Kimberly Drolet v. Gregory Mantikas (2013)

MEMORANDUM OF DECISION

This is decision on a motion to dismiss filed by the defendant, Gregory Mantikas, D.M.D. Specifically, the defendant argues that the plaintiff failed to comply with the requirements of § 52–190a(a), by not having a written opinion signed by a similar health care provider to support a medical malpractice action, and as such, is grounds for dismissal.   The defendant initially filed his motion to dismiss on May 7, 2013,¹ and filed another similar motion on May 23, 2013, in response to the plaintiff's amended complaint.   On June 19, 2013, the plaintiff filed an objection and memorandum of law in opposition to the motion, and on June 21, 2013, the defendant filed a reply brief.   The matter was heard on the short calendar on June 24, 2013.

On August 21, 2012, the plaintiff, Kimberly Drolet, filed a complaint against the defendant, Gregory Mantikas, D.M.D. Count one of the complaint alleges the following relevant facts.   The defendant, George M. Mantikas, was a dentist practicing general and cosmetic dentistry and he was doing business as George M. Mantikas, D.M.D, D.P.C., and the plaintiff was a patient of the defendant.   On or about July 20, 2010, the plaintiff was injured in a motor vehicle accident and she sustained injuries to her mouth and teeth.   The defendant agreed to provide treatment to the plaintiff for her injuries and he provided the plaintiff with a treatment plan.   The defendant agreed to treat the plaintiff pursuant to said treatment plan upon the initial payment of $500.00 toward the estimated cost of said treatment plan and the receipt of a “lien on personal injury recovery” letter signed by the plaintiff.   The plaintiff gave the defendant said $500.00 and said “lien on personal injury recovery” letter.   By letter dated April 1, 2011, the defendant terminated his treatment of the plaintiff.   Since said termination, the plaintiff has been unable to obtain the services of another dentist as she has no insurance.   As a result of the defendant terminating his treatment of the plaintiff, the plaintiff has been left with no upper front teeth.   The defendant has breached his contract with the plaintiff to provide treatment, and the plaintiff has sustained damages.

In her amended complaint dated June 10, 2013, the plaintiff added two counts.   In both, she incorporates all of the allegations of the first count.   In the second count, plaintiff additionally alleges that the defendant did not take steps to obtain dental treatment for the plaintiff with other dentists and has breached his professional duty to the plaintiff.   In the third count, the plaintiff additionally alleges a violation of C.G.S. § 20–114(a)(2), by way of being negligent, incompetent and engaging in wrongful conduct toward the plaintiff.

The defendant filed a motion to dismiss the plaintiff's action, pursuant to General Statutes § 52–190a(c), on the ground that no written opinion authored by a “similar health care provider” was attached to the plaintiff's complaint, as required by General Statutes § 52–190a(a).

I.

“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 (1985), citing Practice Book § 143, which is now § 10–31.  “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, thus, 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.”  (Citation omitted;  internal quotation marks omitted.)   Morgan v. Hartford Hospital, 301 Conn. 388, 401–02 (2011).  “[A]n action is subject to dismissal under [General Statutes § 52–190a(c) ] if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”  Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545 (2009).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

II.

The defendant filed a motion to dismiss the plaintiff's three-count complaint, pursuant to General Statutes § 52–190a(c), on the ground that no written opinion was attached to the plaintiff's complaint by a “similar health care provider,” as required by General Statutes § 52–190a(a).²  Specifically, the defendant moves to dismiss the entire complaint as he claims the complaint sounds in negligence, not breach of contract.

A.

The defendant claims that the first count alleges professional negligence.   The plaintiff claims that the action sounds in breach of contract.  “[T]he interpretation of pleadings is always a question of law for the court ․ Furthermore, in determining the nature of a pleading filed by a party, we are not bound by the label to that pleading by the party.”  (Citations omitted.)   Selimoglu v. Phimvongsa, 119 Conn.App. 645, 651–52 (2010).

In Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 578–80, cert. denied, 292 Conn. 911 (2009), the appellate court cited a New Jersey Supreme Court decision, Couri v. Gardner, 173 N.J. 328, 801 A.2d 1134 (2002), as being persuasive in determining whether a claim is brought sounding in medical malpractice, or in breach of contract or breach of fiduciary duty.  Couri held that:  “[i]t is not the label placed on the action that is pivotal but the nature of the legal inquiry.   Accordingly, when presented with a tort or contract claim asserted against a professional specified in the statute, rather than focusing on whether the claim is denominated as tort or contract, attorneys and courts should determine if the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession.   If such proof is required, an affidavit of merit is required for that claim, unless some exception applies.  Id., 340.”  Votre v. County Obstetrics & Gynecology Group, P.C., supra, at 579–80.   The appellate court in Votre adopted that standard in its decision, id. at 580.

