Peter Tarini et al. v. Andrew J. Duffy et al. (2010)

MEMORANDUM OF DECISION RE (105) DEFENDANTS' MOTION TO DISMISS

This is an action by the plaintiffs, Peter Tarini and against the defendants, Andrew J. Duffy, Ehab Akkary and Yale New Haven Hospital alleging medical malpractice.

The defendants have moved the court to dismiss this action for the reason that the plaintiffs failed to comply with the provisions of § 52-190a, C.G.S. in that the written opinion attached to the complaint was not written by a similar health care provider.   The plaintiffs filed an objection to the motion to dismiss.   The parties appeared and were heard as to the relief sought in the motion and the Court reserved decision.   Having considered the arguments of counsel, the case law and the applicable statutes, the court makes the following findings.

The plaintiffs attached to their complaint an opinion letter stating that it is the author's opinion that the defendant doctors breached the relevant standard of care in a specific manner.

The basis for the defendant's allegation that the plaintiffs have failed to properly comply with the provisions of § 52-190a, C.G.S. is that the letter is completely silent as to the qualifications, training, experience, certifications or other background information about the author.   They argue that, consequentially, the opinion letter is insufficient in that it does not establish that it was written by a similar health care provider, as required by the statute.

Subsequent to the filing of the motion, the plaintiffs' counsel obtained and filed with the court an affidavit of the individual who signed the medical opinion attached to the complaint.   In that affidavit he avers that he is the person who rendered the medical opinion.   It goes on to state, “I am board certified by the American Board of Surgery and I perform general and laparoscopic surgery including laparoscopic hernia repair and gastrointestinal surgery and vascular surgery.   I have served of [sic] American Society of General Surgery Board of Directors and I was a reviewer for the editorial boards of the medical journals of ‘Contemporary Surgery and Hernia.’   I have written for the Journal of the Society of Laparoscopic Surgery and Digestive Surgery.”   The affidavit was sworn to by the author and his name was expunged.

The attorney also filed an affidavit in which he avers that the doctor who gave the opinion letter is the same doctor who signed the above-cited affidavit and reiterated his credentials.

Practice Book § 10-31(a)(2) provides that a “motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Blumenthal v. Barnes, 261 Conn. 434, 442 (2002).   “In ruling upon whether a complaint survives a motion to dismiss, 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.”  Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611 (2002).  “Where ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  Ferreira v. Pringle, 255 Conn. 330, 346-47 (2001).  “A ruling on a motion to dismiss is neither a ruling on the merits of the action ․ nor a test of whether the complaint states a cause of action ․ Motions to dismiss are granted solely on jurisdictional grounds.”  Pitruzello v. Muro, 70 Conn.App. 309, 312 (2002).

Having considered the above facts and after full consideration to the cases cited by counsel, the court finds that the plaintiffs are in compliance with the provisions of § 52-190a, C.G.S. and for that reason the defendants' motion to dismiss is denied.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.