Opinion
KNLCV166026050S
03-05-2018
Steven PETERS, Jr. v. UNITED COMMUNITY & FAMILY SERVICES, INC. et al.
UNPUBLISHED OPINION
OPINION
Cole-Chu, J.
This is a medical negligence action by the plaintiff, Steven Peters, Jr., against multiple defendants, arising out of allegedly deficient dental care. Defendant, Jose Rivero, D.D.S., moves to dismiss the count directed at him, count two, on the ground that the plaintiff failed to comply with General Statutes § 52-190a(c) because the opinion letter attached to the complaint fails to demonstrate that the author is a similar health care provider, as defined in General Statutes § 52-584c(c). Rivero’s motion adopts a motion to dismiss filed by defendant Edward Reynolds, Jr., D.D.S. (## 106, 107). That motion to dismiss was granted by Judge Vacchelli (# 106.50) . Rivero did not submit a memorandum of law in support of his motion, as required by Practice Book § 11-10(a), but there was no objection by the plaintiff on that ground. The plaintiff’s objection (# 138) to the present motion incorporates his objection (# 119) to Reynolds’ motion to dismiss (and notes that he has appealed Judge Vacchelli’s decision) but also has no separate supporting brief. For the following reasons, this court declines to follow the reasoning in Judge Vacchelli’s decision and denies Rivero’s motion to dismiss.
I
STANDARD
" [A] motion to dismiss pursuant to [General Statutes] § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter ..." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). " [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). The failure to provide a proper opinion letter implicates personal jurisdiction. See Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011). " When a ... court decides a ... question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, 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.) Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 559, 36 A.3d 297 (2012).
II
ANALYSIS
Prior to filing a personal injury action against a health care provider, a reasonable inquiry must be made " 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 ... 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). " Failure to attach to the complaint a legally sufficient opinion letter authored by a similar health care provider mandates dismissal because the court lacks personal jurisdiction over the defendant." Gonzales v. Langdon, 161 Conn.App. 497, 504, 128 A.3d 562 (2015). Neither § 52-190a nor § 52-184c requires that, where a particular board certification is required, the opinion letter must state that the author has that certification.
" [T]he precise definition of similar health care provider depends on whether the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist." (Internal quotation marks omitted.) Id. ; see General Statutes § 52-184c(c). Where a complaint alleges that the defendant is a specialist, " a similar health care provider is one who [i]s trained and experienced in the same specialty; and ... is certified by the appropriate American board in the same specialty." (Emphasis in original; internal quotation marks omitted.) Gonzales v. Langdon, supra, 161 Conn.App. 505. Here, the plaintiff alleges that Rivero held himself out as a physician and surgeon specializing in oral and maxillofacial surgery. Accordingly, the author of the opinion letter must be trained and experienced, and board certified in oral and maxillofacial surgery. The opinion letter attached to the plaintiff’s complaint has the name of the author redacted, but states that the author is an oral and maxillofacial surgeon. It does not state, however, that the author is board certified in that specialty. The author has, subsequently, been identified as Dr. Bevilacqua.
There can be no doubt that General Statutes § 52-190a " requires that an opinion letter contain information showing that its author is a similar health care provider." Bell v. Hospital of Saint Raphael, supra, 133 Conn.App. 561. Generally, however, the failure to include a credential in the written opinion letter is not fatal, but may be cured by amendments made within the statute of limitations. Gonzales v. Langdon, supra, 161 Conn.App. 510. In the present case, instead of amending the opinion letter, the plaintiff has submitted sworn testimony, in the form of an affidavit of Bevilacqua, attesting that he is board certified as an oral and maxillofacial surgeon. Rivero does not appear to contest these credentials.
The plaintiff also submitted an affidavit of his attorney attesting that he knew, when Bevilacqua was retained, that he was board certified in oral and maxillofacial surgery.
No appellate authority directly addresses the specific issue presented to this court, and there is some disagreement among superior court judges. See Liu v. Yale Medical Group, Superior Court, judicial district of New Haven, Docket No. CV-14-6050183-S (February 18, 2015) (60 Conn.L.Rptr. 48) (collecting cases); Kissel v. Center for Women’s Health, P.C., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013562-S (September 6, 2012) (discussing split of authority based on precedential value of language in Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) ). Many of those superior courts that have determined they have discretion to consider supplemental affidavits have done so based, in part, on language in Votre v. County Obstetrics & Gynecology Group, P.C., supra, wherein the Appellate Court noted 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 at variance with the purpose of § 52-190a, to prevent groundless lawsuits against health care providers." See, e.g., Vines v. Singh, Superior Court, judicial district of Waterbury, Docket No. CV-14-6023368-S (December 9, 2014); Lemay v. Goldstein, Superior Court, judicial district of Hartford, Docket No. CV-14-6049930-S (September 30, 2014); Field v. Lawrence & Memorial Hospital, Superior Court, judicial district of New London, Docket No. CV-14-6019542-S (June 10, 2014) (58 Conn.L.Rptr. 308); Cavanaugh v. Sherberg, Superior Court, judicial district of New Haven, Docket No. CV-11-6023677-S (February 2, 2012); Mitchell v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV-10-6015881-S (May 13, 2011) (51 Conn.L.Rptr. 896).
