Carlos Gomez v. Jack L. Gish & Associates, Inc. (2012)

MEMORANDUM OF DECISION Motion to Dismiss # 109

This action comes before the court on the defendant's Motion to Dismiss (# 109).   Defendant moves on the grounds that (1) the plaintiff failed to comply with the requirements of General Statutes §§ 52–278j(b) and 52–278d(b) and therefore the court lacks subject matter jurisdiction;  and (2) the plaintiff failed to include in his original complaint the qualifications of the author of the similar health care provider opinion letter in contravention of General Statutes § 52–190a.

FACTS

On January 8, 2010, the plaintiff, Carlos Gomez, filed an application for a prejudgment remedy against the defendant, Dr. Jack L. Gish & Associates, Inc. The defendant is a Connecticut corporation with a principal place of business in Danbury, Connecticut which through its agents treated the plaintiff by performing dental services.   Additionally, on January 8, 2010, the plaintiff filed a proposed writ, summons, and complaint as well as a motion for disclosure of assets.   The plaintiff's proposed three-count complaint sounded in (1) breach of contract;  (2) Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.  (“CUTPA”) violations;  and (3) medical malpractice.   The case e-file records show that on January 8, 2010 the plaintiff paid $475 which included the $175 prejudgment remedy application court fee and the $300 civil cause court fee.

On January 13, 2010, an Assistant Clerk for the Judicial District of Danbury scheduled a prejudgment remedy hearing for February 22, 2010.   On February 22, 2010, the prejudgment remedy hearing was rescheduled for March 8, 2010.   On March 8, 2010, the court, Marano, J., held a hearing on the plaintiff's prejudgment remedy application wherein the parties reached a settlement agreement that was placed on the record in open court.   On March 11, 2010, the plaintiff withdrew his prejudgment remedy application.

On June 22, 2011, the court, Reynolds, J., directed that notice be sent under docket number DBD CV 105008740 that the matter had no activity for at least a year and would be dismissed pursuant to Practice Book § 14–3 ¹ if one of the following was not done by July 25, 2011:  e-file a withdrawal of action, e-file a new motion for order of hearing and notice, or e-file an updated affidavit of bankruptcy if applicable.   The notice was sent on June 23, 2011.   On July 25, 2011, the plaintiff filed a motion for immediate hearing regarding his prejudgment remedy.   On August 4, 2011, the defendant filed an objection to the plaintiff's motion which was sustained by the court, Maronich, J., on August 8, 2011.

On August 9, 2011, the plaintiff brought suit against the defendant via summons and complaint which had a return date of September 27, 2011.   In his complaint, the plaintiff alleged the following claims sounding in:  (1) breach of contract;  (2) CUTPA violations;  and (3) medical malpractice.   Attached to the complaint was a certificate of good faith inquiry, signed by the plaintiff's attorney, and a three-page opinion letter that concluded the defendant made multiple errors in the execution of the plaintiff's dental care.   No credentials or qualifications regarding the author were included in the opinion letter.   On October 27, 2011, the plaintiff filed a one-count amended complaint sounding in medical malpractice.

On November 22, 2011, the defendant filed a motion to dismiss the plaintiff's complaint on the grounds that the plaintiff's failure to comply with the requirements of General Statutes §§ 52–278j(b) ² and 52–278d(b) ³ deprived the court of subject matter jurisdiction and the plaintiff “failed to include the qualifications of the author of the ․ similar health care provider expert opinion attached to the [c]omplaint as required by General Statutes [§ ]52–190a.”   The motion was accompanied by a memorandum of law.   On December 6, 2011, the defendant filed a supplemental memorandum of law in support of its motion to dismiss.   On January 3, 2012, the plaintiff filed an objection to the defendant's motion.   Attached to the objection was a resume that lacked a name or address and appeared to recite the education and experience of a doctor of dental surgery.   The defendant filed its reply on January 12, 2012.   Subsequently, this matter was heard at short calendar on January 17, 2012.

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).  “The grounds which may be asserted in [a motion to dismiss include] lack of jurisdiction over the subject matter ․” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).  “In ruling [on] whether a complaint survives a motion to dismiss, 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.”  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).  “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”  (Citation omitted, internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).

