Amanda Steinmann et al. v. Michael Doyle, M.D., P.C. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101), MOTION TO DISMISS (# 109)

The plaintiffs, Amanda Steinmann and Cliff Steinmann, brought this medical malpractice action against the defendants, Michael Doyle, M.D., P.C. (professional corporation), Michael Doyle d/b/a Connecticut Fertility Associates (CFA), Michael Doyle, Shaun Williams and Nora Miller.   The plaintiffs allege that they suffered injuries as a result of, inter alia, the medical negligence of Doyle, Williams and Miller, each of whom is a licensed reproductive endocrinology and infertility specialist.   Specifically, the plaintiffs allege that the defendants were negligent in the administration of an ovarian stimulation protocol on Amanda Steinmann, an egg donor.

Doyle, Williams and CFA together filed a motion to dismiss and Miller filed a separate motion to dismiss.   The defendants moved to dismiss the action pursuant to General Statutes § 52–190a(c) on the ground that the written opinion of a similar health care provider filed by the plaintiffs fails to meet the requirements of § 52–190a(a), in that the basis for the author's opinion with respect to the conduct of each of them, respectively,¹ is insufficiently detailed.²  For the following reasons, the court denies both motions to dismiss.

I

BACKGROUNDAAllegations

In the relevant portions of the complaint, the plaintiffs allege as follows:  Doyle, Miller and Williams were reproductive endocrinology and infertility specialists who worked for CFA and the professional corporation in a reproductive endocrinology and infertility practice.   Amanda Steinmann, a resident of Florida, agreed to undergo an ovarian stimulation protocol for the purpose of donating her eggs to third parties.   Upon qualifying her as an egg donor, the defendants provided her with “initial instructions, medications and protocol” in order for her to prepare for the procedure.

The defendants then directed Amanda Steinmann to fly to Connecticut a few weeks before the procedure for monitoring purposes.   Upon her arrival in Connecticut, the defendants began “[keeping] a daily flow sheet record of [her] protocol medications, ovarian follicle development and various hormonal blood levels and their monitoring and interventions.”

Six days after her arrival, Amanda Steinmann complained to the defendants about pain in her “lower right quadrant.”   Thereafter, Williams performed an ultrasound and sent her to the emergency room to investigate the source of the problem.   That day, she was admitted to the hospital when the doctors discovered “ovarian cysts as large as 6.0 cm, which were described as enlarged hyper-stimulated ovaries ․”

The next day, a doctor at the hospital examined Amanda Steinmann again and found a normal appendix and “significantly enlarged ovaries and a suspected ruptured ovarian cyst.”   Doyle, who examined her during this procedure, determined that there was “no obvious source for her problem and also that [she] would continue on the ovarian stimulation protocol.”

The next day, Amanda Steinmann was released from the hospital and went back to CFA's office.   There, Miller performed an ovarian ultrasound in order to document her estrogen level as well as the size of her bilateral ovarian follicles.   The day after that, the defendants “documented the development of [her] ovarian follicles and continued with its plan for [her] to receive HCG 10,000 u that night and return in 2 days.”   The defendants then gave her 10,000 units of HCG, an ovarian stimulation drug, which elevated her estrogen level.

Two days later, Doyle performed the transvaginal egg retrieval procedure on Amanda Steinmann.   Afterwards, the defendants monitored her for one hour before releasing her.   They told her that she was clear to return home to Florida the next day.   Shortly after her return to Florida, she went to a local hospital complaining of severe pain.   A doctor there examined her and discovered that her ovaries were severely enlarged and otherwise damaged.   The defendants' failure to recognize that her ovaries were hyperstimulated and failure to adjust the protocol to protect her safety was, essentially, the cause of these and other injuries.³

B

Procedural History

On January 14, 2011, the plaintiffs filed with the summons and complaint, inter alia, a four-page document purporting to be a written opinion of a similar health care provider.   On January 26, 2011, Miller filed a motion to dismiss (# 101) along with a memorandum of law (# 102).   Williams filed a motion to dismiss (# 109) along with a memorandum of law (# 110) on February 2, 2011.   On February 24, 2011, the plaintiffs filed an objection to Miller's motion to dismiss (# 138), as well as an objection to Williams' motion to dismiss (# 139).   Miller filed a reply memorandum (# 145) on March 4, 2011.   Both motions were argued at short calendar on March 7, 2011.

