Charles S. Roberts v. DMD (2012)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The defendant, Dr. Nazeeh Abunasra, has moved to dismiss the plaintiff's complaint on the ground that the plaintiff has failed to comply with the requirements of Connecticut General Statutes § 52–190a.

Factual and Procedural Background

The self-represented plaintiff, Charles Roberts, alleges dental malpractice against the defendant, Nazeeh Abunasra.   This case was initiated in small claims court but was transferred to the civil docket when the defendant's motion to transfer was granted on May 14, 2012.   The complaint alleges:

The doctor did not do the work for which he was paid/the doctor broke 2 tori bones in the bottom of my mouth/the dentures he inserted broke bones/no one in my room when awake/the next day my teeth had to be cut out of my mouth/bones coming out of lower jaw/had to have work reworked and had to have the teeth he did redone/had no teeth for months copies of work done and surgen (sic) commited (sic) guilty of poor surgical technique and bad judgment.

The complaint was accompanied by a letter from Philip J. Conforti, DDS, an oral and maxillofacial surgeon, was addressed to Michael W. Epright, Esq., and stated:

Allow me to respond to the questions raised in paragraph 4 of your February 22, 2011 letter.

It did not appear that alveoloplasties were done in the lower cuspid-bicuspid areas (teeth 3's 21/22 and 27/28).   The labial bone was sharp and tender and needed to be surgically contoured to allow a denture to be comfortably seated and removed.

With regards to the lingual sequestrum of bone that exfoliated, I think this may have resulted from a traumatic denture insertion.   Mucosa tissue overlying any torus is very thin.   Even with a well-made denture, mucosa ulceration can occur, necessitating early and sometimes frequent denture adjustments.   If the force used to seat the denture is excessive, exposure of underlying bone in the area of the traumatic ulceration is inevitable.   The exposed bone can exfoliate spontaneously or require surgical treatment (i.e., sequestrectomy).   It is certainly not normal to have to remove a complete denture by cutting it out.   If there was difficulty at the time of denture insertion, the prudent approach might have been to reline the denture chair side, or obtain a new impression after initial healing had occurred to fabricate a new denture.   I think Aspen Dental is guilty of poor surgical technique, and bad judgment.

Discussion of the Law and Ruling

“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).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (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.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

Section 52–190a requires a party bringing a medical malpractice action to file a written opinion from a similar health care provider stating “that there appears to be evidence of medical negligence” and providing “a detailed basis for the formation of such opinion.”  General Statutes § 52–190a(a).  “The plain language of [§ 52–190a(c) ] ․ expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52–190a(a).”  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008).

The defendant argues that the plaintiff's action should be dismissed because he did not attach a certificate of good faith to his initial complaint as required by § 52–190a(a).   The defendant further argues that the plaintiff's letter from a similar health care provider is deficient in several respects.   In response, the plaintiff argues that his claims do not sound in medical malpractice, but rather in gross ordinary negligence and lack of informed consent.   As such, the plaintiff argues that these claims are not subject to the requirements of § 52–190a.

“The attachment of the good faith certificate and the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice.   The failure to provide a certificate of good faith, a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court.”   Bavedas v. Hunter's Ambulance Services, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 12 6008733 (August 1, 2012, Arnold, J.) [54 Conn. L. Rptr. 463].   Our Supreme Court has concluded 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.”  Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011).

“Our Supreme Court has held that the phrase medical negligence, as used in § 52–190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.  Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009).   Therefore, the applicability of this statute turns on the nature of the present action:  whether it sounds in medical malpractice, and is therefore within the purview of § 52–190a(a), or sounds instead in ordinary negligence, and is outside the statute's scope.”  (Internal quotation marks omitted.)   Booty v. American Ambulance Services, Inc., Superior Court, judicial district of New London at New London, CV 12 6011850 (May 23, 2012, Cosgrove, J.) (54 Conn. L. Rptr. 96);  see also, Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002010 (November 16, 2010, Danaher, J.) (“[t]he plaintiff's claim sounds in ordinary negligence, and as a result, the requirements of § 52–190a do not apply”);  Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6007389 (September 2, 2010, Tobin, J.) (50 Conn. L. Rptr. 582) (“because the plaintiffs' complaint sounds in ordinary negligence and recklessness as opposed to medical malpractice, the plaintiffs were not obligated to file with their complaint a good faith certificate or a written opinion from a similar health care provider pursuant to § 52–190a”);  Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV 10 5002180 (July 2, 2010, Marano, J.) (50 Conn. L. Rptr. 246) (“the claim is one of ordinary negligence and does not sound in medical malpractice ․ Therefore, the requirements of § 52–190a do not apply”).

“The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred.  [P]rofessional negligence or malpractice ․ [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, [our Supreme Court has] conclude[d] that the 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.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002), quoting Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, cert. dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

In the present case, the so-called Trimel test is met because the plaintiff's allegations in the original complaint ¹ confirm that:  (1) the defendant is being sued in his capacity as a dentist;  (2) the alleged negligence is substantially related to treatment and involved the exercise of medical judgment when the defendant extracted several of the plaintiff's teeth and fitted him for dentures;  and (3) the alleged negligence is directly related to the defendant's conduct during the aforementioned procedure.   Consequently, § 52–190a required the plaintiff to attach a letter from a similar health care provider stating “that there appears to be evidence of medical negligence” and providing “a detailed basis for the formation of such opinion” and attach a certificate of good faith.

The plaintiff has failed to comply with either of the foregoing requirements.   The letter from Dr. Conforti does not mention the defendant, and does not contain a statement that the defendant violated the applicable dental standard of care.   There was no good faith certificate appended to the complaint.   Therefore, the motion to dismiss is granted.

By the Court,

Aurigemma, J.

FOOTNOTES

FN1. On July 31, 2012, the plaintiff filed a request to amend his complaint, which has not been ruled upon by the court.   The defendant filed an objection on August 15, 2012.   Thus, the court will only consider the original complaint.   The court notes, however, that a certificate of good faith has not been filed with the amended complaint, either..  FN1. On July 31, 2012, the plaintiff filed a request to amend his complaint, which has not been ruled upon by the court.   The defendant filed an objection on August 15, 2012.   Thus, the court will only consider the original complaint.   The court notes, however, that a certificate of good faith has not been filed with the amended complaint, either.

Aurigemma, Julia L., J.