Opinion
CV186076791S
08-17-2018
Franklin ALLEN v. Azra SALEEM, DDS
UNPUBLISHED OPINION
OPINION
Wilson, J.
On January 8, 2018, the plaintiff, Franklin Allen, filed a one-count complaint against the defendant, Azra Saleem, DDS, alleging the following facts. The defendant was a dentist, licensed by the state of Connecticut, and held herself out to the public as a general dentist. The plaintiff was the defendant’s patient. On September 28, 2015, pursuant to the plaintiff’s plan of treatment, the defendant extracted 22 of the plaintiff’s teeth. Another tooth was extracted on October 12, 2015. The plaintiff subsequently developed an infection and pain, and was unable to wear the dentures that the defendant had manufactured. The pain, infection, and ill-fitting dentures were the result of sharp, protruding bony exostosis throughout the plaintiff’s mouth, which were created by the extractions and/or not removed post-extraction. The plaintiff had the bony exostosis reduced by another dentist, resulting in more pain and discomfort. The plaintiff’s injury was caused by the defendant, who failed to exercise that degree of care and skill ordinarily and customarily used by general dentists. As a result of the defendant’s negligence, the patient was forced to undergo additional surgery and expend additional sums of money.
The plaintiff further alleges that, pursuant to General Statutes § 52-190a(a), the plaintiff attached a certificate of good faith and a written opinion letter of a similar health care provider indicating that there appears to be evidence of medical negligence. The plaintiff also petitioned for an automatic ninety-day extension of the statute of limitations pursuant to § 52-190a(b).
On February 22, 2018, the defendant filed a motion to dismiss this action for the plaintiff’s failure to comply with § 52-190a(a). The defendant moves to dismiss on the ground that the written opinion letter was not authored by a similar health care provider. Alternatively, the defendant moves to dismiss on the ground that the opinion letter does not contain a sufficiently detailed basis for the formation of the author’s opinion that medical negligence occurred. The plaintiff filed an objection to the motion to dismiss on April 26, 2018. The motion was heard at short calendar on May 14, 2018. Plaintiff’s counsel did not appear, but indicated to the defendant’s counsel that the plaintiff’s objection could be taken on the papers.
The defendant’s motion was timely filed within the 30-day time requirement set forth in Practice Book § 10-30(b).
Practice Book § 10-31 provides in relevant part: "(a) Any adverse party shall have thirty days from the filing of the motion to dismiss to respond to the motion to dismiss by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition and, where appropriate, supporting affidavits as to facts not apparent on the record." In the present case, the plaintiff filed his objection beyond the 30-day time requirement set forth in § 10-31, and did not seek any extensions of time. Nevertheless, the defendant has not objected to the late filing. Accordingly, the court will consider the plaintiff’s objection. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) ("[our Supreme Court has] afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency").
DISCUSSION
I
Legal Standard
"[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). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
"[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice." Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). The plaintiff must "obtain the written opinion of a similar health care provider that there appears to be evidence of medical negligence and to attach the opinion to the certificate of good faith to be filed with the complaint." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 18, 12 A.3d 865 (2011). "[A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and ... dismissal of a letter that does not comply with § 52-190a(c) is mandatory ..." Id., 29. See also Lucisano v. Bisson, 132 Conn.App. 459, 467 n.5, 34 A.3d 983 (2011) ("[section] 52-190a(c), as well as our Supreme Court’s decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 25, requires immediate dismissal of an action if the opinion letter is not by a similar health care provider"). "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, 401-02.
A
Similar Health Care Provider
The defendant argues that the written opinion letter appended to the plaintiff’s complaint does not contain sufficient information regarding the author’s qualifications to establish that he or she is a similar health care provider. Specifically, the defendant argues that the letter fails to demonstrate that the author is a similar health care provider as defined in General Statutes § 52-184c(b), because the letter includes no information about the licensing of the author, whether the author has sufficient training and experience in the same discipline or school of practice as the defendant, and whether such training and experience is the result of active involvement in teaching or the practice of medicine within the five-year period prior to the alleged incident. The plaintiff does not appear to address this part of the defendant’s argument in his objection to the motion to dismiss.
Section 52-190a(a) provides in relevant part: "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 defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’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 ... The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate."
"Section 52-190a does not define ‘similar health care provider,’ but the text explicitly refers to the definition in § 52-184c. We must, therefore, read § 52-190a together with § 52-184c, which defines ‘similar health care provider.’ (Footnote in original.) Lucisano v. Bisson, supra, 132 Conn.App. 465. Our Supreme Court construes "§ 52-184c(b) as establishing the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and § 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.) Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 23. "[I]t is appropriate to look to the allegations of the plaintiff’s complaint to frame the requirements for who constitutes a similar health care provider for purposes of the good faith opinion certification." Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 730-31, 104 A.3d 671 (2014).
"General Statutes § 52-184c provides in relevant part: (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 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.
