Bennett v. New Milford Hosp. Inc.

• Decision Date: 05 January 2011
• Docket Number: No. 18502.,18502.
• Citation: 12 A.3d 865,300 Conn. 1
• Court: Connecticut Supreme Court
• Parties: Richard BENNETT, Jr., Administrator (Estate of Richard Bennett, Sr.)v.NEW MILFORD HOSPITAL, INC., et al.

300 Conn. 1

12 A.3d 865

Richard BENNETT, Jr., Administrator (Estate of Richard Bennett, Sr.)

v.NEW MILFORD HOSPITAL, INC., et al.

No. 18502.

Supreme Court of Connecticut.

Argued Oct. 26, 2010.Decided Jan. 5, 2011.*

Andrew J. Pianka, for the appellant (plaintiff).Bruce F. Gilpatrick, with whom, on the brief, was Matthew M. Sconziano, Stamford, for the appellees (defendants).Joram Hirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.Daniel E. Ryan II and Ilyssa H. Kelson, Stamford, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.Nancy P. Tyler, Michael G. Rigg, Hartford, Stephen V. Manning, Bridgeport, and Rebecca M. Harris filed a brief for the Connecticut Society for Healthcare Risk Management as amicus curiae.ROGERS, C.J., and NORCOTT, KATZ, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.NORCOTT, J.

In this certified appeal, we consider two significant issues that have arisen under General Statutes (Rev. to 2005) § 52–190a, as amended by Public Acts 2005, No. 05–275, § 2 (P.A. 05–275),¹ namely: (1) whether a surgeon, who likely would be qualified to testify as an expert witness at the trial of a medical malpractice action against a specialist physician pursuant to subsection (d) of General Statutes § 52–184c, ² but who is not a “ ‘similar health care provider’ ” as that term is defined by subsection (c) of that statute, may provide the prelitigation opinion letter (opinion letter) that must accompany the certificate of good faith attached to a medical malpractice complaint pursuant to § 52–190a (a); and (2) whether § 52–190a (c) requires the trial court to dismiss a medical malpractice action if the opinion letter fails to comply with § 52–190a (a). The plaintiff, Richard Bennett, Jr., administrator of the estate of the decedent, Richard Bennett, Sr., appeals, upon our grant of his petition for certification,³ from the judgment of the Appellate Court affirming the judgment of the trial court dismissing in part his medical malpractice action against the defendant, Frederick Lohse, a physician (defendant), and the named defendant, New Milford Hospital, Inc. (hospital). ⁴

Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 537, 979 A.2d 1066 (2009). Because the plaintiff brought this action against the defendant in his capacity as a specialist in emergency medicine, we conclude that § 52–190a (a) required the plaintiff to supply an opinion letter authored by a similar health care provider as defined by § 52–184c (c). As a consequence of the plaintiff's failure to provide such an opinion letter, we conclude that the trial court, therefore, was required to dismiss this action pursuant to § 52–190a (c). Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court aptly sets forth the following relevant facts, as alleged in the plaintiff's complaint, and procedural history. “On November 28, 2006, the decedent suffered a diabetic seizure while operating his motor vehicle. Consequently, his vehicle left the road and collided with a concrete wall. He was extracted from his vehicle and transported to [the hospital]. He was treated in the emergency department by [the defendant], who stabilized the decedent's blood sugar and medicated him for back pain. He was discharged and advised to follow up with his primary care physician. Thereafter, the decedent's primary care physician directed him to return to the hospital for further testing where it was discovered that the decedent had sustained a compression fracture of his lumbar spine, an impact fracture of the proximal tibia and right knee effusion. As a consequence of the significant pain that he suffered due to the untreated fractures of the spine and leg, the decedent sustained myocardial ischemia, which resulted in his death on January 9, 2007.

“The first two counts of the plaintiff's complaint were against [the defendant], and the remaining two counts were against the hospital. Pursuant to § 52–190a (a), the plaintiff attached a good faith certificate from his attorney and a written opinion from a physician. On March 27, 2008, [the defendant] moved to dismiss counts one and two of the plaintiff's complaint pursuant to § 52–190a (c) on the basis that the plaintiff did not comply with § 52–190a (a). Specifically, [the defendant] claimed that the author of the opinion letter attached to the plaintiff's good faith certificate was not a similar health care provider and that the opinion failed to provide a ‘detailed basis' for its formation; see General Statutes [Rev. to 2005] § 52–190a (a) [as amended by P.A. 05–275]; as it failed to refer specifically to [the defendant]. According to the plaintiff's complaint, [the defendant] specializes in emergency medicine.⁵ As to the qualifications of the author of the opinion letter submitted by the plaintiff, the letter stated: ‘As a practicing and [b]oard certified [g]eneral [s]urgeon with added qualifications in [s]urgical [c]ritical [c]are, and engaged in the practice of trauma surgery, I believe that I am qualified to review the contents of these records for adherence to the existing standard of care. One should note that I regularly evaluate and treat injured patients in the [e]mergency [d]epartment including those who are discharged from the [emergency department] as well as those who require inpatient care. The overwhelming majority of my time at work is spent providing clinical care in the [emergency department], general ward, intensive care unit and operating room over the last [twelve] years.’ ⁶ [The defendant] claimed that the opinion is not from a similar health care provider as defined in ... § 52–184c because the opinion author is not board certified in emergency medicine and, therefore, fails to comply with the requirements of § 52–190a (a). On May 5, 2008, the [trial] court granted [the defendant's] motion to dismiss....” Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. at 538–40, 979 A.2d 1066.

The plaintiff appealed from the judgment of dismissal to the Appellate Court. In a unanimous opinion, a three judge panel of the Appellate Court first determined that an opinion letter that fails to comply with § 52–190a (a) subjects the action to “potential dismissal” under § 52–190a (c). Id., at 545, 979 A.2d 1066. The Appellate Court then concluded that, under the plain language of §§ 52–190a (a) and 52–184c, “a similar health care provider with respect to [the defendant] would be one who is trained and experienced in emergency medicine and is certified in emergency medicine. Accordingly, before bringing an action alleging medical negligence on [the defendant's] part, the plaintiff or his attorney must obtain and file a written and signed opinion from such a physician that there appears to be evidence of such negligence. Because the plaintiff's expert is not certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52–184c (c).” ⁷ (Internal quotation marks omitted.) Id., at 546–47, 979 A.2d 1066. Accordingly, the Appellate Court affirmed the judgment of the trial court dismissing the claims against the defendant. Id., at 550, 979 A.2d 1066; see also footnote 4 of this opinion. This certified appeal followed. See footnote 3 of this opinion.

On appeal, the plaintiff and the amicus curiae Connecticut Trial Lawyers Association (trial lawyers) claim that: (1) to provide the opinion letter required by § 52–190a (a), a health care provider need not be a similar health care provider under § 52–184c (b) or (c) but, rather, must only qualify to testify as an expert witness under § 52–184c (d); (2) § 52–190a (c) did not obligate the trial court to dismiss the case on the basis of the submission of an opinion letter from a physician who was not a similar health care provider; and (3) a construction of § 52–190a to the contrary would violate the separation of powers provision of article second of the Connecticut constitution, as amended by article eighteen of the amendments. ⁸ The defendant, and the amici curiae Connecticut Defense Lawyers Association (defense lawyers) and Connecticut Society for Healthcare Risk Management (risk management society), contend otherwise.

Before addressing the plaintiff's claims on appeal, we address the applicable standard of review, which is well settled. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... When a ... court decides a ... question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010).

Moreover, when the legal issue presented in connection with a motion to dismiss is one of statutory construction, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider 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...