Jane Opper v. Shelton Dental Group et al. (2012)

MEMORANDUM OF DECISION RE (# 103] DEFENDANTS' MOTION TO DISMISS

The plaintiff, Jane Opper, commenced this action against the defendants, Shelton Dental Group, Kigon Song and Vipul Patel, by service of a complaint with a return date of July 26, 2011.   For the purposes of the motion pending before the court, Patel and Shelton Dental Group are the defendants.   The original complaint consists of a single count sounding in negligence.   Attached to the original complaint was a certificate of good faith and a written opinion letter purportedly authored by a similar healthcare provider, signed by a D.M.D. The plaintiff filed a revised complaint on August 22, 2011, separating the allegations against each defendant.   Counts one and two are directed at Song. Counts three and four are directed at Patel and sound in negligence and lack of informed consent.   Counts five and six arc directed at Shelton Dental Group and also allege negligence and lack of informed consent.   Count seven alleges violations of CUTPA.

Before the court is a motion to dismiss filed by the defendants on August 25, 2011, on the ground that the plaintiff has failed to comply with the requirements of General Statutes § 52–190a. (# 103.)  On September 16, 2011, without seeking the court's leave to amend, the plaintiff filed a second “revised” complaint, to which she appended a version of the opinion letter that included undated annotated comments in the margins and a copy of the author's curriculum vitae. (# 106.)  The plaintiff also flied a memorandum in opposition to the motion to dismiss on that date. (# 107.)  The defendants did not file a timely objection to the filing of the September 16, 2011, complaint.   The defendants filed a reply memorandum on September 30, 2011. (# 111.)

The court heard oral argument at the short calendar on October 3, 2011.   The plaintiff filed a response to the defendant's reply on October 4, 2011. (# 112.)  On October 5, 2011, the defendants filed a post-argument supplemental memorandum in support of their motion and, on that date, the plaintiffs filed a post-argument supplemental memorandum in response, (# 113 & # 115.)   Most of this post argument briefing was directed at the question of which complaint is operative, with the plaintiff arguing in favor of the September 15, 2011, complaint, and the defendants arguing in favor of the original complaint.   The plaintiff filed an additional pleading on February 16, 2012, drawing the court's attention to the Supreme Court's recent decision in Wilcox v. Schwartz, 303 Conn. 630, (2012).

The first question the court must address is what complaint is operative for the purpose of the motion pending.   The plaintiff filed a revised complaint dated August 22, 2011, in response to a request to revise filed by Song. This revised complaint was filed within the time period allowed to revise a complaint as of right.  Practice Book § 10–59.   The defendants filed their motion to dismiss after this revised complaint was filed.   Although the defendants purport to direct their motion to dismiss at the original single-count complaint, the court concludes that the operative complaint is the revised complaint dated August 22, 2011.   Accordingly, the court must consider whether dismissal of counts three and five, alleging medical negligence against these defendants, is required in light of the claimed deficiencies in the opinion letter.¹

The defendants raise two grounds for the insufficiency of the letter.   First, they claim that, because the written opinion letter appended to her original complaint does not adequately identify the experience or qualifications of its author, it is impossible to determine whether the author was a similar healthcare provider.   Second, they claim that, as written, the letter does not identify which of the named defendants was negligent, so it does not support a claim of dental negligence against each defendant.   In response to the first claim, the plaintiff relies primarily on Superior Court authority, arguing that courts have considered, inter alia, supplemental affidavits by the opinion author to cure the defect of an inadequate description of the author's credentials.   She argues that the curriculum vitae appended to the annotated opinion letter accompanying the September 16, 2011, complaint should be so considered.   This court already has concluded that the first revised complaint dated August 22, 2011 is the operative complaint and, accordingly, will not consider either the new opinion letter or its attachments.   Cf. Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 586 (2009) ( “plaintiff could not turn back the clock and attach by amendment an opinion of a similar health care provider that did not exist at the commencement of the action”), cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

At the plaintiff's request, the court has reviewed the decision in Wilcox v. Schwartz, supra, 303 Conn. 630, in which our Supreme Court considered whether a letter by a similar healthcare provider satisfied the “detailed basis” requirement of § 52–190a.   While that case may have been instructive had the court reached the second claimed deficiency in the opinion letter, the dispositive question before the court is whether the letters “D.M.D.,” without more, adequately set forth the qualifications of the author of the opinion letter.