The factual allegations alleged here, viewed in a light most favorable to the pleader, were that the plaintiff was injured in a motor vehicle accident and she sustained injuries to her mouth and teeth.   The defendant agreed to provide treatment to the plaintiff for her injuries and he provided the plaintiff with a treatment plan.   The defendant agreed to treat the plaintiff pursuant to said treatment plan upon the initial payment of $500.00 toward the estimated cost of said treatment plan and the receipt of a “lien on personal injury recovery” letter signed by the plaintiff.   The plaintiff upheld her end of the contract by giving the defendant said $500.00 and “lien on personal injury recovery” letter.   Thereafter, the defendant breached the contract by refusing to treat the plaintiff.   There is no claim for damages resulting out of any treatment or of any particular skills of the dentist.   The underlying factual allegations constitute an action for breach of contract, which do not require any proof of a deviation from the professional standard of care applicable to the specific profession of dentistry.

Since the allegations contained in the first count are clearly a breach of a contract to provide services, and not a breach of any professional standards of care, no certificate of good faith pursuant to § 52–190a(a) is required.   Therefore, the motion to dismiss the first count is denied.

B.

In the second count, the plaintiff brings an action which alleges a breach of professional duty.³  In Marciano v. Kraner, 126 Conn.App. 171 (2011), our appellate court determined that a plaintiff's failure to present any expert testimony whatsoever as to the attorney-client relationship was fatal to his cause of action for breach of fiduciary duty.   Following the standard as set out in Part A above, if proof of a deviation from the professional standard of care is required to prove the cause of action, a written opinion letter is required, Votre v. County Obstetrics & Gynecology Group, P.C., supra, at 580.

In the second count, the plaintiff alleges a breach of professional duty.   A written opinion letter is required in order for that cause of action to be pursued against a medical professional, as expert testimony would be required to prove a deviation from the professional standard of care in order to support the cause of action.   Therefore, because no such opinion letter was attached to the amended complaint, the second count is ordered dismissed.

C.

In the third count, the plaintiff brings a private action pursuant to the enabling statutes of the State Dental Commission, alleging a violation of C.G.S. § 20–114(a)(2).⁴  Specifically, the plaintiff alleges that the defendant was negligent, incompetent and engaging in wrongful conduct toward the plaintiff.   The defendant claims that the plaintiff's third count must be dismissed on the ground that no written opinion was attached to the plaintiff's complaint by a “similar health care provider,” as required by General Statutes § 52–190a.

Clearly, the plaintiff alleges in the third count that the defendant engaged in negligent conduct.   In Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, appeal dismissed, 258 Conn. 711 (2001), the court held that “the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendant 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.”

In the third count, the defendant clearly is sued in his capacity as a medical professional.   The plaintiff's complaint also alleges that the defendant was both negligent and incompetent.  “Incompetent” is defined by Merriam–Webster as “not legally qualified;  inadequate to, or unsuitable for a particular purpose;  lacking the qualities needed for effective action.”   Given that definition, the allegations are clearly directed to the defendant's professional qualifications, which satisfies the second prong of Trimel.   Further, the allegations involve the negligence of the defendant, and criticisms of the abilities of the defendant in diagnosis, treatment and judgment, and go far beyond a claim of ordinary negligence.   Therefore, the third prong of Trimel is also satisfied.

Since the third count is considered a claim of medical negligence, pursuant to § 52–190a, a written opinion letter is required in order for that cause of action to be pursued against a medical professional.   Therefore, since no such opinion letter was attached to the amended complaint, the third count is ordered dismissed.

III.

Therefore, for the foregoing reasons, the motion to dismiss is denied as to count one;  and the motion to dismiss is granted as to counts two and three.

Matasavage, J.

FOOTNOTES

FN1. The initial motion to dismiss claimed that the plaintiff failed to file an opinion letter, pursuant to statute, and also claimed that plaintiff had a defective return date on her summons.   Plaintiff amended the summons on May 17, 2013.   Defendant's second motion to dismiss omits that claim;  and at argument, counsel for defendant acknowledged that the defective return date claim is abandoned..  FN1. The initial motion to dismiss claimed that the plaintiff failed to file an opinion letter, pursuant to statute, and also claimed that plaintiff had a defective return date on her summons.   Plaintiff amended the summons on May 17, 2013.   Defendant's second motion to dismiss omits that claim;  and at argument, counsel for defendant acknowledged that the defective return date claim is abandoned.

FN2. Section 52–190a(a) provides “No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 or apportionment complaint 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 or apportionment complaint 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.”.  FN2. Section 52–190a(a) provides “No civil action ․ shall be filed to recover damages resulting from personal injury or wrongful death ․ 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 or apportionment complaint 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 or apportionment complaint 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.”

FN3. The court interprets that cause of action as being a breach of fiduciary duty..  FN3. The court interprets that cause of action as being a breach of fiduciary duty.

