Opinion
No. TTD CV 07-5001903-S
February 5, 2008
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE AND OBJECTION TO REQUEST FOR LEAVE TO AMEND COMPLAINT
This case is an action in two counts by the plaintiff, Deborah DeLude, Administratrix of the Estate of James DeLude, against David Young, M.D., and Yale-New Haven Hospital, Inc. The complaint alleges, inter alia, that the defendant and hospital were negligent in failing to prevent the death of James DeLude, who committed suicide in the hospital Emergency Department by hanging himself with his shoe laces when he was left alone for twenty minutes in a crisis intervention room. Defendants have moved to strike the entire complaint, including all counts, due to an insufficient opinion letter required by General Statutes § 52-190a, and have objected to plaintiff's effort to cure the defect by amendment. Because the court finds that the defect deprives the court of subject matter jurisdiction at this time, it cannot consider the amendment. Treating the Motion to Strike as a Motion to Dismiss, it orders the case dismissed and it sustains the Objection to Request for Leave to Amend Complaint.
I
Defendants originally challenged the sufficiency of the opinion letter with a Motion to Strike. After plaintiff responded with a Request for Leave to Amend, defendants objected alleging that the defect involved the subject matter jurisdiction of the court which requires dismissal. "Once a question of lack of jurisdiction of a court is raised . . . [i]t must be disposed of no mater in what form it is presented . . . and the court must resolve it before proceeding further with the case." (Internal quotation marks omitted; citations omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003). Whether the issue is properly termed a Motion to Dismiss or Motion to Strike in this context exalts form over substance — if the issue is raised in a timely manner it must be resolved. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35, CT Page 2321 849 A.2d 418 (2004). A Motion to Strike tests the legal sufficiency of the allegations of the complaint. Practice Book § 10-39. Where the issue is one of subject matter jurisdiction, the court will treat the motion as a motion to dismiss. Practice Book § 10-31; Pelliccio v. Fedco Omega, Inc., superior court, judicial district of Hartford/New Britain, Docket No. 81500 (July 17, 1995, DiPentima, J.) [14 Conn. L. Rptr. 608]. "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.
The standards for deciding a motion to dismiss on subject matter jurisdiction grounds are well established. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted; citations omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
"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 . . . [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." (Internal quotation marks omitted; citation omitted.) Filippi v. Sullivan, id.; see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, id. "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space Conservation Commission, 211 Conn. 416, 425, 599 A.2d 1103 (1989).
II
The requirement that a medical malpractice complaint must have attached a written opinion from a health care provider vouching for evidence of malpractice is contained in General Statutes § 52-190a, as amended by Public Acts 2005, No. 05-275. That statute provides, in pertinent part, as follows:
CT Page 2322
(a) No civil action . . . shall be filed to recover damages resulting from personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a healthcare provider, unless the attorney . . . 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 . . . shall contain a certificate of the attorney . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar healthcare provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant'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 healthcare provider expunged, to such certificate . . .
General Statutes § 52-190a(a) (emphasis added).
Defendants argue that the plaintiff has failed to comply with the emphasized requirement. Although a redacted written opinion is supplied, it is not detailed, they complain. The redacted written opinion in this case reads, in toto, as follows:
I have reviewed the records from Yale-New Haven Hospital regarding James DeLude's care on May 24, 2005. Yale-New Haven Hospital deviated from the applicable standard of care in the treatment of Mr. DeLude in failing to protect him and taking reasonable precautions to ensure his safety.
Complaint, written opinion.
Plaintiff argues that this opinion is detailed enough. Indeed, there have been decisions in other cases where similarly spare opinions were found to suffice. See, e.g., Ouellette v. Brook Hollow Health Care Center. Superior Court, judicial district of New Haven Docket No. CV 06-5002865 (February 16, 2007, Holden, J.) [42 Conn. L. Rptr. 863]. Of course, each case is fact specific. In that case, the written opinion at least described the qualifications of the author and mentioned the facts in the case that deviated from the acceptable standard of care. The written opinion in this case does not.
In this case, it is clear that the written opinion is not sufficiently detailed. It is entirely conclusory and provides no illumination as to what is the standard of care, who violated it and how or on what basis or when it was violated. It does not even reveal whether the writer is a health care provider, or what type. It does not even mention Dr. Young. It does not comply with the requirements of the statute. What is less certain is the law on the issue of whether those defects are fatal under the statute, depriving the court of subject matter jurisdiction. That question poses a need for interpretation of the statute.
As with all questions of statutory interpretation, our first resort is the text. General Statutes § 1-2z. The text of the statutory provision on point provides as follows:
(c) the failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.
General Statutes § 52-190a(c) (emphasis added).
In the construction of statutes, we utilize the commonly approved usage of the language. General Statutes § 1-1(a). An application of the commonly approved usage of the English language to this statute surely compels the conclusion that the above provision requires dismissal of the case if plaintiff did not obtain and file any opinion at all. An opinion was filed in the instant case, so that is not justification for dismissal here. The critical issue in the instant case is whether the statute also requires dismissal if the written opinion "required by subsection (a)," as emphasized above, is not filed. Certainly, subsection (a) requires a detailed opinion, not a conclusory opinion. The written opinion in this case is conclusory. Defendants argue that the failure to file a detailed opinion letter is grounds for dismissal.
