Brian Ducharme v. Medical Center of Northeast Connecticut (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 105

The issue before the court is whether it should grant the defendant's motion to dismiss on the ground that the plaintiff failed to attach a written expert opinion to his initial pleading as to the defendant physician, Paul J. Matty, under General Statutes § 52–190a(c).

That statute requires the plaintiff to provide a written opinion of a similar health care provider as defined in § 52–184c.   The cases which have been decided regarding the interplay between these two statutes and their requirements have been numerous, especially since § 52–190a was amended by P.A. 05–275.   In reviewing all of the cases cited by the parties, as well as several which the court found on its own, a growing sense of ennui is created by the lack of a resolution of the issues presented by our Supreme Court.   Venturing an opinion on these issues, the court is mindful of the words of Rod Serling, “You're traveling through another dimension—a dimension not only of sight and sound but of mind.   A journey into a wondrous land whose boundaries are that of imagination.   That's a signpost up ahead:  your next stop:  The Twilight Zone!”

On February 5, 2013, the plaintiff, Brian Ducharme, filed a four-count complaint against the defendants, Medical Center of Northeast Connecticut;  Lee Wesler, a physician;  Paul J. Matty, a physician;  and Pamela M. Ferland, a nurse.   In the summons, the plaintiff alleges the following defendants:  Medical Center of Northeast Connecticut, Lee Wesler, M.D., Paul J. Matty, M.D., Pamela M. Ferland, A.P.R.N. In the complaint, the plaintiff alleges the following facts.   From 2008 to 2011, the plaintiff had been evaluated on multiple occasions by the defendants and was known to have multiple risk factors for coronary artery disease.   On July 15, 2010, Ferland evaluated the plaintiff, who complained of chest, shoulder, and neck pain, and “reached an impression of musculoskeltal strain.”   The defendants did not obtain an electrocardiogram, chest radiographs, or laboratory tests and did not diagnose the plaintiff with a cardiac problem.   The defendants sent the plaintiff home with ibuprofen and muscle relaxants and Dr. Matty agreed with the treatment plan after reviewing the plaintiff's history and physical findings.   Count three of the complaint is brought solely against Paul J. Matty, M.D. The return of service also indicates that service of the writ, summons, and complaint was made on Dr. Matty, as well.   On July 16, 2010, the plaintiff was diagnosed with myocardial infarction at Day Kimball Hospital Emergency Department and was transferred to UMass Memorial Hospital where he underwent catheterization and cardiac bypass.   As a result of the defendants' negligence and “failure to make a timely and proper diagnosis,” the plaintiff sustained permanent, life-altering injuries.

The plaintiff attached to the complaint a certificate of reasonable inquiry and good faith pursuant to General Statutes § 52–190a and § 52–184(c), as well as documents purporting to be written and signed opinions of similar health care providers.   The written and signed opinions do not specifically name Dr. Matty.

Dr. Matty, hereinafter the “defendant,” filed an appearance by counsel on February 11, 2013.   On March 12, 2013, the defendant filed a motion to dismiss, pursuant to General Statutes § 52–190a(c), and a memorandum in support.   In response, the plaintiff filed an objection to the defendant's motion to dismiss and a memorandum in support on July 5, 2013.   The defendant filed a subsequent reply to the plaintiff's objection, on August 16, 2013.   The matter was heard at short calendar on August 19, 2013, at which time the court allowed the parties ten days to file supplemental memoranda.   On September 4, 2013, the plaintiff filed a supplemental memorandum.   The defendant filed an objection and reply to the plaintiff's supplemental memorandum on October 18, 2013.   The matter was heard again at short calendar on October 21, 2013, at which time the court heard argument on the defendant's reply to the plaintiff's objection to the motion to dismiss (# 112), the plaintiff's supplemental memorandum (# 113), and the defendant's reply to the plaintiff's supplemental memorandum (# 116).

