Opinion
No. CV 08 5009160
March 17, 2010
MEMORANDUM OF DECISION
Does the failure of a plaintiff's attorney to comply with the statutory requirement that a medical malpractice complaint be accompanied by a good faith certificate and an opinion letter from a similar health care provider defeat forever the plaintiff's right to a trial on the merits of her complaint? Or, after judgment has entered in an earlier action because of counsel's failure, does the accidental failure of suit statute save a second action in which the required certificate and opinion letter are filed along with the complaint? The answers to these questions are determinative of the defendants' pending motions for summary judgment.
General Statutes § 52-190a(a).
General Statutes § 52-592(a).
I
The original action in this matter ( Santorso I) was commenced on June 1, 2006 by service of process on the defendants Bristol Hospital (hospital), Jeffrey Goldberg, M.D. and Rainer Bagdasarian, M.D. The complaint alleged that all three defendants were negligent in failing to treat lung cancer detected by the hospital's radiology department on three separate occasions while the plaintiff in that action, Lawrence Santorso, was in their care. The complaint further claimed that, as a result of the defendants' negligence, two years elapsed before Mr. Santorso's cancer was diagnosed and treated, by which time it had spread throughout his upper torso and into his lymph nodes, he was not a candidate for surgery and he had very little chance of survival. The complaint sought damages for Mr. Santorso's pain and suffering and his loss of life's enjoyment.
The complaint in Santorso I was accompanied by neither the good faith certificate nor the opinion letter required by § 52-190a(a):
No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987 . . . 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 . . . 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 or party filing the action . . . that such reasonable injury 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 health care provider . . . 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 . . . 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.
Plaintiff's counsel attempted to remedy his non-compliance by filing amended complaints, to each of which were attached a good faith certificate and what purported to be opinion letters from similar health care providers. The only letters that could conceivably have been said to be from similar health care providers, however, were dated after the commencement of the action. As a result, the court (Pittman, J.) struck the second amended complaint on April 3, 2008. When plaintiff's counsel failed thereafter to file a complaint accompanied by opinion letters that predated the complaint, the court entered judgment in favor of the defendants on June 25, 2008, pursuant to Practice Book § 10-44.
The court concluded that "[a] fair reading of the complaint together with the good faith certificate and the opinion letters yields the conclusion that the plaintiff sued first and conducted the required `reasonable inquiry' later. This is the exact sequence of events that the statute was enacted to prohibit." Santorso v. Bristol Hospital et al., Superior Court, judicial district of New Britain, Docket No. CV 06 5001663, 6 (April 3, 2008) [ 45 Conn. L. Rptr. 294].
"Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint . . . has been stricken, and the party whose pleading . . . has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint . . ."
Six weeks later the present action ( Santorso II) was commenced. Mr. Santorso's widow, Patricia, is now the plaintiff; Mr. Santorso died from his cancer in 2007. The complaint, while it is more detailed in its allegations and now seeks damages for wrongful death on behalf of Mr. Santorso's estate and loss of consortium on behalf of Mrs. Santorso, makes the same allegations against the same defendants; viz., that they failed to treat Mr. Santorso for cancer detected while under their care in 2003, resulting in its metastasizing to a point in 2005 where it was essentially untreatable and led to his death. The complaint in Santorso II was accompanied by the requisite good faith certificate, signed by Mrs. Santorso's attorney, and the same opinion letters, from a general surgeon and a medical oncologist, which had been belatedly submitted in Santorso I.
The hospital was served on July 31, 2008; Drs. Goldberg and Bagdasarian on August 1, 2008.
This action was explicitly brought under § 52-592(a), which provides in pertinent part:
If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action . . . has been otherwise avoided or defeated . . . for any matter of form . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . .
The statute also allows new actions to be brought where there has been insufficient service or return of the writ due to unavoidable accident or the default or neglect of the marshal, where the action has been dismissed for want of jurisdiction, where it has been defeated by the death of a party, where the plaintiff has been nonsuited or where a judgment for the plaintiff has been set aside or reversed.
The defendants have moved for summary judgment, arguing that Santorso I was not defeated for any "matter of form," that the failure of the plaintiff's attorney to comply with § 52-190a should preclude Mrs. Santorso from taking advantage of the one-year extension of the statute of limitations afforded litigants by the statute. Since, without that extension of the statute, the present action has been brought beyond the two-year statute of limitations and the three-year statute of repose for medical malpractice actions, they claim to be entitled to summary judgment.
Conn. General Statutes § 52-584.