II

DISCUSSION

“[General Statutes § ]52–190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make 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 ․ To show good faith, the complaint ․ is required to contain a certificate of the attorney or party filing the action stating that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ․” (Internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 542, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011).  “[T]o demonstrate good faith ․ plaintiffs or their counsel, prior to filing suit, 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 ․ statute also provides that plaintiffs or their counsel shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate [of good faith].” ⁴  (Citation omitted;  internal quotation marks omitted.)  Id., 543.

Pursuant to General Statutes § 52–190a(c), “[t]he failure to obtain and file the written opinion required by [§ 52–190a(a) ] shall be grounds for the dismissal of the action.”   Dismissal is required if the plaintiff fails to file a written opinion of a similar health care provider that complies with the requirements of § 52–190a(a).  Bennett v. New Milford Hospital, Inc., supra 117 Conn.App. 545.   This is a special statutory remedy that does not implicate the jurisdiction of the court.  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583–84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

“When a ․ court decides a ․ question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10–11, 12 A.3d 865 (2011).

A

Miller's Motion to Dismiss (# 101)

Miller argues in her memorandum of law that the written opinion is deficient for three reasons:  (1) it fails to establish a good faith belief that she committed malpractice;  (2) it does not indicate that any conduct of hers caused the injuries alleged by the plaintiffs;  and (3) it fails to sufficiently state how she deviated from the standard of care because it mentions her conduct only briefly in its discussion of the allegations against Doyle.

The plaintiffs argue that the opinion is sufficient because it states the author's qualifications, the standard of care applicable to Miller and how she violated that standard of care.   They contend that the Superior Court has previously found letters of comparable detail to be sufficient.   The plaintiffs also assert that, because the statute contemplates that the opinion be attached to a complaint, the legislature did not expect the inclusion of a level of detail that would only be available after discovery has been completed.

The first appellate case addressing the substantive requirements of a written opinion was Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009).   In that case the Supreme Court limited the required scope of the written opinion to the issue of whether the applicable standard of care was breached.   See id., 359.   It specifically rejected the argument that the written opinion was insufficient for failure to include an opinion as to the element of causation.   See id., 361.

While Dias did not address the level of detail required in a written opinion to meet the “detailed basis” requirement of § 52–190a(a), the Appellate Court considered this question in Wilcox v. Schwartz, 119 Conn.App. 808, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).  Wilcox is key as it is the only appellate case on point with respect to this issue.

In Wilcox, the plaintiffs, Kirsty Wilcox and Timothy Wilcox, brought a medical malpractice action against the defendants, physician Daniel S. Schwartz and a surgical group.   See id., 809–10.   The Wilcoxes alleged that Schwartz negligently performed a laparoscopic cholecystectomy on Kristy Wilcox for the purpose of treating a gallbladder condition.  Id., 810–11.   Specifically, they alleged that “Schwartz breached the applicable standard of care in that he:  (1) failed to assure the adequate and accurate identification of [Kristy Wilcox's] internal anatomy prior to proceeding with the laparoscopic cholecystectomy, (2) failed to prevent injury to [her] biliary structures during the laparoscopic cholecystectomy and (3) failed to accurately document the surgical procedure ․” (Internal quotation marks omitted.)  Id., 811.

The Wilcoxes attached a written opinion to their complaint, the body of which read, in its entirety, as follows:  “I have reviewed the relevant records and information that were provided to me with regard to Kristy Wilcox.

“I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of Kristy Wilcox provided by Daniel S. Schwartz, M.D. and that the care and treatment provided by Daniel S. Schwartz, M.D. was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident.

