Gervais v. Jacc Healthcare Ctr. of Danielson, LLC

221 Conn.App. 148

300 A.3d 1244

Tammy GERVAIS, Administratrix (Estate of Raymond Gervais), et al. v. JACC HEALTHCARE CENTER OF DANIELSON, LLC, et al.

AC 44757

Appellate Court of Connecticut.

Argued May 16, 2023

Officially Released August 15, 2023

Raymond Trebisacci, Pawcatuck, for the appellants (plaintiffs).

Cristin E. Sheehan, Hartford, with whom, on the brief, was Thomas Anderson, Hartford, for the appellees (defendants).

Moll, Cradle and Harper, Js.

HARPER, J.

This appeal returns to us on remand from our Supreme Court. Gervais v. JACC Healthcare Center of Danielson, LLC , 346 Conn. 910, 289 A.3d 596 (2023). The plaintiffs, Tammy Gervais and Cassandra Gervais, ¹ appealed to this court from the judgment of the trial court granting the motion to dismiss filed by the defendants, JACC Healthcare Center of Danielson, LLC (JACC), and Beth Davis. The trial court, in its order dismissing the plaintiffs’ medical malpractice action, concluded that (1) the opinion letter attached to the plaintiffs’ complaint was deficient pursuant to Connecticut's good faith opinion letter statute, General Statutes § 52-190a, because it failed to sufficiently identify the author's qualifications, thereby depriving the court of the ability to determine whether the author was a "similar health care provider," as defined by General Statutes § 52-184c ; and (2) it lacked the authority to grant the plaintiffs’ request to amend the complaint, filed in response to the defendants’ motion to dismiss, that sought to include two new attachments to the opinion letter elucidating the qualifications of the author. This court, by memorandum decision, affirmed the judgment of the trial court. Gervais v. JACC Center of Danielson, LLC , 212 Conn. App. 902, 273 A.3d 749 (2022). There-after, the plaintiffs petitioned our Supreme Court for certification to appeal. Our Supreme Court granted certification, vacated the decision of this court, and remanded the case to this court with direction to reconsider in light of its recent decision in Carpenter v. Daar , 346 Conn. 80, 287 A.3d 1027 (2023). Gervais v. JACC Center of Danielson, LLC , supra, 346 Conn. 910, 289 A.3d 596. Reconsidering this appeal in light of Carpenter , we now conclude that the trial court improperly concluded that it lacked authority to permit the plaintiffs to amend the opinion letter in response to the defendants’ motion to dismiss. Accordingly, we reverse the judgment of the trial court.

The following procedural history is relevant to our resolution of this appeal. In November, 2020, the plaintiffs, pursuant to the accidental failure of suit statute, General Statutes § 52-592, ² commenced the present medical malpractice action against the defendants. In their two count complaint, the plaintiffs alleged that, in March, 2017, the decedent was a resident of a nursing facility "owned, controlled, and/or operated by" JACC "by and through its employees, staff, and other representatives." They further alleged that, on March 10, 2017, the decedent, who was a known fall risk, fell and hit his head while at the nursing facility. They alleged that Davis, a registered nurse, pronounced the decedent dead and that the cause of death was cardiopulmonary arrest. In count one, Tammy Gervais, in her capacity as administratrix of the decedent's estate, claimed that the decedent's death was caused by the negligent conduct of the defendants in that they failed to: properly supervise, restrain, assist, and monitor him; continue to resuscitate him; have his injuries properly evaluated; and send him for hospital care. In count two, Tammy Gervais, in her individual capacity as the wife of the decedent, and Cassandra Gervais, as the daughter of the decedent, claim that they suffered emotional distress because: despite being initially informed that the decedent would be transferred to a hospital, they were later told that the decedent was not being brought to the hospital because he had died; when they arrived at the nursing facility, they were told that the decedent had fallen out of bed; and they observed the decedent with a towel against his head that was soaked with blood.

