Opinion
No. CV-08-5016286
March 29, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#106)
The defendants have filed a motion to dismiss this dental malpractice complaint, alleging that the opinion letter fails to comply with General Statutes § 52-190a. The plaintiff's complaint is in four counts: negligence as to the two individual dentists that treated her, failure to obtain informed consent and vicarious liability of the dental practice. The plaintiff's counsel attached to the complaint a certificate of good faith and an opinion letter.
The defendants argue that that the opinion letter fails to provide any information or description regarding the author's qualification to render the opinion as a "similar healthcare provider." They also argue that the opinion letter fails to establish the negligence of each individual defendant. The plaintiff counters that the letter complies with the statute and that the motion should be denied. The plaintiff also argues that a motion to dismiss is not the proper vehicle by which to challenge the sufficiency of the opinion letter.
The court will first address the plaintiff's argument that a motion to dismiss is not the proper vehicle to challenge the opinion letter. The court disagrees with this argument in light of recent Appellate Court authority. In Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009), the court stated: "[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." Although Bennett is on appeal, its holding follows two earlier Appellate Court cases, both of which held that the failure to attach a written opinion is dismissible. See Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009); Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008); see also Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.) ("By virtue of the language in CT Page 7836 Votre and Bennett, this court concludes that the motion to dismiss is the proper procedural vehicle for challenging the sufficiency of the written opinion of a similar health care provider").
The Appellate Court in Votre also noted, however that "[a] plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action . . . Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." 113 Conn.App. 583-84.
Next, the court must decide whether the defendants are entitled to dismissal of this action because the plaintiff's opinion letter is insufficient. The court notes that, in the three-page letter, the author detailed the materials reviewed and concluded that the defendants failed to perform endodontic treatment at a level consistent with the standard of care. The letter, however, does not indicate, in any manner, the credentials or qualifications of the author. The defendants argue the absence of this information makes it impossible to determine whether the opinion is given by a "similar health care provider" as required by statute. The plaintiff argues that the plain language of the statute carries no requirement as argued by the defendants.
In Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, the Appellate Court affirmed the trial court's dismissal of the complaint because the plaintiff failed to comply with § 52-190a(a) by providing an opinion letter authored by a general surgeon when the defendant was board certified in emergency medicine. In concluding that the opinion letter author was not a "similar health care provider," the Appellate Court stated: "To interpret the requirements of § 52-190a(a), we must read it together with § 52-184c, the statute regarding 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 appropriate American board in the same specialty . . ." Id., 546. Thus, "when establishing the guidelines for the opinion letter, the legislature clearly and unambiguously referred to a `similar health care provider.' By the plain language of the statutes, as to a defendant health care provider who is a physician, the similar health care provider contemplated in § 52-190a(a) is one defined in either subsection (b) or (c) of § 52-184c." Id., 548-49.
In Ribeiro v. Elfenbein, supra, Superior Court, Docket No. CV 09 5006155, the court granted a motion to dismiss due, in part, to the lack of information about the author of the opinion. See also Gowlis v. Saint Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 08 5009513 (December 16, 2008, Alvord, J.); Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. CV 07 5003920 (September 19, 2007, Pittman, J.) ( 44 Conn. L. Rptr. 243). The Ribeiro court noted that the opinion letter was "completely devoid of any reference to the qualifications of the author. There is no mention of the author's area of practice, level of experience, or degree of education. As submitted, the letter could have been authored by a medical school student or someone other than a physician employed in the medical field. There is simply no way to know, or even infer, from the text of the letter whether it was authored by a similar health care provider." Relying on Bennett, the court found the letter to be insufficient because it prevented the court from making the "apples to apples" comparison between the defendant and the purported similar health care provider.
In regard to this "apples to apples" comparison, the court notes that there is a growing body of Superior Court case law holding that dismissal is warranted when the opinion writer is not the same profession as the defendant. See e.g., Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) [ 49 Conn. L. Rptr. 162] (appeal pending) (physician and a physician's assistant are not similar health care providers); Xicohtencatl v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.) [ 49 Conn. L. Rptr. 156] (physician and a physician's assistant are not similar health care providers).
Several pre- Bennett decisions of the Superior Court, however, take the position that a plain reading of the statute does not require that the opinion writer include his or her credentials in the letter. In Pitcher v. Armm, Superior Court, judicial district of Fairfield, Docket No. CV 07 5011425 (May 5, 2008, Hiller, J.), the court examined the statute's requirements and underlying legislative intent and noted that: "Nothing in the statute's language . . . requires the qualifications of the author to be stated in the opinion letter." See also Tutillo v. Day Kimball Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 06 5009722 (November 26, 2007, Langenbach, J.) ( 44 Conn. L. Rptr. 570, 571-72); Vicenzi v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5004413 (October 29, 2007, Roche, J.) [ 44 Conn. L. Rptr. 363]; Rodriguez v. Norniella, Superior Court, judicial district of New Haven, Docket No. CV 06 5001779 (June 1, 2007, Robinson, J.) [ 46 Conn. L. Rptr. 140].
In light of Bennett v. New Milford Hospital, Inc., supra, 117 Conn.App. 535, and the well-reasoned analysis of Ribeiro v. Elfenbein, supra, Superior Court, Docket No. CV 09 5006155, the court is convinced that the opinion letter writer's credentials and/or qualifications must be included in the letter. Without this information, the court is unable to determine, from the face of the letter, whether the opinion letter writer is a "similar health care provider" pursuant to § 52-184c. Therefore, the court grants the defendants' motion to dismiss.