There are no appellate court decisions on this subject yet. Superior Court judges who have addressed the point are split on the issue of whether a case should be dismissed where an insufficient written opinion is filed. Compare Vicenzi v. Abbott Terrace Health Center, Inc., Supreme Court, judicial district of Waterbury, Docket No. CV 07-5004413 (October 29, 2007, Roche, J.) [44 Conn. L. Rtpr. 363]; Doe v. Priority Care, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06-40 17186 (May 9, 2007, Corradino, J.); Torres v. Carrese, Superior Court, judicial district of New Haven, Docket No. CV 06-5006514 (April 16, 2007, Jones, J.) [43 Conn. L. Rptr. 270]; Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05-5000482 (April 19, 2006, Matasavage, J.) [44 Conn. L. Rptr. 222], with Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. CV 07-5003920 (September 19, 2007, Pittman, J.) [43 Conn. L. Rptr. 243]; Miller v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland, Docket No. CV 075001172 (April 9, 2007, Sferrazza, J.) [43 Conn. L. Rptr. 694]. Other judges have suggested that the defect is in the nature of a pleading error, which is subject to a Motion to Strike. See, e.g., McQuillen v. Connecticut Fertility Associates, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06-5002262 (April 10, 2007, Arnold, J.); Lawlor v. Hagstrom, Superior Court, judicial district of Hartford, Docket No. CV 06-5002094 (December 29, 2006, Weise, J.); Jervis v. Steckler, Superior Court, judicial district of Litchfield (October 19, 2006, Pickard, J.) [42 Conn. L. Rptr. 163]. This court has concluded, in the past, that dismissal is the legislatively prescribed consequence. See Landry v. Zborowski, Superior Court, judicial district of Tolland, Docket No. CV 07-6000211 (August 21, 2007, Vacchelli, J.) [44 Conn. L. Rptr. 56]. It has not been persuaded to change course.
General Statutes § 52-190a(c) clearly and plainly requires that a plaintiff file, with his or her complaint, not just a written opinion, but "the written opinion required by subsection (a)," i.e., "a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). The statute requires dismissal of the action if the requirement is not satisfied. The requirement was not satisfied in this case. Consequently, the court must dismiss the case. Any other action would render the language of the statute superfluous. "We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted; citations omitted.) Byars v. FedEx Ground Package System, Inc., 101 Conn.App. 44, 49, 920 A.2d 352 (2007).
The statute requires, by its plain language, that a detailed written opinion be filed, and requires dismissal if it is not filed. Senate and House debates in the legislative history of Public Act 05-275 — the Act that made the language change critical in the instant case — is consistent with the court's reading of the plain language of the statute. It was clearly understood that the legislation required that "that report be in writing and presented in a detailed fashion . . ." and "[t]he failure to attach such an opinion would require the court to dismiss the case." 48 S.Proc., Pt. 14, 2005 Sess., p. 4411, remarks of Senator Andrew J. McDonald. No detailed opinion was filed in this case. A dismissal is required.
Moreover, it is significant to note that in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), our Supreme Court held, with respect to a former version of § 52-190a, that the requirement of a good faith certificate was not mandatory or central to the purpose of the statute and, therefore, its absence was a mere insufficiency of the complaint rather than a subject matter jurisdiction defect grounds for dismissal. Public Act 05-275 was a direct response to that case and its progeny. That Public Act now requires that a detailed opinion letter, in addition to a certificate, be filed with the lawsuit and requires dismissal if such an opinion is not filed with the lawsuit. There could hardly be a more clear indication that a detailed opinion is now a mandatory and a central purpose of the statute, depriving the court of subject matter jurisdiction if such an opinion is not filed with the lawsuit.
Nevertheless, plaintiff argues that the purpose of the statute is to safeguard against baseless lawsuits, and that deficiencies can and should be remedied after discovery, if discovery reveals a deficiency, not before. Indeed, as plaintiff points out, the statute does provide, after completion of discovery, for sanctions for certificates not made in good faith and in cases where "no justiciable issue was present against a health care provider that fully cooperated in providing informal discovery . . ." General Statutes § 52-190a(a). That provision, however, is in addition to, not in lieu of, the remedy of dismissal for failure to file a detailed opinion letter with the lawsuit at the start of the case.
III
There still remains to be resolved the issue of whether the defect can be cured by amendment. Again, there is no appellate court decision on point, and the Superior Court judges are split on the issue. Those that permit amendment do so because the defect is not found to involve the subject matter jurisdiction of the court. See, e.g., Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06-5000857 (October 29, 2007, Roche, J.). Those that deny amendment do so because they find a subject matter jurisdiction defect. See, e.g., Griffith v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland, Docket No. CV 07-5001815 (December 18, 2007, Sferrazza, J.) [44 Conn. L. Rptr. 614]; Cataldo v. Zuccala, Superior Court, judicial district of Waterbury, Docket No. CV 06-5004649 (September 27, 2007, Eveleigh, J.) [44 Conn. L. Rptr. 300]; Figueroa v. Donahue, supra; Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05-6000010 (June 7, 2006, Miller, J.) [41 Conn. L. Rptr. 504].
Having concluded that the defect here involves the subject matter jurisdiction of the court, no amendment is available. Federal Deposit Ins. Corp. v. Peabody. N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). Otherwise, to allow an amendment to cure the defect "prior to ruling on the challenge to the court's subject matter jurisdiction [would be to act] inconsistently with the rule that, as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).
Plaintiff proposes to cure the defect with a revised opinion letter that adds one more sentence. Defendants argue that the revised opinion letter is still not detailed enough to comply with the statute. Since the court has concluded that it must dismiss the case without considering the amendment, it is unnecessary to decide whether the proposed amendment would, in fact, cure the defect.
IV
For all of the foregoing reasons, and treating the Motion to Strike as a Motion to Dismiss, the action is dismissed, including all counts; and the defendants' Objection to the Request for Leave to Amend Complaint is sustained.