Opinion
No. CV 06-5002136 S
February 16, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
This is a motion to dismiss filed by the defendant, Walgreen Eastern Co., Inc.
Whether the motion to dismiss should be granted on the grounds that the plaintiffs did not attach the opinion of a similar health care provider to their complaint as required by General Statutes § 52-190a or, alternatively, that the medical opinion subsequently attached by the plaintiff did not comply with the requirements of § 52-190a.
This action arises out of injuries allegedly sustained by the plaintiffs, Joseph Peloso, the minor through his mother Christine Peloso, and Christine Peloso individually, from the prescription drugs supplied to them by the defendant, Lawrence P. Abrams, a pharmacist employed by the codefendant, Walgreen Eastern Co., Inc. (Walgreen). The plaintiffs brought this six-count action on February 21, 2006 for pharmaceutical negligence, product liability, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq., and negligent infliction of emotional distress.
They allege the following facts in their complaint. Joseph Peloso underwent treatment for Acute Monoblastic Leukemia, which, though successful, gave rise to a fungal infection in his lungs. His physicians prescribed Voroconozole to treat the infection. On April 29, 2004, Christine Peloso went to Walgreen's pharmacy to refill the prescription, Abrams substituted Ketoconozole, telling her it was a "generic form" of Voroconozole. Ketaconozole, however, is not a generic form of Voroconozole, and as a result of Joseph Peloso taking Ketaconozole, he suffered, inter alia, kidney failure causing permanent kidney damage, hypertensive encephalopathy, and brain lesions.
On March 15, 2006, the plaintiffs filed an amended complaint as of right pursuant to Practice Book § 10-39. On July 24, 2006, the defendant filed a motion to dismiss counts one, four and five, those based on pharmaceutical negligence, on the ground that the plaintiff had not provided the written opinion of a similar health care provider as required by General Statutes § 52-190a. The plaintiffs, pursuant to Practice Book § 10-60, then requested leave to amend their amended complaint on August 31, 2006, submitting an amended certificate of good faith and a letter from a medical professional, stating that the substitution of Ketoconazole was an "obvious mistake" and opining that this substitution was the cause of Joseph Peloso's injuries. The plaintiffs then filed a memorandum in opposition to the motion to dismiss on September 1, 2006, and a supplemental memorandum in opposition on September 21, 2006. They went on to file an objection to the motion on September 25, 2006. On September 29, 2006, the defendants filed a reply to the plaintiff's objection. Finally, on October 27, 2006, the plaintiffs filed a surreply, submitting various exhibits therewith, including a biography of the "similar health care provider" they relied upon that detailed his qualifications.
In accordance with § 52-190a, the medical professional's personal information was redacted; the writer is identified only as a "Professor of Medicine."
DISCUSSION
"Jurisdiction of the [subject matter] is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyclski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 787 A.2d 760 (2001). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).
The defendants move to dismiss the complaint on the ground that the plaintiffs have not complied with the provisions of § 52-190a in that they failed to attach the written opinion of a similar health care provider to the original complaint. They argue that the plain language of the statute and the cases applying it indicate that failure to attach such an opinion is a jurisdictional defect, and dismissal is mandatory. In light of the plaintiffs' attempt to amend their complaint by submitting the required written opinion, the defendants alternatively argue that, even if this amendment was effective, the opinion provided was deficient in that (1) it was not written by a "similar health care provider" as defined by § 52-190a and (2) it did not state that there appeared to be evidence of medical negligence.
The plaintiffs counter that the jurisdictional nature of § 52-190a is discretionary, and does not require automatic dismissal. They compare the phrase "shall be grounds for" in § 52-190a(c) to similar language in other statutes, arguing that "shall be grounds for" implies discretion by the court. They contend that nothing in the legislative history indicates that the failure to attach an opinion would deprive the court of subject matter jurisdiction. They also point out that there is a distinction between statutes that implicate a court's "jurisdiction" with those merely limiting its "authority to act pursuant to statute," arguing that § 52-190a is an instance of the latter. Finally, in response to the defendants' reply brief, the plaintiffs argue in their surreply that (1) the expert relied upon was a "similar health care provider" as required by § 52-190a and (2) his letter sufficiently opined that the plaintiff's injuries were caused by medical negligence by stating that "an obvious mistake was made by the pharmacist . . ."
