Michael Ruff v. LLC (2012)

MEMORANDUM OF DECISION—MOTION TO DISMISS

On August 22, 2012, the plaintiff, Michael Ruff, filed a four-count complaint against the defendants, Oral Surgery Associates, LLC, and Abed Alkhatib.¹  In this original complaint, the plaintiff alleges the following facts:

On or about January 21, 2010, the plaintiff contracted with Alkhatib, the attending dentist of Oral Surgery Associates, LLC, for the surgical extraction of tooth number sixteen.   On that same date, Alkhatib carelessly and negligently extracted tooth number fifteen instead of tooth number sixteen.   Upon learning of the error, Alkhatib negligently and carelessly wired tooth number fifteen into its socket in the plaintiff's mouth, cutting into the plaintiff's gums and cheek tissue.   Due to the care he received from the defendants, the plaintiff suffered “permanent loss of natural tooth;  errantly extracted (tooth # 15),” physical and mental pain and anguish, dental expenses, loss of work, as well as “future physical pain, mental anguish, lost time from work and dental expense to treat and repair his damaged tooth # 15.”   The counts of the complaint are not labeled, but count one alleges that Oral Surgery Associates, LLC, was negligent through its agents in treating the plaintiff, count two alleges that Alkhatib was negligent in treating the plaintiff, count three alleges breach of warranty and count four alleges negligence under a theory of res ipsa loquitur.²  The plaintiff claims damages, past and future medical expenses, interest and costs, lost wages and other relief as the court deems appropriate.   The plaintiff attaches a good faith certificate and a letter by an unidentified dental provider to his complaint.

Counsel for the defendants filed an appearance on August 23, 2011.   On September 20, 2011, the defendants filed a motion to dismiss and supporting memorandum on the grounds that the opinion letter appended to the complaint does not identify the board certification, experience, training or qualifications of the author, “thus rendering it impossible to determine if the opinion letter is authored by a similar healthcare provider as the defendants, a board-certified oral and maxillofacial surgeon and his practice group,” and the letter thus does not satisfy General Statutes § 52–190a.³  The motion to dismiss also states the grounds that the opinion letter does not identify any deviation from the standard of care by the defendants and offers no opinion that there was negligence in treatment of the plaintiff.

On October 5, 2011, the plaintiff filed an objection to the motion to dismiss and a supporting memorandum.   Also on October 5, 2011, while the motion to dismiss was pending, the plaintiff filed an amended complaint, adding a fifth count alleging that the defendants had not obtained the plaintiff's informed consent.   On October 20, 2011, the defendants filed a reply to the plaintiff's objection to the motion to dismiss, and also filed an objection to the plaintiff's amended complaint on the grounds that the plaintiff cannot amend the complaint while a motion to dismiss addressed to the complaint is pending.   On October 27, 2011, this court (Levin, J.) sustained the defendants' objection to the plaintiff's amended complaint.⁴  On November 7, 2011, the plaintiff filed a supplemental memorandum in opposition to the motion to dismiss.   On November 8, 2011, this court (Radcliffe, J.) denied the defendants' motion to dismiss without prejudice.

On November 17, 2011, the plaintiff filed a motion for permission to file an amended complaint “to add a fifth count of lack of informed consent,” and attached a copy of the amended complaint thereto.   On November 23, 2011, the defendants filed a motion for reconsideration and to reargue their motion to dismiss.   On December 2, 2011, the plaintiff filed a memorandum in opposition to the motion for reconsideration and reargument, which this court (Radcliffe, J.) sustained on December 5, 2011.   On December 5, 2011, this court (Radcliffe, J.) also denied the plaintiff's motion for permission to file an amended complaint.

On December 12, 2011, the defendants filed a second motion to dismiss on the grounds that “the plaintiff has failed to comply with the requirements of ․ § 52–190a, as clarified in the Appellate Court's decision in Lucisano v. Bisson, [132 Conn.App. 459, 34 A.3d 983 (2011) ], officially released on December 13, 2011.   More specifically, the opinion letter that the plaintiff appended to his complaint does not identify the board certification, experience, training, qualifications and/or other credentials of the author, thus rendering it impossible to determine if the opinion letter is authored by a similar healthcare provider as the defendants, a board-certified oral and maxillofacial surgeon and his practice group.”   The defendants argue that at the time the first motion to dismiss was denied by the court “there was no direct appellate authority (and a split of authority in the Superior Court) as to whether a § 52–190a opinion letter must include in it the credentials and qualifications of the author,” and that the Appellate Court has settled this split of authority in Lucisano.   The defendants state:  “Therefore, the defendants now renew their initial motion to dismiss on the grounds that new Appellate authority released on December 13, 2011 provides controlling precedent for the argument that the defendants presented in their initial motion to dismiss, that failure to provide the credentials and qualifications of the author in a § 52–190a opinion letter renders the letter insufficient and the case subject to dismissal.”