The defendant argues that the court lacks subject matter jurisdiction because the plaintiff failed to comply with the requirements of §§ 52–278j(b) and 52–278d(b).  Specifically, the defendant argues that the plaintiff failed to serve, file and return the writ, summons and complaint within thirty days of withdrawing his prejudgment remedy application in contravention of §§ 52–278j(b) and 52–278d(b).  Additionally, the defendant contends that there is no action before the court because the plaintiff failed to pay an entry fee when he filed his original complaint more than a year after withdrawing his prejudgment remedy application.   The defendant further argues that the action must be dismissed pursuant to § 52–190a because the plaintiff failed to include the qualifications of the author of the similar health care provider opinion letter in his original complaint.

In response, the plaintiff argues that he “included the qualifications of our certificate of malpractice, whiting out the name and address of our expert ․ [and] e-filed the docketing fee, and would request an extension of time to reserve the defendant, if the court so desires.”

The defendant argues in reply that the plaintiff's statement in his objection that he has or will correct the grounds upon which the defendant moved to dismiss is recognition that the defendant's motion was proper.   The defendant asserts that our Supreme Court case law makes clear that once jurisdiction has been raised in a motion to dismiss, a party may not amend defects to defeat the motion.   The defendant further argues that the plaintiff never commenced an action and reiterates that the plaintiff neither served and returned the complaint within thirty days of withdrawing his prejudgment remedy application or paid the filing fee when he filed his complaint within the prejudgment remedy application docket.   The defendant asserts that the record shows that its dispute with the plaintiff was resolved by settlement in open court and that the plaintiff's further pursuit of these claims is vexatious.   Lastly, the defendant argues that the resume attached to the plaintiff's objection fails to cure the defect in the original opinion letter because the letter must be in compliance with § 52–190a at the time suit was commenced.

As our Supreme Court has explained, “[s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it ․ A court does not ․ lack subject matter jurisdiction if it has competence to entertain the action before it ․ Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action ․ [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Citations omitted;  internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 442–43, 797 A.2d 1081 (2002).

Furthermore, “[t]he Superior Court ․ is a court of general jurisdiction.”   In re Joshua S., 260 Conn. 182, 215, 796 A.2d 1141 (2002).   Consequently, it is axiomatic that the court has subject matter jurisdiction over complaints sounding in contract, CUTPA violations, and medical malpractice.   See e.g., Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 27, 12 A.3d 865 (2011) (traditionally the Superior Court has had subject matter jurisdiction over common-law medical malpractice actions and nothing in the language or legislative history of § 52–190a indicates that the good faith certificate was intended to be a barrier to the court's subject matter jurisdiction);  Picozzi v. Narragansett Bay Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 03 0484621 (May 13, 2005, Lopez, J.) (the court may hear claims sounding in breach of contract);  Golden v. Hamer, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 08 5008396 (August 25, 2009, Pavia, J.) (any person may bring a CUTPA action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business).

The defendant first argues that the court lacks subject matter jurisdiction because the plaintiff failed to comply with §§ 52–278j(b) and 52–278d(b).  It is well settled that “[w]hen construing a statute, [the] ․ fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the statutory language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 443, 994 A.2d 1270 (2010).

In the present case, the defendant's argument that the court lacks subject matter jurisdiction because the plaintiff failed to comply with §§ 52–278j(b) and 52–278d(b) disregards that the statutes unambiguously do not apply here.  Section 52–278j(b) mandates that the court shall order the prejudgment remedy application to be considered withdrawn if the prejudgment remedy is denied or if a date for a hearing upon a prejudgment is scheduled by the clerk and such hearing is not commenced within thirty days.   As the first scheduled hearing date was February 22, 2010 and the court held the hearing on March 8, 2010, without denying the plaintiff's prejudgment remedy application, § 52–278j(b) does not apply to revoke this court's subject matter jurisdiction.