“Specifically Daniel S. Schwartz, M.D. failed to prevent injury to Kristy Wilcox's biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure of March 12, 2006.   As a result of Dr. Schwartz's negligent treatment, Kristy Wilcox sustained severe, painful and permanent injuries.

“My opinions are based upon my education, training and experience as a physician, and my examination of Kristy Wilcox's medical records.”  (Internal quotation marks omitted.)  Id., 811–12.   Schwartz and the surgical group moved to dismiss the complaint on the ground that the written opinion was not detailed enough in that it was conclusory and did not state how Schwartz breached the standard of care.  Id., 812.   The trial court granted the motion and the Wilcoxes appealed.  Id.

The Appellate Court acknowledged that it was addressing an issue of first impression.   See id., 814.   Citing Dias, the court stated that the written opinion need not address causation.   See id., 815.   Rather, the court stated, the written opinion must “indicate that there appears to be evidence of a breach of the standard of care.”  Id. In its analysis, the court determined that the standard of care, as found in the “structure” of the written opinion, was “protecting the biliary structures during laparoscopic gallbladder surgery.”  Id. The court then held that the written opinion was sufficiently detailed, stating that the opinion “suffices to notify the reader that a similar health care provider is of the opinion that the medical negligence consisted of a failure to protect [Kristy] Wilcox's bile ducts from injury during surgery.”  Id., 815–16.   The court explained:  “The complaint alleges only one specification of negligence pertaining to the actual performance of the surgery:  that Schwartz failed to prevent injury to [Kristy Wilcox's] biliary structures during the laparoscopic cholecystectomy.   The defendants have been given sufficient notice that a similar health care provider is willing to state his opinion that the standard of care was breached during this surgical procedure.”  (Internal quotation marks omitted.)  Id., 817.

The Appellate Court ultimately laid down the following rule:  “So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint, as this opinion does, the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose.   The person rendering this opinion is not required by § 52–190a(a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff.   Lack of such a statutory requirement that the good faith expert also be used at trial, evinces a legislative intent that the opinion's detail need not be as exhaustive as that of a trial expert on medical negligence ․” Id., 816.

Wilcox provides some guidance with respect to what is necessary to “sufficiently [address] the allegations of negligence.”  Id. First, it reveals that the detail required is no more than that necessary to notify the reader of which failure or failures on the part of the defendant, as defined by the plaintiff's allegations of negligence, the similar health care provider believes constitutes the defendant's failure to adhere to the standard of care.   See id., 815–16.   In other words, the written opinion need only contain a restatement of the relevant allegations of negligence and the author's opinion that, for the reasons contained in those allegations, the defendant's conduct fell below the standard of care.   Moreover, the standard of care does not need to be explicitly stated if it may be inferred from the “structure” of the written opinion.   See id., 815.   The author of the written opinion in Wilcox merely stated that Schwartz failed to meet the standard of care and that he did so because he, as alleged, did not protect Kristy Wilcox's biliary structures and did not accurately document the procedure.   See id., 811–12.

Second, it stands for the proposition that not all allegations of negligence need be addressed.   This position is also taken by the majority of Superior Court opinions.   Skewes v. Ocean Radiology Associates, Superior Court, judicial district of New London, Docket No. CV 10 6006135 (March 2, 2011, Martin, J.).   The Appellate Court in Wilcox found only the second allegation of negligence, that Schwartz “failed to prevent injury to [Kristy Wilcox's] biliary structures during the laparoscopic cholecystectomy”;  Wilcox v. Schwartz, supra, 119 Conn.App. 811;  to be important to the determination of the issue.   See id., 817.   The court did not discuss the written opinion's inclusion of the third allegation of negligence:  that Schwartz failed to accurately document the procedure.  Id., 811.   Moreover, the Appellate Court did not find it significant that the written opinion did not address the first allegation of negligence:  that Schwartz “failed to assure the adequate and accurate identification of [Kristy Wilcox's] internal anatomy prior to proceeding with the laparoscopic cholecystectomy ․” Id.

