Erica Domond et al. v. Miguel Caldera et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 102

I

ISSUE

Whether to grant the defendants' motion to dismiss on the ground that the plaintiffs failed to attach the written opinion of a similar health care provider pursuant to General Statutes § 52–190a.

II

FACTS

On December 12, 2012, the plaintiffs, Erica Domond and Erica Domond through her conservator Bignon Domond, filed a four-count complaint against the defendants, Miguel Caldera and Crossroads, Inc. (Crossroads).  The defendants have moved to dismiss counts one, two, and three on the ground that those counts sound in medical malpractice and the plaintiffs failed to attach a certificate of good faith and written opinion of a similar health care provider as required by General Statutes § 52–190a.¹

In count one of the complaint, the plaintiffs allege the following.   Domond was a patient at Amethyst House, a New Haven rehabilitation and medical facility for women and children owned and operated by Crossroads.   There, Caldera held himself out as licensed to practice medicine in Connecticut and to diagnose some of the ailments and diseases of Amethyst House's residents.   Caldera and his servants, agents, apparent agents, or employees undertook the care, treatment, monitoring, diagnosis, and supervision of Domond.   While under the treatment of Caldera, Domond fell into a diabetic coma and was found on the floor foaming at the mouth with bugs crawling on her and a blood-sugar level of thirty-three.   Caldera negligently represented that he was a medical doctor, failed to properly “care for, treat, diagnose, monitor and supervise” Domond, failed to properly supervise Crossroads' workers, and failed to communicate properly with other health care providers.   Caldera also violated General Statutes § 53–341 and § 19a–14–40 of the Public Health Code, violated Crossroads' internal policies regarding admission and treatment, and violated the medical orders of Domond's “actual medical care providers.”

In count two, the plaintiffs incorporate all of the above allegations from count one and claim negligence against Crossroads, alleging the following additional facts.   Crossroads employed various counselors and health care providers who, acting within the scope of their employment, failed to follow the applicable standards of reasonable care in rendering medical care to Domond.   Caldera was also acting within the scope of his employment with Crossroads when he rendered medical care to Domond.   Crossroads and its servants, agents, apparent agents, or employees failed to properly care for, treat, diagnose, monitor and supervise Domond, resulting in her injuries.

In count three, the plaintiffs incorporate all of the above allegations of count one and further allege negligent misrepresentation against the defendants in that the defendants represented to Domond that Caldera was a medical doctor duly licensed to practice medicine in Connecticut when they knew or should have known Caldera was not licensed to practice medicine in Connecticut.   The plaintiffs further allege in count three that Domond relied on these representations, which were made in a manner that was likely to induce the belief that Caldera was a practicing medical doctor and which were made for the purpose of inducing Domond's reliance, in seeking care at Crossroads.

On December 28, 2012, the defendants filed a motion to dismiss on the grounds that the accidental failure of suit statute is inapplicable and that the plaintiff failed to attach a good faith certificate and letter from a similar health care provider as required by General Statutes § 52–190a.   The plaintiffs filed an objection on April 15, 2013.   On June 20, 2013, the defendants filed a reply to the plaintiffs' objection, to which they attached the sworn affidavit of Caldera dated June 11, 2013.   Therein, Caldera averred that he is licensed in Connecticut as a Licensed Alcohol and Drug Counselor (LADC), that there are other LADCs on staff at Crossroads, that Crossroads utilizes licensed independent contractors (including psychiatrists, licensed professional counselors, and licensed clinical social workers), that Crossroads holds two licenses from Connecticut to provide residential and outpatient drug and alcohol rehabilitation, and that there is a state-licensed medical clinic at the Crossroads premises that employs licensed physician's assistants and advanced practicing nurses.

The court first heard the matter on short calendar on June 24, 2013.   At that short calendar, the court deferred argument on the § 52–190a issue to give the plaintiffs time to respond to the defendants' reply brief and subsequently, on July 29, 2013, denied the motion to dismiss with respect to the accidental failure of suit ground only.   On August 12, 2013, the plaintiffs filed a supplemental objection to the defendants' motion to dismiss addressing the § 52–190a argument, to which the defendants replied on September 4, 2013.   The court heard the arguments regarding the § 52–190a ground for dismissal on the September 9, 2013 short calendar.²

III

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.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).

The defendants argue that the first three counts of the plaintiffs' complaint must be dismissed because they sound in medical malpractice, as they are “replete with allegations regarding [Domond's] medical care and treatment,” yet the plaintiffs have failed to attach a written opinion from a similar health care provider or a certificate of good faith as required by § 52–190a.   The plaintiffs respond that, because this case revolves around Caldera falsely holding himself out to be a medical doctor, applying § 52–190a would mean that the defendant, to find a similar health care provider, would need to obtain a written opinion from another person “impersonating a medical doctor,” which would be “absurd and certainly not consistent with either the intent of the statute or decisions interpreting it.”