“[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 threshold issue is whether the court should consider the plaintiff's supplemental memorandum, despite the fact that the plaintiff filed his memorandum beyond the time granted by the court.   At oral argument on August 19, 2013, the plaintiff requested additional time to file a supplemental memorandum.   This court allowed the parties ten days to file additional briefs, to which the defendant consented.   The plaintiff's supplemental memorandum was to be filed no later than August 29, 2013, but was instead filed six days later, on September 4, 2013.   The defendant argues that the plaintiff's supplemental memorandum should not be considered because it was filed beyond the ten days granted by the court.

It is within the discretion of the court whether to consider the plaintiff's supplemental memorandum.   In Burlington v. McCallum, the court exercised its discretion and chose to “consider both of the unauthorized briefs” filed by the parties in addition to the original supplemental briefs filed by the parties pursuant to the court's order.   Burlington v. McCallum, Superior Court, judicial district of New Britain, Docket No. CV–12–6013964 (July 25, 2013, Wiese, J.) [56 Conn. L. Rptr. 561].   The court in Steroco, Inc. v. Szymanski, Superior Court, judicial district of New Haven, Docket No. CV–12–5034386–S (July 24, 2013, Nazzaro, J.), also exercised its discretion and considered two supplemental memoranda filed by the parties without the court's permission.

In the present case, although the plaintiff filed its supplemental memorandum beyond the time limit imposed by the court, the defendant has not been deprived of the opportunity to respond to the arguments set forth therein.   In his objection and reply to the supplemental memorandum, as well as at oral argument on October 21, 2013, the defendant has responded to those arguments.   Accordingly, the court will exercise its discretion and consider the plaintiff's supplemental memorandum.   See also Practice Book § 1–8.

The court will next consider the substantive issues of the motion.   Prior to its amendment in 2005 by No. 05–275, § 2, of the 2005 Public Acts (P.A. 05–275), “[General Statutes] § 52–190a(a) ․ 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.’  ․ The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence ․ The ․ purpose of the original version of § 52–190a was to prevent frivolous medical malpractice actions.”  (Internal quotation marks omitted.)  Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 17–18, 12 A.3d 865 (2011).

“Section 2 of P.A. 05–275 amended § 52–190a(a) to [add] a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider [stating] 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 [added in subsection (c) of § 52–190a] provided that the failure to file the written opinion would be grounds for the dismissal of the complaint.”   (Internal quotation marks omitted.)  Id., 18.

In Bennett, the Supreme Court “held that § 52–190a dictated that a dismissal was the proper form of remedy for any party who did not comply with the statute.”  Morgan v. Hartford Hospital, 301 Conn. 388, 398, 21 A.3d 451 (2011).   As the court explained, “[§ ]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.  Section 52–190a(c) provides:  ‘The failure to obtain and file the written opinion required by subsection (a) ․ shall be grounds for dismissal of the action.’   It is the failure to obtain and file the opinion letter which serves as a basis for the dismissal.”  Id., 396–97.

“The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.”  (Citation omitted;  internal quotation marks omitted.)   Morgan v. Hartford Hospital, supra, 301 Conn. 401–02.   After the court in Morgan determined that the failure to provide the opinion letter was insufficient process, it held that Practice Book §§ 10–32 and 10–30 applied and ultimately concluded that the trial court erroneously granted the defendants' motion to dismiss because the defendants did not file their motion to dismiss within thirty days of filing their appearance, and therefore, waived their right to file a motion to dismiss.  Id., 402–04.

The facts in the present case are distinguishable from those at issue in Morgan.   Specifically, in the present case, the defendant filed his motion to dismiss on March 12, 2013, within thirty days of filing his appearance on February 11, 2013.   Although the Appellate Court ruled in Morgan that the failure to attach the opinion letter constituted insufficient service, it did not address the implications of such insufficiency because the motion to dismiss was untimely in that case.   Consequently, it did not provide any guidance on the issue of whether this insufficient process can be cured by re-serving the defendant with an amended complaint and opinion letter.  “In some situations [when a motion to dismiss is granted] the plaintiff by amendment may cure the defect and have the case reinstated.   In others, the plaintiff can proceed only by initiating a new action.”  (Emphasis omitted;  internal quotation marks omitted.)  Santorso v. Bristol Hospital, supra, 308 Conn. 350.

