Opinion
No. TTD CV 07-6000211-S
August 21, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS
This case is an action in five counts by the plaintiff, Christopher Landry, against Dr. Robert Zborowski, d/b/a East of the River Oral and Cosmetic Maxillofacial Surgery, et al., complaining, inter alia, that the defendant and his employees were negligent in the manner in which they performed laser hair removal, causing the plaintiff to suffer burns, bleeding and scarring. Counts One, Two and Five sound in medical malpractice, and the complaint appends a redacted written opinion finding evidence of medical malpractice, as required by General Statutes § 52-190a. The defendants have moved to dismiss Counts One Two and Five on the grounds that the written opinion is insufficient under the requirements of the statute due to lack of detail, and they argue that this defect deprives the court of subject matter jurisdiction over the counts and requires dismissal. The court agrees that the written opinion is insufficient, and that this is grounds for dismissal. Accordingly, the Motion to Dismiss is granted.
I
The standards for deciding a motion to dismiss on subject matter jurisdiction grounds are well established. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted; citations omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted; citation omitted.) Filippi v. Sullivan, Id.; see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, Id. "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space Conservation Commission, 211 Conn. 416, 425, 599 A.2d 1103 (1989).
II
The requirement that a medical malpractice complaint must have attached a written opinion from a health care provider vouching for evidence of malpractice is contained in General Statutes § 52-190a, as amended by Public Acts 2005, No. 05-275. That statute provides, in pertinent part, as follows:
(a) 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 healthcare provider, unless the attorney . . . 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 . . . 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 the claimant's attorney . . . shall obtain a written and signed opinion of a similar healthcare provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar healthcare provider expunged, to such certificate . . .
General Statutes § 52-190a(a) (Emphasis added.)
Defendants argue that the plaintiff has failed to comply with the emphasized requirement. Although a redacted written opinion is supplied, it is not detailed, they complain. The redacted written opinion in this case reads, in toto, as follows:
Based upon my review of the records, Doctor Robert G. Zborowski and his staff violated the applicable standard of care during the care and treatment of Christopher Landry. Therefore you have a good faith basis for bringing a malpractice claim against Doctor Robert G. Zborowski and his staff.
Complaint, written opinion.
Plaintiff argues that this opinion is detailed enough, and points to decisions in other cases where similarly spare opinions were found to suffice. See, e.g. Ouellette v. Brook Hollow Health Care Center, Superior Court, judicial district of New Haven Docket No. CV 06-5002865 (February 16, 2007, Holden, J.) [42 Conn. L. Rptr. 863]. Of course, each case is fact specific. In that case, the written opinion at least described the qualifications of the author and mentioned the facts in the case that deviated from the acceptable standard of care. The written opinion in this case does not.
In this case, it is clear that the written opinion is not sufficiently detailed. It is entirely conclusory and provides no illumination as to what is the standard of care, who violated it and how or on what basis or when it was violated. It does not even reveal whether the writer is a health care provider, or what type. It does not comply with the requirements of the statute. What is less certain is the law on the issue of whether those defects are fatal under the statute, depriving the court of subject matter jurisdiction. That question poses a need for interpretation of the statute.
As with all questions of statutory interpretation, our first resort is the text. General Statues § 1-2z. The text of the statutory provision on point provides as follows:
(c) the failure to obtain and file the written opinion required by subsection (a) of this section shall be ground for the dismissal of the action.
General Statutes § 52-190a(c) (Emphasis added.)
In the construction of statutes, we utilize the commonly approved usage of the language. General States § 1-1(a). An application of the commonly approved usage of the English language to this statute surely compels the conclusion that the above provision requires dismissal of the case if plaintiff did not obtain and file any opinion at all. An opinion was filed in the instant case, so that is not justification for dismissal here. The critical issue in the instant case is whether the statute also requires dismissal if the written opinion "required by subsection (a)," as emphasized above, is not filed. Certainly, subsection (a) requires a detailed opinion, not a conclusory opinion. The written opinion in this case is conclusory. Defendants argue that the failure to file a detailed opinion letter is grounds for dismissal of Counts One, Two and Five.
There are no appellate court decisions on this subject yet. Superior Court Judges who have addressed the point are split on the issue on whether a case should be dismissed where an insufficient written opinion is filed. Compare Doe v. Priority Care, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06-4017186 (May 9, 2007, Corradino, J.); Torres v. Carrese, Superior Court, judicial district of New Haven, Docket No. CV 06-5006514 (April 16, 2007, Jones, J.) [43 Conn. L. Rptr. 270]; Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05-5000482 (April 19, 2006, Matasavage, J.) [41 Conn. L. Rptr. 222], with Miller v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland, Docket No. CV 07 5001172 (April 9, 2007, Sferrazza, J.) [43 Conn. L. Rptr. 694]. Other judges have suggested that the defect is in the nature of a pleading error, which is subject to a Motion to Strike. See, e.g. Lawlor v. Hagstrom, Superior Court, judicial district of Hartford, Docket No. CV 06-5002094 (December 29, 2006, Wiese, J.); Jervis v. Stekler, Superior Court, judicial district of Litchfield (October 19, 2006, Pickard, J.) [42 Conn. L. Rptr. 163]. This court concludes that dismissal is the legislatively prescribed consequence. General Statutes § 52-190a(c) clearly and plainly requires that a plaintiff file, with his or her complaint, not just a written opinion, but "the written opinion required by subsection (a)," i.e., "a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). The statute requires dismissal of the action if the requirement is not satisfied. The requirement was not satisfied in this case. Consequently, the court must dismiss the case. Any other action would render the language of the statute superfluous. "We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted; citations omitted.) Byars v. FedEx Ground Package System, Inc., 101 Conn.App. 44, 49, 920 A.2d 352 (2007). The statute requires that a detailed written opinion be filed, and requires dismissal if it is not filed. No detailed opinion was filed in this case. A dismissal is required.
III
For all of the foregoing reasons, the Motion to Dismiss Counts One, Two and Five is granted.