Georgette A. Patenaude, Administrator for the Estate of Frances Brown et al. v. Norwalk Hospital (2012)

MEMORANDUM OF DECISION

On October 25, 2011, the plaintiffs, Georgette Patenaude (“plaintiff”), as administratrix for the estate of Frances Brown (“Brown”), and Edward Brown, the decedent's widower, filed a two-count complaint against the defendant, Norwalk Hospital.   The first count alleges malpractice and the second count is a loss of consortium claim brought by Edward Brown.

The complaint alleges the following facts.   The action is brought pursuant to General Statutes § 52–592, “an identical action previously brought having failed to be tried on the merits as a result of a matter of form.” ¹  On June 12, 2007, Brown was admitted to Norwalk Hospital with suspected intestinal blockage.   The next day, she underwent abdominal surgery and was discharged two days later.   Upon discharge, Brown fell and was subsequently determined to have broken her hip and was readmitted to the hospital.   On July 29, 2007, she complained of abdominal pain and her abdomen was noted to be distended, and on July 30, 2007 her abdomen was noted to be tender.   Morphine was ordered for Brown, which caused her to vomit, and the dosage was later increased.   An X-ray revealed that Brown had a bowel obstruction but there was a delay in obtaining a CT scan of the abdomen and pelvis.   Additional morphine was administered to Brown, but her respiratory rate was not monitored and she was pronounced dead that evening.   The cause of death was reported as Pneumonia secondary to bowel obstruction.

Negligence of the defendant, acting through its agents, actual or apparent, is alleged to have been the proximate cause of Brown's pain, her medical and other expenses, and her death, in one or more of the following ways:  “failure to properly appreciate the potential for bowel obstruction;  failure to appreciate bowel obstruction once it had occurred;  failure to monitor respiratory rate and other vital signs before and after the administration of morphine;  failure to respond appropriately to ultrasounds revealing the possibility of free air in the peritoneum;  failure to perform timely an order for a stat CT;  failure to respond promptly to a CT scan demonstrating a bowel obstruction;  and failure to follow applicable standards of care.”   The complaint further asserts that “[t]he plaintiff has received an extension of the statute of limitations.”   Attached to the complaint are a good faith certificate signed by the plaintiffs' attorney, which contains a paragraph authored by a licensed registered nurse stating that he or she is “familiar with the standard of care as it relates to the practice of nursing in the year 2007 in the United States” and an opinion letter regarding the alleged negligence of the defendant.

On December 9, 2011, the defendant filed a motion to dismiss the plaintiffs' complaint on the following grounds:  “1) this case cannot be brought under ․ § 52–592, the accidental failure of suit statute, because the plaintiffs' failure to comply with ․ General Statutes § 52–190a amounted to egregious conduct and 2) in the instant lawsuit, the plaintiffs did not attach a sufficient good faith opinion letter of a similar health care provider pursuant to ․ § 52–190a.”

Practice Book § 10–30 provides:  “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.   Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs.   Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion.   The clerk shall grant the request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request.”  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ 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).

In its memorandum in support of the motion to dismiss, the defendant argues that in a previously dismissed action for the same cause, the plaintiffs' “failure to comply with § 52–190a exhibited a lack of diligence that was not accidental and, therefore, the case was not dismissed as a matter of form.   As such, the accidental failure of suit statute cannot save this action.”   In their objection to the defendant's motion to dismiss, the plaintiffs argue that “[t]o the extent the motion to dismiss is predicated on the unavailability of the accidental failure of suit statute;  it is procedurally inappropriate because such a claim must be raised by a well-pleaded special defense.”   In its reply to the plaintiffs' objection to the motion to dismiss, the defendant argues that the plaintiffs have waived their right to object to the use of a motion to dismiss as a procedural vehicle to determine the applicability of the accidental failure of suit statute.