On December 28, 2011, the plaintiff filed a memorandum in opposition to the defendants' second motion to dismiss, in which he argues that the defendants' second motion to dismiss is inappropriate because it was filed beyond the time limit prescribed by Practice Book § 10–30.   The plaintiff states that “Morgan v. Hartford Hospital, 301 Conn. 388, 403–04, 21 A.3d 451 (2011), concluded that to provide early resolution of a matter, defendants in § 52–190a actions must comply with requirement of Practice Book §§ 10–32 and 10–30 to file motion to dismiss within thirty days of appearance.”   He also argues that in Lucisano, the plaintiff's claims “are of medical negligence regarding two dental professionals.   In the case at hand, the facts pertain to simple negligence of pulling the wrong tooth.   The nature of the plaintiff's claim itself, pulling the wrong tooth, amounts to simple negligence to which an expert is not necessary, falling under the expert exception.   Expert opinion may be excused in those cases where the professional negligence is so gross as to be clear even to a lay person.”   On January 19, 2012, the defendants filed a reply to the plaintiff's memorandum in opposition to the second motion to dismiss, arguing that “Morgan does not preclude the renewal of a Motion to Dismiss where the initial thirty-day time period was met, as is the case here,” and that “[t]he plaintiff has asserted claims of professional negligence against a healthcare professional, and, accordingly, compliance with the requirements of ․ § 52–190a, as interpreted by our Courts, is required.”

Practice Book § 10–30 provides, in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance ․” Practice Book § 10–31(a) provides, in relevant part:  “The motion to dismiss shall be used to assert (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 ․” 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 ⁵ and 10–7 ⁶ and within the time provided by Section 10–30.”

“It is fundamental that jurisdiction over a person can be obtained by waiver.  United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985) ( [u]nlike subject matter jurisdiction personal jurisdiction may be created through consent or waiver).”  (Internal quotation marks omitted.)   Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002).  “Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.”  (Internal quotation marks omitted.)  Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 416, 885 A.2d 768 (2005).  Practice Book § 10–30 “specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10–6 ․ Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court.   Any claim of insufficiency of process is waived if not sooner raised.”  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

In Morgan v. Hartford Hospital, supra, 301 Conn. 402, our Supreme Court held:  “we conclude that, 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 and its corresponding time and waiver rule applies by its very terms.   Because we conclude that the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction.”   The court held that the thirty-day time limit for filing a motion to dismiss under Practice Book § 10–30 and the waiver provision of § 10–32 apply to motions to dismiss pursuant to § 52–190a.  Id., at 404.

In Williamson v. Cottage Grove Cardiology, P.C., Superior Court, judicial district of Hartford, Docket No. CV 09 5033754 (December 8, 2011, Peck, J.), counsel for two defendants filed an appearance on December 2, 2009.   On January 4, 2010, “the defendants filed a motion to dismiss pursuant to ․ § 52–190a and Bennett v. New Milford Hospital, Inc., [117 Conn.App. 535, 979 A.2d 1066] (2009), on the ground that the plaintiff failed to attach to her complaint an opinion letter by a similar health care provider.”  Williamson v. Cottage Grove Cardiology, P.C., supra, Superior Court, Docket No. CV 09 5033754.   The motion to dismiss was denied on May 3, 2010.  Id. On April 21, 2011, one of the defendants filed a second motion to dismiss on the ground that “the plaintiff's Complaint is not authored by a similar health care provider,” and based upon “the recent Supreme Court decision in Bennett v. New Milford Hospital, Inc., [300 Conn. 1, 12 A.3d 865] (2011) ․” Williamson v. Cottage Grove Cardiology, P.C., supra, Superior Court, Docket No. CV 09 5033754.   The court denied the second motion to dismiss.  Id. In its decision, the court made a final observation that “the Supreme Court decision in Bennett did not occasion a change in the law as suggested in [the defendant's] second motion to dismiss.”  Id. The court's initial reason for denying the motion, however, was that “[t]he defendant's second motion to dismiss is essentially nothing more than an untimely motion to reargue by a different name.  Practice Book § 11–12 provides, in relevant part:  ‘A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies.’  [The defendant's] second motion to dismiss was filed more than a year after the defendant's first motion to dismiss was denied by Judge Rittenband.   Therefore, it was untimely.”  Id.

The court stated further:  “Secondly, the Supreme Court has most recently held that a motion to dismiss filed pursuant to General Statutes § 52–190a(c) constitutes insufficient service of process and, therefore, implicates the personal jurisdiction of the court.  Morgan v. Hartford Hospital, [supra, 301 Conn. 395–96, 402].   Standing alone, this decision is dispositive of [the defendant's] second motion to dismiss.   Consequently, the thirty-day time limit of Practice Book § 10–30 and the waiver provisions of Practice Book § 10–32 apply to these motions to dismiss.  Morgan v. Hartford Hospital, [supra,] 301 Conn. 404.   See also Maccarone v. Golioto, Superior Court, judicial district of Hartford, Docket No. CV 11 6019721 (September 16, 2011, Peck, J.) [ 52 Conn. L. Rptr. 628].”  (Internal quotation marks omitted.)   Williamson v. Cottage Grove Cardiology, P.C., supra, Superior Court, Docket No. CV 09 5033754.   See also Dice v. Danbury Orthopedics Associates, PC, Superior Court, judicial district of Danbury, Docket No. CV 11 6006356 (February 14, 2012, Wenzel, J.) [53 Conn. L. Rptr. 494] (denying untimely filed motion to dismiss pursuant to § 52–190, stating that “the thirty-day time limit mandated under the Connecticut Supreme Court's decision in Morgan must control” where motion for extension of time never acted on by court).