FN4. Section 20–114(a) provides:  “The Dental Commission may take any of the actions set forth in section 19a–17 for any of the following causes:  (1) The presentation to the department of any diploma, license or certificate illegally or fraudulently obtained, or obtained from an institution that is not reputable or from an unrecognized or irregular institution or state board, or obtained by the practice of any fraud or deception;  (2) proof that a practitioner has become unfit or incompetent or has been guilty of cruelty, incompetence, negligence or indecent conduct toward patients;  (3) conviction of the violation of any of the provisions of this chapter by any court of criminal jurisdiction, provided no action shall be taken under section 19a–17 because of such conviction if any appeal to a higher court has been filed until the appeal has been determined by the higher court and the conviction sustained;  (4) the employment of any unlicensed person for other than mechanical purposes in the practice of dental medicine or dental surgery subject to the provisions of section 20–122a;  (5) the violation of any of the provisions of this chapter or of the regulations adopted hereunder or the refusal to comply with any of said provisions or regulations;  (6) the aiding or abetting in the practice of dentistry, dental medicine or dental hygiene of a person not licensed to practice dentistry, dental medicine or dental hygiene in this state;  (7) designating a limited practice, except as provided in section 20–106a;  (8) engaging in fraud or material deception in the course of professional activities;  (9) the effects of physical or mental illness, emotional disorder or loss of motor skill, including, but not limited to, deterioration through the aging process, upon the license holder;  (10) abuse or excessive use of drugs, including alcohol, narcotics or chemicals;  (11) failure to comply with the continuing education requirements set forth in section 20–126c;  (12) failure of a holder of a dental anesthesia or conscious sedation permit to successfully complete an on-site evaluation conducted pursuant to subsection (c) of section 20–123b;  (13) failure to provide information to the Department of Public Health required to complete a health care provider profile, as set forth in section 20–13j;  or (14) failure to maintain professional liability insurance or other indemnity against liability for professional malpractice as provided in section 20–126d.   A violation of any of the provisions of this chapter by any unlicensed employee in the practice of dentistry or dental hygiene, with the knowledge of the employer, shall be deemed a violation by the employer.   The Commissioner of Public Health may order a license holder to submit to a reasonable physical or mental examination if his or her physical or mental capacity to practice safely is the subject of an investigation.   Said commissioner may petition the superior court for the judicial district of Hartford to enforce such order or any action taken pursuant to section 19a–17.”.  FN4. Section 20–114(a) provides:  “The Dental Commission may take any of the actions set forth in section 19a–17 for any of the following causes:  (1) The presentation to the department of any diploma, license or certificate illegally or fraudulently obtained, or obtained from an institution that is not reputable or from an unrecognized or irregular institution or state board, or obtained by the practice of any fraud or deception;  (2) proof that a practitioner has become unfit or incompetent or has been guilty of cruelty, incompetence, negligence or indecent conduct toward patients;  (3) conviction of the violation of any of the provisions of this chapter by any court of criminal jurisdiction, provided no action shall be taken under section 19a–17 because of such conviction if any appeal to a higher court has been filed until the appeal has been determined by the higher court and the conviction sustained;  (4) the employment of any unlicensed person for other than mechanical purposes in the practice of dental medicine or dental surgery subject to the provisions of section 20–122a;  (5) the violation of any of the provisions of this chapter or of the regulations adopted hereunder or the refusal to comply with any of said provisions or regulations;  (6) the aiding or abetting in the practice of dentistry, dental medicine or dental hygiene of a person not licensed to practice dentistry, dental medicine or dental hygiene in this state;  (7) designating a limited practice, except as provided in section 20–106a;  (8) engaging in fraud or material deception in the course of professional activities;  (9) the effects of physical or mental illness, emotional disorder or loss of motor skill, including, but not limited to, deterioration through the aging process, upon the license holder;  (10) abuse or excessive use of drugs, including alcohol, narcotics or chemicals;  (11) failure to comply with the continuing education requirements set forth in section 20–126c;  (12) failure of a holder of a dental anesthesia or conscious sedation permit to successfully complete an on-site evaluation conducted pursuant to subsection (c) of section 20–123b;  (13) failure to provide information to the Department of Public Health required to complete a health care provider profile, as set forth in section 20–13j;  or (14) failure to maintain professional liability insurance or other indemnity against liability for professional malpractice as provided in section 20–126d.   A violation of any of the provisions of this chapter by any unlicensed employee in the practice of dentistry or dental hygiene, with the knowledge of the employer, shall be deemed a violation by the employer.   The Commissioner of Public Health may order a license holder to submit to a reasonable physical or mental examination if his or her physical or mental capacity to practice safely is the subject of an investigation.   Said commissioner may petition the superior court for the judicial district of Hartford to enforce such order or any action taken pursuant to section 19a–17.”

Matasavage, Paul, J.