Opinion
No. X05 CV05-4005513 S
March 10, 2006
MEMORANDUM OF DECISION
This matter comes before the court by way of a Motion to Dismiss (#142) dated January 4, 2006, filed by the apportionment defendant herein, The Stamford Hospital. The lawsuit was commenced by Elizabeth and Simon Oram individually and on behalf of their infant son Simon Oram alleging medical malpractice by the first-named defendants in connection with his birth on April 4, 2003. In addition, as to the individual plaintiffs, there is a claim, negligent infliction of emotional distress (Count Two) by Elizabeth, and another for loss of consortium (Count Three) by Simon, the father. Count Two is derivative of the underlying malpractice action, and Count Three is derivative of Count Two. The Complaint dated June 14, 2005, was returnable to court on July 12, 2005. The plaintiffs requested, and were granted, a 90-day stay to procure a certificate of good faith. Pursuant to General Statutes § 52-102b(a), the named-defendants filed appearances and an Apportionment Complaint (#120) upon The Stamford Hospital dated September 21, 2005, which was returnable on November 1, 2005. At that time, the named-defendants did not file a certificate of good faith as to The Stamford Hospital, nor was it required by statute. The plaintiffs filed a Request to Revise the Apportionment Complaint (#127) dated October 20, 2005, to which the named-defendants offered an objection, claiming lack of standing. Following a hearing, the court (Jennings, J.) rendered a Memorandum of Decision (# 131) dated November 20, 2005, in which the court found that the plaintiffs did have standing and that the apportionment defendant was a party to the action "for all purposes." The named-defendants filed a Revised Apportionment Complaint (#137) dated December 22, 2005. Subsequent thereto, pursuant to General Statutes § 52-102b(d), the plaintiffs filed an Amended Complaint (#138) dated December 30, 2005, citing in the Stamford Hospital as a party defendant. At that time, the plaintiffs did not file a separate certificate of good faith and written opinion of a similar health care provider as against The Stamford Hospital. The apportionment defendant has moved to dismiss Counts Four through Six of the Amended Complaint for failure to comply with the provisions of General Statutes § 52-190a, as amended by Section 2 of Public Act 05-275. The Stamford Hospital and the plaintiffs filed Memoranda of Law, and the court heard argument on March 6, 2005.
DISCUSSION
A motion to dismiss contests the jurisdiction of the court to hear a matter. Practice Book § 10-30. The motion is "used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." Practice Book § 10-31(a). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." Amodio v. Amodio, 247 Conn. 724, 729 (1999). Subject matter jurisdiction can neither be waived nor conferred upon the court by the parties and can be raised at any time during the pendency of the case, even sua sponte by the court. Practice Book § 10-33; State v. Commins, 276 Conn. 503, 512 (2005). On the other hand, objections to personal jurisdiction must be raised in a timely fashion via a motion to dismiss or they are waived. Carpenter v. Law Offices of Dressler Associates, 85 Conn.App. 655, 661 (2004). When a question of jurisdiction arises, the court should address the matter prior to deciding other aspects of the case. State v. Malkowski, 189 Conn. 101, 104 (1983).
Subsequent to October 1, 1987 and prior to October 1, 2005, General Statutes § 52-190a read, in relevant part, as follows:
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 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 or initial pleading 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. For the purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, 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 . . .
In an opinion written shortly after the effective date of the act, the Connecticut Supreme Court held that the provisions of the act were not jurisdictional and had prospective effect only. LeConche v. Elligers, 215 Conn. 701, 709 (1990). [does not serve to defeat subject matter jurisdiction of court see page 713] However, the passage of Public Act 05-275 changed the law in two significant aspects. First, it clearly specified that the filing of an apportionment complaint in a medical malpractice action must be accompanied by a certificate of good faith, including a signed opinion of a similar health care provider. Second, and more relevant to the present inquiry, the failure to provide the written opinion is now grounds for dismissal, hence, jurisdictional. Section 2 of the Act reads in relevant part as follows:
Sec. 2. Section 52-190a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005, and applicable to actions filed on or after said date): (a) No civil action or apportionment complaint 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 [or] 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. [For the purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate.] 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 . . . The claimant or the claimant's attorney and any apportionment complainant or apportionment complainant'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 health care provider expunged, to such certificate . . . (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. (Emphasis in original.)
