Wanda Kupisz v. Aspen Dental Management, Inc. et al. (2013)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS BY PATRICK DERMESROPIAN, DDS AND ASPEN DENTAL MGMT, INC. (DOCKET # 101) AND JOITA GHOSH, DDS (DOCKET # 106)

This is a dental malpractice action in which the defendants, Patrick Dermesropian, DDS, Aspen Dental Management, Inc., and Joita Ghosh, DDS have moved to dismiss the action, asserting that the plaintiff has failed to attach to the complaint an opinion letter from a similar health care provider as required by General Statutes § 52–190a.   The defendants claim that the court lacks jurisdiction based on General Statutes § 52–190a(c) and the Supreme Court's decision in Bennett v. New Milford Hospital, 300 Conn. 1, 12 A.3d 865 (2011).

General Statutes § 52–190a provides that:

(a) No civil action ․ shall be filed to recover damages resulting from personal injury ․ whether in tort or in contract, in which it is alleged that such injury ․ 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.

In Bennett, the Supreme Court held that § 52–190a(c) “requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers ․” Id., p. 25.

There is no dispute that the alleged negligence in this case occurred in connection with the practice of general dentistry.   The plaintiff alleges unequivocally in her complaint that both defendants “breached the standard of care required of general dentists.”  (Complaint, First Count, Paragraph 9, and Second Count, Paragraph 9.)

There is also no dispute that the defendants Patrick Dermesropian, DDS and Joita Ghosh, DDS are general dentists and not specialists in any area of dental practice.   Neither defendant is board certified;  neither defendant is held out as a specialist;  both defendants confine their treatment of patients to the field of general dentistry

The qualifications and credentials of the author of the opinion letter attached to the plaintiff's complaint are stated in the first paragraph of that letter:

I am licensed as a General Dentist in the State of Connecticut and have been practicing Dentistry for more than sixteen years.   I completed my first post-graduate residency at the University of Connecticut in an Advanced Education in General Dentistry in 1997.   I obtained a certificate in prosthodontics after completing a three-year residency from the Veteran's Hospital in West Los Angeles in 2003.   While I am certified as a Prosthodontist, most of my practice consists of everyday general dentistry including basic restorations, extractions, cleanings, examinations, and the creation and delivery of both fixed and removable prostheses, all of which are within the capabilities of a general dentist.

The parties agree that the applicable statutory provision for determining who is a “similar health care provider” in this case is § 52–184c(b).  That statute defines a similar health care provider as “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.”

The plaintiff argues that the statute has been complied with in this case.   The written opinion has been provided by a similar healthcare provider because the individual in question has been licensed by the State of Connecticut in general dentistry and has actively practiced in the field of general dentistry for more than sixteen years.   Plaintiff argues that the fact that the author has additional training and experience in prosthodontics does not make him unqualified to issue a prelitigation opinion letter in a case involving general dentistry.

The defendants argue that the letter fails to meet the statutory requirements on two grounds:  first, there is insufficient information within the letter itself for the court to determine whether or not the author has been actively involved in the practice of general dentistry within the five-year period before the incident giving rise to the plaintiff's claim.   Second, the author states that he is “certified as a Prothodontist.”   Prosthodontics is a specialty within the field of dentistry and, given that, the question “is whether the author of an opinion letter who is a specialist can author an opinion letter against non-specialists.”  (July 3, 2013 Dermesropian Reply Memorandum in Support of Motion to Dismiss at p. 17.)

The defendants' first challenge to the opinion letter can be readily addressed.   The court finds that the training and experience described in the letter are adequate to establish that the author has been trained in the field of general dentistry, has been engaged in the professional practice of dentistry for more than sixteen years and continues to engage in the practice of dentistry and that, as of the time of the writing, “most of” the author's practice “consists of everyday general dentistry.”   From that description the court can conclude that the author has training and experience in the field of general dentistry as a result of the active involvement in the practice of general dentistry for the requisite statutory period prior to the incident in question.

The defendants' second challenge to the opinion letter does not relate to the author's training and experience in the field of general dentistry, but rather to the author's significant advanced training and experience in the field of prosthodontics.   This raises a question as to whether the author of the opinion letter “is trained and experienced in the same discipline or school of practice” as the defendants, as the C.G.S. § 52–184c(b) requires.

Prosthodontics, also known as “dental prosthetics” or “prosthetic dentistry,” is one of nine dental specialties recognized by the American Dental Association.   Prosthodontics is the dental specialty pertaining to “restoring natural teeth or replacing missing teeth or oral structures with artificial devices, such as dentures.”  (July 3, 2013 Dermesropian Reply Memorandum in Support of Motion to Dismiss at pp. 4–5.)

Familiarity with the principles of general dentistry is necessarily required to engage in the specialty practice of prosthodontics.   However, the defendants assert (and the plaintiff apparently does not contest) that certified prosthodontists are required to have completed three or four years of formal medical education and training beyond that required for the practice of general dentistry and, as a result, possess special knowledge and competencies not within the skill set of a general dentist.