This raises the question of which allegations must be addressed.   The court in Wilcox articulated no explicit rule, but it apparently chose to discuss the written opinion's inclusion of the second allegation because it was the “one specification of negligence pertaining to the actual performance of the surgery ․” Id., 817.   This strongly suggests that a written opinion need only address the allegations of negligent conduct that are central to the procedure that allegedly caused the plaintiff's injury;  that allegations of negligence that relate to the preparation for the procedure or are otherwise only tangential to the actual procedure need not also be addressed.

In the present case, the plaintiffs allege that Amanda Steinmann was injured when, after it was discovered that she had enlarged ovaries with possible cysts, she was given an inappropriate ovarian stimulation protocol that resulted in ovarian stimulation syndrome, which manifested itself after her return to Florida.   In light of Wilcox, the central allegations of negligence against Miller in the complaint are that she (1) “failed to recognize [Amanda Steinmann's] signs and symptoms of pain and ruptured ovarian cyst as heralding an ovarian hyper-stimulation at the time of her ․ admission to [the hospital],” and (2) that she “failed to heed these symptoms of ovarian hyper-stimulation and alter the administration and management of [the] protocol for her accordingly to ensure her safety.”  (Complaint, p.30.) The other allegations of negligence are either restatements of these basic allegations or are for failures tangential to the administration of the procedure that resulted in the injury.

In the written opinion submitted in this case, the author writes in the second paragraph:  “It is my professional and expert opinion based on these records [described in the preceding paragraph] that Michael Doyle, M.D. and his associates at [CFA] fell below the acceptable standards of care as would be reasonably expected of similar health care providers in the care and treatment of Amanda Steinmann ․” The next six paragraphs are a restatement of the allegations of the complaint.

The final paragraph on the second page reads:  “Based on my review of the above facts and records, it is my opinion that defendants Michael Doyle, M.D. and his associates at [CFA] were negligent and fell below the applicable standard of care in their treatment of [Amanda] Steinmann in the following ways:

1. they failed to recognize [Amanda Steinmann's] signs and symptoms of pain and ruptured ovarian cyst as heralding of ovarian hyper-stimulation at the time of her ․ admission to Yale New Haven Hospital, and they failed to alter the administration and management of her protocol to ensure her safety ․ ⁵

As in Wilcox, the structure of the written opinion here indicates that the standard of care was to recognize that Amanda Steinmann exhibited signs of ovarian hyper-stimulation and to adjust the ovarian stimulation protocol to account for such condition.   The author gives his or her opinion that Doyle and his associates at CFA, fell below this standard of care by failing to perceive Amanda Steinmann's condition and adjust the protocol accordingly.

The dispositive question is whether the author's use of the designation “defendants Michael Doyle, M.D. and his associates at [CFA]” in addressing how the standard of care was breached is sufficient to indicate that the author is addressing the negligence of Miller.   There is no requirement in the statute, Wilcox or any other appellate case stating that a written opinion must refer to a particular defendant by name when discussing how he or she was negligent.   However, § 52–190a requires that the negligence of “each named defendant” be addressed.   Thus, the written opinion must address specifically the negligence of Miller and the other named defendants, even if it does not mention these defendants by name.

The court finds that, based on the language of the written opinion, the author is referring to Miller when he or she describes the negligence of “defendants Michael Doyle, M.D. and his associates at [CFA].” First, the author, in his or her description of the facts, explicitly acknowledges Miller as one of CFA's physicians and discusses her conduct.   For example, the author states that, after an ultrasound was performed showing Amanda Steinmann's ovarian follicle development following her release from the hospital, Miller wrote that she would receive a 10,000 unit HCG shot on September 20, 2007, which the plaintiffs allege was part of the original protocol that caused her injuries.   This shows that the author knew that Miller was involved in the administration of the protocol to Amanda Steinmann.

Second, the central allegations of negligence brought against Miller are the same as those brought against Doyle and Williams:  that she failed to recognize Amanda Steinmann's ovarian hyper-stimulation and adjust the protocol.   These allegations mirror the neglect by the collective associates of Doyle at CFA that the author of the written opinion deems to be a breach of the standard of care.   That the author did not differentiate among the individual defendants suggests that he or she intended to express the same opinion as to each defendant.

