Jeffrey Demers v. Christopher Sinclair et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS NO. 107

This is a decision on the defendants' motion to dismiss dated March 6, 2013, which seeks to dismiss the plaintiff's complaint on the grounds of (1) insufficient service of process under General Statutes § 52–57(a);  (2) failure to comply with General Statutes § 52–46a by filing the complaint nine days after the return date;  and (3) failure to comply with General Statutes § 52–190a by (a) failing to attach a good faith opinion letter or attorney certification to the complaint and (b) filing a deficient opinion letter.   The defendants' motion to dismiss is hereby granted on the basis of failure to comply with the requirements of General Statutes § 52–190a.

FACTS

On January 31, 2013, the plaintiff, Jeffrey Demers, filed a two-count complaint against the defendants, Dr. Christopher Sinclair and River Valley Neurology, LLC (River Valley).   The plaintiff alleges the following facts in count one of the complaint.¹  Dr. Sinclair, a neurologist licensed to practice medicine in Connecticut, began to treat the plaintiff for lower extremity weakness, numbness, and neuropathy.   The plaintiff was diagnosed with “chronic inflammatory demyelinating peripheral neuropathy” and Dr. Sinclair treated him through intravenous immunoglobulin.   The plaintiff alleges that Dr. Sinclair misdiagnosed him and should have diagnosed him with Charcot–Marie–Tooth disease.   In count two of the complaint, the plaintiff restates the factual allegations from count one and adds that Dr. Sinclair is an employee and/or agent of River Valley.   The plaintiff alleges as a result of the alleged negligence of the defendants in misdiagnosing him and administering to him the intravenous immunoglobulin, the plaintiff suffered harm.

On February 1, 2013, the plaintiff filed a “malpractice certification.”   Then, on March 6, 2013, the defendants filed a motion to dismiss the complaint and a supporting memorandum of law.   The plaintiff objected on April 11, 2013, and the defendants filed a reply to the objection on July 19, 2013.   The matter was heard at short calendar on September 30, 2013.

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 (2011).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”   (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001).  “The grounds which may be asserted in [a motion to dismiss include] ․ lack of jurisdiction over the person ․ and ․ insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

The defendants argue that the complaint should be dismissed for the following reasons:  (1) insufficient service of process under General Statutes § 52–57(a);  (2) failure to comply with General Statutes § 52–46a in filing the complaint nine days after the return date;  and (3) failure to comply with General Statutes § 52–190a by (a) failing to attach a good faith opinion letter authored by a similar health care provider or attorney certification to the complaint and (b) filing a deficient opinion letter.   The plaintiff objects that service was properly made on both defendants, the defect in return date is curable without prejudicing the defendants, and the opinion letter sufficiently describes the defendant's negligent behavior.   Because this court finds the arguments pursuant to General Statutes § 52–190a to be the most persuasive, this memorandum will only address those grounds and will not address issues of service of process and late filing.²

General Statutes § 52–190a “requires a party bringing a medical malpractice action to make 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.”   Bavedas v. Hunter's Ambulance Services, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV–12–6008733–S (January 3, 2013, Arnold, J.) [55 Conn. L. Rptr. 294].  General Statutes § 52–190a(a) states, in relevant part:  “No civil action ․ shall be filed to recover damages resulting from personal injury ․ 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 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 ․ 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 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.”  General Statutes § 52–190a “requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences.”  Morgan v. Hartford Hospital, 301 Conn. 388, 396, 21 A.3d 451 (2011).  Section 52–190a, therefore, requires a certificate of good faith by the attorney and a written opinion letter attached to the complaint that complies with the requirements of § 52–190a.  Bavedas v. Hunter's Ambulance Services, Inc., supra;  see also General Statutes § 52–190a.

“The purpose of the [good faith] certificate is to evidence a plaintiff's good faith derived from the pre-complaint inquiry.   It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable pre-complaint inquiry giving him a good faith belief in the defendant's negligence ․ The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support a cause of action.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, supra, 301 Conn. 398.

