Plante v. Charlotte Hungerford Hosp., s. 18573

• Decision Date: 05 January 2011
• Docket Number: 18574.,Nos. 18573,s. 18573
• Citation: 12 A.3d 885,300 Conn. 33
• Court: Connecticut Supreme Court
• Parties: William PLANTE, Sr., Administrator (Estate of Joanne Plante), et al.v.CHARLOTTE HUNGERFORD HOSPITAL et al.

300 Conn. 33

12 A.3d 885

William PLANTE, Sr., Administrator (Estate of Joanne Plante), et al.

v.CHARLOTTE HUNGERFORD HOSPITAL et al.

Nos. 18573

18574.

Supreme Court of Connecticut.

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

Bruce E. Newman, Bristol, with whom was Kevin E. Creed, for the appellants (plaintiffs).Janine W. Hodgson, for the appellees (defendants Peter Bull et al.).Michael G. Rigg, with whom, on the brief, was Amy F. Goodusky, Hartford, for the appellees (named defendant et al.).ROGERS, C.J., and NORCOTT, KATZ, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.NORCOTT, J.

In this appeal, we consider the circumstances under which the accidental failure of suit statute, General Statutes § 52–592(a),¹ may save an otherwise time barred medical malpractice action commenced after the dismissal of a prior action pursuant to General Statutes (Rev. to 2005) § 52–190a, as amended by Public Acts 2005, No. 05–275, § 2 (P.A. 05–275),²37 for failure to attach to the complaint a written opinion by a similar health care provider stating that there is evidence of medical negligence (opinion letter). The plaintiffs, William Plante, Sr., individually and as administrator of the estate of the decedent, Joanne Plante,³ and Adam Plante and William Plante, Jr. (plaintiffs), all relatives of the decedent, appeal from the judgments of the trial court: (1) rendered after a court trial in favor of the defendants Charlotte Hungerford Hospital (hospital), Karen Nash and Eleanor Stutz (hospital defendants); and (2) dismissing the complaint against emergency room physicians Peter Bull and Brian Malone (individual defendants) pursuant to § 52–190a (c). In this consolidated appeal,⁴ the plaintiffs contend that: (1) with respect to the hospital defendants, the trial court improperly concluded that the plaintiffs could not bring this action under § 52–592(a) following the dismissal of the original action pursuant to § 52–190a (c); and (2) because the appeal has been consolidated, reversal of the judgment with respect to the hospital defendants similarly requires reversal of the judgment as to the individual defendants. Given the trial court's unchallenged factual finding that the plaintiffs' initial failure to select an appropriately qualified health care provider to review the case for possible malpractice amounted to “blatant and egregious conduct,” we conclude that § 52–592(a) does not save this time barred action. We also conclude that the plaintiffs have abandoned their appellate claims with respect to the individual defendants. Accordingly, we affirm the judgments of the trial court.

The record reveals the following facts and procedural history. On April 26, 2006, the plaintiffs commenced the initial action, alleging in the complaint that the decedent had committed suicide as a result of the professional malpractice of the hospital defendants, specifically Stutz, a psychiatrist, and Nash, a clinical social worker employed by the hospital, and the individual defendants, both emergency room physicians practicing at the hospital. Specifically, the plaintiffs claimed that the various defendants had committed malpractice by prematurely discharging the decedent from the hospital's emergency room, where she had presented on April 30, 2004, experiencing a severe mental health crisis. Shortly thereafter, the hospital defendants moved to dismiss the initial action pursuant to § 52–190a (c) on the ground that the plaintiffs had failed to attach to the complaint the opinion letter required by § 52–190a (a). On July 28, 2006, the plaintiffs filed an objection to the motion to dismiss, along with a certificate of good faith and an opinion letter purportedly from an “experienced and qualified health care professional in a similar field which supports the cause of action.” The plaintiffs represented that, “by simple mistake the report, obtained prior to initiating the action, from a qualified health care professional in a similar field was inadvertently not attached to the complaint at the time of service.” The opinion letter was, however, dated May 12, 2006, which is a date subsequent to the commencement of the initial action. The trial court, Alexander, J., granted the hospital defendants' motion to dismiss the initial action on September 1, 2006, but did not issue an oral or written memorandum of decision.