Accordingly, like the opinion in Wilcox, this opinion puts Miller on notice, as an associate of Doyle's at CFA, that a similar health care provider believes that she was negligent in the treatment of her patient by failing to heed Amanda Steinmann's ovarian hyper-stimulation and to adjust the protocol accordingly.   The written opinion therefore includes a “detailed basis” for the author's opinion as to Miller, as required by § 52–190a(a).

Miller's arguments to the contrary are unavailing.   First, contrary to Miller's contention, a written opinion need not definitively establish a good faith belief that Miller committed malpractice.  Section 52–190a(a) simply requires that, “[t]o show the existence of [a good faith belief that there are grounds for an action against each named defendant], 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.”   While the written opinion or opinions must support the good faith belief that malpractice occurred, under § 52–190a(a) the court may, “[i]n addition to such written opinion ․ consider other factors with regard to the existence of good faith.”   Therefore, the written opinion is not the sole factor in determining whether a good faith belief exists.

Furthermore, the written opinion is not deficient because it fails to opine as to whether Miller's negligence caused the plaintiffs' injuries.  Dias v. Grady, supra, 292 Conn. 361, makes clear that an opinion as to causation is not required in a written opinion.

Finally, the fact that the written opinion only mentions Miller briefly in its recitation of the underlying facts is irrelevant.  Wilcox does not require a written opinion to restate facts other than the allegations of negligence.   The written opinion found sufficient in Wilcox recited two of the three allegations of negligence against Schwartz and stated that they represented a deviation from the standard of care in the treatment of Kristy Wilcox.   It did not restate any of the facts alleged with respect to the surgery;  rather it discussed his alleged failures:  to ensure that Kristy Wilcox's biliary structures were protected in the course of the surgery and to properly document the procedure.   See Wilcox v. Schwartz, supra, 119 Conn.App. 811–12.   As long as the written opinion finds that Miller deviated from the standard of care for the reasons expressed by the central allegations of negligence against her, it is sufficient.   The court finds that such written opinion does so.

B

Williams' Motion to Dismiss (# 109)

Williams essentially adopts the arguments of Miller in support of his motion to dismiss.   The plaintiffs object to the motion on the same basis that they object to Miller's motion.   The court finds that the written opinion is sufficient as to Williams.

The law applicable to Miller's motion to dismiss is equally applicable here, including Dias and Wilcox.   As stated above, Wilcox dictates that the written opinion need only sufficiently address the allegations of negligence against the defendant.   As discussed with respect to Miller's motion, the author of the written opinion gives his or her opinion that, for the reasons stated in these central allegations of negligence against Williams, Miller and Doyle, the “defendants [Doyle] and his associates at [CFA]” failed to meet the standard of care required of them.

The court finds that the author intends to include Williams in the designation “defendants [Doyle] and his associates at [CFA].” Even though Williams, unlike Miller, is not mentioned by name in the written opinion, it is evident that the author is aware of Williams' conduct when the conduct alleged in the complaint is compared to the conduct described in the written opinion.   Specifically, in count four of the complaint, the plaintiffs allege that, following Amanda Steinmann's return from the hospital, “[o]n September 19, 2007 ․ Williams ․ reviewed an ovarian ultrasound which documented the number and size of her bilateral ovarian follicles and ․ learned her estrogen level of 3328.”  (Complaint, count four, ¶ 12.)   They further allege that, on September 20, 2007, Williams continued to monitor her estrogen levels.   Finally, in count four of the complaint, the plaintiffs allege that it was Williams who, after the discovery of the ovarian hyper-stimulation, directed that Amanda Steinmann be given the originally planned 10,000 unit HCG injection.

