Opinion
LLICV166014063S
01-16-2018
Nicole SIBILIA et al. v. WESTERN CONNECTICUT MEDICAL GROUP, P.C.
UNPUBLISHED OPINION
OPINION
Bentivegna, J.
This is a medical malpractice case. The defendant has filed a renewed motion to dismiss the complaint for lack of personal jurisdiction on the ground the plaintiffs have not met the requirement in a medical malpractice case for a certificate of good faith and a written opinion letter from a similar health care provider pursuant to General Statutes § 52-190a. This matter was argued at short calendar on December 18, 2017.
I
STATEMENT OF CASE
On May 8, 2017, the court, Schuman, J. issued a ruling on motion to dismiss (# 101.10), which addressed defendant’s motion to dismiss (# 101), plaintiffs’ objection to motion (# 120), and defendant’s reply to plaintiffs’ objection to motion to dismiss (# 126). In its ruling, the court considered the defendant’s arguments regarding the plaintiffs’ compliance with § 52-190a, and issued the following findings and order: " The defendant’s motion ultimately seeks to ‘dismiss all claims against Western Connecticut Medical Group, P.C. alleging vicarious liability based on [Dr. Connolly’s] negligence.’ (Motion to Dismiss, p. 1.) The initial difficulty is that there do not appear to be any specific claims against Connolly ... Similarly, the opinion letter specifies only nurse Imperio in its critical sentence regarding the breach of the standard of care. The court, even if it should grant the motion to dismiss, is therefore left with uncertainty as to precisely what it should dismiss. It is also uncertain whether the plaintiffs actually contend that Connolly committed malpractice but believe that the opinion letter need not address his alleged negligence, or whether the plaintiffs included Connolly’s name in the complaint as a matter of completeness but do not claim that he acted negligently.
" To remedy this uncertainty, the court, as a lesser power of its authority to grant a dismissal, will order that the plaintiffs revise their complaint. If the plaintiffs intend to claim the vicarious liability of the defendant based at least in part on the negligence of Connolly, they shall so allege in a separate count. Under the court’s ruling, the plaintiffs must then support that claim with an opinion letter from a similar health care provider to Connolly that includes a detailed basis for the formation of the opinion that he was medically negligent. If they do not support this count with an appropriate opinion letter, that count will be subject to dismissal. The court will allow sixty days for the plaintiffs to revise their complaint and attach an opinion letter. If the plaintiffs do not chose to revise their complaint in this fashion, then the court will construe the complaint so as not to allege in any way that the vicarious liability of the defendant stems from the negligence of Connolly.
" The motion to dismiss is denied at this time, but the court will reconsider the matter upon the defendant’s request in sixty days."
On June 28, 2017, pursuant to the ruling on motion to dismiss, the plaintiffs filed a revised complaint, dated June 28, 2017 (# 153). The revised complaint alleges: count one, negligence against Christina Imperio, registered nurse anesthetist, and Western Connecticut Medical Group, P.C. (hereafter WCMG); count two, loss of consortium; count three, negligence against Brian Connolly, M.D. and WCMG; and count four, loss of consortium based on count three. Attached to the plaintiffs’ revised complaint is an attorney certificate of good faith, and two health care provider opinion letters pursuant to § 52-190a.
The defendant filed a renewed motion to dismiss (# 154), dated July 24, 2017, and argues as follows: " In this case, though the Court invited the plaintiff to amend their complaint by adding the requisite opinion letter, this could only be accomplished if the original letter existed but was inadvertently not attached. Instead, the plaintiff submitted an entirely new letter that does not appear to have existed prior to commencement of suit. The letter submitted by the plaintiffs does not include a date it was drafted. Further, the plaintiffs did not contend in their original argument on the original Motion to Dismiss that they inadvertently failed to include an already drafted opinion letter; they simply argued that the one provided should be sufficient. Because the plaintiffs did not have an existing opinion letter authored by a board certified anesthesiologist prior to commencement of suit, plaintiffs cannot cure the defect in process pertaining to the allegations of vicarious liability as to Dr. Brian Connolly." Defendant’s renewed motion to dismiss, p. 6.
The plaintiffs filed an objection to defendant’s renewed motion to dismiss (# 161), dated October 25, 2017, and contend that the revised complaint should not be dismissed on the following grounds: (1) the basic law governing good faith certificate requirement under General Statutes § 52-190a; (2) the motion for partial dismissal should be denied because the plaintiffs properly revised their complaint as ordered by the court under circumstances where the court already had jurisdiction over the defendant and the court had broad authority to allow amendments; (3) partial dismissals are not sanctioned by § 52-190a; and (4) in the alternative, if the court questions or disallows the amendment even though ordered by the court, the plaintiffs nevertheless fully complied with the prevailing majority rule governing the § 52-190a opinion letter requirement for institutional defendants by attaching an opinion letter from a certified registered nurse anesthetist to their complaint.