In their reply filed on June 20, 2013, the defendants, citing Caldera's June 11, 2013 affidavit, argue that the defendants are licensed health care providers under § 52–184b and, therefore, that § 52–190a is applicable to counts one, two, and three.   In particular, the defendants argue that counts one and two sound in medical malpractice as they meet the three factors first established by Trimel v. Lawrence & Memorial Hospital, 61 Conn.App. 353, 357–58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001), and that the third count is just a “veiled medical malpractice claim.”   In their supplemental objection filed on August 12, 2013, the plaintiffs argue that § 52–190a is inapplicable for several reasons:  the plaintiffs specifically allege the negligence of multiple employees and agents of Crossroads who are not licensed health care providers under theories that do not implicate § 52–190a;  the acts allegedly occurred while Caldera was operating as “chief clinician” and “M.D.,” for which he did not hold a license;  § 52–190a is not applicable to negligent misrepresentation actions;  the motion to dismiss was untimely;  the motion should be denied on equitable grounds because the defendants failed to raise the existence of the license until six months after their motion to dismiss was filed;  and the defendants should be collaterally estopped from rearguing the § 52–190a issue as the identical issue has already been fully litigated by the same parties.

“[T]he attachment of 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 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.”   Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).³  Our Appellate Court, in Trimel v. Lawrence & Memorial Hospital, supra, 61 Conn.App. 357–58, established a three-part test for determining whether a claim sounds in medical malpractice for the purposes of making § 52–190a applicable:  “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 with the result of injury, loss, or damage to the recipient of those services ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, we conclude 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.”  (Emphasis omitted;  internal quotation marks omitted.)

Based on a thorough review of the law and record, the court determines that (A) count one sounds in medical malpractice for § 52–190a purposes, (B) count two sounds in medical malpractice for § 52–190a purposes, (C) count three does not sound in medical malpractice for § 52–190a purposes, and (D) the plaintiffs' additional objections to dismissal are unavailing.

A

Count One Sounds in Medical Malpractice

The plaintiff specifically alleges in count one that Caldera failed to properly “treat [and] diagnose” Domond's medical condition.   That allegation is sufficient to meet the second and third part of the three-part test because treating and diagnosing Domond's medical condition are types of negligence that are of a specialized medical nature that arise out of the medical professional-patient relationship and involve the exercise of medical judgment.   Thus, this case presents the atypical situation where the dispute centers on the first part of the three-part test for determining if an action sounds in medical malpractice, whether the defendant is being sued in his capacity as a medical professional.   The plaintiffs argue that, as they allege in their negligence count that Caldera misrepresented that he was a medical doctor, they cannot be suing him in his capacity as a medical professional because they are alleging that he is not actually licensed to be a medical doctor, but instead that he falsely held himself out as one while treating Domond.   The defendants counter that Caldera is a licensed medical professional, in particular they provide an uncontroverted affidavit establishing that Caldera is licensed by Connecticut as an LADC and argue that he was acting in that capacity at Crossroads when he treated Domond.

According to his uncontroverted affidavit, Caldera is licensed to provide alcohol and drug abuse counseling and was treating patients in that capacity at Crossroads.   Although there are allegations in count one that Caldera misrepresented his credentials to make it appear that he was a medical doctor, Caldera is a licensed addiction counselor and is being sued for the negligent treatment and diagnosis he provided to a substance abuse patient at a substance abuse treatment facility, to which his license relates.   Further, the bases of the plaintiffs' negligence claims are that Caldera failed to properly “care for, treat, diagnose, monitor and supervise” Domond;  failed to properly supervise Crossroads' workers;  and failed to properly communicate with other health care providers.   These allegations are not particular to a medical doctor, but are also the types of responsibilities an LADC would have.   Thus, for the purposes of § 52–190a, count one requires the attachment of a written opinion letter of a similar health care provider.

