Opinion
CV166070166S
03-23-2017
Mohamed Osman v. Jeffrey T. Cavalieri, DMD et al
UNPUBLISHED OPINION
MEMORANDUM RE MOTIONS TO DISMISS AND OBJECTIONS TO AMENDMENT
Cesar A. Noble, J.
The motions to dismiss in this dental malpractice action of the defendants, Jeffrey T. Cavalieri, DMD (Cavalieri) and Columbia Dental, P.C., (Columbia Dental) raise the issue of the adequacy of the opinion letter required by General Statute § 52-190a. Also before the court are the objections of the defendants to a proposed amendment of the opinion letter. The defendants assert that dismissal is mandated because the opinion letter attached to the original complaint fails to demonstrate that it was authored by a similar healthcare provider. The defendants also argue that an amendment to the opinion letter--which more fully identifies the author's credentials--should not be permitted by the court because the amendment is outside of the statute of limitations.
The legislature has conditioned the filing of a claim for medical negligence upon a reasonable inquiry as to the existence of a good faith belief that a medical defendant was negligent and, as proof of such, the filing by counsel of a certificate of good faith and an opinion letter from a similar health care provider as to medical negligence. General Statutes § 52-190a(a).
The plaintiff's original complaint is dated July 13, 2016 and was served on the defendants on July 15, 2016. The complaint alleges that defendant Cavalieri, a licensed dentist practicing in the field of general dentistry who was employed by Columbia Dental, provided the plaintiff with management of irreversible pulpitis, which failed to meet the applicable standard of care. The course of treatment is alleged to have taken place between April 26, 2014 and September 6, 2014. The complaint alleges that on or about October 7, 2014, after the conclusion of the treatment, the plaintiff suffered from severe swelling in the right side of his face and was diagnosed with a dental abscess, resulting in the removal of a fixed bridge placed by Cavalieri; a surgical extraction with bone grafting of one tooth Cavalieri had treated; and root canal therapy for another tooth. The plaintiff required a new bridge in 2015.
On April 15, 2016 the plaintiff filed a petition for a ninety-day extension of the statute of limitations pursuant to General Statutes § 52-190a(b). Anomalously, the petition identifies April 19, 2014 as the date the plaintiff first received treatment from Cavalieri, although the complaint states the plaintiff first sought treatment from Cavalieri on April 26, 2014. The plaintiff was apparently of the view that the first date of treatment was the operative date for purposes of the statute of limitations. The motion was subsequently granted.
Attached to the plaintiff's complaint was his attorney's good faith certificate of reasonable inquiry and an opinion letter. The opinion letter (original opinion letter) was from a dentist who stated that the care provided by Cavalieri was substandard. The recitation of the author's qualifications are limited to the fact that he has been licensed to practice dentistry in Connecticut since 1984 and has taken a minimum of twenty-five hours of continuing education courses every two years.
Cavalieri and Columbia Dental both appeared on August 9, 2016. The former filed a motion to dismiss on September 2, 2016 and the latter on September 8, 2016. Both motions assert the original opinion letter is non-compliant with § 52-190a because the author has insufficient qualification to be considered a " similar health care provider." The plaintiff filed a memorandum in opposition to both motions on October 17, 2016, and on October 28, 2016 filed a request for leave to file an amended opinion letter (proposed opinion letter) pursuant to Practice Book § 10-60(a)(3). The proposed opinion letter contained a fuller description of the author's qualifications in an effort to address the purported deficiencies of the original opinion letter. Both of the defendants objected to the amendment. The plaintiff filed no reply to the objections to the amendment. Argument took place on all motions and objections on November 28, 2016. Additional facts will be set forth below as necessary.
Practice Book § 10-60 permits the amendment of a pleading or other parts of the record by, inter alia, the filing of a request for leave to file and amendment. § 10-60(a)(3). The amendment is deemed to have been filed by consent of the adverse party if no objection thereto is filed within fifteen days from the date the request is filed. Id.
II
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).