Also in its memorandum in support of the motion to dismiss, the defendant argues that the addendum paragraph filed with the opinion letter in the present matter “is not enough to comport with what Judge Arnold, in his memorandum of decision, stated that the letter required.   The plaintiffs, therefore, have once again failed to comply with ․ § 52–190a because the opinion letter does not contain a detailed basis for the formation of the opinions that there has been negligence.”   In their objection to the defendant's motion to dismiss, the plaintiffs argue that the opinion letter is adequate.   In its reply to the plaintiffs' objection to the motion to dismiss, the defendant argues that “the plaintiffs' opinion letter did not address all of the relevant qualifications as to either [General Statutes] § 52–184c(b) or § 52–184c(c).”

I

Accidental Failure of Suit Statute

General Statutes § 52–592(a) provides, in relevant part:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

“[D]espite its remedial nature, § 52–592(a) should not be read so broadly or interpreted so expansively that the plain language of the statute, or this court's relatively recent construction of that language, should be ignored.”   (Internal quotation marks omitted.)  Gillum v. Yale University, 62 Conn.App. 775, 786, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).   “Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action virtually meaningless.”  (Internal quotation marks omitted.)  Id.

“While it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52–592 ․ [our Supreme Court] has never held this to be a requirement ․ It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised.”  (Internal quotation marks omitted.)  McKeever v. Fiore, 78 Conn.App. 783, 795–96, 829 A.2d 846 (2003).  “[W]hether [§ 52–592] applies cannot be decided in a factual vacuum.   To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a ‘matter of form’ in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.   A determination of the applicability of § 52–592 depends on the particular nature of the conduct involved.”  (Internal quotation marks omitted.)   Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002).

“Most of the case law interpreting § 52–190 involves disciplinary dismissals of the first action.   Disciplinary dismissals refer to cases dismissed for a variety of punitive reasons, such as failure to attend a scheduled pretrial conference;  or the failure to close the pleadings in a timely manner.”   (Internal quotation marks omitted.)   Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001512 (April 16, 2009, Pickard, J.) (47 Conn. L. Rptr. 581), aff'd, 300 Conn. 33, 12 A.3d 885 (2011).  “Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52–592.”  Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998).   Our Supreme Court has stated that “[i]n concluding that even disciplinary dismissals are not excluded categorically from the relief afforded by § 52–592(a), we have noted the fact-sensitive nature of the inquiry and held that, [t]o enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a ‘matter of form’ ․ Indeed, even in the disciplinary context, only ‘egregious' conduct will bar recourse to § 52–592.”  (Citation omitted;  internal quotation marks omitted.)  Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 50–51 (holding that plaintiff may bring subsequent medical malpractice action pursuant to § 52–592(a) only when trial court finds as matter of fact that failure to provide opinion letter that satisfies § 52–190a(a) in first action was result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence).  “[I]t is appropriate to consider each case along a continuum;  at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions.”  Gillum v. Yale University, supra, 62 Conn.App. 783.

“[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ․ Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ․ An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.”  (Citations omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 652–54, 974 A.2d 669 (2009).   If a trial court “resolve[s] a critical fact on the basis of the complaint and the affidavits, both of which [contain] controverted facts ․ the court improperly [decides] the motion without holding an evidentiary hearing.”  Coughlin v. Waterbury, 61 Conn.App. 310, 315–16, 763 A.2d 1058 (2001).   See also Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 224, 31 A.3d 429 (2011) (where critical factual issue was disputed, “proper course was not to dismiss the complaint, but to set the matter down for an evidentiary hearing on that factual issue ․ [T]he court improperly granted the defendant's motion to dismiss without an evidentiary hearing”).

“[A]s a general matter, a motion to dismiss is not the proper procedural instrument for challenging the applicability of § 52–592(a), the proper challenge being by way of a properly pleaded special defense ․” LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).  “[A] court properly may consider a motion to dismiss in such circumstance when the plaintiff does not object to the use of the motion to dismiss.”  (Internal quotation marks omitted.)  Id. See Capers v. Lee, 239 Conn. 265, 269–70 n.9, 684 A.2d 696 (1996) (“because the plaintiff never questioned whether a motion to dismiss was the proper procedural vehicle, the trial court properly decided the motion on the record alone”).