The author of the written opinion acknowledges his or her awareness of this conduct of Williams in the written opinion, even if the author describes it passively rather than directly attributing it to him.   The author describes the ovarian ultrasound that was performed on September 19, 2007, and how it revealed Amanda Steinmann's estrogen level as 3328.   He or she then mentions the review of her estrogen levels that occurred on September 20, 2007, which showed ovarian follicle development.   The author also states that Amanda Steinmann was given the 10,000 unit HCG injection that same evening.

In addition to the above, the written opinion restates the central allegations of negligence made against Williams:  the failure to recognize Amanda Steinmann's ovarian hyper-stimulation and adjust the protocol to protect her safety.   These allegations are identical to those made against Miller and Doyle, each of whom, along with Williams, is the same type of physician working at CFA. As explained with respect to Miller's claim, the author opined that the neglect described in these central allegations of negligence constituted a breach of the standard of care, and it is evident that the author's opinion is intended to apply to each of the three individual defendants.   Thus, the author sufficiently addresses the allegations of negligence against Williams.

In other words, the written opinion puts Williams on notice, as an associate of Doyle's working at CFA, that a similar health care provider is of the opinion that he breached the standard of care by failing to recognize Amanda Steinmann's ovarian hyper-stimulation and failing to account for such condition in his administration of the ovarian stimulation protocol.   Accordingly, the written opinion provides a detailed basis for the author's opinion as to Williams as required by § 52–190a.

III

CONCLUSION

On the basis of the above analysis, the court finds that the written opinion provides a “detailed basis” for the author's opinion as to the negligence of Miller and Williams as required by § 52–190a(a).   Therefore, both motions to dismiss are denied.

It is so ordered.

BY THE COURT

Wilson, J.

FOOTNOTES

FN1. While Miller filed her own motion (# 101), Williams filed his motion (# 109) jointly with the professional corporation, CFA and Doyle, arguing that the written opinion is insufficient as to each of them.   In their memorandum of law, however, the joint movants argue that the written opinion is insufficient as to Williams, but make no argument that it is insufficient as to any other movant.   Therefore, to the extent that such motion to dismiss could be construed as asserting that the written opinion is insufficient as to anyone other than Williams, such argument is deemed abandoned.   Cf. Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008) (“Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”   [Internal quotation marks omitted.] ).   Accordingly, the court will treat this motion to dismiss (# 109) as Williams' motion to dismiss..  FN1. While Miller filed her own motion (# 101), Williams filed his motion (# 109) jointly with the professional corporation, CFA and Doyle, arguing that the written opinion is insufficient as to each of them.   In their memorandum of law, however, the joint movants argue that the written opinion is insufficient as to Williams, but make no argument that it is insufficient as to any other movant.   Therefore, to the extent that such motion to dismiss could be construed as asserting that the written opinion is insufficient as to anyone other than Williams, such argument is deemed abandoned.   Cf. Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008) (“Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”   [Internal quotation marks omitted.] ).   Accordingly, the court will treat this motion to dismiss (# 109) as Williams' motion to dismiss.

FN2. The defendants also contended in both motions that the statute of limitations had expired on the plaintiffs' claims.   At short calendar, however, they withdrew this argument, conceding that a motion to dismiss was the improper procedural vehicle to assert such an argument..  FN2. The defendants also contended in both motions that the statute of limitations had expired on the plaintiffs' claims.   At short calendar, however, they withdrew this argument, conceding that a motion to dismiss was the improper procedural vehicle to assert such an argument.

FN3. The specific allegations of negligence will be described below as needed.   There are sixteen identical allegations of negligence asserted against Miller, Williams and Doyle..  FN3. The specific allegations of negligence will be described below as needed.   There are sixteen identical allegations of negligence asserted against Miller, Williams and Doyle.

FN4. General Statutes § 52–190a(a) provides:  “No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 or party filing the action ․ 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, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion The claimant or the claimant's attorney ․ shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate ․ In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee ․.  FN4. General Statutes § 52–190a(a) provides:  “No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 or party filing the action ․ 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, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion The claimant or the claimant's attorney ․ shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate ․ In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee ․

Wilson, Robin L., J.