Santina Marino v. Barry Weiss (2011)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (# 105)

FACTS

In both the original complaint and in the amended complaint dated February 17, 2011, the plaintiff, Santina Marino, alleges that she sustained injuries as a result of the dental malpractice of the defendant dentist, Barry Weiss.¹  Specifically, the plaintiff alleges in her complaint that in January 2005, the defendant performed a bone graft procedure on two of the plaintiff's teeth.   The plaintiff alleges that she suffered various injuries as a result of the defendant's negligent treatment, including recession of the gum, discoloration of the tooth, pain and discomfort.

On February 8, 2011, the defendant filed a motion to dismiss the plaintiffs original complaint on the ground that the plaintiff failed to comply with the requirements of General Statutes § 52–190a because she failed to attach an expert opinion to the complaint.   The defendant also moved to dismiss the complaint because the plaintiff failed to comply with General Statutes § 52–46a because the plaintiff did not file the complaint with the court until eight days after the return date listed on the summons.   On February 17, 2011, the plaintiff filed an amended complaint as of right, which included a second count for lack of informed consent in addition to the first count for medical negligence.²  On March 2, 2011, the defendant filed a motion to dismiss both the plaintiff's original complaint and amended complaint on the same grounds as the first motion to dismiss.   The plaintiff filed an objection to the defendant's motion to dismiss on April 14, 2011.   This matter was heard at short calendar on April 18, 2011.

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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

A

The defendant first argues that the plaintiff failed to return the original complaint to the court at least six days prior to the return date as required by General Statutes § 52–46a, which provides in relevant part:  “Process in civil actions ․ shall be returned ․ to the superior court ․ at least six days before the return day.”   He contends that the plaintiff would have had to file the original complaint with the court no later than January 12, 2011.   The original complaint was not filed until January 26, 2011, a date that is eight days after the stated return date of January 18, 2011.   In the plaintiff's objection to the motion to dismiss, she concedes that the writ was “inadvertently returned a week late,” but argues that General Statutes § 52–72 ³ requires the court to permit a proper amendment to correct such a defect.

Section 52–72 provides in relevant part:  “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.”   The Supreme Court in Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), held that § 52–72 permits a plaintiff to amend the return date on a complaint where the purported “defect” was that the process was not returned to the court before the six-day deadline in § 52–46a.   The court stated in relevant part:  “The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return date effectuates [§ 52–72's] remedial purpose and the statutory policy of amend[ing] ․ otherwise incurable defects that go to the court's jurisdiction.”  (Internal quotation marks omitted.)  Id., 665.   The Supreme Court ultimately concluded that because the plaintiff's amendment did not “deprive the defendant of any substantive right,” and because the defendant had “actual notice” of the suit and “suffered no prejudice as a result of the late return of process,” the motion to dismiss should have been denied by the trial court.  Id., 666–67.

In the present case, the plaintiff has not complied with the mandatory requirement that she return process to the court within six days of the return date, and she also has not amended the return date in accordance with the statutory provisions that allow her to do so.   The plaintiff filed an amended complaint as of right to include a second count for lack of informed consent, but the amended complaint did not amend the return date and did not attach an amended summons.  General Statutes § 52–72(b) provides in relevant part that “[s]uch amended process shall be served in the same manner as other civil process ․” The plaintiff's attempt to amend does not comply with the requirements of § 52–72.   Specifically, the present case is distinguishable from Coppola because here, an amended writ of summons has not been served upon the defendant or filed with the court.   Accordingly, the defendant's motion to dismiss is granted.

B

The defendant further argues that the plaintiff failed to attach an expert opinion to the complaint as required by General Statutes § 52–190a.   He contends that both the first count of the plaintiff's complaint for medical malpractice and the second count for lack of informed consent require a written opinion letter from a similar health care provider.   In the plaintiff's objection to the motion to dismiss, she concedes that an absence of an opinion letter defeats the first count of her complaint for medical malpractice.   Nonetheless, the plaintiff contends that the second count for lack of informed consent may proceed because the Supreme Court recently held that a good faith letter is not necessary to support informed consent claims.

“The plain language of [§ 52–190a(c) ] ․ expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52–190a(a).”   Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 543, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009).   Nonetheless, the Supreme Court recently held in Shortell v. Cavanagh, 300 Conn. 383 (2011), that § 52–190a does not apply to a claim of lacked of informed consent.   The court reasoned that “the focus of a medical malpractice case is often a dispute involving the correct medical standard of care and whether there has been a deviation therefrom.   Conversely, the focus in an action for lack of informed consent is often a credibility issue between the physician and the patient regarding whether the patient had been, or should have been, apprised of certain risks prior to the medical procedure.”  Id., 389.  “Therefore, to require an opinion from a similar health care provider at the inception of the case would lead to a bizarre result, which we cannot countenance.”  Id.

“A claim against a physician for negligence based on lack of informed consent is separate from a claim based on negligence in medical treatment, because it is based on information communicated by the physician to the patient before the procedure or treatment.”  Sherwood v. Danbury Hospital, 278 Conn. 163, 181, 896 A.2d 777 (2006).  “The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks is not merely linguistic.   It reflects, instead, the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care.”  Pekera v. Purpora, 80 Conn.App. 685, 691, 836 A.2d 1253 (2003), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005).

In the present case, the complaint contains two counts.   The first is for medical negligence and the second is for lack of informed consent.   The court in Shortell did not address whether the whole complaint must be dismissed if a plaintiff does not attach a good faith letter for the medical negligence claim.   Nonetheless, the reasoning of Shortell and other case law recognize that there is a fundamental difference between a claim for medical negligence and a claim for lack of informed consent for purposes of § 52–190a.   Therefore, the lack of informed consent count would withstand a motion to dismiss, however, because the plaintiff failed to amend her summons to correct the late return of process the motion to dismiss the entire complaint is granted.

Wilson, J.

FOOTNOTES

FN1. The plaintiff's original complaint was dated December 6, 2010 with a return date of January 18, 2011, but it was not filed with the court until January 26, 2011.   The factual allegations in the original complaint are identical to those in the amended complaint except that the amended complaint contains a second count alleging lack of informed consent..  FN1. The plaintiff's original complaint was dated December 6, 2010 with a return date of January 18, 2011, but it was not filed with the court until January 26, 2011.   The factual allegations in the original complaint are identical to those in the amended complaint except that the amended complaint contains a second count alleging lack of informed consent.

FN2. An amended writ of summons was not filed with the amended complaint..  FN2. An amended writ of summons was not filed with the amended complaint.

FN3. The plaintiff mistakenly cites to § 52–74 in her objection..  FN3. The plaintiff mistakenly cites to § 52–74 in her objection.

Wilson, Robin L., J.