In PMG Land Associates, L.P. v. Harbour Landing Condominium Association, Inc., Superior Court, judicial district of New Haven, Docket No. CV 08 5017497 (May 28, 2009, Holden, J.), the plaintiff objected that a motion to dismiss was not the proper procedural vehicle to determine the applicability of the accidental failure of suit statute.   The court observed, however, that “the plaintiff filed an opposition to the motion to dismiss seven months following the defendant's motion.   During two court appearances, the plaintiff never articulated any objection to the use of a motion to dismiss as the inappropriate procedural vehicle.   Moreover, the plaintiff filed its objection not five days prior to argument, but less than three days, in contravention of Practice Book § 10–31(b).” ²  Id. The trial court dismissed all three counts of the plaintiff's complaint, although “[t]he plaintiff maintained that because the three year statute of limitations had not lapsed, it did not need to rely on the accidental failure of suit statute for count three.”  PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc., 135 Conn.App. 710, 714, 42 A.3d 508 (2012).   On appeal, the plaintiff contended that the trial court improperly granted the defendants' motion to dismiss as to the third count, but did not otherwise challenge the dismissal of counts one and two.  Id., 716.   The Appellate Court reversed the trial court's judgment as to count three, but affirmed the judgment in all other respects.  Id., 719.   The court noted that “generally, a motion to dismiss is not the appropriate procedural instrument by which to assert that an action is not saved by § 52–592,” but then stated that “[o]n the basis of our reading of the court's memorandum of decision, the court considered the plaintiffs' objection to the use of the motion as untimely and therefore proceeded in rendering its decision on the defendants' motion to dismiss.”   Id., 716–17 n.7.

In the present matter, on December 16, 2011, within ten days of the filing of the motion to dismiss, the plaintiffs timely filed a request for extension of time to respond to the defendant's motion to dismiss.   In their request for extension of time, the plaintiffs requested “to January 13, 2012” in which to respond to the defendant's motion to dismiss.³  The matter was scheduled to be considered on the short calendar on January 30, 2012, but was marked “off per clerk's office” by the court (Tyma, J.).   The plaintiffs submitted their objection to the motion to dismiss on January 31, 2012, in which they objected to the defendant's use of a motion to dismiss to challenge applicability of the accidental failure of suit statute.   The plaintiffs' objection was filed more than two weeks after the extended deadline they had been granted, but their delay in filing the objection was much shorter than that of the plaintiff in PMG Land Associates, L.P. v. Harbour Landing Condominium Association, Inc. Furthermore, the plaintiffs had no court appearances prior to filing their objection to the motion to dismiss during which they could have objected to use of a motion to dismiss as the inappropriate procedural vehicle.   The court does not find that the plaintiffs' right to raise this objection has been waived.⁴  The plaintiffs have consistently objected to the defendant's use of the motion to dismiss as an inappropriate procedural vehicle to challenge applicability of the accidental failure of suit statute, and thus, the court may not properly consider the motion to dismiss on the ground that the prior action is not saved by § 52–592.

II

Sufficiency of the Plaintiffs' Opinion Letter Pursuant to § 52–190a

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 ․ 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.”  Section 52–184c(b) provides:  “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.”  Section 52–184c(c) provides:  “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.’  “ “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, 34 A.3d 983 (2011).  “[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52–190a(a).”  Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 28.

In Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 552, 36 A.3d 297 (2012), our Appellate Court considered an opinion letter that provided the initials “RN, BSN, ICP,” as to the qualifications of the author.   Subsequent to the defendant's motion to dismiss before this court, “[a]ttached to the plaintiff's post-argument brief was an affidavit of the plaintiff's attorney in which she averred in relevant part that she ‘[was] personally familiar with the author of the opinion letter in this case ․’ She stated that ‘[t]he author has been a Registered Nurse in the State of Connecticut for a period of eleven years;  she is licensed to practice in the State of Connecticut.’   Also, the plaintiff's attorney stated that ‘[t]he author holds a Bachelor's Degree from an accredited University in the State of Connecticut’ and ‘[t]he author's professional experience includes over ten years of acute, subacute and long term nursing care, including working in a trauma center in Connecticut.’   “ Id. This court concluded that “[t]he submitted opinion letter, even when supplemented with counsel's affidavit, does not contain sufficient facts to satisfy the court that the author of the [opinion] letter meets the requirements of § 52–184c(b) to qualify as a ‘similar health care provider’ to the defendant.”  (Internal quotation marks omitted.)  Id., 554.  “In reaching its conclusion, the [trial] court observed that the letter did not set forth the author's qualifications related to licensing, training, experience or any active involvement in any medical field during the five year period prior to the incident underlying the complaint.”  Id.

