Christina Metzker v. Ervin Agababaev, D.M.D. et al. (2013)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The current parties in this action are the plaintiff, Christina Metzker and the defendant Best Dental Care, P.C. (“Best Dental”).   On November 19, 2012, the plaintiff commenced the present dental malpractice action against the defendant Ervin Agababaev, an oral surgeon, and his employer, Best Dental.   In the First Count of the complaint, the plaintiff generally alleged negligence on the part of Dr. Agababaev in the dental treatment associated with the surgical placement of implants, crowns, and veneers.   The Second Count of the complaint alleged that the defendant Agababaev failed to give the plaintiff full disclosure as required by the standard of care as to the risks of the procedures he recommended to and performed upon the plaintiff.   The Third Count of the complaint was a derivative claim against defendant's employer, Best Dental.   Attached to the complaint in this action were two written opinion letters, dated June 30, 2011, and May 29, 2012, that purported to comply with the requirements of General Statutes § 52–190a.

On April 5, 2013, the defendants moved to dismiss the three counts of the complaint in this present action on the grounds that:  (1) the opinion letters attached to the complaint failed to comply with the requirements of General Statutes § 52–190a;  and (2) because the service of process was improper on defendant Agababaev, this court lacked personal jurisdiction over the claims asserted against him.   On June 3, 2013, the plaintiff withdrew her claims as against the defendant Dr. Agababaev, thus removing the issue of whether service of process as to this defendant was improper.   The only claim remaining in this action is against the defendant Best Dental.

Oral argument was heard on this motion on August 26, 2013.

II

DISCUSSION

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “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).

“When a ․ court decides a jurisdictional 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.”   (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)

A. General Statutes § 52–190a(a)

Since the defendants filed their Motion to Dismiss on April 5, 2013, the plaintiff withdrew all of the claims she had asserted as against defendant Agababaev.   The only cause of action remaining before this court is against the defendant Best Dental in Count Three of the complaint.   After incorporating all of the paragraphs of Counts One and Two, Count Three alleges that Dr. Agababaev was an employee and duly authorized agent of the defendant Best Dental and that defendant Best Dental is liable to the plaintiff by the doctrine of respondeat superior.   The defendant Best Dental primarily moves to dismiss the complaint as against it on the grounds that the plaintiff's written opinion letters, which were attached to the complaint, were not detailed enough to meet the requirements of § 52–190a(a).   Specifically, the defendant argues that the opining physician failed to state that Dr. Agababaev was negligent or that he breached the standard of care relating to the treatment of the plaintiff.   In addition, the defendant contends that the original opinion letters filed with the complaint do not sufficiently set forth information containing the author's qualifications.

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 Supreme Court has ruled 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 ․ Because ․ 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).  “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 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 concluded] 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, 357–58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

In the present case, the Trimel test is met as the plaintiff's allegations in her complaint confirm that:  (1) the defendant Agababaev is being sued in his capacity as a dentist;  (2) the alleged negligence is substantially related to the treatment and involved the exercise of medical judgment when the defendant performed dentistry work on the plaintiff;  and (3) the alleged negligence is directly related to the defendant's conduct during the aforementioned procedure.   Consequently, § 52–190a applies to the claims asserted by the plaintiff in the First Count of the complaint.

“Section 52–190a originally was enacted as part of the Tort Reform Act of 1986.   See Public Acts 1986, No. 86–338 § 12.   The original version of the statute required the plaintiff in any medical malpractice action to conduct 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 [plaintiff] and to file a certificate that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.”  (Internal quotation marks omitted.)  Dias v. Grady, 292 Conn. 350, 357, 972 A.2d 715 (2009).  “In 2005, the legislature amended § 52–190a(a) to include a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that there appears to be evidence of medical negligence and to attach the opinion to the certificate of good faith to be filed with the complaint ․ In addition, the amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint ․ The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts.”  (Citations omitted;  internal quotation marks omitted.)  Id., 357–58.

Section 52–190a(a) provides in relevant part that, in any medical malpractice action, “the claimant or the claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ]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.”  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.”  “Given the explicit cross-reference in the relevant statutes,” § 52–190a(a) and § 52–184c are read in conjunction with one another.  Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011).