Section 52-190a(a) provides, in relevant part, that before filing an action for medical negligence, "the attorney or party filing the action or apportionment complaint [must 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 . . . 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 health care provider, as defined in [General Statutes § ]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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate . . ." Subsection (c) provides an enforcement mechanism: "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." General Statutes § 190a(c). Before determining the issue raised by the present defendants of the adequacy of the written opinion, it is necessary to examine whether the opinion is properly before the court, as it was not submitted along with the original complaint.
Section 52-184c provides in relevant part: "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." General Statutes § 52-184c(b).
The statute was recently amended by Public Acts 2005, No. 05-275. Prior to its amendment, there was no requirement that plaintiffs submit a written opinion of a similar health care provider to their complaints, and no provision that failure to attach the opinion would be "grounds for dismissal." See General Statutes (Rev. to 1987) § 52-190a.
There is no guiding appellate authority with respect to the statute as amended, although a number of Superior Court cases have considered similar claims. It appears that in matters in which a plaintiff failed to attach the opinion of a similar health care provider to the original complaint, but submitted one later with an amended complaint, the court held that the requirements of § 52-190a had been met, and denied the defendant's motion for summary judgment. See, e.g., Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001608 (October 2, 2006, Adams, J.) (plaintiff amended complaint as of right under Practice Book § 10-59 after defendant filed motion to dismiss); Grammond v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5000533 (August 16, 2006, Lewis, J.) ( 41 Conn. L. Rptr. 852) (same).
These cases are to be distinguished from the instant matter in that the plaintiffs have amended their complaint pursuant to Practice Book § 10-60(a)(3), and not § 10-59. As such, their amendment was not effective ab initio, as it was in Landi and Grammond. The basis for those decisions rests upon Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977) (amendment "as of right" does not require action by the court and so takes effect ab initio despite pending motion to dismiss). Generally, "[o]nce the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 537, 893 A.2d 389 (2006). In Grieco v. Redding Conservation Commission, Superior Court, judicial district of Danbury, Docket No. CV 91 0306219 (September 22, 1994, West, J.), [ 12 Conn. L. Rptr. 479] the court held that it could not consider the plaintiff's request to amend his complaint pursuant to Practice Book § 176 (now § 10-60) until the defendant's challenge to subject matter jurisdiction was disposed of, since the amendment was not "as of right" but, rather, accompanied a request for leave to amend. See also Richard A. Banks Co., Inc. v. Bradley, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 88 0094968 (March 23, 1993, Lewis, J.) [ 8 Conn. L. Rptr. 511] ("If the court does lack subject matter jurisdiction with respect to the original complaint, then the court would lack the power to act on [a] request for leave to amend such complaint. Therefore, the court cannot decide [a] request for leave to amend prior to a determination that subject matter jurisdiction exists").
Practice Book § 10-59 provides in relevant part: "The plaintiff may amend any defect, mistake or informality in the . . . complaint . . . without costs, during the first thirty days after the return day." Practice Book § 10-60 provides in relevant part: "(a) . . . a party may amend his or her pleadings or other parts of the record or proceedings at any time . . . (1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party . . ."
Further, this case differs from Grieco and Banks in that the defendant in both those cases had objected to the request to amend, and so the court was required to rule on the issue for the amendments to take effect. Pursuant to the rules of practice, if the plaintiff properly files a request for leave to file an amendment and it is not objected to within fifteen days, it is treated as an amendment by consent, without the involvement of the court. Practice Book § 10-60(a)(3); see also Carpenter v. Law Offices of Dressler Associates, 85 Conn.App. 655, 657 n. 2, 858 A.2d 820 (2004) ("Pursuant to Practice Book § 10-60, the plaintiff filed a request for permission to amend and file the third amended complaint. Because no party filed an objection to the request, the amended complaint was deemed filed by consent"). In Timber Trails Community Service Corp. v. State, Superior Court, judicial district of New Britain, Docket CV 02 0515732 (May 23, 2006, Levine, J.), the court, in considering the defendant's motion to dismiss for lack of subject matter jurisdiction because the plaintiff had filed a defective bond with its complaint, held: "Pursuant to Practice Book § 10-60, the plaintiff requested leave to amend the complaint and citation to include a new bond and attached a new bond to its motion. No objection to that request was filed. Therefore, pursuant to Practice Book § 10-60(a)(3), the amended bond is deemed to have been filed by consent of the adverse parties. Assuming, without deciding, that [the defendant] has standing to challenge the court's jurisdiction based on the plaintiff's initial failure to comply with [General Statutes] § 16-35, any defect in the bond was subsequently cured by the plaintiff's amended bond." Therefore, since the opinion of a health care provider submitted by the present plaintiff was filed with a request for leave to amend the complaint, and was not objected to by the defendant within fifteen days, and hence, it is properly before the court.
