Opinion
No. CV 03 0828870 S
August 18, 2004
MEMORANDUM OF DECISION
This action began procedurally as an apparently standard falldown case. The plaintiff brought the action against the owners of a Denny's restaurant. The return date was October 21, 2003. The plot thickened when the defendant brought an apportionment complaint against two healthcare providers, Jennifer Higgins and Healthsouth, Inc., with a return date of March 16, 2004. No certificate of good faith was filed with the apportionment complaint pursuant to § 52-190a(a), and it would certainly appear that none was required. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 36-37 (2004); Sheehan v. Superior Ambulance, 22 Conn. L. Rptr. 191 (L. Paul Sullivan, J.) (1998); Audie v. Hospital of St. Raphael's, 1997 Ct.Sup. 2399 (Corradino, J.) (1997). The rationale for the lack of the need to file a good faith certificate when filing an apportionment complaint only is that an apportionment complaint does not in itself seek damages.
The rationale was criticized in Justice Borden's dissenting opinion in Lostritto, supra.
In any event, the apportionment scheme provides that the plaintiff may "plead over" against the apportionment defendant within sixty days of the return date of the apportionment complaint. Section 52-102b(d) of the General Statutes. The plaintiff did not assert a direct action against the apportionment defendants within sixty days of the return date, but rather served an amended complaint which included Higgins and Healthsouth on June 1, 2004. The sixty-day period expired on approximately May 16, 2004. Higgins and Healthsouth have moved to dismiss accordingly.
The plaintiff claims, however, that two motions for extension of time save the direct action against the health care providers. He filed on March 4, 2004, an extension of time in which to plead. This motion contained no reason but simply asked for an extension of time of thirty additional days, until June 16, 2004, within which to file a complaint against the apportioned parties, Jennifer Higgins and Healthsouth, Inc. I denied the motion on April 27, 2004, expressly because no reason was given. There was no mention of any need for a certificate of good faith to pursue a claim for damages against a health care provider.
A second motion for extension of time was filed by the plaintiff on May 19, 2004. This motion fleshed out the reason: The plaintiff's attorney had recently returned from maternity leave and needed time to obtain the certificate required by § 52-190a. The motion requested until June 16, 2004. This motion is before me now, at least inferentially.
In the meantime, the plaintiff filed an amended complaint, which included Higgins and Healthsouth as defendants, on May 28, 2004. A § 52-190a certificate was included.
I believe that I am bound by the Supreme Court decision in Lostritto, supra, and the Appellate Court decision in Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 382-86 (1994). The two decisions compel the conclusion that, at least partly because the apportionment scheme is in derogation of common law, the time requirements are mandatory and are deemed to be inseparable from the rights created by statute. See generally Ecker v. West Hartford, 205 Conn. 219 (1987). Lostritto quite firmly and unequivocally holds that the apportionment complaint must be filed within the time prescribed by statute if it is to be filed at all, and that a motion for extension of time would be ineffectual even if granted. Gabrielle similarly holds that a motion for extension of time is ineffectual if filed after the expiration of the prescribed time period.
It is true that Lostritto specifically concerned an apportionment complaint and the subject of the current dispute is a direct action following an apportionment complaint. Lostritto is based on two lines of reasoning, either one of which apparently would suffice to reach the same result. One rationale was the mandatory and nonextendable nature of the time requirement in the apportionment scheme. A second was the observation that a certificate of inquiry is not required for the filing of an apportionment complaint. By the reasoning of all the applicable cases, a certificate of inquiry is required for the filing of the direct action. The majority of the Supreme Court also held, however, that the automatic extension provision of § 52-190a(b) does not apply to § 52-102b apportionment actions.
I did not find any authority on the precise issue of whether the automatic extension provision of § 52-190a(b) applied to direct actions pursuant to § 52-102b(d). It would seem bizarre to me, however, to imagine that the Supreme Court would expressly state that the extension provision would apply to one subsection of the apportionment scheme but not to another. The reasoning of the court would appear to apply equally.
The result may appear unfair, and in some senses it is. Perhaps some of the sense of unfairness is ameliorated by the consideration that the plaintiff is probably in a fair position to learn about deviations from standards of care provided to him in a reasonably expeditious manner. And there is some authority to the effect that a complaint may be filed first without a certificate, subject to the requirement that one be filed in response to a motion. See Gabrielle, supra, 384.
It also might be interesting substantively to view the viability of apportionment actions against health care providers in the context of the longstanding principle that the tortfeasor bears the risk of unskillful medical treatment, so long as the plaintiff exercises reasonable care in the selection of medical treatment. See, e.g., Wright v. Blakeslee, 102 Conn. 162, 167 (1925). One also wonders whether there might be policy considerations in turning rather ordinary tort cases into medical malpractice cases. The additional time and expense may well be prohibitive, and, regardless of the view one takes of the current malpractice debates, it is probably fair to say that there are many who would not welcome another means of bringing health care providers into court. But that is for another day, if at all.
I do not rule on the May 19 motion for extension of time, then, because I have no power to consider the motion under the above authority. The motion to dismiss is granted.
This ruling is to be applied to the companion case, to the extent applicable.
BEACH, J.