Helfant v. Yale-New Haven Hospital , 168 Conn. App. 47 ( 2016 )

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NANCY HELFANT, EXECUTRIX (ESTATE OF IRWIN
HELFANT), ET AL. v. YALE-NEW
HAVEN HOSPITAL ET AL.
(AC 37569)
Alvord, Prescott and West, Js.
Argued March 1—officially released September 6, 2016
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
John T. Bochanis, for the appellants (plaintiffs).
S. Peter Sachner, with whom, on the brief, was Amy
F. Goodusky, for the appellees (defendant Middlesex
Hospital et al.).
Opinion
WEST, J. The plaintiff, Nancy Helfant, in her capacity
as the executrix of the estate of Irwin Helfant, the dece-
dent, and in her individual capacity,1 brought this medi-
cal 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 defen-
dants. 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 opin-
ion 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 proce-
dural 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 Further-
more, 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 suffer-
ing, 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 defen-
dants’ 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 Pier-
oni, 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 dece-
dent] 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 delin-
eated 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 physi-
cian . . . and [had] been board certified by the Ameri-
can 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 hos-
pital 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 defen-
dants’ 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 defen-
dants’ 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 opin-
ion 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 medi-
cal 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 med-
ical 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 [coun-
tered], 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,] still
controls this issue, focusing on [Lynch’s] board certifi-
cation 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, 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 pro-
vider 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 defen-
dants 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 limited to a determination of whether,
on the basis of those facts, the trial court’s conclusions
of law are legally and logically correct. . . . Because
there is no dispute regarding the basic material facts,
this case presents an issue of law, and we exercise
plenary review. . . . Similarly, the meaning of a statute
is a question of law over which our review is plenary.’’
(Citations omitted; internal quotation marks omitted.)
Bennett v. New Milford Hospital, Inc., supra, 117 Conn.
App. 541.
On appeal, the plaintiff claims that the court improp-
erly dismissed the action on the ground that the opinion
letter was not authored by a similar health care pro-
vider. The plaintiff argues that the opinion letter com-
plies with § 52-190a, and, therefore, is sufficient to
support a claim against Lynch and the institutional
defendants. Thus, the plaintiff asserts that the dismissal
of the action was unwarranted. The defendants claim
that the court properly applied the holding of Bennett
in concluding that the opinion letter’s author did not
meet the objective standard imposed by § 52-190a,
requiring that the attesting expert be a similar health
care provider to Lynch.
General Statutes § 52-190a (a) provides in relevant
part that ‘‘[n]o civil action or apportionment complaint
shall be filed to recover damages resulting from per-
sonal injury or wrongful death occurring on or after
October 1, 1987, whether in tort or in contract, in which
it is alleged that such injury or death resulted from the
negligence of a health care provider, unless . . . the
claimant or the claimant’s attorney, . . . obtain[s] a
written and signed opinion of a similar health care pro-
vider, as defined in section 52-184c, which similar health
care provider shall be selected pursuant to the provi-
sions of said section, that there appears to be evidence
of medical negligence and includes a detailed basis for
the formation of such opinion. . . .’’
‘‘To interpret the requirements of § 52-190a (a), we
must read it together with § 52-184c, the statute regard-
ing similar health care providers. Subsections (b) and
(c) of § 52–184c define a ‘similar health care provider’
for purposes of the statute. For physicians who are
board certified or hold themselves out as specialists,
subsection (c) of § 52-184c defines ‘similar health care
provider’ as ‘one who: (1) [i]s trained and experienced
in the same specialty; and (2) is certified by the appro-
priate American board in the same specialty . . . .’ ’’
Bennett v. New Milford Hospital, Inc., supra, 117 Conn.
App. 546.
Because Lynch is certified by the American Board
of Emergency Medicine, is trained and experienced in
emergency medicine, and holds himself out as a special-
ist, pursuant to the plain language of §§ 52-190a (a)
and 52-184c (c), a ‘‘similar health care provider’’ with
respect to Lynch would be a physician who is not only
trained and experienced in emergency medicine, but
one who is also ‘‘certified by the appropriate American
board’’ in emergency medicine. General Statutes § 52-
184c (c). Accordingly, before bringing an action alleging
medical negligence on Lynch’s part, the plaintiff or her
attorney needed to obtain and file a written and signed
opinion from such a physician indicating that there
appears to be evidence of such negligence. Because the
plaintiff’s expert is not board 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).
The plaintiff, citing § 52-184c (c), contends that the
opinion letter author is a similar health care provider
for purposes of § 52-190a, even if his board certification
is not in the exact same certification as that of Lynch.