The defendant likewise finds no refuge under § 52–278d(b).  Section 52–278d(b) applies when the court granted the prejudgment remedy or “[i]f the court does not grant the application for any reason, including the failure of the plaintiff to serve the defendant, only a summons and complaint may be issued and served.   In either event, the plaintiff may alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be.   No additional entry fee shall be collected upon the return of such action to court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52–278j.”  General Statutes 52–278d(b).  In the present case, because the court did not grant the prejudgment remedy nor did the plaintiff file more than a summons and complaint after withdrawing his prejudgment remedy application, those portions of § 52–278d(b) are inapplicable here.   Furthermore, because the court previously explained why § 52–278j(b) does not apply, the language in § 52–278d(b) regarding additional fees if the prejudgment remedy or application for such remedy was dismissed or withdrawn pursuant to the provisions of § 52–278j(b) is irrelevant as well.   Additionally, because the case e-file records show that the plaintiff paid $475 on January 8, 2010, and that amount included both the $175 prejudgment remedy application fee and the $300 civil cause fee, the defendant's argument that there is no action before the court because the plaintiff failed to pay an entry fee for his complaint must fail.   Lastly, because the Superior Court is a court of general jurisdiction and the plaintiff's original complaint sounded in breach of contract, CUTPA violations, and medical malpractice, while his amended complaint sounded in medical malpractice, the court had subject matter jurisdiction over the original complaint and retained subject matter jurisdiction over the amended complaint.

The defendant next argues that the action must be dismissed because the plaintiff's original complaint failed to include the qualifications of the author of the similar health care provider opinion letter in contravention of § 52–190a.   Again, when interpreting a statute, the court's “fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the statutory language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)  Hasychak v. Zoning Board of Appeals, supra, 296 Conn. 443.

Section 52–190a(a) provides in relevant part that in a civil action “in which it is alleged that ․ injury ․ resulted from the negligence of a health care provider ․ the attorney or party filing the action ․ [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 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 [General Statutes] 52–184c,⁴ 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 ․” Lucisano v. Bisson, 132 Conn.App. 459, 464–65 (2011).   Although “[§ ]52–190a does not define ‘similar health care provider,’ the text explicitly refers to the definition in § 52–184c ․ [The court] must, therefore, read § 52–190a together with § 52–184c, which defines ‘similar health care provider.’  “ Id., at 465.   See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 15 (“[g]iven the explicit cross-reference in the relevant statutes, [the court] must read § 52–190a[a] in conjunction with § 52–184c, which clearly is a related statute”).  “Read in conjunction with one another, §§ 52–190a and 52–184c provide a plain and unambiguous definition of ‘similar health care provider’ ․ 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, supra, 132 Conn.App. 465–66.

Our Supreme Court has recognized that the “written opinion letter, prepared in accordance with the dictates of § 52–190a ․ is akin to a pleading that must be attached to the complaint in order to commence properly the action.”   Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.3d 451 (2011).   Therefore, the “failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and ․ service of that insufficient process does not subject the defendant to the jurisdiction of the court ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter ․ Accordingly ․ because the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52–190a constitutes insufficient service of process and, therefore, Practice Book § 10–32 ⁵ and its corresponding times and waiver rule applies by its very terms.”  (Citation omitted;  internal quotation marks omitted.)  Id., at 401–02.   Furthermore, as our Supreme Court recently explained, “[t]he ultimate purpose of [the] requirement [of a written opinion] is to [discourage frivolous lawsuits by] demonstrat[ing] the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes [§ ]52–184c, state in written form that there appears to be evidence of a breach of the applicable standard of care.”  Wilcox v. Schwartz, 303 Conn. 630, *3 (2012).

There are two definitions of similar health care providers for purposes of § 52–190a.   Barnett v. New England Dental, P.C., Superior Court, judicial district of Hartford, Docket No. CV 09 5029512 (March 3, 2010, Peck, J.).   For claims against a health care provider who is not a board certified specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a similar health care provider is one who “(1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications;  and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be 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.”   General Statutes § 52–184c(b);  see also Barnett v. New England Dental, P.C., supra, Superior Court, Docket No. CV 09 5029512.   On the other hand, for claims against a health care provider who is a board certified specialist, is trained and experienced in a medical speciality, or holds himself out as a specialist, a similar health care provider is one who “(1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same-specialty ․” General Statutes § 52–184c(b);  see also Barnett v. New England Dental, P.C., supra, Superior Court, Docket No. CV 09 5029512.