In the present case, the defendant argues that the plaintiff’s complaint implicates § 52-184c(b), because the plaintiff alleges that the defendant held herself out as a general dentist and not a specialist. The plaintiff did not object to this argument. Accordingly, a similar health care provider to the defendant is a provider who, pursuant to § 52-184c(b), "(1) [i]s 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." General Statutes § 52-184c(b).
The court must next determine whether the qualifications set forth in § 52-184c(b) are included in the opinion letter attached to the plaintiff’s complaint. "[T]he plain language of § § 52-190a and 52-184c requires disclosure of [the author’s] qualifications in the opinion letter." Lucisano v. Bisson, supra, 132 Conn.App. 459; see also Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561, 36 A.3d 297 (2012) ("an opinion letter must demonstrate that its author meets the qualifications of a similar health care provider"). In Lucisano, the plaintiff in a dental malpractice action provided a medical opinion letter that lacked any mention of the author’s qualifications or credentials. Lucisano v. Bisson, supra, 462. The defendant filed a motion to dismiss on the ground that the plaintiff failed to comply with § 52-190a. Id. Although the plaintiff argued that it was not necessary to include the author’s qualifications and credentials in the opinion letter, the trial court disagreed and granted the defendant’s motion to dismiss. Id. The Appellate Court affirmed the trial court’s decision, concluding that the attached opinion letter "does not provide adequate information that could be used to determine whether the author is a similar health care provider. Plaintiffs must include this information so that parties and courts are able to determine compliance with § 52-190a ... Because a common sense application of § § 52-190a and 52-184c requires inclusion of qualifying information in the opinion letter, we agree with the trial court’s rationale." (Footnote omitted.) Id., 466-67.
A similar issue regarding qualifying information in an opinion letter was addressed in Bell v. Hospital of Saint Raphael, supra, 133 Conn.App. 552. At issue in Bell was whether an opinion letter, which was initialed "RN, BSN, ICP," was sufficient to demonstrate that the author was a similar health care provider to the defendant. Id. The Appellate Court agreed with the trial court that the opinion letter "did not set forth sufficient information to demonstrate that its author was a similar health care provider qualified to render an opinion as to the standard of care owed by the defendant. With regard to the qualifications of its author, the only thing that may be gleaned from the opinion letter is that the author is a registered nurse with a bachelor of science degree in nursing. As set forth previously, § 52-184c(b) requires that a similar health care provider be ‘licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications,’ that such provider have training and experience in the ‘same discipline or school of practice’ and that such training and experience must ‘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.’ Plainly, the information in the opinion letter did not address, let alone demonstrate, all of these specific qualifications." Id., 560. Citing to Lucisano and Bennett, the Appellate Court affirmed the trial court’s decision to grant the motion to dismiss. Bell v. Hospital of Saint Raphael, supra, 561.
In the present case, the opinion letter states that the plaintiff presented to the author’s office "to evaluate maxillary and mandibular ridge where teeth were removed by other DMD, reportedly, Dr. Azra Saleem. Mr. Allen came complaining of pain and unable to use his dentures comfortably." The letter continues that "[o]n examination, sharp protruding bony exostosis can be seen," and indicates that [s]urgical procedures were performed to reduce the exostosis and bring some comfort to the patient." The author concluded with his or her opinion that "[i]t is customary to reduce bony exostosis ... to allow comfortable fitting on denture insertion ... [I]t is my opinion that Dr. Saleem deviated from standard of care to address this problem by reducing bony exostosis."
The plaintiff’s opinion letter fails to demonstrate that the author is a similar health care provider to the defendant, as the letter does not contain any of the qualifying information set forth in § 52-184c(b). Specifically, the letter does not state that the author is licensed in general dentistry by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications. Further, there is no information in the letter stating that the author has training and experience in the same discipline or school of practice as the defendant (namely, general dentistry), and that such training and experience is the result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to this claim. Without this necessary information, the plaintiff’s opinion letter does not satisfy the statutory requirements of § § 52-190a(a) and § 52-184c(b). Accordingly, the defendant’s motion to dismiss is granted pursuant to § 52-190a(c).
As an alternative ground for the motion to dismiss, the defendant argues that the plaintiff’s letter fails to include a detailed basis for the formation of the author’s opinion that medical negligence occurred. "[A] written opinion satisfies the ‘detailed basis’ requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider’s opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider’s opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider’s conclusion concerning the breach of the standard of care." Wilcox v. Schwartz, 303 Conn. 630, 643, 37 A.3d 133 (2012). In the present case, because the court has determined that the opinion letter was not authored by a similar healthcare provider, the court need not determine whether the letter sets forth a sufficiently detailed basis of the author’s opinion that there appears to be evidence of medical negligence.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is granted.
"(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 ..." (Internal quotation marks omitted.) Lucisano v. Bisson, supra, 132 Conn.App. 465 n.3.