TUTILLO v. DAY KIMBALL HEALTHCARE INC., No. CV 06 5000096 (Nov. 7, 2006)

Segundo TUTILLO v. DAY KIMBALL HEALTHCARE, INC.

2006 Ct. Sup. 20808, 42 CLR 367
No. CV 06 5000096Connecticut Superior Court, Judicial District of Windham at Willimantic.
November 7, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MARTIN, Judge.

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#107, 115, 127)
This case arises out of the alleged medical malpractice of the defendants, Day Kimball Hospital (Day Kimball), Abington Family Healthcare (Abington) and Raja Fattaleh, a physician employed by Abington. On January 12, 2006, the plaintiff, Segundo Tutillo, filed a four-count complaint against the defendants and attached a good faith certificate to his complaint. Count one of the plaintiff’s complaint is directed against Day Kimball (negligence); count two and three are against both Fattaleh and Abington (negligence and lack of informed consent, respectively) and count four is against all the defendants (loss of chance).

The plaintiff alleges the following facts in his complaint. He is the husband of Rocio Tutillo (the decedent) who committed suicide after receiving care from the defendants. On September 28, 2003, the decedent went to Day Kimball’s emergency room complaining of headaches and depression after threatening to kill herself earlier that day. The decedent was treated at Day Kimball’s Mental Health Clinic, diagnosed with situational depression and instructed to follow-up with her family doctor, Fattaleh. On September 29, 2003, the decedent was treated by Fattaleh who also diagnosed her with situational depression and instructed her to return in one week. The following day, the decedent shot and killed herself.

On February 15, 2006, March 1, 2006 and April 19, 2006, respectively, the defendants filed motions to strike all counts of the plaintiff’s complaint against them. They move on the ground that the plaintiff is unable to state a claim upon which relief can be granted because the plaintiff failed to attach a detailed written opinion of a similar health care provider to his good faith certificate, pursuant to General Statutes § 52-190a[1] as amended by Public Acts 2005, No. 275 (P.A. 05-275). The defendants also filed memoranda of law in support of their motions. The plaintiff filed memoranda of law in opposition to the defendants’ motions on February 28, 2006, March 29, 2006 and May 3, CT Page 20809 2006.

“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.)Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court is limited “to a consideration of the facts alleged in the complaint. A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted.” Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev’d on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). “Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff’s pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.” (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).

The defendants move to strike all counts of the complaint on the ground that the plaintiff is unable to state a claim upon which relief can be granted because the plaintiff failed to attach a detailed written opinion of a similar health care provider to his good faith certificate, pursuant to § 52-190a. In response, the plaintiff relies on LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990) and argues that a motion to strike is not the proper procedural vehicle to attack the sufficiency of a plaintiff’s good faith certificate but merely whether a good faith certificate is filed with the complaint.

In LeConche v. Elligers, supra, 215 Conn. 701, the plaintiffs appealed the trial court’s judgment dismissing their medical malpractice claims against the defendants for lack of subject matter jurisdiction. In that case, the plaintiffs failed to attach a good faith certificate to their complaint. Id., 703. Our Supreme Court reversed the trial court’s decision, explaining that the failure to file a good faith certificate is not a jurisdictional question, but a question of whether the plaintiff has failed to state a claim upon which relief can be granted Id., 710-11. Therefore, the absence of a good faith certificate may be challenged by a motion to strike. Id., 711. In regards to the sufficiency of a good faith certificate, the court explained that §52-190a requires the trial court to make a factual inquiry into the plaintiff’s good faith certificate, but “[this] inquiry is to be undertaken after the completion of discovery.”[2] Id., 708. Consequently, if a factual inquiry into the plaintiff’s good faith certificate is needed, as the defendants contend, then “this inquiry is to be undertaken after the completion of discovery.” CT Page 20810

During oral argument, the defendants argued that LeConche is no longer good law because it was decided prior to the amendment of § 52-190a. General Statutes § 52-190a(c) now 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 statute explicitly states that it is “effective October 1, 2005, and applicable to actions filed on or after that date.”[3]

In the present case, the plaintiff’s complaint was filed on January 12, 2006, after P.A. 05-275 took effect. Therefore, this court must construe § 52-190a in light of its revisions. No appellate court cases address the amendment to § 52-190a. Accordingly, this court looks to superior court cases as persuasive authority.[4]

In Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) (41 Conn. L. Rptr 222), the plaintiff filed a medical malpractice claim against the defendants and attached a good faith certificate to her complaint. Subsequently, the defendants filed a motion to strike the plaintiff’s complaint on the ground that the plaintiff’s good faith certificate was inadequate because she failed to comply with the requirements of P.A. 05-275. The court Matasavage, J., explained: “In the present case, grounds to dismiss pursuant to the plain language of subsection (c) do not exist because the plaintiff obtained and filed a written opinion in accordance with the language of that section. Pursuant to the plain language of the statute, the failure to obtain and file a written opinion presents grounds for dismissal and the plaintiff has acted in accordance with this procedural requirement . . . The statute does not, however, address the remedy for inadequate or insufficiently detailed opinions.” (Emphasis in original.) Id., 224-25. The court determined that the changes to the statute, as evidenced in P.A. 05-275, are not “plain and unambiguous” pursuant to General Statutes § 1-2z.[5] The court, therefore, considered extratextual evidence, including the amendment’s legislative history, to determine the proper grounds for attacking the sufficiency of the plaintiff’s good faith certificate. “Nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action.” Id., 225.