The hospital makes a separate argument that Santorso II is barred by the running of the five-year statute of repose for wrongful death claims; General Statutes § 52-555; apparently because that statute is "a limitation on the liability itself, not on the remedy alone." Greco v. United Technologies Corp., 277 Conn. 337, 350 (2006). It cites no authority for the implied proposition that, therefore, § 52-555 is exempt from the effects of § 52-592, and the plaintiff's "heavy burden;" Id.; to which it refers is one of "establishing that § 52-555 is preempted by another statute of limitations;" Id.; which is not the claim made by the plaintiff here. The court sees no reason in principle why the benefit of § 52-592 should not extend to cases governed by the wrongful death statute of repose.
II
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. It is agreed among the parties that Santorso II was not commenced within the applicable statutes of limitations. Therefore, the only question is whether the defendants are entitled to judgment as a matter of law, in light of § 52-592.
III
The defendants make several arguments that § 52-592 does not save the present action, in addition to advancing the issue which the court considers dispositive; namely, whether Santorso I was defeated "for any matter of form."
A CT Page 7216
First, they claim that Santorso I was never "commenced," as that term is used in the statute, because the complaint was filed without the requisite certificate and opinion letters. There is no support for that argument in Connecticut law. "Commencement" of an action in Connecticut is linked to notice to the defendant. "From a very early date in this state the time when the action is regarded as having been brought is the date of service of the writ upon the defendant . . . That, in our judgment, is the sounder rule, because only thus is the defendant put upon notice of the purpose of the plaintiff to call upon him to answer to the claim in court." (Internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 241 (2003), appeal dismissed, 271 Conn. 655 (2004). "In Connecticut an action is commenced when the writ, summons and complaint have been served upon the defendant;" Rocco v. Garrison, 268 Conn. 541, 553 (2004); which was accomplished in Santorso I on June 1, 2006.The defendants' principal reliance is on a Michigan case, Scarsella v. Pollack, 461 Mich. 547, 607 N.W.2d 711 (2007). If Connecticut, like Michigan, defined "commencement" of an action as "filing a complaint with the court"; MCL 600.1901; the rule of that case might apply here. In Scarsella the Michigan Supreme Court held that "plaintiff's failure to file an affidavit of merit with his [medical malpractice] complaint rendered the complaint null and void." Id., 549. Since filing the complaint with the court constitutes commencement of an action in Michigan, "for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit." Id. Because commencement of a lawsuit is defined differently here than in Michigan, however, the rule of Scarsella is not persuasive, and the court holds that failure to attach a good faith certificate and opinion letters to the complaint in Santorso I did not prevent the action from having been "commenced" when the writ, summons and complaint were served upon the defendants.
"A civil action is commenced by filing a complaint with the court."
B
The defendants next argue that the judgment entered in Santorso I was one "on the merits"; therefore, it is res judicata as to the identical claims made in Santorso II.
A judgment on the merits is one which is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction or form . . . A decision with respect to the rights and liabilities of the parties is on the merits where it is based on the ultimate fact or state of facts disclosed by the pleadings or evidence or both, and on which the right of recovery depends.
(Citation and internal quotation marks omitted.) Rosenfield v. Cymbala, 43 Conn.App. 83, 91-92 (1996). The judgment entered in Santorso I because the plaintiff could not plead over after the motion to strike was granted can in no way be viewed as one "based on the ultimate fact or state of facts disclosed by the pleadings or evidence or both . . ." Id.
The plaintiff in Santorso II could not plead over because he could not satisfy the court's requirement of opinion letters from similar health care providers dated prior to the commencement of that action. See n. 12. infra.
The Supreme Court made clear in LeConche v. Elligers, 215 Conn. 701, 708 (1990), that a good faith certificate in a medical malpractice action is a " pleading necessity akin to an essential allegation to support a cause of action." (Emphasis added.) Id., 711. Its "absence [is] curable by timely amendment . . ." Id. It is clear from this characterization that the presence or absence of the required certificate does not implicate the merits of the action.
The defendants rely on Hughes v. Bemer, 206 Conn. 491 (1988), to buttress their claim. There, the plaintiff failed to file the memorandum of law required by the Practice Book to register his objection to a motion to strike, thereby manifesting his consent to the granting of the motion. Id., 495. "A judgment by consent is in effect an admission by the parties that the decree is a just determination of their rights on the real facts of the case had they been found. It is ordinarily absolutely conclusive between the parties and cannot be appealed from . . ." (Internal quotation marks omitted.) Id. In fact, the Court in Hughes held that the judgment striking the complaint in the first action there was not one "on the merits" but, because it was a judgment on consent, was "nevertheless a final judgment whose issues are thereafter res judicata as between the parties." Id., 495. Furthermore, the Supreme Court, in its § 52-592 jurisprudence, has recognized that Hughes is nothing more than an illustration of the unremarkable proposition that a plaintiff cannot make use of the statute to revive his claim when he has previously consented to its termination. See Ruddock v. Burrowes, 243 Conn. 569, 578 (1998).