In Avery v. Maxim Healthcare Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV–12–6033069–S (April 17, 2013, Wilson, J.) (55 Conn. L. Rptr. 891, 892), the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff's original opinion letter did not comply with § 52–190a.   In response, the plaintiff filed an objection and a request to amend the complaint to include an amended opinion letter.  Id., 891–92.   The court granted the plaintiff's request for leave to amend and allowed the parties two weeks to file supplemental memoranda regarding the sufficiency of the amended opinion letter.  Id., 892.   The defendant's supplemental brief, however, did not address the sufficiency of the amended opinion letter and instead argued that the defendant's due process rights had been violated because the plaintiff had not personally served the amended opinion letter on the defendant.  Id. The court disagreed with the defendant's position and held that it was appropriate to consider the plaintiff's amended opinion letter in response to the defendant's motion to dismiss and that the plaintiff was not required to serve the amended opinion letter on the defendant pursuant to Practice Book §§ 10–13 and 10–12(c).¹  Id. On a motion to reargue, the court again denied the defendant's motion to dismiss and held that it is not necessary for a plaintiff to serve the defendant with the amended opinion letter.   Avery v. Maxim Healthcare Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV–12–6033069–S (June 7, 2013, Wilson, J.) (56 Conn. L. Rptr. 227).   The defendant's due process rights were not violated because it “had fair and actual notice of the instant suit.   The plaintiff properly served the defendant with the original summons and complaint ․ The plaintiff was not required to serve the amended opinion letter because the court never granted the defendant's motion to dismiss.   Furthermore, the amended complaint that was mailed to the defendant's counsel, pursuant to Practice Book § 10–12(c), does not contain any new or additional claims for relief against the defendant ․ The only difference between the opinion letters is that the credentials of the similar health care provider are further elaborated and there is an additional paragraph detailing the events that transpired ․ Therefore, the plaintiff's amended complaint and opinion letter merely substitute omitted facts in the original opinion letter that were already in existence at the commencement of this action and, some of which, are alleged in the original complaint.”  Id., 228–29.

In the present case, the defendant was served with the plaintiff's original complaint, which named the defendant and alleged negligence on his part.   As a result of this proper service, the defendant had fair and actual notice of the present action.   The amended opinion letter includes an addendum in which the author of the letter states that his opinion at the time that the original letter was written was that the defendant had departed from the standard of care.   The amended complaint does not contain new or additional claims against the defendant.   Therefore, if the court decides to consider the plaintiff's amended opinion letter, it has personal jurisdiction over the defendant because it is not necessary for the plaintiff to personally serve the amended opinion letter on the defendant.

I

Plaintiff's Failure to Name the Defendant in the Written Opinion Letters

The defendant argues that the action should be dismissed on the ground that the plaintiff failed to attach a written expert opinion to his initial pleading as to the defendant and failure to do so is grounds for dismissal under § 52–190a.   In response, the plaintiff argues that the written opinion complies with § 52–190a because the departures from the standards of care by all of the defendants named in the complaint are described in detail.

A “failure to comply with the requirements of § 52–190a(a) does not destroy the court's subject matter jurisdiction over the claim ․ However, the legislature has provided that such a failure does render [the] complaint subject to dismissal pursuant to § 52–190a(c).”  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).  “[A]n action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.”   Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011).

The trial courts that have addressed the issue “have largely held that the failure to specifically name a defendant in an opinion letter did not render the letter insufficient.”  Lorme v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV11–6010350–S (November 23, 2011, Dooley, J.) (52 Conn. L. Rptr. 913, 914) (holding that even though the opinion letter “did not specifically name [the defendant physician] as having committed any acts of negligence toward the plaintiff,” the failure to do so did not “render the letter insufficient”).²  The court went on to state that in regards to § 52–190a, “it is clear that the mandate regarding ‘each named defendant’ is in reference to the certificate of good faith which is a mandate to the attorney filing the complaint.   The statute contains no requirement that the opinion letter address each named defendant.”  Id., 914.

