Harrison
v.
Trusheim

Connecticut Superior Court Judicial District of Danbury at DanburyMar 7, 2008
2008 Ct. Sup. 3907 (Conn. Super. Ct. 2008)

No. CV07-5003727 S

March 7, 2008


MEMORANDUM OF DECISION RE MOTION TO DISMISS #101


I. ISSUE

The issue is whether the court should grant the defendant's motion to dismiss on the ground that the opinion letter required by General Statutes § 52-190a is insufficient and, therefore, deprives the court of subject matter jurisdiction. The defendant's motion to dismiss is denied.

II. FACTS

On December 13, 2007, the plaintiff, Alan Harrison, filed a complaint against the defendant, Lewis Trusheim, D.M.D., for medical malpractice. The complaint alleges that the defendant negligently extracted the plaintiff's healthy tooth number three rather than tooth number five, which was contrary to the standard of care. The defendant filed a motion to dismiss the plaintiff's action on the ground that the court lacks subject matter jurisdiction. The defendant argues in his motion that the plaintiff has failed to comply with General Statutes § 52-190a in that the opinion letter of a similar health care provider that was filed with the complaint is insufficient. The defendant contends that the opinion letter fails to set forth (1) the credentials of the author to indicate that he is a similar health care provider; (2) a basis upon which the author could have concluded that the wrong tooth was extracted; and (3) a conclusion that there appears to be evidence of medical negligence.

General Statutes § 52-190a states, in pertinent part:

(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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 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 section 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. 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 . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney . . . submitted the certificate . . . (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.

In response, the plaintiff argues that the sufficiency of a written opinion in a medical malpractice case does not go to the court's subject matter jurisdiction and cannot be challenged on a motion to dismiss. The plaintiff further argues that the adequacy of the written opinion cannot be contested until completion of discovery. Lastly, the plaintiff contends that the opinion provided is from a similar health care provider and is sufficiently detailed, as statutorily required. The motion was heard on the short calendar on February 25, 2008.

III. 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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). Effective October 1, 2005, a party who files a medical malpractice action, or an apportionment complaint therein, is required to file both a certificate of good faith and a written opinion from a similar health care provider stating "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). Pursuant to subsection (c) of § 52-190a, "[t]he failure to obtain and file the written opinion required by subsection (a) [of § 52-190a] shall be grounds for the dismissal of the action." See Oram v. DeCholnoky, Superior Court, Complex Litigation Docket at Stamford, Docket No. X05 CV05 4005513 (March 10, 2006, Shay, J.), 41 Conn. L. Rptr. 46 (May 22, 2006).

The Supreme Court, in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), was faced with this same issue. That Court held that even though the statute "requires a factual inquiry by the court regarding the sufficiency of the precomplaint investigation . . . [t]hat inquiry is to be undertaken after the completion of discovery." (Emphasis added.) Id. at 708. This court adopts the same reasoning in denying the defendant's motion to dismiss because it prematurely contests the sufficiency of the opinion letter.

Various Superior Courts have also adopted this line of reasoning. See Estes v. Hillis, Superior Court, judicial district of New Haven, Docket No. CV 07 5012573 (January 24, 2008, Cosgrove, J.); Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5001663 (July 31, 2007, Prestley, J.); Rodriguez v. Norniella, Superior Court, judicial district of New Haven, Docket No. CV 06 5001779 (June 1, 2007, Robinson, J.); Torres v. Carrese, Superior Court, judicial district of New Haven, Docket No. CV 06 5006514 (April 16, 2007, Jones, J.) (43 Conn. L. Rptr. 270); Lyon v. Yeager, Superior Court, judicial district of Windham, Docket No. CV 06 5000150 (February 20, 2007, Martin, J.); Ouellette v. Brook Hollow Health Care, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, Holden, J.) (42 Conn. L. Rptr. 863); Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006, Matasavage, J.) (41 Conn. L. Rptr. 222).

Additionally, the LeConche Court stated that "the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court . . . [T]he absence from the complaint of the statutorily required good faith certificate renders the complaint subject to a motion to strike . . . for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment . . ." Id. at 711. Unfortunately, there is no appellate authority as to whether the opinion letter of a similar health care provider defeats otherwise valid jurisdiction and a split of decision exists among the judges of the Superior Court. The majority believes that the sufficiency of an opinion letter is not a jurisdictional issue and, thus, not subject to a motion to dismiss. The minority, however, finds that insufficient opinion letters warrant dismissal of the action pursuant to § 52-190a(c). This court agrees with the majority of judges that this issue is not jurisdictional and, therefore, is improperly presented by a motion to dismiss.

See Wilson v. Visiting Nurses Services of Connecticut, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005742 (December 4, 2007, Arnold, J.); Shankar v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 07 6001269 (November 28, 2007, Bellis, J.) [44 Conn. L. Rptr. 595]; 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]; Schachter v. Evanko, Superior Court, judicial district of New Haven, Docket No. 06 5007552 (September 24, 2007, Holden, J.) (44 Conn. L. Rptr. 210); Robbins v. Physicians for Women's Health, LLC, Superior Court, judicial district of New London, Docket No. 5002633 (October 16, 2007, Hurley, J.T.R.) [44 Conn. L. Rptr. 315]; Hernandez v. Moss, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000664 (May 31, 2007, Gallagher, J.); Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. CV 06 500857 (May 4, 2007, Gallagher, J.) [43 Conn. L. Rptr. 341]; Behling v. Aronow, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001692 (March 12, 2007, Adams, J.); Doherty v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV06 5001040 (February 22, 2007, Thim, J.); Greer v. Norbert, Superior Court, judicial district of Hartford, Docket No. CV 06 05004859 (February 7, 2007, Rittenband, J.) (42 Conn. L. Rptr. 806).

See Matkin v. Schoenfeld, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005165 (November 14, 2007, Upson, J.) [44 Conn. L. Rptr. 449]; 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); Landry v. Zborowski, Superior Court, judicial district of Tolland, Docket No. CV 07 6000211 (August 21, 2007, Vacchelli, J.) (44 Conn. L. Rptr. 56); Tobing v. Lange, Superior Court, Complex Litigation Docket at Hartford, Docket No. X09 CV 06 5002163, (January 11, 2007, Shortall, J.) [43 Conn. L. Rptr. 251].

"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." Vicenzi v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5004413 (October 29, 2007, Roche, J.); see also Rodriguez v. Norniella, Superior Court, judicial district of New Haven, Docket No. CV 06 5001779 (June 1, 2007, Robinson, J.). Further, "[t]he requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery." (Internal quotation marks omitted.) Maitan v. Access Ambulance Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5003252 (October 18, 2007, Nadeau, J.) [44 Conn. L. Rptr. 436].

IV. CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied.