Annie Gorneault v. Sean Colsen, D.P.M. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, No. 107

FACTS

On June 15, 2010, the plaintiff, Annie Gorneault, filed a two-count complaint sounding in medical negligence against the defendants, Sean Colsen, D.P.M. and Steven Colsen, D.P.M. The complaint alleges that on June 20, 2008, the defendants negligently performed a bunionectomy and hammertoe repair on the plaintiff's right foot, causing the plaintiff to undergo subsequent surgical procedures and rendering her with an overcorrection of the right great toe and hallux valgus.   In count one of the complaint, the plaintiff alleges that the defendants breached the prevailing podiatric standard of care, which “requires that the fibular sesamoid and capsular of the right great toe be maintained.”   Count two alleges that the defendants were negligent by failing to obtain informed consent from the plaintiff that the fibular sesamoid and capsular of the first great toe could be severed, cut or removed during the surgical procedure.

Pursuant to General Statutes § 52-190a, the plaintiff's attorney attached a certificate of good faith attesting to the grounds for the action and a redacted opinion letter from an alleged similar health care provider.   The letter states in its entirety:  “I have reviewed the medical records regarding your client Annie Gorneault.   In my opinion, there was a deviation in the standard of care resulting in an overcorrection of her bunion deformity, resulting in hallux valgus.   Thank you.   Please feel free to contact me regarding this matter.”

On August 20, 2010, the defendants simultaneously filed an answer to the complaint and a motion to dismiss the complaint challenging the sufficiency of the similar healthcare provider's opinion letter.   The motion is accompanied by a memorandum of law.   The plaintiff filed an objection to the motion to dismiss and memorandum of law in support of her objection on September 28, 2010.

DISCUSSION

General Statutes § 52-190a(a) provides in relevant part:  “No civil action ․ shall be filed to recover damages ․ 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 ․ 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 ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․ The claimant or claimant's attorney ․ shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate ․”

According to § 52-190a(c), “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”   The Appellate Court, relying on § 52-190a(c), has held that a motion to dismiss is the proper vehicle to address a violation of § 52-190a(a).   See Rios v. CCMC Corp., 106 Conn.App. 810, 820-22, 943 A.2d 544 (2008).

In the present case, the defendants have filed a motion to dismiss on the grounds that (1) the opinion letter does not indicate that it was written by a similar health care provider and that (2) the opinion letter does not include a detailed basis for the formation of the provider's opinion that evidence of medical negligence exists, as required by § 52-190a.   In response, the plaintiff first argues that the defendants waived their right to file a motion to dismiss by simultaneously filing an answer to the complaint.   Further, the plaintiff contends that the author of the opinion letter is indeed a similar health care provider and that the opinion letter contains sufficient detail.

A.

Practice Book § 10-6 provides in relevant part:  “The order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint ․ (5) The defendant's answer (including any special defenses) to the complaint ․ Additionally, Practice Book § 10-7 provides:  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section ․” Practice Book § 10-32 expressly limits the types of motions to dismiss that are subject to the order of pleadings rule specified in Practice Book §§ 10-6 and 10-7.  Section 10-32 states:  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.”   The Appellate Court has held that “the failure to comply with § 52-190a(a) is not a jurisdictional defect.”  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   Furthermore, the Appellate Court, in construing Practice Book § 113, now § 10-7, has held that “the trial court ha[s] discretion to overlook the simultaneous filing of [two pleadings by the defendant] and to consider the motion [that is out of order].”  Sabino v. Ruffolo, 19 Conn.App. 402, 405, 562 A.2d 1134 (1989).

Therefore, in the present case, the court holds that the defendants' motion to dismiss will not fail on the ground that it was filed simultaneously with the defendants' answer to the complaint.   See also Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454 (December 4, 2009, Wilson, J.) (49 Conn. L. Rptr. 162, 164) (“[A] motion to dismiss pursuant to § 52-190a is not waived simply because it was filed out of the order contemplated by Practice Book § 10-6”).

B.

With respect to the defendants' first ground in their motion to dismiss, namely that the plaintiff failed to indicate that the opinion letter was written by a similar health care provider, nothing in the statute specifically requires that the author provide in the letter a detailed description of how the author purports to be a “similar health care provider.”   In her objection to the motion to dismiss, the plaintiff has provided sufficient information that the author of the opinion letter is likely to qualify as a similar health care provider and had disclosed the author's identity to the defendants prior to the filing of the motion to dismiss.   Thus, the defendants' motion fails on this ground.   See Crowell v. Pito, Superior Court, judicial district of New Britain, Docket No. CV 08 5008149 (January 7, 2009, Pittman, J.) (46 Conn. L. Rptr. 876, 877) (holding that failure to provide author's qualifications as “similar health care provider” in opinion letter does not in itself warrant dismissal).

The defendants' second ground in their motion to dismiss is that the opinion letter does not contain sufficient detail to comply with § 52-190a(a).   According to the Appellate Court, “it is clear that in order to fulfill the requirement of § 52-190a(a) and to provide assurance that ‘there appears to be evidence of medical negligence,’ a claimant's written opinion from a similar health care provider need not address the issue of causation.   Further, the opinion must indicate that there appears to be evidence of a breach of the standard of care.”  Wilcox v. Schwartz, 119 Conn.App. 808, 815, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).   The court in Wilcox approved of an opinion letter where “the structure of the document reveals the author's statement of the prevailing standard of care:  protecting the biliary structures during laparoscopic gallbladder surgery.   It is this standard of care, the author opines, that [the defendant] breached in performing the surgery on [the plaintiff].”  Id. “While a written opinion does not need to be a template for a complaint, trial courts have dismissed written opinions for insufficient detail where they provide no indication of the standard of care or how it was violated.”  Wightman v. Sposato, supra, 49 Conn. L. Rptr. 166 (granting defendants' motion to dismiss because the medical opinion letter lacked an appropriate standard of care and a statement of how it was violated).

In the present case, the author of the opinion letter does not state the prevailing standard of care that applied during the plaintiff's medical procedure or discuss, even in the briefest manner, how the defendant deviated from that standard.   The author merely states that “there was a deviation in the standard of care,” followed by the conclusory statement that the deviation resulted in the injuries that the plaintiff has alleged in her complaint.   In this case, the written opinion is not sufficiently detailed.   It is entirely conclusory and provides no explanation as to what is the standard of care, who violated it and how or on what basis or when it was violated.   See Landry v. Zborowski, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07 6000211 (August 21, 2007, Vacchelli, J.) (44 Conn. L. Rptr. 56, 57) (granting defendant's motion to dismiss because opinion letter was conclusory and failed to mention standard of care and how it was violated).

CONCLUSION

For the foregoing reasons, the court hereby grants the defendants' motion to dismiss.

Martin, J.

Martin, Robert A., J.