General Statutes § 52-190a(a) requires that a plaintiff making a claim for medical malpractice obtain an opinion letter from a health care provider--similar to that of the defendant--which indicates that there appears to be evidence of medical negligence. The purpose of § 52-190a is to prevent groundless lawsuits against health care providers. Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 584, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). Section 52-190a(a) incorporates by reference the definition of a " similar health care provider" found in General Statutes § 52-184c. A " similar health care provider" who is neither board certified nor in some way a specialist is defined by § 52-184c as one whom: " (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." § 52-184c(b). The opinion letter must contain sufficient qualifying information to identify the author as a " similar health care provider." Lucisano v. Bisson, 132 Conn.App. 459, 467, 34 A.3d 983 (2011).
Our Supreme Court has held that the proper remedy for non-compliance with the statute is a dismissal for lack of subject matter jurisdiction. See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). The failure to provide a proper opinion letter implicates personal jurisdiction. See Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011). " When a . . . court decides a . . . 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.) Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 559, 36 A.3d 297 (2012).
III
DISCUSSION
A. Sufficiency of Original Opinion Letter
The gravaman of the defendants' motions to dismiss is that the original opinion letter fails to set forth sufficient qualifications of its author in order for him or her to be considered as a " similar health care provider." While the author's licensure by the state of Connecticut meets the requirement of § 52-184c(b)(1), there is nothing in the letter which indicates the author's credentials satisfy the § 52-184c(b)(2) requirement of active involvement in the practice or teaching of medicine during the five-year period prior to the incident giving rise to the claim. Further, the original opinion letter does not suggest that the author is trained and experienced in the same discipline--general dentistry--as Cavalieri.
Section 52-184c(b) provides: " 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."
The original opinion letter states:
I graduated from Georgetown University School of Dentistry [sic] have been licensed to practice dentistry in Connecticut since 1984. I have taken a minimum of 25 hours of continuing education courses every 2 years as is required by the Connecticut State Dental Association. During those 32 years I have come to appreciate the challenge of providing quality dental treatment and have been humbled in this profession like most of my peers; so it is with great reluctance that I criticize the work of a colleague.
I also want to point out that I do not count myself among the dentists that feel threatened or harbor ill-feelings against corporate dental practices like Columbia Dental. (Emphasis added.)
The plaintiff's objection to the motions to dismiss asserts that the highlighted phrase is an ipso facto representation that the author is engaged in the practice of dentistry. In the view of the plaintiff, this identification of the author as a dentist, and the representation of dental licensure since 1984, viewed in the light most favorable to sustaining the court's jurisdiction, leads to the ineluctable inference of the author's continual and active involvement in the practice of dentistry, including during the five years preceding the claimed medical negligence, thus satisfying § 52-184c(b). The court is not persuaded.
While it is true that a person may not engage in the practice of medicine unless licensed pursuant to chapter 379 of the General Statutes, the reverse does not hold true. The plaintiff has provided no authority for the premise that licensure is dependent upon the active practice of dentistry. Thus, the possession of a license since 1982 does not satisfy the requirement that the author has training and experience as a result of the " active involvement in the practice or teaching of [dentistry] within the five-year period before the incident giving rise to the claim." Thibodeau v. Southbury Dental Care, Superior Court, judicial district of Waterbury, Docket No. CV-15-6028643-S (September 12, 2016, Shaprio, J.) 2016 WL 6078789, at *4; see also Id. at *5 (reference to experience over 18-year career not sufficient to satisfy statutory requirement of five-year active involvement in practice or teaching of dentistry prior to claimed incident). For the foregoing reason, the court lacks personal jurisdiction and the plaintiff's complaint should be dismissed.
See General Statutes § 20-123(a), which provides in pertinent part: " No person shall engage in the practice of dentistry unless he or she is licensed pursuant to the provisions of [chapter 379]"; General Statutes § 20-106: " No person shall engage in the practice of dentistry or dental medicine unless such person has first obtained a license from the Department of Public Health."
B. Proposed Opinion Letter
The plaintiff seeks to substitute the proposed opinion letter for the original by amendment pursuant to Practice Book § 10-60. The proposed opinion letter contains the additional information that the author practices " general dentistry and was actively involved in the practice of general dentistry for the five years preceding the incident described below." The plaintiff is of the view that the amendment cures the insufficiency in the original opinion letter because it identifies the discipline of dentistry in which the author is engaged and expressly states his active involvement in the practice of medicine in that discipline within the five years before the claimed sub-standard provision of medical care.