The Appellate Court stated in Bell that “we agree with the assessment of the trial court that the opinion letter submitted in the present case did not set forth sufficient information to demonstrate that its author was a similar health care provider qualified to render an opinion as to the standard of care owed by the defendant.   With regard to the qualifications of its author, the 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.   As set forth previously, § 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.’   Plainly, the information in the opinion letter did not address, let alone demonstrate, all of these specific qualifications.   Nor, for purposes of § 52–184c(c), did the opinion letter represent that its author had been trained and experienced in any specialty or had been certified by any American board as a specialist.”  (Emphasis added.)   Bell v. Hospital of Saint Raphael, supra, 133 Conn.App. 560.  “Although the [trial] court questioned whether it was proper for the plaintiff's attorney to supplement the information set forth in the opinion letter, the court concluded nonetheless that, even if it considered the averments of the plaintiff's attorney concerning the author's qualifications, the letter and the attorney's affidavit did not address all of the relevant qualifications.   Because we conclude that the opinion letter, even when supplemented with the affidavit, did not disclose all of the qualifications set forth in either § 52–184c(b) or (c), it is unnecessary in this case for us to address the defendant's argument that such supplementation of the letter was improper.”   Id., 560 n.5.

In the present matter, the opinion letter the plaintiffs filed with their initial complaint is almost identical to the letter that this court construed in the plaintiffs' previous action,⁵ Patenaude v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5029048 (July 19, 2010, Arnold, J.) (50 Conn. L. Rptr. 352), but for the addition of one paragraph that addresses the author's qualifications.⁶  In the plaintiffs' previous action, this court observed that “[t]he opinion letter, which was detailed, did not reveal the medical field, license, certification or specialty of the author.”   This court dismissed the plaintiffs' previous action because, in addition to the plaintiffs' failure to file a good faith certificate, “[t]he opinion letter that was attached, did not identify the medical specialty of the author, making it impossible to ascertain if the author was, in fact, a similar healthcare provider.   See § 52–184c.   The opinion letter, while stating the defendant breached the applicable standards of care, did not state that the author was familiar with the standards of care for any particular medical specialty.   Although the letter was detailed in describing the circumstances of the decedent's care and death, the court cannot ascertain from reading it, that the negligence alleged is associated with claims involving negligent nursing care.   As such, the opinion letter attached to the original complaint is insufficient.”  Id.

The paragraph the plaintiffs have added to the opinion letter that Judge Arnold found to be deficient in the previous action states:  “I am a Registered Nurse, licensed in the State of Connecticut with a Master of Public Health degree and am familiar with the standard of care as it relates to the practice of nursing in the year 2007 in the United States.   I received training and certification from the Health Care Financing Administration, now the Centers for Medicare Services, as a Basic Health Facility Surveyor, and Nursing Home Surveyor & Protocol & Enforcement Regulations Training.   I was previously employed by the Connecticut Department of Public Health as a surveyor and complaint investigator in licensed healthcare facilities.   I developed the statewide CT Universal Newborn Hearing Screening Program, authored the CT hospital guidelines and was instrumental in assisting CT's thirty-one birthing hospitals in their program development.   I have been an independent medical-legal nurse consultant since 2002.”

Section 52–184c(b) requires that a similar health care provider must be “licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications” and “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.”   The author of the opinion letter states in the addendum paragraph that she is “licensed in the State of Connecticut” and is “familiar with the standard of care as it relates to the practice of nursing in the year 2007 in the United States.”   The paragraph regarding the author's qualifications fails to address, however, let alone demonstrate, that the author was trained and experienced in nursing as the result of active involvement in the practice or teaching of medicine within the five-year period before the July 30, 2007 incident that gave rise to this claim.   To the contrary, the author's only reference to the five-year period prior to July 30, 2007, was that she had “been an independent medical-legal nurse consultant since 2002.”   Also, the opinion letter does not represent, for purposes of § 52–184c(c), that its author had been certified by any American board as a specialist or trained and experienced in any medical specialty.   Accordingly, the opinion letter attached to the initial complaint in the present matter is insufficient pursuant to § 52–190a(a).