As set forth above, § 52–190a requires the plaintiff to attach a certificate of good faith and a letter from a similar health care provider stating that there appeared to be evidence of medical negligence by the defendant Agababaev and providing a basis for the formation of such opinion.   In this case, the plaintiff did attach a certificate of good faith and two opinion letters.   The defendant Best Dental, however, contends that such opinion letters do not meet the requirements of § 52–190a as they fail to:  (1) set forth the name of the dentist the author is opining about and never mentions Dr. Agababaev;  (2) set forth the minimum requirement that Dr. Agababaev breached the standard of care or was negligent;  and (3) set forth the opining author's qualifications.   The defendant Best Dental further argues that the opinion letter does not even provide a conclusory statement of negligence as to Dr. Agababaev.

Upon review of the June 30, 2011 and May 29, 2102 opinion letters attached to the complaint in this action, the defendant's assertions are quite accurate.   There is no mention of Dr. Agababaev by name in either letter and no statement in either letter that Dr. Agababaev was negligent or breached the standard of care.   In addition, there are no statements in the original letters that any specific dentist was negligent or breached the standard of care.   There is no dispute that the original opinion letters failed to satisfy the minimum requirements of § 52–190a as to negligence and the breach of the standard of care.

In addition, the opinion letters attached to the complaint did not contain sufficient information regarding the qualifications of the author as required by § 52–190a(a) or sufficient information as to whether the author was a similar health care provider pursuant to § 52–184c.   The only information contained in the June 30, 2011 letter regarding the author's credentials were the abbreviations “DDS, FAGD” after the author's name.   The May 29, 2012 letter similarly contained a notation of “DDS” after the author's name, but this time, instead of “FAGD,” the initials “FAD” were present.   There was no information in either opinion letter as to what these initials represented or why the second opinion letter contained a different abbreviation than the first.   There was also no information in either of the opinion letters regarding whether the author had been actively engaged in the practice or teaching of dentistry within the five-year period before the incident giving rise to the claim and no information as to what the author's training or experience was.   The two opinion letters submitted in this case simply did not address whether its author was a similar health care provider qualified to render an opinion as to the standard of care owed by the defendant as required by §§ 52–184c(b) and 52–190a(a).

In Lucisano v. Bisson, 132 Conn.App. 459, 466, 34 A.3d 983 (2011), the Appellate Court held that where an opinion letter attached to the complaint “[lacked] any mention of the author's qualifications, or any indication that he or she is a similar health care provider,” the letter did not provide adequate information pursuant to § 52–190a(a).   The court held that “[t]he attached opinion letter in the present case does not provide adequate information that could be used to determine whether the author is a similar health care provider.   Plaintiffs must include this information so that parties and courts are able to determine compliance with § 52–190a.”  Id. The Appellate Court in Lucisano also held that §§ 52–190a(a) and 52–184c “[require] disclosure of qualifications in the opinion letter.”  Id. In Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 36 A.3d 297 (2012), the Appellate Court further clarified its position regarding the sufficiency of qualifications in an opinion letter and held that the opinion letter need not “contain a complete exposition of the health care provider's bona fides, but merely that it disclose that the health care provider possesses the qualifications set forth in § 52–184c.”  (Internal quotation marks omitted.)   Id., 561 n.6. In the present case, neither of the opinion letters attached to the plaintiff's complaint disclose that the health care provider who wrote the letters possesses the qualifications set forth in § 52–184c.

The defendant filed this motion to dismiss on April 5, 2013.   On May 8, 2013, the plaintiff filed an amended complaint and summons in an attempt to address the defects raised by the defendant Best Dental in its motion.   In addition to his proposed amended complaint, the plaintiff filed an affidavit dated May 7, 2013, allegedly written by the author of the opinion letters, attempting to correct the cited deficiencies relating to the qualifications of the author and the omission of any statement that the defendant was negligent.   The plaintiff contends that this court must accept this affidavit which proposes to supplement the original two opinion letters and that such affidavit, along with the original opinion letters, is sufficient to meet the requirements of §§ 52–190a(a) and 52–184c.

In support of her position that a judge may permit an amendment to the complaint to attach a revised opinion letter, the plaintiff cites to Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   In Votre, however, the Appellate Court held that “the purpose of § 52–190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires.   Given the fallibility existing in the legal profession once noted by Justice David M. Shea, 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.   Such a discretionary action would not be at variance with the purpose of § 52–190a, to prevent groundless lawsuits against health care providers.”  Id., 585.   The holding in Votre relates to the trial court's possible granting of permission to a plaintiff to amend the complaint to attach a preexisting opinion letter which preceded the filing of the complaint.   In this case, the plaintiff does not propose to do that, but rather proposes to file a new affidavit approximately two years after the original opinion letters were created to allege for the first time that the defendant was negligent and breached the standard of care.