B

Count Two Sounds in Medical Malpractice

For similar reasons to those stated in section III A, the court also determines that count two sounds in medical malpractice.   The plaintiffs specifically allege in count two that Crossroads failed to properly “treat [and] diagnose” Domond's medical condition, which is sufficient to meet the second and third part of the three-part test for whether a cause of action sounds in medical malpractice because treating and diagnosing Domond's medical condition are types of negligence that are of a specialized medical nature that arise out of the medical professional-patient relationship and involve the exercise of medical judgment.   According to Caldera's uncontroverted affidavit, Crossroads held both a residential license for drug and alcohol treatment and an outpatient license for mental health and drug and alcohol abuse treatment at all the relevant times alleged in the plaintiffs' complaint.   Like Caldera's LADC license, Crossroads' residential treatment license is relevant to the types of treatment outlined in the complaint.   Therefore, Crossroads is being sued in its capacity as a health care provider, meeting the first part of the three-part test for whether a cause of action sounds in medical malpractice.   Count two, thus, sounds in medical malpractice and § 52–190a requires that the plaintiff attach to the complaint a written opinion letter from a similar health care provider.

C

Count Three Does Not Sound in Medical Malpractice

The defendants contend that the third count of the complaint alleging negligent misrepresentation should also be dismissed for failure to attach an opinion letter as required by § 52–190a.   The plaintiffs respond that the negligent misrepresentation count does not sound in medical malpractice, but is instead a separate cause of action more akin to fraud.⁴

“It is not the label that the plaintiff placed on each count of her complaint that is pivotal but the nature of the legal inquiry.”  Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   In Votre, the plaintiff, an obstetrics patient, brought suit based on, inter alia, negligent misrepresentation against the defendant, a physicians group specializing in obstetrics and gynecology, for the death of her infant son following a complicated pregnancy.  Id., 572–74.   According to the plaintiff's complaint:  “Prior to and during the plaintiff's hospitalization, the plaintiff requested that the defendants bring in physicians from Yale–New Haven Hospital's high risk pregnancy group to consult and to take over her treatment.   At some point, the plaintiff, in fact, did consult with the Yale high risk group, resulting in the defendants' reception of a written consultation report advising the defendants in their care of the plaintiff.   The defendants concealed the report from the plaintiff.   Between July 14 and 26, 2003, the plaintiff's condition worsened, as the plaintiff at various times developed symptoms of premature labor, fever, infection and back pain.   Despite the presence of these symptoms and the plaintiff's repeated requests, the defendants refused to turn over her care to the Yale high risk group or to treat her in accordance with the group's recommendations.   The defendants at various times represented to the plaintiff that she did not need high risk physicians, that the Yale high risk group would participate in her case and that the defendants would follow the recommendations of the Yale high risk group.”  (Footnote omitted.)  Id., 573.   In upholding the trial court's dismissal of the negligent misrepresentation count for failure to comply with § 52–190a, the Appellate Court stated that “[a]t the heart of the plaintiff's complaint against the defendants is the defendants' failure to consult the Yale high risk group concerning the plaintiff's case or to refer the plaintiff to the group.”  Id., 577.   The plaintiff's claim, wrote the Votre court, “ar[ose] out of the professional-patient relationship between the defendants and the plaintiff [because] the facts underlying the claim occurred solely in the context of the defendants' ongoing medical treatment of the plaintiff [and was] of a ‘specialized medical nature’ because it directly involve[d] the plaintiff's medical condition:  her high risk pregnancy.”   Id., 578.   The court then determined that the alleged acts were substantially related to medical diagnosis and treatment, concurring with the trial court's determination that “whether or when the plaintiff needed a high risk physician during her hospitalization is a question involving the exercise of medical judgment and ․ could not be determined by [a] fact [finder] without expert testimony.”   The court further stated that, “[s]imilarly, whether the defendants followed the recommendations from the Yale high risk group is a question that is also substantially related to the plaintiff's treatment and involves medical judgment and ․ could not be determined without the guidance of specialized knowledge.”  (Internal quotation marks omitted.)   Id. The Votre court reasoned that “[c]onfronted with the plaintiff's worsening medical situation, the defendants were required to diagnose and treat the plaintiff's symptoms using their medical judgment.   Given the circumstances, this included consideration of the merits of consulting with the Yale high risk group or referring the plaintiff to that group according to her stated wishes and their potential effect on her well-being and that of her child.   It also included evaluation of the Yale high risk group's recommendations and whether valid medical reasons supported the defendants' actions.”  Id.