The plaintiffs attached to their complaint an opinion letter, dated November 11, 2020, authored by an "RN, BSN." ³ At the outset of the opinion letter, the author, whose personal identifying information was redacted at all relevant times, stated that they had reviewed the facts surrounding the death of the decedent on March 10, 2017, at the nursing facility owned by JACC. The author then listed the facts supporting their opinion, which essentially mirrored the factual allegations of the plaintiffs’ complaint. Next, the author expressed their professional opinion, based on a reasonable degree of certainty, that Davis and the staff at the nursing facility were negligent and breached the standard of care that resulted in the death of the decedent by failing to: properly supervise, restrain, assist, and monitor him; continue to resuscitate him; have his injuries properly evaluated; and send him for hospital care. The author did not expressly identify the state that issued their license, the qualifications required to obtain that license, their training or experience, and whether they were actively involved in the practice or teaching of medicine. Instead, the author is identified through an initialism on the signature line as an "RN, BSN," which the parties construe to mean that the author is a registered nurse with a Bachelor of Science degree in nursing.

On January 26, 2021, the defendants filed a motion to dismiss the complaint on the ground that the opinion letter was deficient pursuant to § 52-190a because it failed to state the author's qualifications and, therefore, it cannot be determined whether the author was a "similar health care provider," as defined by § 52-184c (b). In their memorandum of law in support of their motion to dismiss, the defendants contended that this court's decisions in Bell v. Hospital of Saint Raphael , 133 Conn. App. 548, 561, 36 A.3d 297 (2012), and Lucisano v. Bisson , 132 Conn. App. 459, 465–66, 34 A.3d 983 (2011), required that an opinion letter include the qualifying information of the author. The defendants argued that, although the opinion letter was authored by a registered nurse and the allegations of the complaint were directed at Davis, a registered nurse, the opinion letter was deficient because it "include[d] absolutely no reference whatsoever to the author's qualifications, education, or training."

On March 5, 2021, the plaintiffs filed an objection to the defendants’ motion to dismiss and a memorandum of law in support of their objection. Therein, the plaintiffs argued that the opinion letter was not deficient pursuant to § 52-190a because the author adequately indicated their qualifications as a registered nurse with a Bachelor of Science degree in nursing. The plaintiffs further argued that the opinion letter need not express all of the qualifications of the author, and that those details would be provided to the defendants through discovery. On May 14, 2021, the plaintiffs filed a supplemental memorandum of law in opposition to the motion to dismiss in which they argued that the opinion letter was not deficient because "in short, one RN is similar to another RN," and they indicated that, regardless, they were contemporaneously filing a request to amend the complaint to include additional qualifications of the author attached to the opinion letter. Also on May 14, 2021, the plaintiffs filed a request to amend the complaint in which they appended two new attachments to the opinion letter. The first attachment was the resume of the author that demonstrated their education and work history since July, 1998. Specifically, the resume showed that the author received both an associate degree and a Bachelor of Science degree in nursing, and that they have worked at various medical facilities as a staff nurse, certified nursing assistant instructor, certified nursing assistant program director, and nursing supervisor. The second attachment was a screenshot from the website of the Department of Health of the state of Rhode Island that showed the author's nurse license registration, which included details with respect to the license number, type, status, as well as the issuance and expiration dates of the license.

On May 17, 2021, the court, after hearing oral argument from the parties, ⁴ issued a written order granting the defendants’ motion to dismiss. The court determined that the opinion letter was deficient because "the only reference to the qualifications of its author are ‘RN, BSN.’ There is absolutely no other reference to the author's qualifications, education, or training. Insufficient information was provided for this court to conclude that the author was a ‘similar health care provider’ as required by statute. The opinion letter is thus legally insufficient under § 52-184c (b)." In the same order, the court denied the plaintiffs’ request to amend their complaint to supplement their opinion letter. In particular, the court reasoned that this court's decisions in Gonzales v. Langdon , 161 Conn. App. 497, 501, 128 A.3d 562 (2015), and Carpenter v. Daar , 199 Conn. App. 367, 369–70, 236 A.3d 239 (2020), rev'd, 346 Conn. 80, 287 A.3d 1027 (2023), held that a court has the authority to allow an amendment to an opinion letter only if a plaintiff seeks to amend within the applicable statute of limitations. Accordingly, the court concluded that it lacked the authority to permit the amendment because the request to amend was filed "five months after the expiration of time allowed under the accidental failure of suit statute."

The plaintiffs appealed to this court, claiming that the trial court improperly concluded that the opinion letter attached to their complaint was deficient pursuant to § 52-190a because the opinion letter was not authored by a "similar health care provider," as...