The court in Steinmann v. Doyle also considered whether an opinion letter was insufficient to meet the requirements of § 52–190a for failing to refer to a particular defendant by name when addressing the alleged negligence.   The court found that “[t]here is no requirement in the statute, Wilcox [v. Schwartz, 119 Conn.App. 808, 990 A.2d 366 (2010), aff'd, 303 Conn. 630, 37 A.3d 133 (2012),] or any other appellate case stating that a written opinion must refer to a particular defendant by name when discussing how he or she was negligent.   However, § 52–190a requires that the negligence of ‘each named defendant’ be addressed.”   Steinmann v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV–11–6017158–S (May 24, 2011, Wilson, J.);   see also Wilcox v. Schwartz, supra, 654 (holding that the plaintiffs' written opinion letter was sufficient to meet the “detailed basis” requirement of § 52–190a).  “The clause ‘against each named defendant’ follows only the requirement of the certificate of reasonable inquiry, not the requirement of an opinion letter.”   Jaboin v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV–09–5023443–S (September 11, 2009, Bellis, J.) (48 Conn. L. Rptr. 469, 471–73) (holding that despite the failure of the opinion letter to specifically name the defendants, the requirements of § 52–190a were met because the opinion letter discussed the alleged negligence of the hospital and its employees and the complaint and opinion letter read together suggest that all of the defendants were negligent).

In the present case, failure to name the defendant in the opinion letter does not require dismissal of the claims against the defendant.   Counts one and three of the plaintiff's complaint refer to the defendant, and a written opinion of a similar health care provider did exist at the commencement of the action authored by a medical doctor specializing in internal medicine.   Although the original written opinion letter attached to the complaint did not specifically name the defendant, the majority of Superior Court cases have held that a failure to specifically name the defendant in the opinion letter is not fatal under § 52–190a.   The defendant argues that Lorme is distinguishable because in that case there was one internist referred to in the opinion letter and one internist who treated the plaintiff, therefore, the court could use process of elimination to determine that the letter referred to the defendant, while in the present case, process of elimination cannot be used because there is more than one defendant to whom the letter could be referring.   However, the court in Lorme did not state that its holding was a result of process of elimination to determine that the letter referred to the defendant.   It was necessary for the court to identify the defendant's position as an internist in order to determine that the opinion letter was written by a similar health care provider.   Therefore, the opinion letter is not insufficient under § 52–190a for failure to name the defendant because the opinion letter addressed the alleged negligence and the complaint named the defendant with sufficient specificity.

II

Plaintiff's Request for Leave to Amend

Alternatively, even if the court were to decide that the plaintiff's opinion letter is insufficient under § 52–190a, the plaintiff argues that the court should grant its request for leave to amend the complaint and consider the attached opinion letter that addresses the deficiencies.   The defendant argues that the plaintiff is not permitted to amend the opinion letters.

The Appellate Court has stated that “[g]iven the fallibility existing in the legal profession ․ 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 a variance with the purpose of § 52–190a, to prevent groundless lawsuits against health care providers.” ³  Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 585.   The court went on to declare, “[a]lthough we would entertain a remand in a case in which we determined that the trial court improperly failed to exercise its discretion when it was properly called on to do so;  ․ we do not in the present case because it is clear that no opinion existed at the time the action was commenced, and, therefore, there was no room for discretion to be employed ․ The 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.”  (Citation omitted.)  Id., 585–86.

The Supreme Court has not directly addressed the issue of whether it is appropriate to consider a plaintiff's amended opinion letter in response to a motion to dismiss.   In Bennett, the court held that § 52–190a(c) mandates dismissal for noncompliant written opinions, but it explicitly noted that the defendant did not move to amend.  Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 30–31 n.17. “[T]he plaintiff herein did not seek to amend his complaint, certificate of good faith and opinion letter either as of right pursuant to Practice Book § 10–59, or by leave of the court pursuant to Practice Book § 10–60.   Thus, we are not presented with an opportunity to resolve a division in Superior Court authority concerning whether amendment of the defective pleading, including the substitution of a new opinion letter for one that appears not to comply with § 52–190a(a) or one that was not filed at all, is an appropriate response to a pending motion to dismiss pursuant to § 52–190a(c), in light of the Appellate Court's statement in Votre ․ Inasmuch as this issue is not presented by this certified appeal, we take no position on the continuing viability of this aspect of Votre ․ which already has been the subject of some question.”  (Citations omitted.)  Id.