The initial question for the court is whether or not the provisions of P.A. 05-275 apply to the filing of the Amended Complaint by the plaintiffs after the effective date of the act. "All public acts, except when otherwise therein specified, shall take effect on the first day of October following the session of the General Assembly at which they are passed, and special acts, unless otherwise therein provided, from the date of their approval. General Statutes § 2-32. Also applicable is General Statutes § 55-3 which provides that: "No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." The changes to General Statutes § 52-190a not only require a plaintiff, now including an apportionment plaintiff, to file a certificate of good faith, but also, and more important, a failure to do so exposes the case to dismissal.
In this particular instance, although not required to, the Legislature specified that the (1) that the act was effective October 1, 2005, and (2) it added the phrase "and applicable to actions filed on or after said date." The court finds this language significant, and it is the meaning of the term "action" in the context of that statute which is at the heart of the present motion. The Stamford Hospital would have the court construe the term in its broadest sense, which would include specific types of pleadings, such as complaints, apportionment complaints, and amended complaints filed on or after October 1, 2005, such as filed by the plaintiffs. They, in turn, have asked the court to, in essence, apply the most common usage and to limit the term to an entire case or civil action, and to find that it does not apply to such cases or civil actions already pending as of October 1, 2005. This court agrees with the interpretation of the plaintiffs.
First, the Legislature could have included the words "apportionment complaints" in the heading as it had done throughout the body of the statute, which could well have signaled that it intended it to apply to specific, individual pleadings. It did not. Rather it referred to "actions filed" which is a more common usage. The Connecticut Supreme Court has held that the definition of the term "action" encompasses many kinds of "proceedings" to obtain redress in court, in addition to "the usual civil action instituted by process." In Re Investigation of the Grand Juror, 188 Conn. 601, 606 (1982).
Second, all of the pleadings, whether filed before or after October 1, 2005, are part of the same action and all have the same docket number. There was no new case on the docket with the filing of either the apportionment complaint or the revised complaint. In addition, The Stamford Hospital was served initially as an apportionment defendant and was from that point on a party to the action for all purposes. General Statutes § 52-102b(a) reads in relevant part as follows:
(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.
And if there was any doubt about the matter, this court (Jennings, J.) specifically found that the apportionment defendant, The Stamford Hospital, is a party to the action "for all purposes" by virtue of General Statutes § 52-102b(a). As such, that is the law of the case, and this court will not disturb that finding. "Underlying the law of the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge . . . The doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citation omitted; internal quotation marks omitted.) Wasko v. Manella, 87 Conn.App., 390, 395, 865 A.2d 1223 (2005); Detar v. Coast Venture XXVX, 91 Conn.App. 263, 267 (2005). Thus, the filing of the Amended Complaint herein did not serve to bring a new party into the case, since The Stamford Hospital was already a party by virtue of the filing of the Apportionment Complaint.
Subsequent to the effective date of Public Act 05-275, and subsequent to the filing and service of the Apportionment Complaint, the plaintiffs herein served an Amended Complaint naming The Stamford Hospital pursuant to General Statutes § 52-102b(d), which reads as follows:
(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint." (Emphasis added.)
Recently, the Appellate Court had the opportunity to address this question in a case claiming legal malpractice. Although the court found that General Statutes § 52-102b(a) limits apportionment claims to "personal injury, wrongful death or damage to property," where a previously filed apportionment complaint was still "in place," the plaintiff's election to use General Statutes § 52-102b(d) was proper. Quoting from the court's opinion in Carpenter, supra, 660-61:
Instead of commencing a new action against the apportionment defendants or availing herself of some other valid procedure, the plaintiff chose to use § 52-102b(d) to include the apportionment defendants as first party defendants in her legal malpractice action. At the time she amended her original complaint to include the direct claims against the apportionment defendants, the court had yet to rule on the motion to strike the apportionment complaint. With the apportionment complaint still in place, there was no reason that the plaintiff could not `plead over' pursuant to § 52-102b(d) and assert direct claims against the apportionment defendants.
Likewise in the present case, the court finds that by filing the Amended Complaint naming The Stamford Hospital as a direct defendant, with the apportionment Complaint against the same party already in place, the plaintiffs have merely plead over in the same action, and have not initiated a new action. Clearly, the claims asserted in the Amended Complaint arise out of the same subject matter as the original Complaint.
ORDER
For the foregoing reasons, the Motion to Dismiss (#142) by the defendant The Stamford Hospital is HEREBY DENIED.