure.
Pursuant to General Statutes § 52-190a, the plaintiff’s attorney attached both a certificate of reasonable inquiry and a written opinion letter to the complaint. On October 21, 2009, Verghese filed a motion to dismiss (#102) on the ground that the plaintiff has failed to comply with § 52-190a because the author of the opinion letter is not a similar health care provider under § 52-184c(c). On the following day, October 22, 2009, the Hospital of St. Raphael filed its motion to dismiss (#104) based upon the same ground.[1] The plaintiff filed his objection on November 13, 2009, and the Hospital of St. Raphael filed its reply on December 8, 2009. The motions were heard by this court at short calendar on March 8, 2010. In this decision, the court will address the motion to dismiss of both the Hospital of St. Raphael and Verghese, the defendants, as they are based upon the same ground.
DISCUSSION
“Section 52-190a(c) provides: `The failure to obtain and file the written opinion required by subsection (a) of this section shall be CT Page 8324 grounds for the dismissal of the action.’ . . . A plain reading of this subsection indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (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, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009). “A plaintiff’s failure to comply with the requirements of § 52-190a (a) does not destroy the court’s subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action . . . Dismissal pursuant to this section is a statutory remedy . . .” Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
The defendants argue that they are entitled to dismissal because Verghese is board certified in emergency medicine, while the author of the opinion letter author is a pulmonologist employed with the National Jewish Health, who did not indicate whether he or she is board certified in any speciality. As a result, the defendants argue that the author of the opinion letter is not a similar health care provider under § 52-184c(c).
The plaintiff argues that the defendants’ motion should be denied because (1) the letter complies with the statute, given that the complaint alleges that the defendants were negligent in their treatment of the plaintiff for a pulmonary condition; (2) the defendants have failed to append an affidavit to their motion demonstrating that Verghese is board certified in emergency medicine; (3) even assuming that Verghese is board certified in emergency medicine, he treated the plaintiff outside of his specialty; and (4) the defendants filed their motions outside of the thirty-day period mandated by Practice Book § 10-30.
First, the court will address the plaintiff’s argument that the defendants failed to demonstrate, in support of their motion, that Verghese is board certified in emergency medicine. The Hospital of St. Raphael attached Verghese’s affidavit to its reply brief, filed on December 8, 2009. In his affidavit, dated November 25, 2009, Verghese attests: “I am a physician licensed to practice emergency medicine by the State of Connecticut; I am Board Certified in Emergency Medicine and have been a Diplomate of the American Board of Emergency Medicine since December of 2005.” The court is satisfied that while this affidavit was not filed with the defendants’ initial motions, it is proper for the court to consider it at this time.[2]
Next, the court will address the plaintiff’s argument that the CT Page 8325 defendants filed their motions outside of the thirty-day period mandated by Practice Book § 10-30. In Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) [49 Conn. L. Rptr. 162] (appeal pending), the court noted that: “The types of motions to dismiss subject to the order contemplated by the order of pleadings are specifically delineated in Practice Book §§ 10-31 and 10-32 and primarily involve personal or subject matter jurisdiction.” “Moreover, the Connecticut Supreme Court has held that the timing requirement of § 10-32 is inapplicable to a motion to dismiss based on a ground not explicitly stated in that section . . . [and that a] motion to dismiss based on § 52-190a for failure to attach an opinion from a similar health care provider is not a ground explicitly stated in Practice Book § 10-32 . . .” (Citation omitted.) Id.
Furthermore, the Wightman court noted that the Votre court, in holding that the § 52-190a dismissal provision is not jurisdictional, analogized it to two other provisions that are exempt from the order of pleadings. See id.; see also Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 582-83. Additionally, the Votre court noted that: “Although the defendants might have waived this statutory requirement enacted for their benefit, they did not do so, and because the court properly found that the complaint did not contain the statutorily required written opinion, as the plaintiff here concedes, we affirm the court’s decision [to dismiss the complaint].” See id., 586.