The Superior Court is “split as to whether amending a good faith letter is an appropriate response in a pending motion to dismiss.”  Avery v. Maxim Healthcare Services, Inc., supra, 56 Conn. L. Rptr. 228.   Some Superior Court judges have determined that the language from Votre is dicta, while “several cases have quoted it with approval as authority to allow a litigant to amend his or her complaint to attach a valid opinion letter that was in existence at the time of the commencement of the action, thereby saving the action from dismissal.”   Meleny–Distassio v. Weinstein, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6015461–S (February 1, 2013, Adams, J.).

In Avery, the court held that it was proper to consider the plaintiff's amended opinion letter when denying the defendant's motion to dismiss.   Avery v. Maxim Healthcare Services, Inc., supra, 56 Conn. L. Rptr. 228.   The court noted that the amended opinion letter contained “omitted facts in the original opinion letter that were already in existence at the commencement of this action and, some of which, are alleged in the original complaint.” ⁴  Id., 229.   Additional information regarding “the credentials of the similar health care provider ․ and ․ an additional paragraph detailing the events that transpired” are “technical changes to the opinion letter” that do “not contain any new or additional claims for relief against the defendant.”  Id.

In Ward v. Ramsey, the court first found that “the failure to specifically refer to [Dr. Ramsey] in the first opinion letter was inadvertent and at the time the original opinion letter was composed and sent to plaintiff's attorney the writer of that letter and the attorney would have had reason to know and did know that the letter referred to the negligence of Dr. Ramsey.” ⁵  Ward v. Ramsey, Superior Court, judicial district of New Haven, Docket No. CV09–5028840–S (April 12, 2010, Corradino, J.T.R.).   The court then applied the reasoning of the Appellate Court in Votre that it is within the discretion of the court “to allow an amendment attaching an opinion of a similar health care provider inadvertently not attached to the complaint” and ultimately granted the plaintiff's request to amend and attach a new opinion letter.  Id. The new letter included a sentence that specifically referred to the defendant physician by name after the original opinion letter used the term “physicians.”  Id.

In contrast, the court in Opper v. Shelton Dental Group, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–11–6007162 (February 24, 2012, Doherty, J.) (53 Conn. L. Rptr. 592, 593), did not allow the plaintiff to supplement the original medical opinion letter by filing an amended complaint.   The court rejected the plaintiff's argument that the “curriculum vitae appended to the annotated opinion letter accompanying the ․ [amended] complaint should be so considered” in the determination of the sufficiency of the author's qualifications and held that the letters “D.M.D.” were not sufficient in themselves to provide the author's qualifications.  Id. The original complaint was the operative complaint and the new opinion letter and attachments were not considered by the court.  Id. The court relied on the language in Votre that a “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.”  (Internal quotation marks omitted.)  Id., quoting Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 586.