Pursuant to General Statutes § 16-35, a plaintiff appealing a decision by the department of public utility control must post a bond with the state to pay the department's costs in the event the plaintiff did not prevail.
The next question, then, is whether the deficiencies that the defendants claim mar the validity of the opinion deprive this court of subject matter jurisdiction.
Although there is some disagreement in the Superior Court regarding the implementation of the provision in § 52-190a(c) that "failure to obtain and file the written opinion . . . shall be grounds for dismissal," consistently however, these courts have held that once a plaintiff submits an opinion of a purported "similar health care provider," any jurisdictional hurdle — whether mandatory or discretionary — is cleared.
One decision has held the jurisdictional requirements of § 52-190a to be discretionary; see Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (June 21, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 609). This is the minority viewpoint, and is not dispositive of the present issue. Since there are adequate alterative grounds for denying the present motion, the Donovan case is not discussed at length. See footnote 9.
Several decisions have held that, while the plaintiff's obligation to attach the requisite opinion may be jurisdictional, and attacked by a motion to dismiss, the adequacy or possible deficiency of the opinion is not. See Jervis v. Stekler, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000679 (October 19, 2006, Pickard, J.) [ 42 Conn. L. Rptr. 163] (holding additionally that the appropriate vehicle for challenging the adequacy of the opinion or good faith certificate is a motion to strike); 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). In Andrikis, the court noted, "[n]othing in the plain language of [§ 52-190a] or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action. It is axiomatic that the court cannot read something into a statute . . . nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature . . . this court should not interpret the amended statute . . . [as creating] a jurisdictional hurdle when a claimant has obtained and filed an allegedly insufficient opinion." (Emphasis added, citation omitted; internal quotation marks omitted.) Id., 225. Similarly, in Landi v. Wertheim, supra, Docket No. CV 06 5001608, the court "disagree[d] that `52-190a(a) requires that the similar healthcare providers' certification must opine that the medical care which is the subject of the complaint deviated from the applicable standard of care in so many words . . . [T]he statute . . . requires only an opinion that there `appears to be evidence of medical negligence.' This court concludes that the certification's statement that `the injury suffered by [the plaintiff] is directly related to the lack of appropriate caution practiced by the operating surgeon' meets this requirement."
On the other hand, one decision has noted that "[i]t might certainly be the case that a written opinion appended to a medical malpractice complaint could be so cursory or so disjointed that it would fail to constitute a proper opinion of negligence at all." Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, Pittman, J.). Nevertheless, the court in Ranney held that the expert's opinion was sufficient, observing that "[§ 52-190a] does not . . . presuppose that the opinion expressed in the writing appended to the complaint would obviate the need for further pleading and discovery by both sides in such a lawsuit."
The defendants' final argument is that the opinion was not issued by a "similar health care provider" as defined in § 52-184c, making it deficient under § 52-190a. Nothing in the statute or the legislative history, however, suggests the status of the expert as a "similar health care provider" was meant to be a jurisdictional prerequisite. The very provision in § 52-190a(a) that the expert's identifying information be expunged, along with the provision that "[s]uch written opinion shall not be subject to discovery by any party except for challenging the validity of the certificate" presupposes at least some discovery before the expert's "similar health care provider" status is to be challenged.
Pharmacists and pharmacies have been uniformly held to be a class of health care providers under both §§ 52-184c and 52-190a by the Superior Court. See Shaw v. Caldor, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 94 0135645 (February 23, 1995, Lewis, J.) ( 13 Conn. L. Rptr. 524); Carafeno v. Gordon, Superior Court, judicial district of New Haven, Docket No. CV __ 0343687 (May 6, 1993, Thompson, J.) ( 8 C.S.C.R. 607) [ 8 Conn. L. Rptr. 88].
