Richard Dice et al. v. PC (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 109)

This action comes before the court on the motion to dismiss filed by both defendants in this action.   This action involves claims for medical malpractice and the motion to dismiss is on the ground that the written opinion attached to plaintiffs' complaint fails to set forth a detailed basis of the alleged medical malpractice as required under Connecticut General Statutes § 52–190a.

PROCEDURAL BACKGROUND

The complaint filed in this case is dated April 12, 2011.   It was served on the defendants on April 14, 2011, with the return date of May 17, 2011.   On May 19, 2011, counsel entered an appearance for both defendants herein.   On the same day defense counsel appeared, they moved for an extension of time in the amount of thirty days or “up to and including July 18, 2011, within which to respond to Plaintiff's Complaint dated April 12, 2011.”   Through the date of this decision, plaintiffs have never objected to the motion for extension of time, but the motion has also never been marked ready for argument and the court has never ruled on the motion one way or the other.

On July 14, 2011, a date more than thirty days after the appearance of defendants, but within the period for which an extension had been requested, defendants filed this motion to dismiss.   After various motions for extension of time to respond to defendants' motion to dismiss, the plaintiffs filed an objection to the motion to dismiss on October 4, 2011.   Just before filing the objection, on October 3, 2011, plaintiffs had filed a request for leave to amend the complaint, the substance of which included a request to amend the opinion letter in a manner that would address the deficiency noted in the motion.   Defendants objected to the plaintiffs' request to amend and filed a reply brief on the motion to dismiss on October 12, 2011.   In none of the various papers filed through that point in time had the plaintiffs claimed that the motion to dismiss was untimely or indicated that it would be opposed on that basis.

On October 31, 2011, the motion to dismiss came on for oral argument before the court.   During oral argument, plaintiffs objected to the motion to dismiss on the basis that it had been filed more than thirty days after the appearance of defendants, citing the recent decision of Morgan v. Hartford Hospital, 301 Conn. 388 (2011).

Since October 1, 2005, when Public Act 05–275 became effective, Connecticut General Statutes § 52–190a has required that any complaint alleging personal injury or death attributable to the negligence of a healthcare provider must contain not only a certificate by the party or counsel attesting to a pre-filing investigation and good faith belief that there has been negligence, but also a written and signed opinion of a similar healthcare provider as defined in Connecticut General Statutes § 52–184c.   Moreover, the written opinion must not only find evidence of medical negligence, but also contain “a detailed basis for the formation of such opinion.”   Failure to comply with the requirements of § 52–190a exposes the complaint to the “mandatory remedy” of dismissal under § 52–190a(c).  Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 11 (2011).

Since its effective date, Public Act 05–275 has spawned a host of difficult and novel legal issues as to exactly what is required in order to comply with § 52–190a and what the consequences are for noncompliance.   One of these issues was whether defects in the opinion letter must be promptly raised by a party challenging it.   On July 12, 2011, the Connecticut Supreme Court announced its decision in Morgan.  Morgan resolved the issues as to the nature of the defect created by noncompliance and the applicability of Practice Book § 10–30.  Morgan 's holding was:

[B]ecause the written opinion letter of a similar health care provider must be attached to the complaint ․ the failure to attach a proper written opinion letter pursuant to § 52–190a constitutes insufficient service of process and, therefore, Practice Book § 10–32 and its corresponding time and waiver rule applies ․

301 Conn. at 402.

In this case, it is clear that whatever the merits of the motion to dismiss, it was filed outside the period allowed under P.B. § 10–30 and would be waived pursuant to P.B. § 10–32.   Defendants argued that they had timely filed a motion seeking an extension of time to file their initial response and filed the motion to dismiss within the period of the requested extension.

At the end of oral argument, the court requested each side to brief two questions;  (1) Can the thirty-day period allowed under Practice Book § 10–30 for filing motions to dismiss be extended by the timely filing of a motion seeking additional time? and (2) If such a motion is filed, does it extend the period to file absent a favorable ruling by the court?   On November 14, 2011, each of the parties filed supplemental briefs addressing these issues.   Perhaps not surprisingly, the parties reached opposite conclusions.   Because these issues must be resolved before the court can address the merits of the underlying motion to dismiss, the court will address them first.

Defendants maintain that the court has the power to extend the time within which a motion to dismiss for noncompliance with Connecticut General Statutes § 52–190a can be filed and that, under the facts of this case, there is no requirement that the court must rule on such a motion to extend the thirty-day period.   While plaintiff maintains that the answer to both questions is “no,” plaintiffs note there is a split of authority among the judges of the Superior Court on the first question.   Plaintiffs contend that the answer to the second question is clear and also dispositive of the issue.   The court has come to the same conclusion.

On the first issue, this court notes that there is a split of authority on whether judges of the Superior Court have the power to extend the thirty-day time limit under Practice Book § 10–30.   While certain language within Morgan appears emphatic, such language does not expressly address this issue.   Given the myriad circumstances which can arise before a trial court judge, this court is very reluctant to reach the conclusion that the Superior Court does not have the power to grant relief on purely procedural matters.   On the other hand, it follows that even if the Superior Court has the power to grant extensions in appropriate cases, there is no basis to argue that any party can assume, or presume, how that discretion will be exercised in any given case.   Whatever might be the defendants' expectations or understandings on whether an unopposed request for an extension is likely to be granted, until a ruling has been secured from the court, there can be no assumption that the extension will be allowed.

In Ecsedy v. Jack Tar Village Resorts, Inc., CV91–0287576, 1992 Conn.Super LEXIS 1386 [6 Conn. L. Rptr. 389], Justice Katz, then writing as a judge of the Superior Court, addressed this issue in a nearly identical context.   The defendant in Ecsedy had filed a motion to dismiss for lack of personal jurisdiction outside the thirty-day time period allowed under Practice Book § 143 (now P.B. § 10–30).   The court there noted that a timely motion for extension of time had been filed and that the court would have the discretion to grant such a motion.   The holding of the court, however, was clear:  “Where, however, the motion to extend was never acted upon, this court finds nothing to support the proposition that the filing alone tolls the 30–day period.”  Id. at *2;  see also Omega Engineering v. WJMK–TV, Inc., 194 Conn. Super LEXIS 3231 (December 15, 1994) (Karazin, J.) [13 Conn. L. Rptr. 208].

As it appears that the motion for extension of time was never acted upon in this case, the thirty-day time limit mandated under the Connecticut Supreme Court's decision in Morgan must control.   Accordingly, defendants' motion to dismiss pursuant to Connecticut General Statutes § 52–190 is denied.

Wenzel, J.

Wenzel, William J., J.