“[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52–190a(a).  Bennet v. New Milford Hospital, 300 Conn. 1, 28, 12 A.3d 865 (2011).   The defendants' timely motion to dismiss challenges “whether, as a matter of law, the service of process initiated by the plaintiff was inadequate because the plaintiff failed to attach to the good faith certificate a sufficient written opinion letter of a similar health care provider.”  (Emphasis in original.)  Bell v. Hospital of St. Raphael, 133 Conn.App. 548, 559, (2012).

In their initial brief, the defendants relied, in part, on the Superior Court's decision in Lucisano v. Bisson, Superior Court, judicial district of New Haven, Docket No. 08 5016286 (March 29, 2010, Keegan, J.) (49 Conn. Law Rptr. 533), for the proposition the opinion writer's credentials must be included in the letter because, without this information the court is unable to determine, from the face of the letter, whether the opinion was authored by a similar healthcare provider.   The Appellate Court recently affirmed this ruling, holding:  “The only plausible application of the plain language of §§ 52–190a and 52–184c requires disclosure of qualifications in the opinion letter.”  Lucisano v. Bisson, 132 Conn.App. 459, 466, (2011).

In Lucisano, the opinion letter did not indicate in any manner, the credentials or qualifications of the author.   In Bell v. Hospital of St. Raphael, supra, 133 Conn.App. 560, our Appellate Court considered whether the initials “RN, BSN, ICP” were sufficient to comply with the requirement that the opinion letter, on its face, disclose that it was authored by a similar healthcare provider.  Id., 552.   The court concluded it was not, reasoning:  “[T]he only thing that may be gleaned from the opinion letter is that the author is a registered nurse with a bachelor of science degree in nursing ․ [Section] 52–184c(b) requires that a similar health care provider be ‘licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications,’ that such provider have training and experience in the ‘same discipline or school of practice’ and that such training and experience must ‘be as a result of the active involvement in the practice or teaching of medicine within the five year period before the incident giving rise to the claim.’  “ Id., 560.   The letter “did not address, let alone demonstrate, all of these specific qualifications.”  Id.

The court is bound by these recent Appellate decisions and is constrained to conclude that the letters “D.M.D.,” without more, do not adequately set forth the author's qualifications.²  Accordingly, the letter is insufficient and counts three and five of the operative complaint must be dismissed.   Counts four and six, which allege a lack of informed consent, are unaffected by this ruling.   See Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011);  Lucisano v. Bisson, supra, 132 Conn.App. 469–72.

For the foregoing reasons, the motion to dismiss the counts alleging medical negligence against Patel and Shelton Dental Group, counts three and five of the operative complaint, is granted.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

FOOTNOTES

FN1. In the operative complaint, the plaintiff added allegations concerning the qualifications of the author of the written opinion letter.   These unproven allegations do not change the content of the letter itself..  FN1. In the operative complaint, the plaintiff added allegations concerning the qualifications of the author of the written opinion letter.   These unproven allegations do not change the content of the letter itself.

FN2. The court notes that Judge Bishop's concurrence in Bell v. Hospital of St. Raphael is well taken.  “Nowhere in this statutory language do I find a requirement that the letter from a similar health care provider contain an elucidation of the writer's qualifications ․ I believe that such an interpretation of § 52–190a goes beyond the prescriptions of the statute, imposing an extra hurdle limiting a plaintiff's access to court not warranted either by application of the statute's plain meaning or by the judiciary's promise to openly hear and fairly resolve grievances brought to it for resolution.”  Bell v. Hospital of St. Raphael, supra, 133 Conn.App. 564 (Bishop, J., concurring)..  FN2. The court notes that Judge Bishop's concurrence in Bell v. Hospital of St. Raphael is well taken.  “Nowhere in this statutory language do I find a requirement that the letter from a similar health care provider contain an elucidation of the writer's qualifications ․ I believe that such an interpretation of § 52–190a goes beyond the prescriptions of the statute, imposing an extra hurdle limiting a plaintiff's access to court not warranted either by application of the statute's plain meaning or by the judiciary's promise to openly hear and fairly resolve grievances brought to it for resolution.”  Bell v. Hospital of St. Raphael, supra, 133 Conn.App. 564 (Bishop, J., concurring).

Doherty, Joseph W., J.