Additionally, the court in Andrikis explained, “[t]he legislature is presumed to be aware of the interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation . . . Before § 52-190a was amended, our case law had determined that the proper vehicle [for] contesting a plaintiff’s CT Page 20811 failure to file a good faith certificate was a motion to strike . . . A motion to strike was also the proper vehicle for contesting the sufficiency of such certificates.” (Citations omitted; internal quotation marks omitted.) Id., 225.

In the present case, the defendants properly filed a motion to strike to contest the sufficiency of the plaintiff’s complaint. While this court agrees that a motion to strike is the “proper vehicle for contesting the sufficiency of such certificates”; Andrikis v. Phoenix Internal Medicine, supra, Superior Court, Docket No. CV 05 5000482; our Supreme Court in LeConche determined that the parties must wait until “after the completion of discovery.” LeConche v. Elligers supra, 215 Conn. 708. After reviewing the file, this court has determined that the parties have not completed discovery and, therefore, the defendants must wait to attack the sufficiency of the plaintiff’s good faith certificate.

The plaintiff also argues that the defendants’ motions to strike are speaking motions because the defendants rely on facts outside of the pleadings. Specifically, the defendants state that Fatteleh, the decedent’s doctor, is a family physician, and that the plaintiff was seen by an emergency room physician at Day Kimball, not a mental health professional. Neither of these facts are alleged in the plaintiff’s complaint. The defendants argue in their motions to strike that the plaintiff’s good faith certificate includes the opinion of a “psychiatric expert,” not the opinion of a “similar health care provider,”[6] as required by § 52-190a. They argue that a “similar health care provider” in this case would be a family doctor with respect to Fattaleh and Abington and an emergency room doctor with respect to Day Kimball. Because the plaintiff has not obtained the opinion of a “similar health care provider,” the defendants argue that the plaintiff’s good faith certificate is insufficient and that the plaintiff is unable to state a claim upon which relief can be granted.

“Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff’s pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.” (Internal quotation marks omitted.)Commissioner of Labor v. C.J.M. Services, Inc., supra, 268 Conn. 293. Each of the defendants’ motions rely on the fact that Fatteleh, the decedent’s doctor, is a primary care physician and that the plaintiff was treated by an emergency room physician at Day Kimball. Because these facts are not alleged in the plaintiff’s complaint, and the defendants’ motions principally rely on these facts, they have submitted speaking motions to this court. “A ‘speaking’ motion to strike (one imparting CT Page 20812 facts outside the pleadings) will not be granted.” Doe v. Marselle supra, 38 Conn.App. 364. Therefore, the defendants’ motions to strike all counts of the plaintiff’s complaint are denied. In addition, the defendants must wait until after discovery to attack the sufficiency of the plaintiff’s good faith certificate.

[1] General Statutes § 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 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 . . .”

[2] General Statutes § 52-190a provides in relevant part: “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.” (Emphasis added.)

[3] See Grammond v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5000533 (August 16, 2006, Lewis, J.) (41 Conn. L. Rptr. 852) (“[p]rior to the amendment to the statute, the failure to attach a good faith certificate did not implicate the court’s subject matter jurisdiction, and its absence would not be the basis for dismissal of the complaint, but would be the basis for granting a motion to strike”); Donovan v. Sowell, CT Page 20813 Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (June 21, 2006, Matasavage, J.) (41 Conn. L. Rptr. 609) (“[s]ubsection C, the remedy portion of the statute, is clear, as far as it provides that the plaintiff’s failure ‘to obtain and file the written opinion shall be grounds for dismissal'” [internal quotation marks omitted]) Mastrone v. St. Vincent’s Medical Center, Superior Court, judicial district of Bridgeport, Docket No. CV 05 5000477 (May 23, 2006, Rodriguez, J.) (41 Conn. L. Rptr. 375) (“[R]evised § 52-190a(c), specifically limits the court’s power to hear cases alleging negligence against a medical provider. Only those cases commenced by a complaint with the written opinion of a medical provider attached to the complaint or apportionment complaint may be heard and, thus, failure to attach the required opinion implicates the court’s subject matter jurisdiction.”) Oram v. DeCholnoky, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4005513 (March 10, 2006, Shay, J.) (41 Conn. L. Rptr. 46) (failure to file written opinion of similar health care provider is now grounds for dismissal).

[4] See Ellegard v. Hennessey, Superior Court, judicial district of New Britain, Docket No. CV 06 5001158 (September 22, 2006 Robinson, J.) (denying motion to dismiss in medical malpractice case where defendant argued that opinion of similar health care provider was insufficient because “individual who wrote it was not board-certified in . . . same areas as . . . subject defendant”); Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.) (denying defendant’s motion to dismiss filed on grounds that opinion of similar health care provider did not explain how each defendant treated plaintiff, concluding that written opinion “contains sufficient detail to survive either a motion to dismiss or a motion to strike for insufficiency”) Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) (41 Conn. L. Rptr. 222).

[5] General Statutes § 1-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

[6] General Statutes § 52-184c defines “similar health care provider.” The statute distinguishes between a nonspecialist and a specialist. For a nonspecialist, a “similar health care provider” is defined as “one CT Page 20814 who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.” General Statutes § 52-184c(b). A “similar health care provider” for a specialist is defined as “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.’ ” General Statutes § 52-184c(c).

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