On two occasions, the plaintiffs filed a motion for leave to amend the complaint and the defendant responded by filing its objections thereto.⁷  Then again on May 24, 2012, the plaintiffs filed a second motion for leave to amend with a second amended complaint attached.   On May 25, 2012, the defendant filed an objection to the plaintiffs' second motion for leave to amend the complaint.   In its objections to both motions, the defendant argues that “[t]he plaintiff cannot attempt to cure or amend a defective opinion letter pursuant to ․ § 52–190a with an amended complaint and an amended opinion letter.”   In reply to the defendant's first objection, the plaintiffs acknowledge a division in Superior Court authority as to “whether the plaintiff may amend the opinion letter filed with the original complaint to cure purported defects raised in a motion to dismiss.” ⁸  The plaintiffs assert that “both the weight of those authorities, as well as common sense and public policy, urge that the opinion letter be as susceptible to amendment or supplementation as any other pleading.”   Even as amended, the plaintiffs' opinion letter is insufficient pursuant to § 52–190a, however, and it is therefore unnecessary for this court to decide whether a plaintiff may properly amend a deficient opinion letter.   See Bell v. Hospital of Saint Raphael, supra, 133 Conn.App. 560 n.5 (“Because we conclude that the opinion letter, even when supplemented with the affidavit, did not disclose all of the qualifications set forth in either § 52–184c(b) or (c), it is unnecessary in this case for us to address the defendant's argument that such supplementation of the letter was improper”).

In their first motion for leave to amend the complaint, the plaintiffs assert that:  “The sole change sought in the proposed amended complaint is the attachment of a three paragraph addendum from the plaintiffs' expert specifying that her opinions were directed to the nursing staff.”   The proposed addendum does not remedy the opinion letter's deficiencies as to the author's qualifications.

In their second motion for leave to amend the complaint, the plaintiffs assert that:  “The only effect of the amendment sought is to add a few sentences setting forth the expert's training and experience in the last five years with patients on medical and surgical floors.”   The plaintiffs offer an amended version of the paragraph that addressed the author's qualifications.⁹  Nonetheless, the author omits from this version any reference to her being licensed in the state of Connecticut.   Furthermore, the addition of sentences such as “I was charge nurse of a medical surgical unit in a general hospital for one and one half years.   I continue with active clinical practice and work as a private duty nurse for patients on medical and surgical units” and “[m]ore specifically, I am familiar with the standards of care that apply to registered nurses who are provide [sic] care and services to post-operative patients, including the administration of medications,” fails to clarify whether the author was actively involved in any medical field during the five-year period prior to July 30, 2007.   The motion to dismiss should be granted because none of the versions of the opinion letter submitted by the plaintiffs is sufficient pursuant to § 52–190a.

For the foregoing reasons, the court hereby grants the defendant's motion to dismiss the plaintiffs' complaint.

THE COURT

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. See Patenaude v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5029048 (July 19, 2010, Arnold, J.) (50 Conn. L. Rptr. 352)..  FN1. See Patenaude v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 09 5029048 (July 19, 2010, Arnold, J.) (50 Conn. L. Rptr. 352).

FN2. Practice Book § 10–31(b) provides:  “(b) Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10–12 through 10–17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”.  FN2. Practice Book § 10–31(b) provides:  “(b) Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10–12 through 10–17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”

FN3. After stating the date of January 13, 2012, in the next paragraph, the plaintiffs state the date of January 11, 2012.   The court will presume that this second date was a scrivener's error..  FN3. After stating the date of January 13, 2012, in the next paragraph, the plaintiffs state the date of January 11, 2012.   The court will presume that this second date was a scrivener's error.