In the present matter, counsel for the defendants filed an appearance on August 23, 2011.   The defendants filed a first motion to dismiss on September 20, 2011, which was denied on November 8, 2011.   The defendants filed a motion for reconsideration and to reargue their motion to dismiss on November 23, 2011, to which the court sustained the plaintiff's opposition on December 5, 2011.   The defendants filed their second motion to dismiss on December 12, 2011, more than three months after entering an appearance.   The second motion to dismiss, based upon a ground stated in the first motion to dismiss, is “essentially nothing more than an untimely motion to reargue by a different name”;  Williamson v. Cottage Grove Cardiology, P.C., supra, Superior Court, Docket No. CV 09 5033754;  and was filed after a motion to reargue had already been considered by the court.   Furthermore, the second motion to dismiss was filed well beyond the thirty-day time limit of Practice Book § 10–30 and the defendants had not moved for an extension of time.

Accordingly, this court need not address:  (1) whether the plaintiff has pleaded a claim of medical negligence that would trigger the application of § 52–190a and the requirement of a written opinion letter from a similar health care provider,⁷ (2) whether the alleged negligence is so gross as to be clear even to a layperson, such that an opinion letter would not be required,⁸ or (3) the sufficiency of the opinion letter appended to the original complaint.

Based on the foregoing, the defendant's second motion to dismiss is denied.

GILARDI, J.T.R.

FOOTNOTES

FN1. The defendants' pleadings refer to this latter defendant alternatively as Aheb Alkhatib and Adeb Alkhatib..  FN1. The defendants' pleadings refer to this latter defendant alternatively as Aheb Alkhatib and Adeb Alkhatib.

FN2. Counts three and four are directed at “the defendant” without specifying whether that defendant is Alkhatib or Oral Surgery Associates, LLC..  FN2. Counts three and four are directed at “the defendant” without specifying whether that defendant is Alkhatib or Oral Surgery Associates, LLC.

FN3. Section 52–190a states, in relevant part:  “(a) No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   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 ․” (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”.  FN3. Section 52–190a states, in relevant part:  “(a) No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   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 ․” (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

FN4. On October 28, 2011, the plaintiff filed a reply to the defendants' objection to the plaintiff's amended complaint, the day after the court had sustained the defendants' objection, arguing that he had filed the amended complaint within thirty days of the return day..  FN4. On October 28, 2011, the plaintiff filed a reply to the defendants' objection to the plaintiff's amended complaint, the day after the court had sustained the defendants' objection, arguing that he had filed the amended complaint within thirty days of the return day.

FN5. Practice Book § 10–6 provides, in relevant part:  “The order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint ․”.  FN5. Practice Book § 10–6 provides, in relevant part:  “The order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint ․”

FN6. Practice Book § 10–7 provides:  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”.  FN6. Practice Book § 10–7 provides:  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”

FN7. “[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”  (Internal quotation marks omitted.)  Selimoglu v. Phimvongsa, 119 Conn.App. 645, 652, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010)..  FN7. “[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”  (Internal quotation marks omitted.)  Selimoglu v. Phimvongsa, 119 Conn.App. 645, 652, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).

FN8. “[T]he requirements for § 52–190a will not apply when (1) the courts have decided for other reasons that expert medical testimony is not required for the standard of care, as in cases like informed consent;  and (2) in cases of gross negligence where the standard of care would be obvious to a layperson.   If either of those two circumstances apply, it is irrelevant whether the claim would be considered medical malpractice under the three-part test.”   Chalk v. Yale Primary Care, Superior Court, judicial district of New Haven, Docket No. CV 11 5033688 (June 21, 2011, Burke, J.).   See also O'Dell v. Greenwich Health Care Services, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 11 6008364 (September 6, 2011, Jennings, J.T.R.);   Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011, Burke, J.)..  FN8. “[T]he requirements for § 52–190a will not apply when (1) the courts have decided for other reasons that expert medical testimony is not required for the standard of care, as in cases like informed consent;  and (2) in cases of gross negligence where the standard of care would be obvious to a layperson.   If either of those two circumstances apply, it is irrelevant whether the claim would be considered medical malpractice under the three-part test.”   Chalk v. Yale Primary Care, Superior Court, judicial district of New Haven, Docket No. CV 11 5033688 (June 21, 2011, Burke, J.).   See also O'Dell v. Greenwich Health Care Services, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 11 6008364 (September 6, 2011, Jennings, J.T.R.);   Dzialo v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV 10 6014703 (June 21, 2011, Burke, J.).

Gilardi, Richard P., J.T.R.