Therefore, the court finds that appellate court dicta indicates that motions to dismiss filed pursuant to § 52-190a are not subject to the Practice Book §§ 10-30 to 10-32, which address motions to dismiss involving subject matter or personal jurisdiction. The court, however, has discretion to deny a motion to dismiss filed late in the proceedings or upon other facts that indicate waiver. In the present case, both defendants’ motions to dismiss were filed within sixty days of the complaint. As such, the court declines to deny this motion on the ground that it was filed late in the proceedings.
Finally, the court addresses the substantive arguments raised by this motion. The plaintiff argues that the letter complies with the statute because his complaint alleges that the defendants were negligent in their treatment of the plaintiff for a pulmonary condition and because Verghese treated the plaintiff outside of his specialty. Thus, he claims that the author of the opinion, a pulmonologist, is a similar health care provider under both §§ 52-190a and 52-184c.
In Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 548-49, the court stated: “By the plain language of the statutes, as to a CT Page 8326 defendant health care provider who is a physician, the similar health care provider contemplated in § 52-190a(a) is one defined in either subsection (b) or (c) of § 52-184c.” Section § 52-184c(c) states: “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.'”
Resolution of this motion depends on whether the plaintiff sufficiently alleged in his complaint that the defendants provided treatment or diagnosis for a condition outside of his specialty of emergency medicine and as a result, the opinion letter of a pulmonologist is sufficient under §§ 52-190a and 52-184c. One Superior Court noted: “While the statutes’ combined effect will be to require identical board certifications in most cases, it would strain the text to make that the only criterion where . . . the plaintiff’s treatment does not lie within any one practice area. In such a case, § 52-184c mandates instead an inquiry into whether the expertise and specialty of the signing physician permits him to find evidence of medical negligence in the conduct of another health care provider.” (Internal quotation marks omitted.)DelMonte v. Arkins, Superior Court, judicial district of New Haven, Docket No. CV 07 5014812 (September 24, 2008, Keegan, J.) (46 Conn. L. Rptr. 361).
In Delmonte, the defendant physician, a board certified neurosurgeon, argued that he was entitled to dismissal of the action because the plaintiff provided an opinion letter authored by a board certified anesthesiologist specializing in pain management. See id. The court denied the defendant’s motion, finding that the plaintiff’s complaint alleged neither surgical treatment nor negligence in such treatment. Se id., 362. Rather, the complaint specifically stated the defendant’s treatment was limited to “pain management activities.” See id. Thus, the court reasoned that a similar health care provider under §§ 52-190a and 52-184c, is a physician specializing in pain management and board certified in that field. See id.
Superior Courts addressing this issue require the plaintiff to specifically allege in the complaint that the defendant physician acted outside of his specialty or lacked the expertise to treat the plaintiff’s condition. For example, in Ellegard v. Hennessey, Superior Court, complex CT Page 8327 litigation docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) (43 Conn. L. Rptr. 195-96), the defendant physician, a board certified general surgeon, argued that the author of the opinion letter, a board certified obstetrician gynecologist familiar with the operation performed upon the plaintiff, was not a similar health care provider. The subject of the plaintiff’s complaint was an operation that resulted in the removal of her right ovary and fallopian tube and the perforation of her uterus. See id., 196. The allegations of negligence against the defendant physician included claims that he failed to refer the plaintiff to a physician with adequate experience treating her specific condition and he failed to competently assess that the plaintiff’s condition was beyond his realm of expertise. See id.
As a result, the court concluded that these allegations could be construed to include claims of negligence based upon providing treatment for a condition which is not within his specialty and denied the motion to dismiss. See id.; see also Griffin v. St. Vincent’s Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005220 (February 8, 2008, Hiller, J.) (denying motion to dismiss by defendant, board certified in emergency medicine and internal medicine, when the opinion letter author was board certified in general surgery and surgical critical care and plaintiff argued that the allegedly improper diagnosis and treatment of an abdominal surgical emergency was outside of defendant’s specialty); Tutillo v. Day Kimball Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5009722 (November 26, 2007, Langenbach, J.) (44 Conn. L. Rptr. 570, 572) (denying motion to dismiss by defendant’s emergency room care providers and board certified family physician because plaintiff’s psychiatric expert was similar health care provider in case where plaintiff alleged negligence for rendering of services outside of expertise and failure to properly refer decedent to a psychiatrist).
