Opinion
No. CV 06-5007552 S
September 24, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #105
On November 20, 2006, the plaintiff, Alynda Schachter, filed a complaint against the defendant, Dr. Donald Evanko, DDS, in negligence. The plaintiff alleges therein that, during the time she underwent dental care from June 1998 until July 2005, the defendant was negligent in failing to perform periodic dental cleanings, to make proper referrals to qualified specialists, and to properly fit and restore dental implants, which resulted in the plaintiff suffering some tooth loss, broken teeth, periodontal disease, pain and suffering, anxiety and incurring significant costs.
On April 12, 2007, the defendant filed a motion to dismiss on the ground that the plaintiff failed to file a sufficiently detailed written opinion by a similar health care provider as required by General Statutes § 52-190a, and, therefore, the court lacks subject matter jurisdiction. The defendant submitted a memorandum of law in support of the motion. On June 4, 2007, the plaintiff filed a memorandum of law in opposition to the motion. The matter was heard on the short calendar on July 16, 2007.
DISCUSSION
"[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). Instead "[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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings . . . [W]here the court rendering the judgment lacks jurisdiction of the subject matter the judgment itself is void." (Citation omitted; internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). "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, 825 A.2d 90 (2003).
The defendant moves to dismiss the action on the ground that the written expert opinion included with the complaint does not comport with the requirements of § 52-190a. The defendant argues that the written report submitted by the plaintiff lacks a detailed basis for the formation of the opinion, and fails to provide grounds for finding the defendant's actions negligent.
The plaintiff counters that the dentist's medical report she submitted with her original complaint complies with the requirements of the statute. She argues that the attesting dentist's report includes a review of numerous x-rays and an actual physical exam, which is sufficient to provide proof of a good faith inquiry for the claim of negligence. The plaintiff further argues that, when a court has granted a dismissal of the complaint, it has been the result of a complete failure to provide an opinion, and not because the court has found the report deficient.
Section § 52-190a(a) provides, in relevant part: "No civil action . . . shall be filed . . . resulting from personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a health care provider, unless the attorney or the 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 plaintiff . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a signed and written opinion of a similar health care provider." General Statutes § 52-190a. The remedy for failure to comply with this good faith standard is defined in § 52-190a(c), which provides: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action." General Statutes 52-190a(c).
Connecticut Superior Courts have addressed this very issue by analyzing the language of § 52-190a. "Subsection (c) does not say failure to attach the opinion to the complaint shall result in dismissal or that the matter should be dismissed if the opinion referred to in section (a) and defined therein as `detailed' is not provided. The language simply says failure to attach the opinion referred to in `subsection (a) of this section shall be grounds for dismissal.'" Cunningham v. Talmadge Park, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5005233 (May 8, 2007, J. Corradino) (43 Conn. L. Rptr. 400, 401).
The legislative history supports this conclusion. "[W]hat the legislature can be interpreted as doing in amending § 52-190a in 2005 and using `grounds for dismissal' language is the setting up of [a] procedural rule requiring plaintiffs to provide mandatory information or discovery at the inception of litigation without the need for the defendant to move for such information." Cunningham v. Talmadge Park, Inc., supra, 43 Conn. L. Rptr. 402. "Representative Lawlor is quoted as saying the defense would be helped right at the inception of the medical malpractice case . . . (because it would allow) . . . counsel and their clients (to) really narrow down exactly what was the basis . . . for the plaintiff's claim . . . Senator Kissel . . . defined part of the purpose of the act . . . as saying the amendment sought to `(reform) the process . . . speed it up . . . (and) expedite it.'" (Internal quotation marks omitted.) Cunningham v. Talmadge Park, Inc., supra, 43 Conn. L. Rptr. 402. The statute was designed to put the defendant on notice and facilitate discovery. In this way, the intent of the statute is procedural, designed to promote efficiency.
In cases similar to the present one, the Superior Courts have declined to dismiss the actions. For example, In Cunningham v. Talmadge Park, Inc., the plaintiff brought a lawsuit for medical malpractice. The defendant moved to dismiss on the ground that the written opinion of a similar health care provider lacked sufficient detail. Upon review of the statutory language, the court determined that it did not have to dismiss the complaint stating: "If the trial court is not mandated to dismiss the action, then the only other possibility in the universe of possible actions is that the judge has discretion as to whether the action should be dismissed for failure to supply an opinion of sufficient detail." Cunningham v. Talmadge Park, Inc., supra, 43 Conn. L. Rptr. 401.
In Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, CV 05 5000482 (April 19, 2006, J. Matasavage) (41 Conn. L. Rptr. 222), the court heard a similar motion to dismiss, in which the defendant argued that the plaintiff's written opinion does not support the allegations of the complaint and, therefore, failed to comply with the language of § 52-190a. The plaintiff alleged that the defendant was negligent in the treatment of her back pain. The plaintiff submitted a written opinion of a similar health care provider, in which the provider reviewed the plaintiff's symptoms and opined on the appropriateness of the treatment provided. In seeking a dismissal, the defendant argued that the opinion was inadequate and failed to support the underlying allegations. The court denied the motion to dismiss.
Recently in Ouellette v. Brook Hollow Health Care Center, Superior Court, judicial district of New Haven, Docket No. CV 06 5002865 (February 16, 2007, J. Holden) (42 Conn. L. Rptr. 863), the plaintiff attached a written medical opinion to her complaint stating that the defendant deviated from an acceptable standard of care, caused her injuries and ultimately contributed to her death. The defendant filed a motion to dismiss on the ground that the opinion was insufficiently detailed. This court denied the motion, explaining that the opinion was "sufficient to show that the plaintiff's attorney has conducted a good faith inquiry into the validity of his cause of action, and to give the defendant adequate notice of the basis of the plaintiff's claim. The opinion [therefore] . . . comports with the requirements of 52-190a." Ouellette v. Brook Hollow Health Care Center, supra, 42 Conn. L. Rptr. 865.
See also Ranney v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 06 5000954 (September 18, 2006, J. Pittman,) in which the court denied the motion to dismiss on the ground that the written opinion submitted by a health care provider sufficiently detailed the claim of negligence.
In the present case, the defendant's argument is similar to that in Andrikis, Cunningham and Ouellette. The defendant argues that the plaintiff's written expert opinion is cursory, conclusory and insufficiently detailed. In analyzing the sufficiency of the expert opinion, the court in Andrikis first looked to the legislative history of the statute. The court noted that "the purposes of the amended statute . . . are to narrow down and provide the defendants with details as to the basis for [the plaintiff's] claim." Andrikis v. Phoenix Internal Medicine, supra, 41 Conn. L. Rptr. 225. [whenever I add a portion of a quote etc., I expect you to check the accuracy of what you have written especially since you were unable to read my writing and took out of brackett's what I had put into bracketts]. Next, the court looked to the statutory language, reasoning that "[p]ursuant to the plain language of the statute, the failure to obtain and file a written opinion presents grounds for dismissal." Id., 224. The court further reasoned that "nothing in the plain language of the statute or its legislative history indicate, however, that an insufficient opinion is grounds for dismissal of an action." Id., 225. Based on this reasoning, the court denied the motion.
The defendants in both Ouellette and Cunningham challenged the plaintiff's complaint, on the ground that the written opinion of the expert was insufficiently detailed, which is the same argument made by the defendant in the present case. The Ouellette court, like the Andrikis court, looked at legislative history and statutory language to support denying the motion to dismiss. In Ouellette, however, the court paid special attention to the word "detailed." The legislative history provides no explanation of the meaning of the word "detailed." Ouellette v. Brook Hollow Health Care Center, supra, 42 Conn. L. Rptr. 865. "[T]he exact nature of the information envisioned by the legislature is not explicated." Id. A dictionary definition provides little additional guidance as to what "details" are desired. Merriam-Webster's Collegiate Dictionary (11th Ed. 2005), describes, in relevant part, "detail" as "extended treatment of or attention to particular items," and "in detail" as "with all the particulars." There is no further explanation provided as to what sort of medical proof would constitute "particulars."
A motion to dismiss would constitute a drastic remedy, when, in fact, the plaintiff has provided a written opinion from a similar health care provider. Both the plaintiff and the defendant indicate that issues of fairness prevail in this suit. To integrate the statutory purpose and address issues of fairness and equality, some courts have considered alternative remedies to dismissal. For example, the Cunningham court pointed out that "[t]he judge could tell the plaintiff that . . . the present written opinion is inadequate, an appropriate opinion must be filed within ten days, the matter is continued on the short calendar docket for two weeks and if the opinion is not so filed the case will be dismissed. There may be other circumstances that would suggest such an order is inappropriate but absent these, nothing in the language of § 52-190a(c) suggests such an order could not be considered." Cunningham v. Talmadge Park, Inc., supra, 43 Conn. L. Rptr. 43.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.