On September 29, 2006, the plaintiffs filed, with leave of the court pursuant to Practice Book § 10–60, an amended complaint in the initial action against the individual defendants that included the requisite good faith certificate and an opinion letter purportedly from a similar health care provider dated April 10, 2006, with the provider's name and qualifications redacted, opining that all of the defendants had been negligent in their treatment of the decedent.⁵ Shortly thereafter, the individual defendants moved to dismiss the initial action on the ground that the plaintiffs had failed to attach an opinion letter from a similar health care provider. The trial court, Brunetti, J., denied that motion to dismiss on January 8, 2007.

Thereafter, on December 29, 2006, the plaintiffs commenced this medical malpractice action against the hospital defendants, invoking § 52–592 and claiming in the complaint that the first action against them had been “dismissed without opinion, as a matter of form, on September 1, 2006.” Pursuant to § 52–190a (a), the plaintiffs attached to this complaint a certificate of good faith and an opinion letter, dated November 3, 2006, from a physician identified as a board certified psychiatrist licensed to practice in Connecticut and New York.

Subsequently, the trial court, Pickard, J.,⁶ denied the hospital defendants' motions to dismiss, and subsequently for summary judgment, in which they had claimed that the action was time barred under the applicablestatutes of limitations, General Statutes § § 52–555 ⁷ and 52–584,⁸ as well as the doctrine of res judicata, because the case did not meet the criteria necessary to constitute an “accidental failure of suit” saved by § 52–592(a). Following discovery and numerous revisions to the operative complaint, the trial court, Marano, J., granted the hospital defendants' motion pursuant to General Statutes § 52–206 and Practice Book § 15–1 to bifurcate the proceedings, and to try the claim that the action was saved by § 52–592(a) separately from the malpractice claims. Judge Marano further granted the hospital defendants' motion to depose and compel the testimony of Kevin Creed, the plaintiffs' attorney.⁹

Thereafter, a court trial was held on the § 52–592(a) issue before Judge Pickard, who heard testimony from Grace Williamson, the registered nurse who had authored the opinion letter used in the initial action, and Creed. The trial court found that the plaintiffs had proven that Williamson had “provided ... Creed with her written memorandum prior to the institution of the first action.¹⁰ Unfortunately for the plaintiff[s], this finding does not result in a favorable outcome for [them] because ... Williamson is not a ‘similar health care provider’ to any of the defendants,” despite the fact that she “is a pleasant person who had a long nursing career.” ¹¹ Discussing the definition of “ ‘similar health care provider’ ” under General Statutes § 52–184c,¹² which is cross-referenced in § 52–190a (a), the trial court concluded that Williamson was not a board certified physician and, therefore, not a similar health care provider under § 52–184c (c) with respect to Stutz, a board certified psychiatrist. With respect to Nash, the trial court concluded that Williamson was not a similar health care provider under the applicable statutory definition of § 52–184c (b) because she “is not licensed as a social worker, nor was she trained in the same discipline, nor was she active in the practice or teaching of crisis work within the five year period before the incident.” The trial court similarly concluded that, with respect to the hospital itself, Williamson was not qualified to render an opinion as to its vicarious liability with respect to Stutz or Nash, and also was “not qualified in any way to render an opinion about the alleged independent negligence of the hospital for facility or staffing inadequacies.” The trial court summarized by calling “the memorandum of ... Williamson received by ... Creed prior to the institution of the first action ... worthless as the opinion of a similar health care provider. There are, undoubtedly, cases in which it is a close call as to whether an author of a presuit opinion is a similar health care provider. This is not such a case.” Citing Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008), the trial court concluded, therefore, that Judge Alexander had properly dismissed the initial action against the hospital defendants, notwithstanding the fact that she “did not have the benefit of knowing the identity and lack of qualifications of the author of the memorandum.”

Turning to the statutory issue that is the principal subject of this appeal, the trial court next concluded that the deficiency under § 52–190a (a) was not a “matter of form” entitling the plaintiffs to invoke § 52–592 and bring a new action following the dismissal of the first action after the expiration of the relevant statutes of limitations. The trial court found that the plaintiffs “had not made a reasonable precomplaint inquiry at the time the first action was commenced ... because [they] had not received an opinion from a similar health care provider.” The trial court concluded that, “[a]lthough § 52–592 is remedial in nature and must be read broadly, the dismissal of the first action in this case cannot be found to be a matter of form. The decision to engage ... Williamson to review the file and to provide a written opinion of negligence is inexplicable. Even a cursory reading of § 52–190a would have revealed that ... Williamson did not qualify...