The plaintiff argues that the exception contained in § 52-
184c (c)10 is applicable because Lynch was not providing
treatment to the decedent solely within his claimed
specialty of emergency medicine. Specifically, the plain-
tiff notes that Lynch’s diagnosis and treatment of the
decedent’s condition—air in the chest cavity—was not
caused by any trauma and, thus, was a condition outside
of his emergency medicine specialty. The plaintiff also
relies on the fact that she did not assert any allegations
in the complaint based on Lynch’s specialization in
emergency medicine, and further argues that the facts
of this case are different than those in Bennett. The
plaintiff contends that this case, therefore, is distin-
guishable from Bennett simply because the plaintiff in
Bennett alleged that the defendant physician was spe-
cialized in emergency medicine, whereas the plaintiff
in this case did not. She asserts that by not alleging
that Lynch was acting within his medical specialty of
emergency medicine while negligently treating the
decedent, the exception in § 52-184c (c), regarding pro-
viding treatment or diagnosis for a condition not within
a provider’s specialty, applies.
It is important to note, however, that the plaintiff
did not allege in her revised complaint that Lynch was
acting outside of his medical specialty when he ren-
dered treatment to the decedent. Furthermore, the
plaintiff did not restrict her claims against Lynch to
properly interpreting a chest X-ray. Rather, the revised
complaint alleges that Lynch failed to take a proper
history of the decedent, properly diagnose, and conduct
the proper diagnostic testing on the decedent, which
would fall within the specialty of emergency medicine.
See footnotes 5 and 6 of this opinion. Moreover, the
plaintiff essentially is arguing that merely by omitting
language regarding Lynch’s specialty, the exception in
§ 52-184c (c) applies; however, if that assertion were
accepted, it would seem that by omitting such language
regarding a defendant’s specialty, a plaintiff could
always plead his or her way around the statute. Addi-
tionally, even if the plaintiff’s proposition that the
alleged negligence of Lynch was limited to the improper
interpretation of a chest X-ray were accepted, this act
would not appear to fall outside of his field of specializa-
tion as a board certified emergency medicine physician.
Indeed, there were no facts alleged in the revised com-
plaint to demonstrate that the interpretation of X-rays
falls outside the purview of the emergency medicine
specialty. The fact that Lynch was interpreting the chest
X-ray in an emergency room setting also leads us to
the conclusion that it was within his specialty of emer-
gency medicine.
In Farrell v. Bass, 90 Conn. App. 804, 812–13, 879 A.2d
516 (2005), this court upheld the trial court’s finding that
a plastic surgeon’s direction to his patient to discon-
tinue taking the medication Coumadin, a blood thinner,
for two days prior to surgery was not sufficient to con-
clude that the plastic surgeon was providing treatment
or diagnosis for a condition which is not within his
specialty, as stated in § 52-184c (c). The trial court had
concluded that any direction to the patient to discon-
tinue Coumadin for a time was given in the physician’s
role as a plastic surgeon. Id., 814. Similarly, in this case,
Lynch’s interpretation of the decedent’s X-ray was done
within his role as an emergency medicine physician
rendering treatment in an emergency room setting.
Thus, we conclude that Lynch was not providing treat-
ment or diagnosis for a condition that was not within
his specialty and, therefore, the exception in § 52-184c
(c) does not apply to the facts of this case. Accordingly,
pursuant to §§ 52-190a (a) and 52-184c (c), the plaintiff’s
medical opinion letter should have been authored by a
physician who is both trained and experienced and
board certified in emergency medicine.
Additionally, the plaintiff contends that the medical
opinion letter was sufficient to support a claim against
the institutional defendants; however, as the trial court
concluded, the plaintiff did not allege that the liability of
the institutional defendants arose from anything other
than vicarious liability for the negligent conduct of
Lynch as their agent. The plaintiff cites several Superior
Court cases to support the proposition that a written
opinion that addresses only the negligence of the physi-
cians is sufficient to withstand a motion to dismiss in
an action in which the alleged medical malpractice of
a hospital or similar entity is premised on the conduct
of its individual physicians, employees, or staff. The
plaintiff argues that the fact that Lynch was the only
agent specifically named in the complaint does not limit
the allegations in the complaint against the institutional
defendants to just his negligent acts and argues that
because they alleged negligence on the part of the insti-
tutional defendants’ ‘‘agents, servants, and employees,’’
the written opinion letter authored by Pieroni is suffi-
cient to support a claim against those defendants.
Our Supreme Court in Wilkins v. Connecticut Child-
birth & Women’s Center, 314 Conn. 709, 727, 104 A.3d
671 (2014), concluded that, under certain circum-
stances, an opinion letter from a properly qualified
physician in support of a complaint may also support
allegations directed against subordinate providers prac-
ticing in the same medical specialty. In the present case,
however, because Pieroni was not properly qualified to
author the opinion letter as against Lynch, the letter
would not support allegations directed at any subordi-
nate providers whose negligence would be imputed to
the institutional defendants. Accordingly, because we
conclude that the medical opinion letter was insuffi-
cient as offered against Lynch, we conclude that it was
insufficient as against the institutional defendants as
well.
On the basis of the foregoing, because the opinion
letter submitted by the plaintiff was not authored by a
similar health care provider pursuant to §§ 52-190a (a)
and 52-184c (c), we conclude that the court properly
dismissed the action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer in this opinion to Nancy Helfant in both capacities as the
plaintiff.