FN4. Additionally, on May 23, 2012, the plaintiffs filed an affidavit by their counsel, stating:  “I have attached hereto a copy of an e-mail exchange between myself and ․ counsel for the defendant, with respect to the filing of my initial objection to the defendant's motion to dismiss.”   The plaintiffs' counsel's email is dated January 25, 2012, and states:  “I won't be able to complete the objection by tomorrow.   It's half-done, but I've had a couple of things come up.   You'll have it no later than close of business Monday.”   The defendant's counsel's reply is dated January 26, 2012, and states:  “That sounds fine.   Thanks.”.  FN4. Additionally, on May 23, 2012, the plaintiffs filed an affidavit by their counsel, stating:  “I have attached hereto a copy of an e-mail exchange between myself and ․ counsel for the defendant, with respect to the filing of my initial objection to the defendant's motion to dismiss.”   The plaintiffs' counsel's email is dated January 25, 2012, and states:  “I won't be able to complete the objection by tomorrow.   It's half-done, but I've had a couple of things come up.   You'll have it no later than close of business Monday.”   The defendant's counsel's reply is dated January 26, 2012, and states:  “That sounds fine.   Thanks.”

FN5. In Patenaude v. Norwalk Hospital, supra, 50 Conn. L. Rptr. 352, the court stated that “[t]his court is obligated to construe the initial complaint only in resolving the defendant's challenge to subject matter jurisdiction and cannot allow the amendment [to the complaint] before ruling on the motion to dismiss.”   Our Supreme Court has subsequently held, however, that a motion to dismiss pursuant to § 52–190a is a challenge to personal jurisdiction, not subject matter jurisdiction.  Morgan v. Hartford Hospital, 301 Conn. 388, 401–02, 21 A.3d 451 (2011)..  FN5. In Patenaude v. Norwalk Hospital, supra, 50 Conn. L. Rptr. 352, the court stated that “[t]his court is obligated to construe the initial complaint only in resolving the defendant's challenge to subject matter jurisdiction and cannot allow the amendment [to the complaint] before ruling on the motion to dismiss.”   Our Supreme Court has subsequently held, however, that a motion to dismiss pursuant to § 52–190a is a challenge to personal jurisdiction, not subject matter jurisdiction.  Morgan v. Hartford Hospital, 301 Conn. 388, 401–02, 21 A.3d 451 (2011).

FN6. In addition, the opinion letter submitted in the previous action bore the following letterhead, which the plaintiffs have redacted from the opinion letter presently at issue:  “APEX MEDICAL LEGAL CONSULTING, 90 Summer Lane, Rocky Hill, CT 06067, Telephone (860) 550–0439, donnamaselli @hotmail.com.”.  FN6. In addition, the opinion letter submitted in the previous action bore the following letterhead, which the plaintiffs have redacted from the opinion letter presently at issue:  “APEX MEDICAL LEGAL CONSULTING, 90 Summer Lane, Rocky Hill, CT 06067, Telephone (860) 550–0439, donnamaselli @hotmail.com.”

FN7. In its May 23, 2012 reply to the defendant's objection to the plaintiffs' first motion for leave to amend the complaint, the plaintiffs included a footnote stating that:  “In the event the court concludes that the additional information regarding the plaintiffs' expert is better provided by an affidavit in opposition to the motion to dismiss rather than an amendment, that affidavit is attached hereto.”   The affidavit of counsel filed on May 23, 2012, states, in relevant part:  “I was referred this case by another attorney after he had already evaluated it and obtained the expert opinion letter attached to the complaint filed in the underlying case that was subsequently dismissed.   In response to the defendant's motion to dismiss, I obtained several clarifications of the expert's opinion, which are attached hereto as exhibit A and B. These clarifications are already attached to motions to amend now pending.”.  FN7. In its May 23, 2012 reply to the defendant's objection to the plaintiffs' first motion for leave to amend the complaint, the plaintiffs included a footnote stating that:  “In the event the court concludes that the additional information regarding the plaintiffs' expert is better provided by an affidavit in opposition to the motion to dismiss rather than an amendment, that affidavit is attached hereto.”   The affidavit of counsel filed on May 23, 2012, states, in relevant part:  “I was referred this case by another attorney after he had already evaluated it and obtained the expert opinion letter attached to the complaint filed in the underlying case that was subsequently dismissed.   In response to the defendant's motion to dismiss, I obtained several clarifications of the expert's opinion, which are attached hereto as exhibit A and B. These clarifications are already attached to motions to amend now pending.”

