Bell v. Hosp. of Saint Raphael, No. 32338.

• Decision Date: 14 February 2012
• Docket Number: No. 32338.
• Citation: 36 A.3d 297,133 Conn.App. 548
• Court: Connecticut Court of Appeals
• Parties: Marshaun W. BELL, Administratrix (Estate of Clara Ann Woods), et al. v. HOSPITAL OF SAINT RAPHAEL.

133 Conn.App. 548

36 A.3d 297

Marshaun W. BELL, Administratrix (Estate of Clara Ann Woods), et al.

v.HOSPITAL OF SAINT RAPHAEL.

No. 32338.

Appellate Court of Connecticut.

Argued Sept. 22, 2011.Decided Feb. 14, 2012.

Susan King Shaw, with whom was David A. Shaw, New Haven, for the appellants (plaintiffs).

Michael D. Neubert, with whom was Vimala B. Ruszkowski, New Haven, for the appellee (defendant).

ALVORD, ESPINOSA and BISHOP, Js.

ESPINOSA, J.

The plaintiff, Marshaun W. Bell, in her capacity as the administratrix of the estate of Clara Ann Woods, the decedent, and in her individual capacity,¹ brought this medical negligence action against the defendant, Hospital of Saint Raphael. The plaintiff appeals from the judgment of the trial court dismissing the action on the ground that the plaintiff failed to satisfy General Statutes § 52–190a by filing a written opinion of a similar health care provider that there appears to be evidence of medical negligence on the part of the defendant. The plaintiff claims that the court improperly determined that the opinion letter filed in the present case failed to demonstrate that the author of the letter was a similar health care provider as defined in General Statutes § 52–184c. We affirm the judgment of the trial court.

The record discloses the following relevant procedural history. The plaintiff initiated this action by a two count complaint dated September 21, 2009. In count one, the plaintiff, in her capacity as administratrix, asserted a wrongful death claim on the basis of the defendant's medical malpractice. She alleged the following relevant facts. At approximately 6:30 a.m. on June 23, 2007, her decedent presented to the defendant's emergency room with various physical symptoms, including elevated blood pressure, and the defendant undertook a duty to render health care services for the decedent's benefit. The decedent's blood pressure continued to be critically elevated and, by 10 a.m., the decedent was unresponsive and in severe respiratory distress. The decedent suffered a massive hemorrhagic stroke, which resulted in her death on June 27, 2007.

The plaintiff alleged that the defendant “breached its duty and the standard of care through the acts, conduct or omissions of its employees, servants, agents and apparent agents, or any one or more of them” in a variety of ways related to the treatment afforded the decedent.² The plaintiff alleged that as a result of the breach of the duty of care by the defendant, the decedent “suffered a massive hemorrhagic stroke which resulted in her death on June 27, 2007,” the decedent suffered pain and permanently lost her ability to enjoy life's activities and the decedent's estate has incurred various expenses. In count two of the complaint, the plaintiff, in her individual capacity, alleged that as a result of the defendant's breach of the duty of care owed the decedent as set forth in count one, she “has incurred and become obligated to pay for hospital and medical treatment and funeral and burial expenses.”

Attached to the complaint was a good faith certificate signed by the plaintiff's attorney. The plaintiff's attorney represented therein that, following a reasonable inquiry by her, she believed in good faith that grounds existed for a medical malpractice action against the defendant. Additionally, the plaintiff attached a document entitled “Health Care Provider's Opinion Pursuant to [General Statutes §] 51–190a.” ³ The letter stated in relevant part: “After a careful review of all of the documentation from this case, I have concluded that the staff at [the defendant] neglected to properly provide adequate or safe care for [the decedent]. The significant lack of intervention for critical vital signs is a clear source of deviation from a standard of emergency medical care which rose to the level of answerability for her untimely death.”

The opinion letter set forth specific facts related to the decedent's condition at the time that she arrived at the hospital. The letter also set forth specific ways in which hospital staff failed to provide adequate or appropriate care, conduct that allegedly “led to a hemorrhagic stroke and [the decedent's] untimely death.” The following initials appear at the end of the letter: “RN, BSN, ICP.”