In the present case, by contrast, the essence of the plaintiffs' negligent misrepresentation claim is that the defendants represented to Domond that Caldera was a medical doctor duly licensed to practice medicine in Connecticut when they knew or should have known Caldera was not licensed to practice medicine in Connecticut and that Domond relied on these representations, which were made in a manner that was likely to induce the belief that Caldera was a practicing medical doctor and that were made for the purpose of inducing Domond's reliance, in seeking care at Crossroads.   These allegations do not involve a claim that the “defendant[s] erred in respect of the conclusions that [t]he[y] drew concerning ․ medical matters or that [the] defendant[s] acted improperly from a ․ medical standpoint.”  (Internal quotation marks omitted.)   See id., 580 (quoting, with approval, Couri v. Gardner, 173 N.J. 328, 342, 801 A.2d 1134 (2002)).   Furthermore, unlike in Votre, “the factual allegations underlying the claims [in the present case do not] require proof of the defendants' deviation from the applicable standard of care of a health care provider.”   See id., 580;  see also Thiel v. Fine, Superior Court, judicial district of Hartford, Docket No. CV–08–5021485–S (February 26, 2009, Wagner, J.) (distinguishing from Votre “count [that] does not address any procedural aspect of the treatment [but] focus[es] solely on representations made by the defendant, not the medical treatment he provided”).   In short, the defendants' alleged misrepresentation that Caldera was a medical doctor for the purpose of inducing the plaintiff's reliance was not substantially related to any diagnosis or treatment provided by the defendants and did not involve the exercise of medical judgment.   Therefore, because count three does not sound in medical malpractice and § 52–190a does not apply, the motion to dismiss is denied with respect to count three.

D

The Plaintiffs' Additional Objections to Dismissal are Unavailing

The plaintiffs makes several additional arguments in opposition to dismissal.   In particular, they argue that (1) the motion to dismiss was untimely;  (2) the motion to dismiss should be denied on equitable grounds because the defendants failed to raise the existence of the license until six months after their motion to dismiss was filed;  and (3) the defendants should be collaterally estopped from rearguing the § 52–190a issue as the identical issue has already been fully litigated by the same parties.

1

Timeliness

The plaintiffs, relying on the holding in Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011) and Practice Book §§ 10–30 and 10–32, argue in their supplemental objection that the motion to dismiss was untimely because the defendants did not bring up Caldera's license until more than six months after the return date.   The defendants respond that they filed the motion to dismiss within the thirty days allowed under the Practice Book, putting the plaintiffs on notice that the defendants were health care providers and that § 52–190a applied.

Practice Book § 10–30 provides, in relevant part:  “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 ․” Practice Book § 10–32 provides, in relevant part:  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed ․ within the time provided by Section 10–30.”   In Morgan v. Hartford Hospital, supra, 301 Conn. 402, our Supreme Court held “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 rules applies by its very terms.”

In the present case, the defendants filed their appearance on December 13, 2012, and filed the motion to dismiss for failure to comply with § 52–190a on December 28, 2012, within the thirty days provided by Practice Book § 10–30.   The plaintiffs have cited no rule stating that, because the defendants only presented an affidavit stating their medical licenses in a later responsive pleading related to the initial motion to dismiss, that the filing of the motion to dismiss was untimely.   Thus, the motion to dismiss was timely.

2

Equitable Grounds

The plaintiffs also argue that the defendants are estopped on equitable grounds from asserting that they are health care providers.   In particular, the plaintiffs argue that the defendants “[f]or four years” misrepresented to them that the “only applicable license was Caldera's medical doctor license held in another country” and that the plaintiffs “relied on this in determining whether the suit was against health care providers” for the purposes of seeking a written opinion letter under § 52–190a.   The defendants counter that the licenses “are a matter of public record” and “are easily discoverable using a simple good faith search of the State of Connecticut eLicensing web [site].”

The only evidence that the plaintiffs have submitted supporting their contention that the defendants “misrepresented” that they did not hold any applicable licenses and that Domond relied on those misrepresentations in not obtaining a written opinion letter is the statements before Judge Dooley during the hearing on the motion to dismiss in Domond v. Caldera, Superior Court, judicial district of Waterbury, Docket No. CV–11–6011218–S (November 7, 2011, Dooley, J.).   That transcript from that hearing shows that the attorney for the defendants conceded that Caldera was “not a medical doctor licensed in the State of Connecticut” and, when asked by the court whether Crossroads was licensed, replied, “I don't believe that it is, Your Honor.   I've actually just received this brief this morning so ․ I'm not fully prepared to address that.”

The concession of the defendants' attorney that Caldera was not a licensed doctor in Connecticut was not equivalent to representing that Caldera was not licensed as a health care provider in any respect.   Additionally, the statement of the defendant's attorney that, based on his limited review, he did not believe Crossroads was licensed and was not fully prepared to address that point is not the equivalent of representing that Crossroads had no licenses.   Those statements also did not sufficiently aver that Crossroads did not have any license such that the plaintiffs could rely on them in forgoing attaching a written opinion letter of a similar health care provider as required by § 52–190a.   Furthermore, the plaintiffs have cited no authority for the proposition that, were there a misrepresentation that the defendants were not licensed, it would preclude the defendants from moving to dismiss on § 52–190a grounds and relieve the plaintiffs of their requirements under § 52–190a.   The defendants are, therefore, not estopped on equitable grounds from asserting their § 52–190a claim.

