Maria Elena Archer, Administrix of the Estate of Maria S. Parpa v. Greenwich Hospital et al.
-- November 27, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS (169.00)
This case comes to this court as a motion to dismiss pursuant to Practice Book § 10-30 and General Statutes § 52-190a. The defendants Francis X. Walsh, M.D. and Walsh-Brunetti, L.L.C., moved the court to dismiss so much of Counts One of the plaintiff's amended complaint dated November 21, 2007 as purports to allege a cause of action in medical negligence against these defendants on the basis that the plaintiff has failed to attach a written and signed opinion of a similar healthcare provider. The arguments focused on Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535 (2009). The defendants claim that this case stands for the proposition that the opinion letter submitted by the plaintiff in the Bennett case was not authored by a similar healthcare provider, and that the court properly dismissed the case against the doctor. The defendant's claim that is the situation in this case.
The court does not reach that issue in the motion to dismiss since the defendants have waived their right to file a motion to dismiss. It is clear this case was returned to the court on October 22, 2007. The motion to dismiss was filed on September 8, 2009.
The original scheduling order entered by Judge Tobin was entered on April 3, 2008, and it set forth all of the matters necessary to be addressed and certified that the pleadings would be closed by May 1, 2008. A trial date was selected at that time for February 2, 2010. Thereafter, there have been depositions and disclosures filed, including expert disclosures under § 13-4.
In Votre v. County Obstetrics & Gynecology Group, 113 Conn.App. 569 (2009), Judge Flynn made it clear that a motion to dismiss based on the plaintiff's failure to comply with General Statutes § 52-190a does not invoke the court's subject matter jurisdiction. Although the Bennett case was dismissed, it was not because the court lacked subject matter jurisdiction, but rather because the statute provided that as a remedy. Judge Flynn's decision in Votre sets forth a lot of examples as to dismissals that are not based on subject matter jurisdiction. In addition, Judge Flynn on Page 586 of Votre discusses the issue of the possibility of waiver. It is clear to this court that the defendants waived filing the motion to dismiss under § 52-190a.
Practice Book § 10-30 requires that within 30 days of entering a general appearance, any person wishing to contest the court's jurisdiction must do so by filing a motion to dismiss. This has clearly not been complied with. Since this is not subject matter jurisdiction, the motion may not be filed at any time. In addition, there is a clear waiver in this case.
Based on the foregoing ruling, the court does not reach the merits of the claim.
Accordingly, the motion to dismiss is denied.
EDWARD R. KARAZIN, JR.
Karazin, Edward R., S.J.