Helfant v. Yale-New Haven Hosp., 37569.

• Decision Date: 06 September 2016
• Docket Number: No. 37569.,37569.
• Citation: 145 A.3d 347,168 Conn.App. 47
• Court: Connecticut Court of Appeals
• Parties: Nancy HELFANT, Executrix (Estate of Irwin Helfant), et al. v. YALE–NEW HAVEN HOSPITAL et al.

168 Conn.App. 47

145 A.3d 347

Nancy HELFANT, Executrix (Estate of Irwin Helfant), et al.

v.YALE–NEW HAVEN HOSPITAL et al.

No. 37569.

Appellate Court of Connecticut.

Argued March 1, 2016.

Decided Sept. 6, 2016.

John T. Bochanis, Bridgeport, for the appellants (plaintiffs).

S. Peter Sachner, Middlebury, with whom, on the brief, was Amy F. Goodusky, Hartford, for the appellees (defendant Middlesex Hospital et al.).

ALVORD, PRESCOTTand WEST, Js.

WEST, J.

The plaintiff, Nancy Helfant, in her capacity as the executrix of the estate of Irwin Helfant, the decedent, and in her individual capacity,¹ brought this medical negligence action against the defendants, Middlesex Hospital,² Middlesex Hospital Shoreline Medical Center, Yale–New Haven Hospital, and the agents, servants, and employees of these institutions, and against John Lynch and Henry Cabin, both physicians, individually.³ The plaintiff appeals from the judgment of the trial court dismissing the action on the ground that the plaintiff failed to satisfy General Statutes § 52–190a⁴ by filing a written opinion of a similar health care provider that there appears to be negligence on the part of the defendants. 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 by General Statutes § 52–184c.⁵ Because we conclude that the opinion letter submitted by the plaintiff was not from a similar health care provider, we affirm the judgment of the trial court.

The record discloses the following relevant procedural history. The plaintiff filed a complaint against the defendants on March 20, 2008, and a revised complaint on November 12, 2008, in which she, in her capacity as executrix, asserted a wrongful death claim on the basis of the defendants' medical malpractice. In her revised complaint, the plaintiff alleged the following facts, the truth of which we assume for purposes of her appeal. On December 5, 2005, the plaintiff's decedent was admitted for treatment by Lynch at Middlesex Hospital Shoreline Medical Center, was subsequently transferred to Yale–New Haven Hospital, where Cabin rendered care, and the decedent later died.

The plaintiff alleged that the decedent's death was caused by the negligence, carelessness, and breach of the duty of care of the institutional defendants through their agents, servants, and employees.⁶ The plaintiff also alleged that the decedent's death was caused by the negligence, carelessness, and breach of the duty of care of the defendant physicians, Lynch and Cabin.⁷ Furthermore, the plaintiff alleged that as a result of the breach of the duty of care by the defendants, the decedent died on December 5, 2005. The plaintiff additionally alleged that as a result the decedent sustained pain and suffering, incurred various medical care, funeral, and burial expenses, and lost his capacity to earn wages and carry out life's activities. Additionally, the plaintiff, in her individual capacity, alleged that as a result of the defendants' breach of the duty of care owed the decedent, she suffered a loss of companionship, support, love and consortium with her husband, the decedent.

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 him, he believed in good faith that grounds existed for a medical malpractice action against the defendants. Additionally, the plaintiff attached a document entitled "Medical Evaluation Report" authored by Robert Pieroni, a physician. The letter stated in relevant part: "The communication between Doctors Lynch and Cabin and agents of their hospitals was frankly abysmal, and their actions and inactions in their 'treatment' of [the decedent] were distinctly substandard."⁸ The opinion letter set forth the specific facts related to the decedent's condition at the time he arrived at Middlesex Hospital Shoreline Medical Center. Additionally, the letter delineated the ways in which the defendants failed to provide adequate or appropriate care, which allegedly led to the decedent's demise. The letter's stationary indicated that Pieroni was certified as a specialist by various American boards of medicine, however, a specialty of emergency medicine was not one of the many listed.

Thereafter, the defendants moved to dismiss the plaintiff's revised complaint on the grounds that the opinion letter submitted by the plaintiff did not comply with § 52–190a, because it was not authored by a "similar health care provider," and that it was insufficiently detailed in that it did not provide for how the defendants deviated from the standard of care. In support of their motion to dismiss, the defendants submitted as an exhibit an affidavit executed by Lynch. In the affidavit Lynch averred that he "[was] an emergency room physician ... and [had] been board certified by the American Board of Emergency Medicine since June 18, 2004."

The plaintiff filed an objection to the motion and attached as exhibits an affidavit made by the opinion letter author, Pieroni, as well as his curriculum vitae. In the affidavit, Pieroni averred that he "previously and currently [performs] physician responsibilities in a hospital emergency room department and [has] experience in providing emergency medical care." Pieroni further stated that he "[had] been previously called upon to assist emergency room physicians in the diagnosis and treatment of patients...." He also declared that "[a]s a board certified physician in internal medicine, family medicine, and other specialty areas, [he had] been trained to perform medical diagnosis and treatment in different settings including emergency department settings...."

On October 5, 2009, the trial court, Wilson, J., entered an order sustaining the plaintiff's objection to the defendants' motion to dismiss. Subsequently, the defendants filed a motion to reargue their motion to dismiss, citing, inter alia, Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011). The court later granted the defendants' motion to reargue, vacated its order of October 5, 2009, and heard reargument on the defendants' motion to dismiss. In an April 6, 2010 memorandum of decision, the court granted the defendants' motion to dismiss.

The court summarized the key arguments advanced by the parties as follows: "[Lynch] argue[d] that the plaintiff's complaint must be dismissed pursuant to § 52–190a (c)because the author of the plaintiff's opinion letter [was] not a 'similar health care provider' as defined by § 52–184c (c). [He] further [contended] that the letter [was] not sufficiently detailed to allege medical negligence, in that it neither [stated] a standard of care nor [illustrated] how [he] breached that standard. Lastly, [Lynch argued] that the letter [was] conclusory in its entirety.

"The plaintiff [countered] that § 52–190a (c)provides for dismissal only where a plaintiff neglects to attach an opinion letter to a complaint. In addition, she [argued] that the opinion author is a similar health care provider because he has sufficient experience in the field of emergency medicine, which is unlike other medical specialties in that it is defined solely by the setting in which the care is rendered. The plaintiff further [argued] that the sufficiency of the detail of a medical opinion letter is not properly raised in a motion to dismiss; and that, if the court [were to find] that it is, the letter is sufficiently detailed.

"The plaintiff filed a supplemental objection to the defendants' motion to dismiss, in which she [countered], inter alia, that the care rendered by [Lynch] was outside of his specialty. Therefore, the plaintiff [contended] that the opinion letter author [Pieroni] is a similar medical provider under § 52–184c (c), although [Pieroni] is not board certified in emergency medicine. In reply, the defendants [asserted] that Bennett [v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, 979 A.2d 1066,] still controls this issue, focusing on [Lynch's] board certification relative to that of [Pieroni]. The defendants also [argued] in reply that the substance of the letter at issue is lacking, and that it is deficient as against the institutional defendants...."

The trial court concluded that this court's decision in Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, 979 A.2d 1066, was "controlling as to the validity of the opinion letter as against [Lynch]." The court noted that "[n]owhere in the record is there any indication that [Pieroni] is board certified in emergency medicine." The court concluded, therefore, that "since [Lynch] is board certified in emergency medicine, §§ 52–190a (a)and 52–184c (c)require that a similar health care provider be board certified in emergency medicine." The court further concluded that "[u]nder the standard set forth in Bennett , and § 52–190a (a), the letter cannot be determined to have been authored by a similar health care provider."⁹ Accordingly, the court granted the defendants' motion to dismiss pursuant to § 52–190a (c)inasmuch as it related to Lynch.

The court separately addressed "whether the opinion letter, although insufficient as to [Lynch] [remained] sufficient as against the institutional defendants...." Noting that the plaintiff's revised complaint alleged vicarious liability against only the institutional defendants for the negligent conduct of Lynch as their agent, the court concluded that because it found the opinion letter deficient as offered against Lynch individually, it must follow that it was also deficient as against the institutional defendants as Lynch's principals.

"We begin by noting the well established standard of review on a challenge to a ruling on a motion to dismiss. When the facts relevant to an issue are not in dispute, this court's task is...