Opinion
No. FST CV 09 6002437 S
August 2, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (115.00)
I. FACTS
On November 12, 2009, the plaintiff, Laura Sestito, filed a four-count complaint with a return date of November 24, 2009 against the defendants Silvio A. Mandara, Vincent J. Tumminello, Allyson M. Servoss, and the Stamford Hospital sounding in medical malpractice. On November 30, 2009, the defendant Tumminello moved to dismiss the complaint against him pursuant to General Statutes § 52-190a for failure to file a written opinion by a similar healthcare provider concerning Dr. Tumminello's alleged negligence. That motion was granted on January 4, 2010. Meanwhile, on December 9, 2009, the plaintiff filed a request to amend her complaint, and an amended complaint. This complaint included an opinion letter regarding Dr. Tumminello. The defendant Tumminello filed another motion to dismiss pursuant to Section 52-190a on January 11, 2010, to which the plaintiff filed an opposition and a memorandum in support on February 8, 2010. The matter was heard at short calendar on May 17, 2010.
General Statutes § 52-190a provides in relevant part: "The complaint [or] initial pleading [in a personal injury action] . . . shall contain a certificate of the attorney or party filing the action . . . 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 health care provider, as defined in [General Statutes §] 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 request described itself as "pursuant to § 10-60(a) "of the Connecticut Practice Book, but qualified as an amendment as of right, pursuant to Practice Book § 10-59, which provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day. (See General Statutes § 52-128 and annotations.)"
II. DISCUSSION
"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.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). According to Practice Book § 10-31(a), "a motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . . and (5) insufficiency of service of process." The motion, however, "is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
In Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 555 (2008), the Appellate Court held that a medical malpractice case was dismissable for failure to attach a written opinion. The defendant argues that the plaintiff may not cure the defect by filing the required opinion latter after commencement of the action, and further, that the new written opinion remains deficient as it does not identify that the author is a similar health care provider. In response, the plaintiff argues that the plaintiff's operative complaint is the December 9, 2009 amended complaint and that both, the amended complaint and the attached opinion letter, comply with § 52-190a(a).
"In establishing the requirements of the prelitigation opinion letter, § 52-190a(a) specifically requires that the opinion be authored by a similar health care provider as defined in § 52-184c . . . Section 52-190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make `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 . . .' To show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that `such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . .' General Statutes § 52-190a(a)." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 542, 979 A.2d 1066, cert. granted in part, 294 Conn. 916, 983 A.2d 849 (2009). To demonstrate good faith, the statute requires, "that plaintiffs or their counsel, prior to filing suit, `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 . . . General Statutes § 52-190a(a). The amended statute also provides that plaintiffs or their counsel `shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate . . .' General Statutes § 52-190a(a). Subsection (c) of § 52-190a . . . provides that `[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.'" (Citation omitted.) Id., 543. "The written opinion . . . provides the defendant with some evidence that the plaintiff conducted an inquiry prior to filing the complaint and that the inquiry gave the plaintiff a good faith belief that the defendant was negligent. As this court held in Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008), `[t]he plain language of [§ 52-190a(c)] . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a).'" Id.
The Appellate Court has also noted that "[g]iven the fallibility existing in the legal profession . . . it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss." (Emphasis added.) Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
Regarding the substance of the letter, the Superior Courts are split as to whether the written opinion must state the opinion expert's credentials. Holding that § 52-190a does not specifically require the physician's credentials stated in the letter, the court in 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), reasoned that "[w]ith respect to the defendants' claim that the court should dismiss the plaintiff's action on the ground that a written opinion that does not provide a description of the qualifications or credentials of the author, the court notes that § 52-190a explicitly provides that the claimant's attorney shall attach to the good faith certificate a copy of the written opinion, with the name and signature of the similar health care provider expunged. The court agrees with the decisions in Rodriguez v. Norniella, Superior Court, judicial district of New Haven, Docket No. CV 06 5001779 (June 1, 2007, Robinson, J.) [ 46 Conn. L. Rptr. 40], 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], and several other cases cited therein, in which the court denied motions to dismiss based upon a claim of insufficiency for the lack of a description of the qualifications or credentials of the author of the opinion letter. As stated in Rodriguez: `Neither the language of § 52-190a, nor the holding of any case, mandates that the similar health care provider opinion letter state in the letter itself that its author is a similar health care provider. Although the . . . defendants correctly point out that one of the main goals of § 52-190a is to prevent frivolous lawsuits, § 52-190a achieves this goal by relying on the complainant's attorney's good faith efforts, as evidenced through certification requirement, and enforced through the possibility of "appropriate sanctions" against the signing attorney.' Rodriguez v. Norniella, supra, Superior Court, Docket No. CV 06 5001779." Id., 571-72. See also Pitcher v. Armm, Superior Court, judicial district of Fairfield, Docket No. CV 07 5011425 (May 5, 2008, Hiller, J.) (stating that "[n]othing in the statute's language, as recently amended, requires the qualifications of the author to be stated in the opinion letter"); Crowell v. Pito, Superior Court, judicial district of New Britain, Docket No. CV 08 5008149 (January 7, 2009, Pittman, J.) ( 46 Conn. L. Rptr. 876, 877) (reasoning that "[t]he statute does not contain a specific requirement that the author provide in the letter a detailed description of how the author purports to be a `similar health care provider'" [emphasis in original]); but see, Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.) (granting motion to dismiss, court found opinion letter to be "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").