Both defendants, however, objected to the amendment. The court's resolution of this issue is informed by the decision of the Appellate Court in Gonzales v. Langdon, 161 Conn.App. 497, 128 A.3d 562 (2015), in which the court considered " whether a complaint alleging medical malpractice that does not include a legally sufficient opinion letter may be amended to avoid dismissal, and under what circumstances an amendment is permitted." Id., 508. The court held that " if a plaintiff alleging medical malpractice seeks to amend his or her complaint in order to amend the original opinion letter . . . the trial court (1) must permit such an amendment if the plaintiff seeks to amend as of right within thirty days of the return day and the action was brought within the statute of limitations, and (2) has discretion to permit such an amendment if the plaintiff seeks to amend within the applicable statute of limitations but more than thirty days after the return day." Id., 510. The decision clearly contemplated only amendments made within the statute of limitations. The Gonzales court distinguished its decision in Torres v. Carrese, 149 Conn.App. 596, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014), on the ground that its comment in Torres that a new opinion letter could not be considered by a court was made in the context of an amendment requested after the expiration of the statute of limitations. Gonzales v. Langdon, supra, 161 Conn.App. 520 n.10. Gonzales thus establishes that the contours of a court's ability to consider an amendment to an opinion letter does not extend to filings after the expiration of the statute of limitations. Accord Assarabowski v. Gallo, Superior Court, judicial district of Hartford, Docket No. CV-16-60670630-S (August 24, 2016, Huddleston, J.) 2016 WL 5415402, at *4; Ugalde v. Saint Mary's Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-15-6028359-S (June 8, 2016, Shapiro, J.) 2016 WL 3609494, at *6.
Columbia Dental argues in its objection to the plaintiff's request for leave to amend that the court should exercise its discretion to deny the amendment because it unfairly delays the resolution of the litigation by a matter of months. The court does not find this argument, alone, compelling, because the Gonzales decision articulated a policy preference for avoiding the need for a plaintiff, following a dismissal, to file a new action pursuant to the accident failure of suit statute, General Statutes § 52-592, if an amendment can cure a defect in the initial opinion letter within a relatively short span of time after the filing of the complaint. Gonzales v. Langdon, supra, 161 Conn.App. 520. Columbia Dental does not claim that the court may not consider the amendment because it is beyond the statute of limitations. Cavalieri's objection, however, does assert the court is without authority to grant the amendment because it was filed outside of the statute of limitations.
The plaintiff has not replied to the defendants' objections to his request for leave to amend the opinion letter. The request for leave itself refers the court to Gonzales and Harger v. Brian H. Odlum, DMD, Superior Court, judicial district of New Britain, Docket No. CV-13-6022808-S (May 22, 2014, Shortall, J.T.R.) 2014 WL 2922590, at *5. Gonzales, of course, is the source for the court's conclusion that an opinion letter may not be amended after the expiration of the statute of limitations. Moreover, Harger was issued before Gonzales, and did not address the question of whether the court may consider an amendment to an opinion letter filed after the expiration of the statute of limitations. Significantly, the plaintiff has not disputed that the amendment was attempted after the statute of limitations. The amendment, therefore, coming after the expiration of the statute of limitations, is not permitted pursuant to the holding in Gonzales v. Langdon, supra, 161 Conn.App. 520.
See State v. Cooper, 9 Conn.App. 15, 26 n.6, 514 A.2d 758 (1986) (courts do not consider arguments not raised); Dean v. Jepsen, Superior Court, judicial district of Hartford, Docket No. CV-10-6015774-S (November 3, 2010, Aurigemma, J.) 2010 WL 4723433, at *4 n.3 [51 Conn.L.Rptr. 111, ] (same); State v. Ellison, Superior Court, judicial district of Hartford-New Britain at New Britain (February 6, 1995, Scheinblum, J.) (13 Conn.L.Rptr. 470, 471, ) 1995 WL 55006, at *3 n.1 (same).
CONCLUSION
For the foregoing reasons, the plaintiff's request for leave to amend the original opinion letter is denied, and the motions to dismiss of the defendants are granted.
BY THE COURT