Practice Book § 10-42(b).
The plaintiff in Santorso I did not consent to the court's grant of the defendants' motion to strike; he vigorously opposed it. So, Hughes v. Bemer adds no weight to the defendants' argument that Santorso I was decided "on its merits" and that Santorso II is, therefore, barred by the doctrine of res judicata. The court concludes that the judgment entered in Santorso I was not one "on the merits," and that Santorso II is not barred by the doctrine of res judicata or by the language of § 52-592(a).
C
Further, the defendants contend that a plaintiff who fails to comply with § 52-190a can never resort to § 52-592 to save her action because she already has had the opportunity provided by the former statute to extend the statute of limitations by ninety days. There is nothing in the legislative history of either statute or the caselaw applying them that suggests they are mutually exclusive. Each serves its own distinct purpose.
"Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section." § 52-190a(b).
As its text demonstrates, subsection (b) of § 52-190a extends the statute of limitations and the statute of repose for medical malpractice actions by ninety days in order to allow plaintiffs additional time to comply with the "additional burden to conduct a reasonable inquiry" into the alleged negligence of the defendant health care provider. Barrett v. Montesano, 269 Conn. 787, 796 (2004). Thus, the statute of limitations in a medical malpractice action is two years plus ninety days; the statute of repose, three years plus ninety days. Id. See DeSimini v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 05 4003250 (Jan. 12, 2006) [ 40 Conn. L. Rptr. 611]. If the plaintiff commences an action within that time, as did the plaintiff in Santorso I, and it later fails for any of the causes enumerated in § 52-592, the plaintiff is entitled to invoke the latter statute to save the action, just as would any plaintiff who misses the statute. See Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001512 (Aug. 23, 2007) [ 44 Conn. L. Rptr. 99].
Mrs. Santorso is not seeking "unilaterally to extend the statute of limitations indefinitely . . ." Rosario v. Hasak, 50 Conn.App. 632, 638 (1998). She claims the same right as any other plaintiff who brings her action beyond the applicable statute of limitations and statute of repose; viz., to a judicial determination that her earlier action, commenced within the statutory period and not determined on the merits, failed for any of the reasons enumerated in § 52-592. Therefore, she may avail herself of the benefit of § 52-592 if Santorso I failed "for any matter of form," the issue to which the court now turns its attention.
IV
The black-letter law of § 52-592(a) is well-known: "Deemed a `saving statute' § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . . . In order to fall within the purview of § 52-592, however, the original lawsuit must have failed for one of the reasons enumerated in the statute." (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 553, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). Section 52-592 "is remedial in nature and, therefore, warrants a broad construction." Ruddock v. Burrowes, supra, 243 Conn. 569. The Supreme Court has "expressed [a] policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665 (1998). "Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 390 (2009). "We note, however, that this policy is not without limits. If it were, there would be no statute of limitations. Even the saving statute does not guarantee that all plaintiffs have the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain period of time." Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 127-28 (1999)
Therefore, application of the statute requires the court to balance the policy favoring a trial on the merits against the salutary purposes of statutes of limitations; viz., to see that the search for truth is not impaired by the passage of time; Neuhaus v. DeCholnoky, 280 Conn. 190, 207 (2006); and to ensure finality in the litigation process. Skinner v. Doelger, supra, 99 Conn.App. 554.
Most of the case law applying the statute arises out of disciplinary dismissals of the first action, i.e., "cases dismissed for a variety of punitive reasons, such as failure to attend a scheduled pretrial conference . . . or the failure to close the pleadings in a timely manner." (Citation omitted.) Id., 553-54. In such cases a plaintiff has the "burden of establishing the right to avail . . . herself of the statute"; Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607 (2002); by making "a factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." (Internal quotation marks omitted.) Id.
At argument on the defendants' motions the parties agreed that the court's actions in striking the amended complaint in Santorso I and entering judgment against the plaintiff there were not punitive in nature; rather, they represented simply the application of § 52-190a to the facts of that case. Thus, the cases applying § 52-592 in a disciplinary context are not apposite. Even in non-disciplinary cases, however, courts have considered the nature of counsel's conduct. See, e.g., Rosario v. Hasak, 50 Conn. 632, 639 (1998) (counsel's "blatant and egregious conduct" in delaying the action two and one-half years from service of the complaint to its return to court not a "matter of form" under § 52-592). Therefore, whether the termination of the earlier action was disciplinary or non-disciplinary in nature, one of the factors a court must consider in applying the statute is the conduct of counsel in the original action.