Nevertheless, the court in Demars v. Slevinsky declined to follow the holding in Opper, and instead relied on “Votre, Cavanaugh, Mitchell and the Bell concurrence, as well as Connecticut's strong policy in favor of open courts and the resolution of disputes on the merits” ⁶ when deciding to consider the plaintiff's amendment to the opinion letter, which provided the author's previously lacking credentials, and determining that the letter was sufficient to meet § 52–190a.   Demars v. Slevinsky, Superior Court, judicial district of Windham at Putnam, Docket No. CV–12–6005278–S (October 12, 2012, Calmar, J.) [54 Conn. L. Rptr. 788];  see also Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 562, 564;  36 A.3d 297 (2012) (Bishop, J., concurring) (stating that § 52–190a “must be narrowly construed” in order to avoid “imposing an extra hurdle limiting a plaintiff's access to court not warranted by application of the statute's plain meaning or by the judiciary's promise to openly hear and fairly resolve grievances brought to it for resolution”); ⁷  Cavanaugh v. Sherberg, Superior Court, judicial district of New Haven, Docket No. CV–11–6023677–S (February 2, 2012, B.Fischer, J.) (holding that an affidavit explaining the existing opinion letter may be considered by the court because the Appellate Court has reasoned that “a court has discretion to allow a plaintiff to attach an opinion letter after the complaint has been filed” in Votre);  Mitchell v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV–10–6015881–S (May 13, 2011, B.Fischer, J.) (51 Conn. L. Rptr. 896, 898) (finding that the court could consider a supplemental affidavit filed after the original complaint in order to determine that the author of the original written letter satisfies the requirement of a similar health care provider under § 52–190a).

In the present case, the plaintiff filed an amended complaint, which includes an amended written opinion naming the defendant, in an attempt to cure the failure to specifically name the defendant in the original opinion letter.   The physician who completed the original report states in the amended written opinion letter's addendum that he had reviewed the care rendered by the defendant when preparing the original opinion letter and that it was, and remains, his opinion that the defendant departed from the standard of care, as set forth in the original report.   The addendum also describes various ways that the defendant departed from the standard of care, which are identical to the departures from the standard of care as stated in the original opinion letter in reference to the Medical Center of Northeast Connecticut, Wesler, and Ferland.   The present case is most analogous to Ward in that the defendant was not specifically named in the opinion letter.   Nevertheless, the letter in Ward used the term “physicians,” while the letter in the present case names the Medical Center of Northeast Connecticut, Lee Wesler, M.D., and Pamela Ferland, A.P.R.N., but not the defendant.   Nevertheless, the majority of Superior Court opinions, including Ward, have held that it is proper to consider the plaintiff's amended opinion letter under similar circumstances.   Consequently, pursuant to those cases, as well as Votre, it is within the court's discretion to allow the plaintiff to amend the opinion letter in order to comply with the requirements of § 52–190a, which, in the interest of justice, would result in a trial on the merits of this medical malpractice action.

For the foregoing reasons:

The defendants' Motion to Dismiss (# 105) is DENIED

The plaintiff's Motion to Amend (# 109) is GRANTED

The defendant's Objection to the Plaintiff's Motion to Amend is OVERRULED.

THE COURT

RILEY, J.

FOOTNOTES

FN1. There is a split in Superior Court authority as to whether it is proper to consider an amended opinion letter in response to a motion to dismiss.   This issue is addressed subsequently in part II of this memorandum..  FN1. There is a split in Superior Court authority as to whether it is proper to consider an amended opinion letter in response to a motion to dismiss.   This issue is addressed subsequently in part II of this memorandum.

FN2. The defendant physician was an internist, and the opinion letter, while it did not specifically name the defendant in a discussion of negligence, did state that there was “negligence by an internist in the care and treatment of the plaintiff.”  Lorme v. Waterbury Hospital, supra, 52 Conn. L. Rptr. 914.   The complaint also alleged that the defendant was the internist who treated the plaintiff.  Id..  FN2. The defendant physician was an internist, and the opinion letter, while it did not specifically name the defendant in a discussion of negligence, did state that there was “negligence by an internist in the care and treatment of the plaintiff.”  Lorme v. Waterbury Hospital, supra, 52 Conn. L. Rptr. 914.   The complaint also alleged that the defendant was the internist who treated the plaintiff.  Id.