Because General Statutes § 52–190a explicitly references General Statutes § 52–184c, which defines “similar health care provider,” the two sections are read together.  Lucisano v. Bisson, 132 Conn.App. 459, 465, 34 A.3d 983 (2011).³  The Appellate Court has held that the application of the plain language of §§ 52–190a and 52–184c requires disclosure of the qualifications of the author of the opinion letter.  Lucisano v. Bisson, supra, 466;  see also Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 560, 36 A.3d 297 (2012);  Anderson v. Hospital of Saint Raphael, Superior Court, judicial district of New Haven, Docket No. CV–10–6014681–S (August 25, 2011, Lager, J.) (52 Conn. L. Rptr. 486).  “Without this information, [a] trial court [is] unable to determine whether the letter satisfie[s] the statutory definition of a similar health care provider.”  Lucisano v. Bisson, supra, 466.

Moreover, the Supreme Court has held that General Statutes § 52–190a(a) contains a “detailed basis” requirement for the statements contained in the written opinion.  Wilcox v. Schwartz, 303 Conn. 630, 638, 37 A.3d 133 (2012).  “[A] written opinion satisfies [this] ‘detailed basis' requirement ․ if it sets forth the basis of the similar health care provider's opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care.   In other words, the written opinion must state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care.”  Id., 643.  General Statutes § 52–190a does not require, however, “the additional opinion that the medical negligence was the cause of the injury.”  Id., 644.   That is, the section requires the opinion letter to contain evidence of a breach of the standard of care, but not of proximate causation or the specific negligent act or omission involved.  Id., 645.

Subsection (c) of § 52–190a states that “[t]he failure to obtain and file the written opinion required by subsection (a) of this Section shall be grounds for the dismissal of the action.”   The Supreme Court has stated that “the written opinion letter, prepared in accordance with the dictates of § 52–190a, like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action.”  Morgan v. Hartford Hospital, supra, 301 Conn. 398.   In other words, “the attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice.”  Id., 401.  “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.”  Id. A plaintiff's failure to comply with § 52–190a “render[s][the] complaint subject to dismissal ․” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009);  see also Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 28, 12 A.3d 865 (2011) (discussing legislative history of § 52–190a(c) and concluding dismissal is mandatory remedy when plaintiff fails to file opinion letter that complies with § 52–190a(a)).   Therefore, a motion to dismiss is the proper remedy for any party who does not comply with § 52–190a.  Morgan v. Hartford Hospital, supra, 398.   The Supreme Court, however, has reiterated on multiple occasions that “the legislature envisioned the dismissal as being without prejudice ․ and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute ․” (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, supra, 308 Conn. 351.

In the present case, the plaintiff failed to attach a good faith certificate and a written opinion letter to the complaint.   The omission of the good faith certificate is alone grounds for dismissal.   However, the court will address the remaining issues regarding the written opinion letter.

A “malpractice certification,” which this court assumes is meant to be the plaintiff's written opinion letter, was filed separately the day after the complaint was filed.   Although the lapse of time between the filings is only one day, the Supreme Court requires that the opinion letter be attached to the complaint to properly commence the action.   If the opinion letter was inadvertently omitted from the complaint, the proper procedure to cure the defect, allowed by most judges of the Superior Court, is to file an amended complaint with the opinion letter attached.   See, e.g., Sanchez v. Miller, Superior Court, judicial district of New London, Docket No. CV–11–6008316–S (September 23, 2011, Cosgrove, J.);   Demars v. Slevinsky, Superior Court, judicial district of Windham, Docket No. CV–12–6005278–S (October 12, 2012, Calmar, J.) (54 Conn. L. Rptr. 788);  Kissel v. Center for Women's Health, P.C., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6013562–S (September 6, 2012, Karazin, J.T.R.) (54 Conn. L. Rptr. 682).   But see, e.g., Patenaude v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV–09–5029048–S (July 19, 2010, Arnold, J.) (50 Conn. L. Rptr. 352) (court is “without discretion to entertain the plaintiff's attempts to amend her complaint while a[m]otion to [d]ismiss is pending”);  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 586 (stating that plaintiff could not “turn back the clock and attach by amendment an opinion of a similar health care provider that did not exist at the commencement of the action”).   In the present case, this was not done.   The plaintiff instead submitted the “malpractice certification” as an exhibit.   Therefore, because the opinion letter was not attached to the complaint, this court could grant the defendants' motion to dismiss for failure to comply with the requirements of General Statutes § 52–190a.