It cannot be said that counsel's failure to file a good faith certificate and opinion letters in Santorso I was the result of "mistake, inadvertence or excusable neglect." Because counsel turned away the court's suggestion, made at oral argument on the defendants' motions, that he testify as to his reasons for failing to comply with the statute, there is no record that might support a finding that his conduct was due to those factors, and the court must conclude that his action was deliberate. This conclusion is supported by the fact that the opinion letters he eventually submitted in support of the complaint in Santorso I postdated that complaint.
Indeed, very similar conduct of the same attorney in another case has resulted in denial of the protection of § 52-592 to a second action brought after the original action had been dismissed for his failure to file the requisite opinion letters. See Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001512 (Apr. 16, 2009) [ 47 Conn. L. Rptr. 581].
The original complaint in Santorso I was dated May 30, 2006. An opinion letter from a board-certified oncologist, submitted with the second amended complaint, was dated September 14, 2006; one from a board-certified general surgeon was dated February 12, 2007.
So, the court cannot blink the fact that counsel's conduct fell short of the standard invoked by courts considering the application of the statute. At the same time the benefit of the statute has never been denied because of a solitary procedural failing of counsel. In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 608-10, the Appellate Court canvassed its case law applying § 52-592 after the seminal Ruddock decision. Common to those cases, and absent in this case, was a pattern of dilatory conduct by counsel, extending over several years, which seriously inconvenienced both the court and the defendants. See Skibeck v. Avon, 24 Conn.App. 239, 243, cert. denied, 219 Conn. 912 (1991) (eleven years of litigation and three dismissals of earlier actions for failure to appear and failure to prosecute); Gillum v. Yale University, 62 Conn.App. 775, 787, cert. denied, 256 Conn. 929 (2001) (seven years of litigation and three dismissals "beset by lackadaisical behavior by the plaintiffs at every turn"); Pepitone v. Serman, 69 Conn.App. 614, 616 (2002) (two judgments of dismissal for dormancy because of the plaintiff's failure to close the pleadings and after several notices from the court that failure to close the pleadings would result in dismissal). Similar considerations underlay the court's denial of relief under § 52-592 in Skinner v. Doelger, supra, 99 Conn.App. 555-56. In that case the plaintiff had attempted for four years to secure counsel able and ready to try his complex medical malpractice case. After several substitutions of counsel, on the day set for trial counsel announced that the experienced attorney retained to try the case had left the firm, and that he was unprepared to try the case; he refused an order of the court to commence trial. Id., 555. Because the trial date had been set almost a year and a half before and, in violation of Practice Book § 14-20, "one of the plaintiffs' attorneys appeared unprepared on the day of trial, and their other counsel of record did not appear at all"; id.; the court held that application of the statute was uncalled for to save the action brought after the original action was dismissed because of "the lack of attention and lack of diligence of counsel." (Internal quotation marks omitted.) Id., 555.
Whatever else may be said of the conduct of Mrs. Santorso's counsel, he has not engaged in the "years of delay and numerous motions"; Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 710; that led in these cases to denial of § 52-592 relief. Therefore, the court concludes that the conduct of Mrs. Santorso's counsel, by itself, is not sufficient to deny her the benefit of § 52-592, and it must look to the prejudice the defendants might suffer if Santorso II is permitted to proceed and the effect on the policies advanced by § 52-190a.
It does not appear to the court that the defendants have been unduly prejudiced by the conduct of Mrs. Santoro's counsel. They have known since 2006, when Santorso I was brought, the claims of malpractice made against them, and the complaint in Santorso II, though it added additional detail to the allegations and sounded in wrongful death and loss of consortium, did not change those claims. They have had time, in the case of Dr. Goldberg and Dr. Bagdasarian, to record their individual recollections of their treatment of Mr. Santorso and, in the case of the hospital, the recollections of hospital personnel who were involved in his treatment. They have known since 2006 of the need to preserve medical charts and hospital records documenting his treatment and the reasons for it.