By contrast, in Morgan v. Hartford Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 07 5009731 (May 21, 2009, Shapiro, J.) (47 Conn. L. Rptr. 870, 871-73), the defendant was a board certified vascular surgeon, while the author of the opinion letter was a board certified internist. The subject of the plaintiff’s complaint was the defendant physician’s failure to control her ongoing bleeding. See id. The court noted that there was no allegation in the plaintiff’s complaint that bleed management was an area outside of the defendant physician’s area of expertise and as a result, dismissed the action. Se id.
Here, the plaintiff’s complaint alleges the following facts in support of his claim of medical negligence. On June 22, 2007, he presented to the CT Page 8328 defendant hospital’s emergency department, complaining of shortness of breath associated with chest pain and chest tightness. The plaintiff was put under the care of Verghese for “treatment of his pulmonary symptoms.” Despite having notified Verghese and hospital staff that he was allergic to NSAIDS and would likely suffer an adverse allergic reaction, Verghese prescribed to him and he ingested a NSAID. As a result, he required intubation and was placed on a mechanical ventilator for acute, hypercapnic respiratory failure.
Significantly, the plaintiff alleges that his injuries and losses were caused by the carelessness and negligence of the defendants in one or more of the following ways. “(i) In that . . . the defendant doctor persisted in ignoring the warnings and complaints of the plaintiff regarding his NSAID allergy, administering Motrin to the patient, when the defendant doctor knew or should have known that the plaintiff would suffer a severe adverse reaction upon ingesting the Motrin; (ii) In that . . . the defendant doctor ignored warnings contained in the defendant hospital’s medical records regarding the plaintiff’s NSAID allergy, administering Motrin to the plaintiff, when the defendant doctor knew or should have known that the plaintiff would suffer a severe adverse reaction upon ingesting the Motrin; (iii) In that . . . the defendant doctor ignored warnings of the plaintiff’s NSAID allergy indicated by the red wristband that had been placed on the plaintiff’s wrist, administering Motrin to the plaintiff, when the defendant doctor knew or should have known that the plaintiff would suffer a severe adverse reaction upon ingesting the Motrin; (iv) In that . . . the defendant doctor took no action to prevent the plaintiff from having an adverse reaction to the Motrin, after administering Motrin to the plaintiff, when the defendant doctor knew or should have known that the plaintiff was, in fact, suffering from an adverse reaction to the Motrin.”
The court finds that the plaintiff’s claim of negligence is predicated upon the defendants’ administration of Motrin despite his warnings, medical records and the red wristband, all of which he claims put the defendants on notice that he would likely suffer an adverse reaction to a NSAID. Further, he claims that after wrongfully prescribing him the Motrin, the defendants failed to act accordingly. Nowhere in the plaintiff’s complaint is it alleged that the defendants failed to refer him to a physician with adequate experience in treating the symptoms that he presented with in the emergency room or that the defendants failed to competently assess that the plaintiff’s condition was beyond Verghese’s realm of expertise. The court declines to infer from the plaintiff’s single and fleeting reference to “treatment of his pulmonary symptoms,” that his allegations should be construed to include claims of negligence based upon the defendants providing treatment or diagnosis for a CT Page 8329 condition outside of Verghese’s area of expertise. As a result, the court finds that the defendants are entitled to dismissal of this complaint because the author of the plaintiff’s opinion letter is not a similar healthcare provider under § 52-184c(c).
CONCLUSION
Accordingly, the defendants’ motions to dismiss (#102 and #104) are hereby granted.
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