Pursuant to the law of the case doctrine, the court is going to focus primarily on the second ground raised by the plaintiffs, the court’s broad authority to allow amendments.
II
DISCUSSION
A
Motion to Dismiss Standard
The motion to dismiss is used primarily to challenge the jurisdiction of the court. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). Practice Book § 10-30(a) lists four grounds for dismissal: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of process, and (4) insufficiency of service of process.
" 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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). " 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 ... 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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 211; Filippi v. Sullivan, supra, 8; Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). " [A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike." (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
B
Law of the Case Doctrine
" The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked ... In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " Underlying the law of the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge ..." (Citation omitted; internal quotation marks omitted.) Wasko v. Manella, 87 Conn.App. 390, 395, 865 A.2d 1223 (2005). Nevertheless, " [a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision." (Internal quotation marks omitted.) Breen, supra, 98.
" New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause ... a decent respect for the views of his brethren on the bench is commendable in a judge. Nevertheless, if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (Citations omitted; internal quotation marks omitted.) Id., 99-100.
In ruling on the defendant’s original motion to dismiss, the court, Schuman, J., considered the respective arguments made by the parties in the defendant’s motion to dismiss (# 101), plaintiffs’ objection to motion (# 120), and defendant’s reply to plaintiffs’ objection to motion to dismiss (# 126). The court, Schuman, J., in a reasoned and detailed decision, denied the defendant’s motion to dismiss at that time and allowed sixty days for the plaintiffs to revise their complaint and attach an appropriate opinion letter. Consistent with the law of the case doctrine, this court is reluctant to overrule that decision. See Wasko v. Manella, supra, 87 Conn.App. 395. It is within the court’s discretion to treat the earlier decision in this matter as the law of the case. See Id., 396. The defendant has not brought to the court’s attention a new or overriding circumstance or a compelling reason sufficient enough to persuade the court that the earlier decision should be reconsidered. Id. The earlier decision is not clearly erroneous and would not work a manifest injustice if followed.
C
Court’s Authority Regarding Amendments to Pleadings
Practice Book § 10-60(a) provides that, except as provided in § 10-66, a party may amend his or her pleadings at any time by order of the court. General Statutes § 52-72(a) provides that, " [u]pon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective."
" The court may permit ... an amendment at any stage of the trial ... may suggest or even direct it, under proper circumstances, and its action is discretionary ..." Crowell v. Middletown Savings Bank, 122 Conn. 362, 370 189 A. 172 (1937). " In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion ... The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial ..." (Citations omitted; internal quotation marks omitted.) Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341-42, 438 A.2d 95 (1980).
" [T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). General Statutes § 52-184c specifies that " [i]f the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty ..."
Contrary to the defendant’s argument in its renewed motion to dismiss (# 154), a new opinion letter that did not exist at the time of filing the complaint may satisfy the requirements of § 52-190a(a) when submitted as part of a timely amendment- particularly where, as here, amendment was ordered by the court. " [I]f a plaintiff alleging medical malpractice seeks to amend his or her complaint in order to amend the original opinion letter, or to substitute a new opinion letter for the original opinion letter, the trial court ... has discretion to permit such an amendment ..." Gonzales v. Langdon, 161 Conn.App. 497, 510, 128 A.3d 562 (2015). " [J]udicial economy and justice support allowing amendments in cases ... where a legally insufficient opinion letter in a seemingly nonfrivolous medical malpractice claim can be easily cured by amendment within a short time frame." Id., 521.
As directed by the court, the plaintiff filed a timely revised complaint and attached two opinion letters. The first opinion letter is the same as attached to the original complaint, and is written by a certified registered nurse anesthetist- the same certification and specialty as the defendant’s servant, agent, apparent agent and/or employee Christina Imperio, as alleged in the complaint. The second opinion letter is new, and is written by a board certified anesthesiologist- the same board certification and specialty as the defendant’s servant, agent, apparent agent and/or employee Brian Connolly, M.D., as alleged in the complaint. Count three of the revised complaint alleges negligence against Dr. Connolly and WCMG, and addresses how the vicarious liability of the defendant stems from the negligence of Dr. Connolly.
The revised complaint addresses the statutory requirements under § 52-190a(a). First, it reflects that the plaintiffs have 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. Second, the revised complaint contains a sufficient certificate of good faith. Third, the attached written and signed opinions of similar health care providers demonstrates that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Pursuant to § 52-190a(a), " [i]n addition to such written opinion, the court may consider other factors with regard to the existence of good faith." Based on the totality of the circumstances, the court finds that the plaintiffs have complied with the earlier decision of the court, Schuman, J., and have satisfied the requirements of § 52-190a. Accordingly, the renewed motion to dismiss for failure to comply with § 52-190a must fail.
III
CONCLUSION
For the foregoing reasons, the court denies the defendant’s renewed motion to dismiss.
SO ORDERED.