2
Middlesex Hospital maintained and operated a public hospital in the
city of Middletown and state of Connecticut known as Middlesex Hospital,
and in the town of Essex, known as Middlesex Hospital Shore Line Medi-
cal Center.
3
The plaintiff resolved her case against Yale-New Haven Hospital and
Henry Cabin prior to filing this appeal. Therefore, the remaining defendants
in this appeal, Middlesex Hospital, Middlesex Hospital Shoreline Medical
Center, and John Lynch, will be referred to collectively as the defendants,
and individually by name when appropriate. The defendants Middlesex Hos-
pital and Middlesex Hospital Shoreline Medical Center will be collectively
referred to as the institutional defendants.
4
General Statutes § 52-190a provides in relevant part: ‘‘(a) No civil action
or apportionment complaint shall be filed to recover damages resulting from
personal injury or wrongful death occurring on or after October 1, 1987,
whether in tort or in contract, 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 or apportionment complaint 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, initial pleading or apportionment
complaint shall contain a certificate of the attorney or party filing the action
or apportionment complaint that such reasonable inquiry gave rise to a good
faith belief that grounds exist for an action against each named defendant
or for an apportionment complaint against each named apportionment defen-
dant. To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment com-
plainant’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. . . .
***
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
5
General Statutes § 52-184c provides in relevant part: ‘‘(a) In any civil
action to recover damages resulting from personal injury or wrongful death
occurring on or after October 1, 1987, in which it is alleged that such injury
or death resulted from the negligence of a health care provider, as defined
in section 52-184b, the claimant shall have the burden of proving by the
preponderance of the evidence that the alleged actions of the health care
provider represented a breach of the prevailing professional standard of
care for that health care provider. The prevailing professional standard of
care for a given health care provider shall be that level of care, skill and
treatment which, in light of all relevant surrounding circumstances, is recog-
nized as acceptable and appropriate by reasonably prudent similar health
care providers.
‘‘(b) If the defendant health care provider is not certified by the appropriate
American board as being a specialist, is not trained and experienced in a
medical specialty, or does not hold himself out as a specialist, a ‘similar
health care provider’ is one who: (1) Is licensed by the appropriate regulatory
agency of this state or another state requiring the same or greater qualifica-
tions; 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.
‘‘(c) If the defendant health care provider is certified by the appropriate
American board as a specialist, is trained and experienced in a medical
specialty, or holds himself out as a specialist, a ‘similar health care provider’
is 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’. . . .’’
6
The plaintiff alleged that the defendant hospitals breached their duties
in the following ways:
‘‘(a) In that [they] failed to use the care and skill ordinarily used by
hospitals in the state of Connecticut.
‘‘(b) In that [their] agents, servants and/or employees failed to properly
diagnose and treat the [decedent] while he was a patient in the defen-
dants’ hospitals.
‘‘(c) In that [their] agents, servants and/or employees failed to take a
proper history of the decedent;
‘‘(d) In that [their] agents, servants and/or employees failed to properly
diagnose the decedent’s condition;
‘‘(e) In that [their] agents, servants and/or employees failed to conduct
proper diagnostic testing of the decedent’s condition;
‘‘(f) In that [their] agents, servants and/or employees failed to properly
monitor the decedent’s condition;
‘‘(g) In that [their] agents, servants and/or employees failed to use the
proper treatment, care and skills ordinarily used by hospitals in the state
of Connecticut.’’
7
The plaintiff alleged that the defendant physicians breached their duties
in the same ways as articulated against the defendant hospitals.
8
The full text of the letter read as follows: ‘‘I have reviewed in detail, and
on several occasions, medical records forwarded to me pertaining to the
treatment of Irwin Helfant by [Lynch] and agents of Middlesex Hospital on
10/4/05 and by [Cabin] and agents of Yale-New Haven Hospital until his
premature demise on 12/5/05.
‘‘[The decedent] was known to have a history of surgery for esophageal
rupture. He presented to Middlesex Hospital Emergency Department with
complaints o[f] nausea and vomiting, chest and abdominal pain, shortness
of breath, diaphoresis and anorexia. His lab values included normal cardiac
enzymes but markedly elevated WBC with a left shift, elevated liver and
kidney function tests and an abnormal chest X-ray, with a large area of con-
solidation.
‘‘Despite the extremely high likelihood that the [decedent] was infected
from a repeat esophageal disruption, Doctor Lynch failed to make this
diagnosis and transferred [the decedent] to Yale-New Haven Hospital’s
cardias catheterization lab for further evaluation and intervention by Henry
S. Cabin, M.D. and his Yale team, who again failed to appropriately diagnose
and treat the [decedent].
‘‘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. More likely than
not [the decedent] would have survived had he been properly diagnosed
and treated.’’
9
The court concluded that ‘‘[b]ecause [it found] that the opinion letter
submitted by the plaintiff was not authored by a ‘similar health care provider’
as to the institutional defendants, it need not reach the issue of whether
the substance [of the] letter [was] sufficient.’’
10
The portion of § 52-184c (c) that the plaintiff refers to as the exception
states: ‘‘[P]rovided if the defendant health care provider is providing treat-
ment 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.’ ’’