Thereafter, the defendant filed a motion to dismiss on the ground that the plaintiff failed to attach to the good faith certificate “a written opinion letter of a similar health care provider indicating that there is evidence of medical negligence on the part of the [defendant's] Emergency Department.” The plaintiff filed an objection to the motion. Both parties filed memoranda of law in support of their respective positions. Attached to the plaintiff's postargument brief was an affidavit of the plaintiff's attorney in which she averred in relevant part that she “[was] personally familiar with the author of the opinion letter in this case....” She stated that “[t]he author has been a Registered Nurse in the State of Connecticut for a period of eleven years; she is licensed to practice in the State of Connecticut.” Also, the plaintiff's attorney stated that “[t]he author holds a Bachelor's Degree from an accredited University in the State of Connecticut” and “[t]he author's professional experience includes over ten years of acute, subacute and long term nursing care, including working in a trauma center in Connecticut.”

In support of its motion to dismiss, the defendant filed the affidavit of Alan S. Kliger, its vice president, chief medical officer and chief quality officer. Kliger averred that at the time of the events underlying the plaintiff's complaint “the Emergency Department at the [defendant] had its own entry point and was a clearly designated area of the [defendant]” and “the Emergency Department was an area of the [defendant] staffed by health care providers trained, experienced and familiar in the delivery of emergency care and treatment.” Also, Kliger stated that “[t]he [defendant] holds its Emergency Department out as a specialized area of the [defendant] where patients can obtain emergency care and treatment, and did so at the time of the underlying incident.” Finally, Kliger stated that the defendant was designated as a level II trauma center and that, “[a]t the time of the underlying incident the care and treatment of Emergency Department patients at the [defendant] was managed either by an Emergency Department physician or physician's assistant.”

In a May 25, 2010 memorandum of decision, the court granted the defendant's motion to dismiss. The court summarized the key arguments advanced by the parties. The defendant argued that the author of the opinion letter purported to be a registered nurse and was not a “similar health care provider” under § 52–184c. Specifically, the defendant argued that in light of the allegations that negligence occurred in its emergency department, the plaintiff was required by § 52–184c (c) to provide an opinion letter from a person with training, experience and proper certification in emergency medicine, something that the plaintiff did not do.

The plaintiff countered that because she alleged negligence on the part of an institution rather than a specific health care provider, it was not practical to require her to comply strictly with § 52–190a (a). Rather, the plaintiff attempted to persuade the court that in light of the specific allegations in her complaint she complied with the statute by providing the opinion of a health care provider as defined in § 52–184c (b).

The court concluded that § 52–190a (a) required the plaintiff to provide an opinion letter of a similar health care provider as defined in § 52–184c. Given the allegations in the complaint, the court concluded that “a similar health care provider is defined by the terms of ... § 52–184c (b).” The court reasoned that a registered nurse was not necessarily precluded from authoring the letter because the allegations in the complaint were broad enough that some of them were encompassed by the practice area of a registered nurse. Thus, the court disagreed with the defendant's contention that the letter was required to have been written by a physician board certified in emergency medicine. The court, however, took issue with the absence of information concerning the author's qualifications, concluding: “The submitted opinion letter, even when supplemented with counsel's affidavit, does not contain sufficient facts to satisfy the court that the author of the [opinion] letter meets the requirements of § 52–184c (b) to qualify as a ‘similar health care provider’ to the defendant.” In reaching its conclusion, the court observed that the letter did not set forth the author's qualifications related to licensing, training, experience or any active involvement in any medical field during the five year period prior to the incident underlying the complaint. Accordingly, the court dismissed the action pursuant to § 52–190a (c). This appeal followed.

The plaintiff claims that the court improperly dismissed the action on the ground that the opinion letter did not reflect that its author was a similar health care provider. The plaintiff argues that insofar as it conveyed that the author was a registered nurse who held a bachelor of science degree in nursing the letter set forth some of the author's qualifications. The plaintiff also relies on the averments of her trial attorney concerning the author's qualifications. The plaintiff does not appear to argue that the letter addressed all of the qualifications of a similar health care provider, but asserts that dismissal was not warranted “because there was sufficient information provided [to the court] to infer the good faith inquiry of the plaintiff in this case.” She asserts that, although § 52–190a (a) requires that a similar health care provider set forth the basis of his or her opinion in a written letter, there is no...