Although it arose in a different procedural context, the court finds the decision in Miller v. Fishman, 102 Conn.App. 286 (2007), instructive. There, the Appellate Court agreed with the trial court that the plaintiffs' attorneys had been negligent in failing to amend the original complaint for several years after they discovered that it contained erroneous facts and erroneous allegations as to the nature of the defendant's medical malpractice. Id., 294. Nevertheless, it found an abuse of discretion in the court's denial of a request to amend the complaint one month prior to the trial date because the amended complaint "did not set forth new theories of liability. Rather, the proposed amendment merely enumerated the specific facts supporting the plaintiffs' claims that had been revealed through discovery." Id., 295. Because the defendant "had been apprised of the actual bases of the plaintiffs' claims through the course of the litigation[,] (i)n fairness, the proposed amendment did not alter the substance of the plaintiffs' claims, and, therefore, the preparation of a defense would not have required significant additional time and resources, resulting in delay and prejudicing the defendant." Id., 297.
The case of Skinner v. Doelger, supra, in which the court did not permit the plaintiff to take advantage of § 52-592, is distinguishable on the issue of prejudice. In that case the defendants were prejudiced because they had "incurred all the expenses inherent in preparing for a complex birth trauma case, including the retention of experts and payment of eight years of attorneys fees." Skinner v. Doelger, supra, 99 Conn.App. 557. The defendants here make no such claims of prejudice.
This court is in complete agreement with the purpose of § 52-190a; namely, "to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, supra, 215 Conn. 710. In a proper case it has not hesitated to impose the sanction of dismissal for a plaintiff's failure to comply fully with the statute's demands. See Tobing v. Lange, Superior Court, judicial district of Hartford, Complex Litigation Docket No. X 09 CV 06 5002163 (Jan. 11, 2007) [ 43 Conn. L. Rptr. 251]. In this case, however, the statute has been complied with. Prior to Santorso II having been commenced, plaintiff's counsel had made the statutorily required "reasonable inquiry," and he filed along with the complaint a certification that his inquiry "gave rise to a good faith belief that grounds exist for an action against each named defendant." § 52-190a(a). He also had obtained and attached to the complaint "written and signed" opinions of similar health care providers, "(t)o show the existence of such good faith." Id. Thus, the policy concerns of § 52-190a furnish no basis for denying Santorso II the protection of § 52-592. Indeed, in the LeConche case, one of the first cases to construe § 52-190a, the plaintiff had failed to file with the complaint the required good faith certificate. While the Supreme Court recognized and endorsed the salutary purpose of that statute; LeConche v. Elligers, supra, 215 Conn. 710-11; it found that it was error for the trial court to refuse an amendment of the complaint to include the good faith certificate previously omitted. Id., 715-16.
The court intimates no opinion as to the adequacy of the opinion letters submitted, an issue which is the subject of motions to reargue the decision of the court (Pittman, J.) denying motions to dismiss filed by Dr. Goldberg and the hospital.
This court agrees with the proposition that, generally speaking, a litigant is bound by the conduct of her counsel. In Gionfrido v. Wharf Realty, Inc., 193 Conn. 28 (1984), for example, the Supreme Court held that, despite the harshness of the result, the trial court was correct in dismissing the complaint because his counsel returned to court a half-hour late after the lunch recess. The court found that, "our adversarial system requires that the client be responsible for acts of the attorney-agent whom the client has freely chosen . . ." Id., 33.
On the other hand, "General Statutes § 52-592 was enacted, in large measure, to shield the client from the fallibility of counsel." Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 255 (2009). Even in Gionfrido, the Court noted that the client was not without a remedy because he could commence a new action pursuant to § 52-592(a). Id., 34 n. 6. It follows that the harsh results of visiting upon the client the consequences of her attorney's misconduct are mitigated by the presence of the saving statute at issue here. See also, Ruddock v. Burrowes, supra, 243 Conn. 576 n. 12.
V
A wise judge once observed: "Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw." Andrew Ansaldi Co. v. Planning Zoning Commission, 207 Conn. 67, 75-76 (1988) (Shea, J. concurring). Among those procedural reforms is the saving statute upon which Mrs. Santorso relies in this case. Id.
Under the circumstances of this case, the court concludes that the purposes of that statute and the "policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant [her] day in court;" Coppola v. Coppola, supra, 243 Conn. 665; can be achieved without unfair prejudice to the defendants and without undermining the purpose of § 52-190a. The court finds that Santorso I was defeated "for [a] matter of form"; namely, the failure of plaintiff's counsel to file the good faith certificate and opinion letters required by § 52-190a(a), and that § 52-592(a) saves the plaintiff's action from the effect of the running of the statute of limitations and the statute of repose.
Because the court has decided that this action is not barred by the failure of plaintiff's counsel to comply with § 52-190a when he brought Santorso I, the court need not reach plaintiff's challenge to the constitutionality of that statute.
Accordingly, the motions for summary judgment are DENIED.