FN8. In Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 30 n.17, our Supreme Court noted that they were “not presented with an opportunity to resolve a division in Superior Court authority concerning whether amendment of the defective pleading, including the substitution of a new opinion letter for one that appears not to comply with § 52–190a(a) or one that was not filed at all, is an appropriate response to a pending motion to dismiss pursuant to § 52–190a(c), in light of the Appellate Court's statement in Votre v. County Obstetrics & Gynecology Group, P.C., [113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) ], that, ‘[g]iven the fallibility existing in the legal profession ․ it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence.   In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss.’  (Emphasis added.)   See also id., 586 (‘[t]he 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’).”   Our Appellate Court has stated that where “it is clear that no opinion existed at the time the action was commenced, ․ there [is] no room for discretion to be employed.”  Votre v. County Obstetrics & Gynecology Group, supra, 113 Conn.App. 585–86..  FN8. In Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 30 n.17, our Supreme Court noted that they were “not presented with an opportunity to resolve a division in Superior Court authority concerning whether amendment of the defective pleading, including the substitution of a new opinion letter for one that appears not to comply with § 52–190a(a) or one that was not filed at all, is an appropriate response to a pending motion to dismiss pursuant to § 52–190a(c), in light of the Appellate Court's statement in Votre v. County Obstetrics & Gynecology Group, P.C., [113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) ], that, ‘[g]iven the fallibility existing in the legal profession ․ it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence.   In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss.’  (Emphasis added.)   See also id., 586 (‘[t]he 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’).”   Our Appellate Court has stated that where “it is clear that no opinion existed at the time the action was commenced, ․ there [is] no room for discretion to be employed.”  Votre v. County Obstetrics & Gynecology Group, supra, 113 Conn.App. 585–86.

FN9. The full paragraph, as attached to the second proposed amended complaint, states:  “By way of background, I am a Registered Nurse in the State of Connecticut and have a Master of Public Health degree.   I received certification and training from the Center for Medicare and Medicaid Services as a Basic Health Facility Surveyor, and received Hospital Surveyor and Protocol and Enforcement Regulations certification and training from the Center for Medicare and Medicaid Services.   I was previously employed by the Connecticut Department of Public Health as a healthcare complaint investigator in and conducted independent hospital complaint investigations for the State of Connecticut on Medical, Surgical, Orthopedic, Pediatrics, Obstetric units and the Emergency Department.   I was Charge Nurse of a Medical Surgical Unit in a General Hospital for one and one half years.   I continue with active clinical practice and work as a private duty nurse for patients on Medical and Surgical units.   I am familiar with the standard of care as it relates to the practice of nursing in the year 2007 in the United States.   More specifically, I am familiar with the standards of care that apply to registered nurses who are provide [sic] care and services to post-operative patients, including the administration of medications.”.  FN9. The full paragraph, as attached to the second proposed amended complaint, states:  “By way of background, I am a Registered Nurse in the State of Connecticut and have a Master of Public Health degree.   I received certification and training from the Center for Medicare and Medicaid Services as a Basic Health Facility Surveyor, and received Hospital Surveyor and Protocol and Enforcement Regulations certification and training from the Center for Medicare and Medicaid Services.   I was previously employed by the Connecticut Department of Public Health as a healthcare complaint investigator in and conducted independent hospital complaint investigations for the State of Connecticut on Medical, Surgical, Orthopedic, Pediatrics, Obstetric units and the Emergency Department.   I was Charge Nurse of a Medical Surgical Unit in a General Hospital for one and one half years.   I continue with active clinical practice and work as a private duty nurse for patients on Medical and Surgical units.   I am familiar with the standard of care as it relates to the practice of nursing in the year 2007 in the United States.   More specifically, I am familiar with the standards of care that apply to registered nurses who are provide [sic] care and services to post-operative patients, including the administration of medications.”

Richards, Sybil V., J.