Mead v. Mase

Pamela Mead v. Michael Mase et al.

No. LLICV196021572S

Superior Court of Connecticut, Judicial District of Litchfield, Torrington

January 14, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shaban, Dan, J.

MEMORANDUM OF DECISION RE MOTION TO DISMISS #117

Shaban, J.

I PROCEDURAL HISTORY

The plaintiff, Pamela Mead, filed a nine-count amended complaint on August 19, 2019 (#111) alleging the following facts. From May 4, 2018, to October 19, 2018, the defendant Richard Koffler, M.D. provided medical care to the plaintiff. The plaintiff underwent medical cosmetic procedures at the M Mase, LLC, spa that were administered by the defendant and Michael Mase.^[1] While receiving care from the defendant, the plaintiff alleges she suffered severe permanent injuries that were proximately caused by the defendant’s professional medical negligence, lack of informed consent, and medical assault and battery.

On October 2, 2019, the defendant filed a motion to dismiss (#117) counts two, five, and eight of the amended complaint, alleging that the good faith opinion letter submitted by the plaintiff was not authored by a similar health care provider per General Statutes § § 52-190a and 52-184c. The plaintiff submitted an objection (#120) to the defendant’s motion on October 11, 2019, and the defendant filed a subsequent reply on October 28, 2019 (#121). The parties presented oral argument on the motion to dismiss on December 9, 2019, and the matter was continued to January 13, 2020. The plaintiff subsequently filed a motion to supplement the record (#131) and a motion to seal (#127). At the January 13, 2020 hearing, the court denied the plaintiff’s motion to supplement the record (#131.10) and granted the plaintiff’s motion to seal (#127.10).

II STATEMENT OF LAW

"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "When a ... court decides a jurisdictional 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.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). Nevertheless, an evidentiary hearing may be required when the issue pertains to the court’s personal jurisdiction over a defendant. Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). "[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-54, 974 A.2d 669 (2009).

"The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ... The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 388, 401-02, 21 A.3d 451 (2011). "[A]n action is subject to dismissal under [General Statutes § 52-190a(c)] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." (Footnote omitted.) Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 12 A.3d 865 (2011).

III DISCUSSION

The defendant argues that the author of the plaintiff’s opinion letter, a physician certified in internal and emergency medicine, is not a similar health care provider to the defendant, a physiatrist certified in physical medicine and rehabilitation. In response, the plaintiff argues that she did not receive treatment related to the defendant’s physiatry certification and, rather, received routine medical cosmetic treatments and dermal fillers. Accordingly, the proper inquiry turns on whether the author of the good faith opinion letter has expertise and experience in the type of medicine involved in the claim at issue. The defendant further asserts that the plaintiff misunderstands the precedent. Specifically, the defendant argues that he was working within his specialty at the time of the incident and if the court were to follow the plaintiff’s line of reasoning, the plaintiff would have had to allege that the defendant was acting outside the scope of his specialty in the complaint.

A Count Two- Medical Negligence

General Statutes § 52-190a requires a plaintiff bringing a medical negligence case to obtain a written opinion letter from a similar health care provider in order to demonstrate a good faith belief that grounds exist for the action. "[I]n cases of specialists, the author of an opinion letter pursuant to § 52-190a(a) must be a similar health care provider as that term is defined by § 52-184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c(d)." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 21, 12 A.3d 865 (2011). "Put another way, one’s familiarity with or knowledge of the relevant standard of care, for purposes of authoring a prelitigation opinion letter, is not a proper consideration in determining the adequacy of that letter if the author does not meet the statutory definition of a similar health care provider." (Internal quotation marks omitted.) Torres v. Carrese, 149 Conn.App. 596, 610, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).

General Statutes § 52-184c(b) defines "similar health care provider" as "one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; 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." Further, "[i]f 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." (Internal quotation marks omitted.) General Statutes § 52-184c(c).

"Our Supreme Court has construe[d] ... § 52-184c(c) as establishing those qualifications when the defendant is board certified, trained and experienced in a medical specialty, or holds himself out as a specialist ..." (Internal quotation marks omitted.) Gonzales v. Langdon, 161 Conn.App. 497, 504-05, 128 A.3d 562 (2015). "Our precedent indicates that under § 52-184c(c), it is not enough that an authoring health care provider has familiarity with or knowledge of the relevant standard of care ... A similar health care provider must be trained and experienced in the same specialty and certified by the appropriate American board in the same specialty." (Internal quotation marks omitted.) Caron v. Connecticut Pathology Group, P.C., 187 Conn.App. 555, 566, 202 A.3d 1024, cert. denied, 331 Conn. 922, 206 A.3d 187 (2019).

The plaintiff cites Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 730, 104 A.3d 671 (2014), for the proposition that the relevant inquiry under General Statutes § § 52-190 and 52-184c is whether the author of the opinion letter has "expertise in the particular medical field involved in the claim ..." Nevertheless, as the defendant notes, Wilkins still requires that the good faith letter be authored by someone in the same specialty. Id., 735. Indeed, "[a] medical professional who is board certified in the same specialty but has greater training and experience, satisfies the purpose of the requirement of the opinion letter." Gonzales v. Langdon, supra, 161 Conn.App. 505-06. In the present action, the defendant is board certified in physical medicine and rehabilitation while the author of the plaintiff’s opinion letter is certified in internal and emergency medicine. In Wilkins, as the defendant points out, the court was dealing with a good faith letter authored by someone in the same specialty as the defendant, but with even greater training and experience. Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn. 709. This is not the case in the present action.

The plaintiff also argues that the opinion letter is sufficient because the action falls within the exception of General Statutes § 52-184c(c). That...