Even if the court were to decide that the separate filing of the complaint and the opinion letter does not warrant a dismissal of the action, the opinion letter itself is substantively deficient and warrants dismissal under General Statutes § 52–190a.   The opinion letter must contain the author's qualifications and credentials.  Lucisano v. Bisson, supra, 132 Conn.App. 466.   Here, the letter does not set forth the author's education, licenses, training, or experience.   It does not provide any information from which the court can conclude that the author qualifies as a similar health care provider under General Statutes § 52–184c.

The plaintiff attempted to cure the defect by attaching the author's curriculum vitae to his objection to the motion to dismiss.   The “opinion [letter, however] must be considered in the context of how [it] existed at the time of filing of the complaint.”   Metzker v. Agababaev, Superior Court, judicial district of Danbury, Docket No. CV–13–6012049–S (July 24, 2013, Ozalis, J.).   Moreover, even though at least one court has allowed subsequent affidavits attesting to the qualifications of the author;  Cavanaugh v. Sherberg, Superior Court, judicial district of New Haven, Docket No. CV–11–6023677–S (February 2, 2012, Fischer, J.);   in the present case, the “curriculum vitae is not authenticated or certified in any way.   Any individual could have written it or fabricated its contents.”   Meleny–Distassio v. Weinstein, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6015461–S (February 1, 2013, Adams, J.T.R.).   It therefore cannot be considered.   Because the court is unable to determine whether the author is a “similar health care provider” under § 52–184c, the opinion letter is deficient and the action must be dismissed for failure to comply with § 52–190a.

The opinion letter also fails to comply with the “detailed basis” requirement of § 52–190a.   There is no statement in the letter that the author is familiar with the prevailing standard of care for the treatment the plaintiff allegedly should have received.   See Anderson v. Hospital of Saint Raphael, supra, 52 Conn. L. Rptr. 486.   Moreover, the opinion letter does not state “the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care.”  Wilcox v. Schwartz, supra, 303 Conn. 643.   The opinion letter, rather, only states that the diagnosis “put [the plaintiff] at risk” and certain facts “should have raised concerns.”   Other than these vague statements, the opinion letter is merely a recitation of the facts alleged by the plaintiff in the complaint regarding the sequence of events and treatment.   It is devoid of any reference to the applicable standard of care, and leaves the court to attempt to infer breach from certain statements the author has made.   Therefore, the opinion letter does not satisfy the “detailed basis” requirement set forth in General Statutes § 52–190a.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss is granted.

Marcus, J.

FOOTNOTES

FN1. Although there is only one complaint filed by the plaintiff, it is titled “Amended Complaint.”   For purposes of this memorandum, to avoid confusion, the “Amended Complaint” will be referred to as the “complaint.”.  FN1. Although there is only one complaint filed by the plaintiff, it is titled “Amended Complaint.”   For purposes of this memorandum, to avoid confusion, the “Amended Complaint” will be referred to as the “complaint.”

FN2. There is no dispute that the allegations in the complaint sound in medical malpractice and, therefore, that General Statutes § 52–190a is applicable..  FN2. There is no dispute that the allegations in the complaint sound in medical malpractice and, therefore, that General Statutes § 52–190a is applicable.

FN3. 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.”Section 52–184c(c) provides:  “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “.  FN3. 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.”Section 52–184c(c) provides:  “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who:  (1) Is trained and experienced in the same specialty;  and (2) is certified by the appropriate American board in the same specialty;  provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ “

Marcus, Shelley A., J.