Steven A. Dilling v. Walter J. Leckowicz, Jr. (2009)

MEMORANDUM OF DECISION ON MOTION TO DISMISS # 101

The plaintiff Steven A. Dilling brings this action against the defendant Walter J. Leckowicz for personal injuries on account of malpractice.   The plaintiff alleges that the care and treatment provided by the defendant, a licensed dentist, fell below the standard of care, resulting in injury to the plaintiff.

The defendant has filed a Motion to Dismiss, citing the failure of the plaintiff to append to his complaint a plaintiff's good faith certificate along with a written opinion from another dentist “that there appears to be evidence of medical negligence” and that “includes a detailed basis for the formation of such an opinion.”  Conn. Gen.Stat. § 52-190a(a).   The defendant argues that the failure to obtain these documents before instituting the action and the failure to append these to the original complaint implicate Conn. Gen.Stat. § 52-190a(b) which provides that such failure “shall be grounds for dismissal.”

The plaintiff opposes the motion.   On October 2, 2009, after the return date of this case and after the defendant filed his Motion to Dismiss, the plaintiff filed two documents, the first of which purports to be a good faith certificate, and the second, a document which purports to be a written opinion of professional negligence by a similar health care provider.

The question for the court is whether an amendment to the complaint, such as the plaintiff has attempted to file here, can cure the failure to obtain and file these documents in the first instance.   A subsidiary issue is whether the written opinion letter, if accepted in this case, is sufficiently detailed to survive the motion to dismiss.

It is within the court's discretion to allow a written opinion letter of a similar health care provider, existing at the time of commencement of an action, that was omitted from the original complaint to be accepted by amendment after action is commenced.  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 585 (2009).   The plaintiff explains that on August 12, 2009, before the commencement of this action, he obtained, indeed witnessed, the creation of the opinion letter.   See Good Faith Certificate, filed October 2, 2009.   While the plaintiff does not explain why it was obtained pre-suit but filed post-suit, the court gives the plaintiff the benefit of the doubt, and exercises its discretion to allow the good faith certificate and written opinion letter to be treated as amendments to the complaint under Votre, supra.¹

The issue then is whether the opinion is sufficiently detailed to meet the requirements of the statute.   The opinion reads as follows:

To whom it may concern, I have a good faith belief that Steven Dilling wasn't given proper medical treatment by Dr. Walter Leckowicz, Jr., D.M.D. and I'm willing to testify to that effect.

Signed, An assessment of Steven Dilling's dentition indicates that iatrogenic dentistry created a malocclusion that now contributes to his generalized myalgia problems.

That a practitioner or group of practitioners is responsible for this effect needs to be determined via a thorough review of his dental records and medical records.

Jeffrey R. Shaefer

DDS MS MPH

The defendant points out a number of curious elements in the written opinion:  that the first sentence is typed while the remaining sentences are handwritten, and that the author seems to equivocate in the final sentence by referring to a further review of the plaintiff's records.   Nonetheless the written opinion, while not a complete explanation of the author's own investigation (i.e., a list of records reviewed, a more expansive recitation of the author's own specialty) is sufficiently detailed to conform to the requirements of the statute and to survive the motion to dismiss.

The Motion to Dismiss is denied.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. The plaintiff is representing himself, without the benefit of counsel..  FN1. The plaintiff is representing himself, without the benefit of counsel.

Pittman, Patty Jenkins, J.