FN3. “[D]iscretion imports something more than leeway in decision-making ․ It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice ․ In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court ․ The design of the rules of practice is both to facilitate business and to advance justice;  they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice ․ Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority ․ the court should be reluctant to employ the sanction of dismissal except as a last resort.”  (Internal quotation marks omitted.)   Blinkoff v. O & G Industries, Inc., 89 Conn.App. 251, 257, 873 A.2d 1009, cert. denied 275 Conn. 907, 882 A.2d 668 (2005)..  FN3. “[D]iscretion imports something more than leeway in decision-making ․ It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice ․ In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court ․ The design of the rules of practice is both to facilitate business and to advance justice;  they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice ․ Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority ․ the court should be reluctant to employ the sanction of dismissal except as a last resort.”  (Internal quotation marks omitted.)   Blinkoff v. O & G Industries, Inc., 89 Conn.App. 251, 257, 873 A.2d 1009, cert. denied 275 Conn. 907, 882 A.2d 668 (2005).

FN4. The court found that “[t]he only difference between the opinion letters [was] that the credentials of the similar health care provider are further elaborated and there is an additional paragraph detailing the events that transpired on June 20, 2010” in the amended opinion letter.   Avery v. Maxim Healthcare Services, Inc., supra, 56 Conn. L. Rptr. 229..  FN4. The court found that “[t]he only difference between the opinion letters [was] that the credentials of the similar health care provider are further elaborated and there is an additional paragraph detailing the events that transpired on June 20, 2010” in the amended opinion letter.   Avery v. Maxim Healthcare Services, Inc., supra, 56 Conn. L. Rptr. 229.

FN5. The opinion letter used the heading “Re Estate of Elbert Ward v. William Ramsey M.D.” which led the court to reason “who else would the doctor who wrote the opinion letter think he was talking about in detailing the medical negligence he found but ‘William Ramsey M.D.’ “ Although the term “physicians” was used in the letter, the court found that “Ramsey is a physician and logically has to be at least one of the physicians who acted in the negligent way described.”  Ward v. Ramsey, supra, Superior Court, Docket No. CV–09–5028840–S..  FN5. The opinion letter used the heading “Re Estate of Elbert Ward v. William Ramsey M.D.” which led the court to reason “who else would the doctor who wrote the opinion letter think he was talking about in detailing the medical negligence he found but ‘William Ramsey M.D.’ “ Although the term “physicians” was used in the letter, the court found that “Ramsey is a physician and logically has to be at least one of the physicians who acted in the negligent way described.”  Ward v. Ramsey, supra, Superior Court, Docket No. CV–09–5028840–S.

FN6. “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.”  Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111 (1974)..  FN6. “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.”  Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111 (1974).

FN7. “Connecticut's judiciary serves the interests of justice and the public by resolving matters brought before it in a fair, timely, efficient and open manner ․ This policy finds its genealogy in the constitution of Connecticut which provides, in article first, § 10:  All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.   Decisional law amplifies this basic tenet of our jurisprudence.   Our Supreme Court has stated that there exists a judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Internal quotation marks omitted.)  Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 562, 36 A.3d 297 (2012) (Bishop, J., concurring).Section 52–190a “acts as a limitation on an individual's access to court, [and] ․ its prescriptions must be narrowly construed and not augmented by unlegislated, judicially imposed requirements.”  Id., 562.   To do otherwise would “[frustrate] Connecticut's tradition of open courts available to all for the resolution of disputes” and “the judiciary's promise to openly hear and fairly resolve grievances brought to it for resolution.”  Id., 563–64..  FN7. “Connecticut's judiciary serves the interests of justice and the public by resolving matters brought before it in a fair, timely, efficient and open manner ․ This policy finds its genealogy in the constitution of Connecticut which provides, in article first, § 10:  All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.   Decisional law amplifies this basic tenet of our jurisprudence.   Our Supreme Court has stated that there exists a judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Internal quotation marks omitted.)  Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 562, 36 A.3d 297 (2012) (Bishop, J., concurring).Section 52–190a “acts as a limitation on an individual's access to court, [and] ․ its prescriptions must be narrowly construed and not augmented by unlegislated, judicially imposed requirements.”  Id., 562.   To do otherwise would “[frustrate] Connecticut's tradition of open courts available to all for the resolution of disputes” and “the judiciary's promise to openly hear and fairly resolve grievances brought to it for resolution.”  Id., 563–64.

Riley, Michael E., J.