3

Collateral Estoppel

The plaintiffs argue further that the defendants are collaterally estopped from raising § 52–190a as a ground for dismissal because that issue was already determined in a prior action between the same parties.   According to the plaintiffs, “Judge Dooley ruled from the bench on [November 7, 2011] that the defendants' motion to dismiss [b]e denied based on their argument regarding the plaintiffs' failure to obtain a good faith certificate.”   In support of that contention, the plaintiffs submitted as evidence the transcript of the hearing before Judge Dooley on the motion to dismiss in Domond v. Caldera, Superior Court, judicial district of Waterbury, Docket No. CV–11–6011218–S (November 7, 2011, Dooley, J.).   The defendants respond that Judge Dooley issued an order that granted dismissal for failure to follow General Statutes § 52–48(b) and that the only issue necessarily determined by Judge Dooley in her order was that the plaintiffs failed to provide a return date within the time allowed under § 52–48(b).

“[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim ․ An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ․ An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ․ To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case ․ Those requirements serve to ensure fairness, which is a crowning consideration in collateral estoppel cases.”  (Internal quotation marks omitted.)  Doran v. First Connecticut Capital, LLC, 143 Conn.App. 318, 321–22, 70 A.3d 1081, cert. denied, 310 Conn. 917 (2013).

In the prior action, the defendants moved to dismiss based on failure to attach a good faith certificate and written opinion letter under § 52–190a and failure to set the return date within the time allowed by § 52–48(b).  At the November 7, 2011 hearing on the motion, the court stated that “in the absence of some indication that these are health care providers as defined by statute, I'm not going to grant the motion to dismiss on those grounds but I will reserve on the procedural issue.”   The court then issued an order on November 29, 2011 granting the motion to dismiss based on § 52–48(b).  It is not the case that, in the absence of the determination of the § 52–190a issue, the court could not have validly rendered its decision dismissing the case based on the violation of § 52–48(b).  “If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action.”  Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 535, 906 A.2d 14 (2006).   As the court's order dismissing the previous action under § 52–48(b) was not dependent on its § 52–190a determination, the parties may relitigate that issue, and collateral estoppel does not apply.

IV

CONCLUSION

For the foregoing reasons, the motion to dismiss is granted only as to counts one and two and is otherwise denied.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. The motion to dismiss simply states that “the complaint should be dismissed because the plaintiff failed to file a certificate of good faith and a written opinion by a similar health care provider with the complaint,” implying that they are moving to dismiss all four counts on that ground.   The defendants, however, do not make any argument directed at count four, a claim of spoliation of evidence against Crossroads, and the defendants' reply memorandum appears to abandon any claim that count four sounds in medical malpractice and requires compliance with § 52–190a, instead explicitly focusing on counts one, two, and three..  FN1. The motion to dismiss simply states that “the complaint should be dismissed because the plaintiff failed to file a certificate of good faith and a written opinion by a similar health care provider with the complaint,” implying that they are moving to dismiss all four counts on that ground.   The defendants, however, do not make any argument directed at count four, a claim of spoliation of evidence against Crossroads, and the defendants' reply memorandum appears to abandon any claim that count four sounds in medical malpractice and requires compliance with § 52–190a, instead explicitly focusing on counts one, two, and three.

FN2. Subsequently, on September 16, 2013, the plaintiffs submitted, as an exhibit, the transcript of a November 7, 2011 hearing before Judge Dooley addressing a motion to dismiss in a previous action regarding the same controversy that is the subject of the present case..  FN2. Subsequently, on September 16, 2013, the plaintiffs submitted, as an exhibit, the transcript of a November 7, 2011 hearing before Judge Dooley addressing a motion to dismiss in a previous action regarding the same controversy that is the subject of the present case.

FN3. General Statutes § 52–190a provides, 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 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, initial pleading or apportionment 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 or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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 ․ (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.”.  FN3. General Statutes § 52–190a provides, 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 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, initial pleading or apportionment 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 or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant'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 ․ (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.”

FN4. “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  Coppola Construction Co., Inc. v. Hoffman Enterprises Limited Partnership, 309 Conn. 342, 351–52, 71 A.3d 480 (2013)..  FN4. “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  Coppola Construction Co., Inc. v. Hoffman Enterprises Limited Partnership, 309 Conn. 342, 351–52, 71 A.3d 480 (2013).

Roche, Vincent E., J.