In this case, both opinion letters attached to the original complaint fail to meet the requirements of § 52–190a.   This court finds it is not within its discretionary power to permit the plaintiff to amend her complaint to attach a later created affidavit by the author of the opinion letters to correct the significant deficiencies in the original opinion letters.   As the original opinion letters must be considered in the context of how they existed at the time of the filing of the complaint, the court finds that they fail to meet the requirements of §§ 52–190a and 52–184c.   Accordingly, dismissal of the Third Count of the complaint as it relates to the allegations of medical negligence asserted in the First Count of the complaint is mandated pursuant to § 52–190a.

The defendant Best Dental has also moved to dismiss that portion of the Third Count of the complaint relating to the allegations asserted in the Second Count of the complaint on the grounds that the claims cannot be asserted due to the deficiencies in the opinion letters attached to the complaint.   The Second Count of the complaint, however, does not sound in medical malpractice, but is a claim alleging lack of informed consent.   The Supreme Court in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011), analyzed whether a claim of informed consent was subject to the requirements of § 52–190a(a).   In Shortell, the plaintiff alleged that he suffered injuries as a result of his dentist's failure to obtain his informed consent to a dental procedure.   Shortell v. Cavanaugh, supra, 300 Conn. 384.   The plaintiff did not attach a good faith certificate or written opinion letter from a similar health care provider pursuant to § 52–190a.  Id., 385.   The Supreme Court expressly held that § 52–190a does not apply to a claim of lack of informed consent because that claim is not a medical negligence claim.  Id. The Supreme Court concluded that “[u]nlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its determination.”  Id., 388.

The defendant Best Dental has cited to the Downs v. Trias, 306 Conn. 81, 49 A.3d 180 (2012) case for the proposition that a physician, in failing to provide information to a patient, can incur liability for falling short of the standard of care and that such allegations necessitate an opinion letter pursuant to § 52–190a.   In the Downs case, the plaintiff was diagnosed with late stage ovarian cancer and brought an action against the defendant alleging, inter alia, that the defendant failed to instruct her that her family history of ovarian cancer greatly increased her risk of developing ovarian cancer and for her to have her ovaries removed.  Downs v. Trias, supra, 306 Conn. 85–86.   The plaintiff alleged both a medical negligence claim and a lack of informed consent claim under the foregoing fact scenario.  Id., 86.   At trial, the judge allowed expert testimony to be presented to prove plaintiff's lack of informed consent claim.  Id. The defendant appealed this decision by the trial court, and the Supreme Court affirmed the trial court on appeal.   The Supreme Court, in finding that the lack of informed consent claim was essentially a medical negligence claim, held that, “although medical negligence and lack of informed consent are clearly distinct causes of action with different elements that must be proven ․ the same set of facts may give rise to both causes of action.”  (Citation omitted.)  Id., 89.   The Supreme Court held that “the plaintiff's allegations concerning the defendant's failure to provide information and recommendations concerning ovarian cancer could properly be construed as describing specific instances of a broader theory that the defendant had failed to provide proper medical treatment.”  Id., 92.

In the Downs case, the Supreme Court also laid out the chief salient distinction between a claim based on lack of informed consent and one based on medical negligence.  “In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of his injury ․ [M]aterial information that must be disclosed refers to that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.”  (Citation omitted;  internal quotation marks omitted.)   Downs v. Trias, supra, 306 Conn. 88.   In reviewing the allegations of the present complaint, the court finds that the facts in this case are readily distinguishable from the facts in the Downs case, and that the relevant allegations in the Second Count do allege the defendant Best Dental's failure to disclose information to the plaintiff regarding the risks of treatment and a failure to obtain her meaningful informed consent.   Accordingly, the court interprets the allegations of the Second Count as an informed consent claim, not a medical negligence claim.

As § 52–190a does not apply to a claim of lack of informed consent, the defendant Best Dental's motion to dismiss the Third Count of the complaint as it relates to the allegations asserted in the Second Count of the complaint for lack of informed consent is denied.

III

CONCLUSION

The defendant's motion to dismiss the Third Count of the complaint as it relates to the First Count of the complaint, which alleges a claim for medical negligence, on the grounds that the opinion letters attached to the complaint do not meet the requirements set forth in General Statutes § 52–190a(a) is granted.   The defendant's motion to dismiss the Third Count of the complaint as it relates to the Second Count of the complaint, which alleges a claim for lack of informed consent, on the grounds that the opinion letters attached to the complaint do not meet the requirements set forth in General Statutes § 52–190a is denied.

BY THE COURT

OZALIS, J.

Ozalis, Sheila A., J.