This court has previously denied a motion to dismiss the complaint in Lengyel-Horner v. Immediate Healthcare, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 6000915 (October 9, 2008, Adams, J.), discussing the issue whether "the written opinions must be attached to the original complaint and opinions attached to an amended complaint may not be considered." The court stated that "this court has previously held that the operative complaint for analysis pursuant to General Statutes § 52-190a may be an amended complaint filed as of right pursuant to Practice Book § 10-59. Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 06 5001608 (October 2, 2006, Adams, J.). This holding was based on the language of Practice Book § 10-59 and General Statutes § 52-128 (`may amend any defect') as well as the holdings in Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977) (pleading amended as of right is effective `ab initio') and Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 639-40, 879 A.2d 1025, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). Defendants contend that Superior Court cases decided after Rios CCMC Corp., supra, have rejected decisions such as Landi, but such is not the case."
In Duran v. Alias, Superior Court, judicial district of Waterbury, Docket No. CV 09 5014109 (February 25, 2010, Gallagher, J.) ( 49 Conn. L. Rptr. 394), the court granted the defendant's motion to dismiss based on an omitted opinion letter at the commencement of the action, which was amended as of right to provide an opinion letter. The court concluded that "[t]he plaintiff's counsel conceded at oral argument that the written opinion attached to the plaintiff's amended complaint was not obtained and did not exist prior to the commencement of the action. Under that circumstance, the plaintiff could not have complied with the statutory requirements for bringing a medical malpractice action when the action was initiated. Thus, under Votre, [ supra, 113 Conn.App. 569] [the] court has no discretion to permit an amendment." Id., 396.
In the present case, the action was commenced in four counts against Silvio A. Mandara, Vincent Tumminello, Allyson Servoss, and Stamford Hospital. This original complaint already contained count two, the claim of negligence against the defendant Tumminello. Thereafter, the complaint was amended as of right within thirty days, thus automatically becoming the operative complaint of the present action. The present case differs factually from the situation in Lengyel-Horner, as, in that case, a claim was added and thus the opinion letter regarding that particular defendant was not yet appropriate for the initial complaint. In the present case, however, although the plaintiff similarly filed an opinion letter of a similar healthcare provider with the amended complaint, the claim against Tumminello already existed in the initial complaint, and it appears that no significant changes were made to the relevant count. Additionally, the undated letter was attached to the certificate of good faith, which was dated the same day as the amended complaint. In line with the reasoning in Duran, as the opinion letter was not dated as of the commencement of the action, it may not fulfill the showing of good faith at the commencement of the action that the plaintiff truly does have a legitimate claim against the named defendant.
The plaintiff made changes to paragraph twelve, added new paragraph thirteen, added a phrase to paragraph seventeen, subparagraph d, which was previously mislabeled as g, and added new subparagraph e.
The court is reluctant to dismiss a claim on a technicality. However, in light of two unequivocal Appellate Court statements, if not holdings, to the effect that Section 52-190a requires a written opinion of a similar health care provider "prior to" filing an action in malpractice against a health care provider; see Bennett, supra, 117 Conn.App. 543; Votre, supra, 113 Conn.App. 585; the court believes the state of the law in Connecticut requires a dismissal of the amended complaint in this case as to Dr. Tumminello where there is no evidence that the letter regarding Dr. Tuumminello was received prior to the filing of the original complaint against him. In coming to this determination, the court notes its disagreement with the Appellate Court cases noted above. First, there is no express requirement in Section 52-190a that the case be dismissed if the good faith certificate and opinion letter are not attached to the initial complaint. The statute says "shall be grounds for the dismissal." There is no "prior to" language in the statute. Second, General Statutes § 52-128 and Practice Book Section 10-59 allow the curing of "any defect or mistake" in a complaint within thirty days of the return date. These amendments as of right provisions have been interpreted to mean that the amended complaint shall be effective ab initio, from the beginning of the case. It seems to this court that the meaning of "any defect" and the concept of ab initio, are being overlooked by the Appellate Court. Third, the court finds it unjustifiable to distinguish so severely between the scenario in Votre where the Appellate Court opined that if the letter existed prior to initiation of the lawsuit, but was inadvertently not attached to the initial complaint, dismissal was not mandated and the scenario in this case where an opinion letter, apparently not existing on November 12, 2009, but clearly existing less than a month later. Fourth, as Votre noted, the purpose of Section 52-190a is not thwarted when a good faith certificate and opinion letter are available in such a short time after the filing of the initial complaint.
There is no express requirement in the statute that the qualifications of the similar healthcare provider must be cited in the opinion letter. The letter in this case, however, while sufficient otherwise, is not enough to ward off a motion to dismiss because it was not in existence prior to the filing of the initial complaint.
III. CONCLUSION
As the opinion letter was not properly filed at the time of the commencement of the action as to the defendant Tumminello, count two of the plaintiff's complaint is dismissed.