Indeed, this court has, under circumstances similar to the present case, determined that it has the discretion to consider a supplemental affidavit supplying a missing credential in a written opinion letter. See Duro v. William W. Backus Hospital, Superior Court, judicial district of New London, Docket No. CV-13-6019174-S (May 27, 2014). In Duro, this court noted that " [t]here has been a split among Superior Court judges regarding the precedential effect of the above language in Votre. However, this court finds that language- even if dicta- cogent." Id. In this court’s view, " [w]hile the purpose of § 52-190a is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider ... [i]t is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects ... If the Appellate Court has given a trial court the authority to allow a plaintiff to amend the complaint to add an opinion letter, it seems reasonable that the court could consider an affidavit that explains the existing opinion letter." (Citations omitted; internal quotation marks omitted.) Id.
Our Appellate Court has subsequently clarified that " the discussion in Votre was entirely dicta because the issue of whether a plaintiff can amend his or her complaint to cure a legally inadequate opinion letter was not before this court." Gonzales v. Langdon, supra, 161 Conn.App. 512. Nevertheless, our Appellate Court also noted that our Supreme Court has not repudiated the language in Votre, " suggesting that an amendment may be permissible to cure a legally sufficient opinion letter," and went on to hold that a defect in a written onion letter can be cured by amendments made within the statute of limitations. Id., 510. By its holding, the Gonzales court transformed Votre ’s dicta into precedent, implicitly ratifying the rationale of those superior court decisions relying upon it for authority to consider supplemental affidavits. Remaining convinced that it has the discretion to consider supplementation of an opinion letter by timely affidavit, this court declines to deviate from its analysis in Duro.
In the present case, the plaintiff initiated the action supported by a § 52-190a opinion letter, and the only claimed defect therein is that it does not state that the author is board certified in oral and maxillofacial surgery. Again, and crucially, neither § 52-190a nor § 52-184c requires that, where a particular board certification is required, the opinion letter must state that the author has that certification. It makes no sense, in law or in equity, that an omission in a § 52-190a opinion letter which may be cured by an unsworn amendment of the letter may not just as effectively be cured by a timely statement under oath. It would make no sense to hold that the former cure is consistent with the language and purpose of § 52-190a and § 52-184c, but the latter is not. Indeed, to so hold would be to legislate, not just to interpret § 52-190a. It would also disregard the principle of construing the complaint, read with the opinion letter attached to it, in the manner most favorable to the pleader. Bell v. Hospital of Saint Raphael, supra.
Consideration of the affidavit is also consistent with our rules of practice, which expressly authorize the filing of affidavits in opposition to a motion to dismiss; see Practice Book § 10-31(a); and the process for establishing personal jurisdiction. See Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008) (where not evident from the face of the record, the plaintiff, having the burden of establishing personal jurisdiction over a defendant, may present evidence).
Bevilacqua’s affidavit does not substantively alter the opinion letter: no new medical facts or opinions are presented. To reject the affidavit and dismiss this action as to Rivero would force the plaintiff to proceed under the accidental failure of suit statute, which would be costly to all concerned and waste judicial resources. Gorneault v. Colsen, Superior Court, judicial district of New London, Docket No. CV-10-6004786-S (May 6, 2011) .
Because the court finds the plaintiff’s § 52-190a opinion letter is not defective for failure to state that its author had the required board certification, and because the court finds, in light of the uncontested testimony, by affidavit, verifying the author’s necessary board certification, the opinion letter satisfies General Statutes § 52-190a(a), and in the interests of public policy and judicial economy, this court denies Rivero’s motion to dismiss (# 136).
The public policy of discouraging- at least not rewarding- gamesmanship in litigation leads to another reason for denying the present motion: constructive waiver by Rivero. While waiver is an intentional relinquishment of a known right; Wadia Enterprises, Inc. v. Hirschfeld, 244 Conn. 240, 251, 618 A.2d 506 (1992); it would in this court’s view be inequitable to allow Rivero to challenge personal jurisdiction more than one year after he was served with the complaint. Rivero was served on or about January 11, 2016. The return day was February 9, 2016. Although Rivero did not promptly appear; see Practice Book § 3-2; the plaintiff did not seek to default him. See Practice Book § 17-20. Rivero did not appear until February 6, 2017. He filed motion to dismiss (# 134) on February 8, 2017, and the present motion on March 1, 2017. A defendant in a medical malpractice action may waive the statutory requirements of General Statutes § 52-190a(a). Notre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 586; Practice Book § 10-32. Though, thanks to an extension of time to plead, the present motion was timely under Practice Book § 10-30(b), the movant’s attorneys could see that the plaintiff’s § 52-190a opinion letter did not state the author’s board certification over a year before this second motion to dismiss was filed. Rivero was obligated to challenge the adequacy of the opinion letter within a reasonable time on pain of being found to have waived the right to do so. See Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV-09-5010404-S (July 20, 2010) (50 Conn.L.Rptr. 199); see also Broderick v. Pond, Superior Court, judicial district of New Haven, Docket No. CV-09-5027886-S (December 10, 2010) (courts do not look favorably upon parties sitting on their rights and then springing last-minute claims).