CONCLUSION
The plaintiffs properly amended their complaint to attach the opinion of a "similar health care provider" as required by § 52-190a, the motion to dismiss is denied. Based upon the foregoing the defendant's motion to dismiss is denied.
Additionally, Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (June 21, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 609), is the only decision to have held that jurisdiction under § 52-190a was within the discretion of the court. Quoting Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 269-70, 777 A.2d 645 (2001), the court noted: "Even when mandatory language is used in [a statute,] . . . `such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar.' " Donovan v. Sowell, supra, 41 Conn. L. Rptr. 611. This is the minority viewpoint; a number of other cases have recognized the requirement as a mandatory jurisdictional prerequisite and granted motions to dismiss on that basis; see, e.g., Thomas v. Walgreen Eastern Co., Superior Court, judicial district of Hartford, Docket No. CV 06 5001896 (September 20, 2006, Miller, J.); Kudera v. Ridgefield Physical Therapy LLC, Superior Court, judicial district of Danbury, Docket No. CV 06 5000993 (September 18, 2006, Shaban, J.); Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) [ 41 Conn. L. Rptr. 695]; Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) ( 41 Conn. L. Rptr. 504). Another case, denying a motion to dismiss on other grounds, recognized that the attachment of an opinion to the complaint was a threshold jurisdictional requirement. See Mastrone v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 05 5000477 (May 23, 2006, Rodriguez, J.) [ 41 Conn. L. Rptr. 375] (denying motion because complaint was filed before operative date of amendment to § 52-190a, but noting: "Therefore, revised [ § 52-190a(c)] specifically limits the court's power to hear cases alleging negligence against a medical provider. Only those cases commenced by a complaint with the written opinion of a medical provider attached to the complaint or apportionment complaint may be heard and, thus, failure to attach the required opinion implicates the court's subject matter jurisdiction.") (Emphasis added.)
Furthermore, the legislative history suggests the requirement was meant to be mandatory. Senator McDonald, for example, remarked that "[t]the failure to attach such an opinion would require the court to dismiss the case." (Emphasis added.) 48 S. Proc., Pt. 14, 2005 Sess., p. 4411. Mike Neubert, an attorney testifying before the judiciary committee, noted that the purpose of the amendment was to prevent cases from going forward without the opinion of a medical professional, concluding that "if the doctor's not willing to sign on the dotted line, maybe that's a good indication that this isn't a good case to bring." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 18, 2005 Sess., p. 5553. Another rationale behind the requirement was the immediate apprisal of defendants and the court of the validity of plaintiffs' claims, and the resulting celerity with which such cases could then be moved forward. Id., p. 5548. Allowing the court jurisdiction to order the plaintiff to amend his complaint in the face of a pending motion to dismiss would contravene this goal of speedier process.
It is true that "every presumption is to be indulged in favor of jurisdiction . . ." (Internal quotation marks omitted.) Williams v. Commission on Human Rights Opportunities, supra, 257 Conn. 293. Nevertheless, construction of § 52-190a differs from the statute at issue in Williams (General Statutes § 46a-82, a time limitation) or another case cited by the present plaintiffs, Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999), in that the legislature has expressly implicated subject matter jurisdiction with § 52-190a by invoking the remedy of "dismissal." The Amodio court noted, "[o]nce it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Internal quotation marks omitted.) Id., 728. The court in Donovan v. Sowell, supra, 41 Conn. L. Rptr. 609, relied upon similar language Leconche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), which also held that the Superior Court has generally had jurisdiction over medical malpractice cases. Id., 709. The legislature, however, specifically limited the court's jurisdiction over this "class" of cases with § 52-190a(c). General Statutes § 1-1, governing methods of statutory construction, provides in relevant part that "technical words and phrases . . . such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." "Dismissal" refers to the action taken when a court lacks jurisdiction. The weight of authority, then, holds that the submission of an opinion of a similar health care provider is an absolute prerequisite for the court's subject matter jurisdiction, and that the court does not have discretion in its exercise.