At the same time, it is acknowledged that there is some “overlap” between the general dentistry and prosthodontics, since a general dentist will often perform simple restorations with dental prosthetics such as crowns, bridges or dentures, while a prosthodnotist may perform general dental procedures such as tooth removal or treatment of periodontal disease as part of their rehabilitation and maintenance of the oral function through prosthetics.   Nonetheless, the defendants maintain that the care and treatment delivered by a prosthodontist is necessarily based on different training and experience and pursuant to a standard of care (the standard of care of a specialist) which is different from that exercised by a general dentist.

In the present case, the author of the opinion letter states:  “it is my opinion that Dr.'s Dermesropian and Ghosh breached the standard of care by prematurely extracting teeth without an accurate periodontal diagnosis.   Dr. Ghosh then breached the standard of care by fabricating and delivering ill-fitting prostheses with incomplete data retrieval and diagnosis formulation that subsequently led to Mrs. Kupisz's temporomandibular distress.   The extraction of all her teeth made the restoration of her dentition with some form of complete coverage prostheses necessary.”

The defendants argue that it is not possible to distinguish whether the author's opinion as to what would constitute appropriate care and treatment is based on his education, training and experience as a general dentist, or based on an additional three years of formal education and training in prosthodontics and approximately ten years experience as a practicing certified prosthodontist.   The court agrees, and finds that, because of his additional formal education and experience in the field of prosthodontics, the author of the opinion letter is not “trained and experienced in the same discipline or school of practice” as the defendants.

Our Appellate Court recently discussed an analogous situation in Wilkins v. Connecticut Childbirth & Women's Center, 135 Conn.App. 679, 689–90, 42 A.3d 521, cert. granted, 305 Conn. 921, 47 A.3d 881 (2012).   The question in that case was whether an opinion letter authored by a board-certified obstetrician and gynecologist as to the alleged negligence of a person trained and experienced in nurse midwifery was insufficient to support an action against institutional defendants under § 52–190a.   The Court's core holding was as follows:

The plaintiff contends that an opinion letter by an obstetrician is sufficient to meet the requirements of § 52–190a because obstetricians and nurse midwives both provide obstetrical care to patients and the author of the opinion letter that she submitted has both taught and supervised certified nurse midwives and is familiar with the standard of care required of them.   Additionally, the plaintiff argues that, because there is a statutory requirement that nurse midwives work in collaboration with obstetricians;  see General Statutes §§ 20–86a and 20–86b;  an obstetrician is a similar health care provider who may author a prelitigation opinion letter in an action concerning purported negligence by nurse midwives.   The plaintiff's claim in this regard is controlled by Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. In Bennett, our Supreme Court concluded that, “in cases of specialists, the author of an opinion letter pursuant to § 52–190a(a) must be a similar health care provider as that term is defined by § 52–184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52–184c(d).”  Id., 21.   In other words, one's familiarity with or knowledge of the relevant standard of care, for purposes of authoring a prelitigation opinion letter, is not a proper consideration in determining the adequacy of that letter if the author does not meet the statutory definition of a “similar health care provider.”   Thus, pursuant to Bennett, the plain language of §§ 52–190a(a) and 52–184c(c) dictates that a “similar health care provider” with respect to the plaintiff's health care providers would be one who is trained and experienced in nurse midwifery or nursing and is certified in nurse midwifery or nursing.   The author of the opinion letter submitted by the plaintiff is neither.

(Emphasis added.)  Wilkins v. Connecticut Childbirth & Women's Center, 135 Conn.App. 679, 686–88, 42 A.3d 521, cert. granted, 305 Conn. 921, 47 A.3d 881 (2012).¹  As the Wilkins court has explained, in order to conduct a proper analysis under Bennett, a court should look to objective criteria of training, experience and credentials, as opposed to knowledge and qualifications to speak on the subject matter.   A certified prosthodontist may have familiarity with and a working knowledge of the standard of care for general dentists, but that does not make him a “similar health care provider” within the definition of §§ 52–190a and 52–184c(b).

Failure to supply a prelitigation opinion letter from a person qualified as a similar health care provider requires dismissal of the action, pursuant to General Statutes § 52–190a(c).  Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 28.

Accordingly, the First and Second Counts of the complaint, which allege medical negligence, are dismissed.

BY THE COURT,

Sheridan, J.

FOOTNOTES

FN1. Wilkins has since been certified to the Supreme Court on the following question, and a decision is pending:  “Did the Appellate Court properly determine that, in this action against institutional defendants, General Statutes (Rev. to 2007) § 52–190a(a) required that the ‘similar health care provider’ opinion letter be authored by a person trained and experienced in nurse midwifery or nursing, instead of being written by a board certified obstetrician and gynecologist?”.  FN1. Wilkins has since been certified to the Supreme Court on the following question, and a decision is pending:  “Did the Appellate Court properly determine that, in this action against institutional defendants, General Statutes (Rev. to 2007) § 52–190a(a) required that the ‘similar health care provider’ opinion letter be authored by a person trained and experienced in nurse midwifery or nursing, instead of being written by a board certified obstetrician and gynecologist?”

Sheridan, David M., J.