In the present case, the plaintiff does not allege that the defendant's agents are board certified specialists, trained and experienced in a medical speciality, or hold themselves out as specialists.   Rather, the plaintiff's original and amended complaints merely state that the defendant is a Connecticut corporation and its agents performed dental services on the plaintiff.   Accordingly, § 52–184c(b) is the provision that applies in this case.   See Barnett v. New England Dental, P.C., supra, Superior Court, Docket No. CV 09 5029512 (§ 52–184c(b) is the proper statute to apply for claims against providers who are not board certified specialists, are not specialists, or do not hold themselves out as specialists).   However, the opinion letter attached to the plaintiff's original complaint is devoid of any reference to the qualifications of the author.   Indeed, there is no mention of the author's area of practice, level of experience or degree of education.   As a result, there is no way to know, or even infer, from the text of the letter whether it was authored by a similar health care provider and thus unlikely to be a frivolous action.   Consequently, because the plaintiff's opinion letter provides insufficient information, it fails to satisfy the statutory definition of a similar health care provider pursuant to § 52–184c and thereby fails to meet the requirements of § 52–190a.⁶

As the opinion letter attached to the plaintiff's complaint failed to satisfy the requirements of § 52–190a the court grants the motion to dismiss.

William J. Wenzel, Judge

FOOTNOTES

FN1. Practice Book § 14–3 provides in relevant part:  “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may ․ on its own motion, render a judgment dismissing the action with costs.”.  FN1. Practice Book § 14–3 provides in relevant part:  “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may ․ on its own motion, render a judgment dismissing the action with costs.”

FN2. Section 52–278j(b) provides:  “If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in section 52–278e, the court shall order the application to be considered as having been withdrawn.”.  FN2. Section 52–278j(b) provides:  “If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in section 52–278e, the court shall order the application to be considered as having been withdrawn.”

FN3. Section 52–278d(b) provides:  “The clerk, upon the granting of the application for prejudgment remedy, shall deliver to the applicant's attorney the proposed writ, summons and complaint for service of process.   If the court does not grant the application for any reason, including the failure of the plaintiff to serve the defendant, only a summons and complaint may be issued and served.   In either event, the plaintiff may alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be.   No additional entry fee shall be collected upon the return of such action to court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52–278j.”.  FN3. Section 52–278d(b) provides:  “The clerk, upon the granting of the application for prejudgment remedy, shall deliver to the applicant's attorney the proposed writ, summons and complaint for service of process.   If the court does not grant the application for any reason, including the failure of the plaintiff to serve the defendant, only a summons and complaint may be issued and served.   In either event, the plaintiff may alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be.   No additional entry fee shall be collected upon the return of such action to court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52–278j.”

FN4. Section 52–184c provides in relevant part:  “(a) In any civil action to recover damages ․ in which it is alleged that such injury ․ resulted from the negligence of a health care provider, as defined in section 52–184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.   The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.“(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who:  (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications;  and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall 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.“(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “.  FN4. Section 52–184c provides in relevant part:  “(a) In any civil action to recover damages ․ in which it is alleged that such injury ․ resulted from the negligence of a health care provider, as defined in section 52–184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.   The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.“(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who:  (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications;  and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall 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.“(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “

FN5. Practice Book § 10–32 provides:  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.”.  FN5. Practice Book § 10–32 provides:  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.”

FN6. It should be noted that at no time during the presentation of this motion has either party raised the issue of the timeliness of this motion to dismiss.   While the court is mindful of the holding in Morgan v. Hartford Hospital, 301 Conn. 388, 404–05 (2011), the court does not read it to require the court to raise such an objection, sua sponte.   Given the unusual sequence of events here, where strict application of P.B. §§ 10–30 and 10–32 would deprive the defendant of any opportunity to enforce compliance with § 52–190a, see, e.g. Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 31 A.3d 810 (2011), the court sees no reason to address an issue not raised by the parties..  FN6. It should be noted that at no time during the presentation of this motion has either party raised the issue of the timeliness of this motion to dismiss.   While the court is mindful of the holding in Morgan v. Hartford Hospital, 301 Conn. 388, 404–05 (2011), the court does not read it to require the court to raise such an objection, sua sponte.   Given the unusual sequence of events here, where strict application of P.B. §§ 10–30 and 10–32 would deprive the defendant of any opportunity to enforce compliance with § 52–190a, see, e.g. Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 31 A.3d 810 (2011), the court sees no reason to address an issue not raised by the parties.

Wenzel, William J., J.