Opinion
AANCV156019308
02-23-2016
Benjamin Smith v. Kyung Seok Ko
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Theodore R. Tyma, J.
The present action arises out of a root canal procedure performed by the defendant on the plaintiff on May 9, 2015. The plaintiff alleges in his complaint dated August 18, 2015, that a file being used by the defendant broke during the dental procedure, and that " the defendant failed to remove the file and left the file in the plaintiff's mouth." The file remained in the plaintiff's mouth until part of the file was removed by another dentist. The subsequent treating dentist " had to leave part of the file in the plaintiff's tooth and sealed it in the canal."
The plaintiff's operative complaint against the defendant alleges negligence under the doctrine of res ipsa loquitur. " The doctrine of res ipsa loquitur, literally 'the thing speaks for itself, ' permits a jury to infer negligence when no direct evidence of negligence has been introduced . . . '[T]he doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred.' Schurgast v. Schumann, 156 Conn. 471, 479, 242 A.2d 695 (1968) . . .'The result is simply that such proof, without proof of further facts tending to show negligence, satisfies the plaintiff's duty of producing evidence sufficient to permit the trier, whether court or jury, to draw an inference of negligence. Ruerat v. Stevens, 113 Conn. 333, 337, 155 A. 219 [1931]. The doctrine permits, but does not compel, such an inference. Fogarty v. M.J. Beuchler & Son, Inc., 124 Conn. 325, 330, 199 A. 550 [1938]. The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 [1936]. It is but a specific application of the general principle that negligence can be proved by circumstantial evidence.' Lowman v. Housing Authority, 150 Conn. 665, 670, 192 A.2d 883 (1963); see generally W. Prosser & W.P. Keeton, Torts (5th Ed. 1984) § 349; F. Harper, F. James & O. Gray, Torts (1986) § § 19.5 through 19.12." (Citation omitted; emphasis omitted.) Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 441-43, 538 A.2d 690 (1988).
In his complaint filed in the present action, the plaintiff alleges that the defendant was negligent because " leaving and not removing the file in tooth number 3 . . . is ordinarily not seen in the absence of someone's negligence; the pain and suffering was caused by an instrumentality solely within the defendant's control; the pain and suffering was not due to any voluntary action or contribution by the plaintiff; and, the explanation of the event is more accessible to the defendant than to the plaintiff."
The defendant moves to dismiss the plaintiff's complaint claiming that the plaintiff failed to comply with General Statutes § 52-190a by failing to attach a good faith certificate and a written opinion letter from a similar health care provider to his complaint. The plaintiff objects to the defendant's motion, and requests leave from the court to file an amended complaint. The allegations of the proposed complaint are the same as in the plaintiff's original complaint, except the plaintiff now seeks to allege that the defendant's conduct constitutes gross negligence instead of ordinary negligence framed by the doctrine of res ipsa loquitur. The plaintiff asserts in his objection that " Connecticut courts have held that the gross negligence exception excusing expert testimony in medical malpractices cases has been made applicable to foreign objects left in the patient after surgery." The plaintiff syllogistically reasons that " since the plaintiff's allegations of gross negligence must be admitted by the court for purposes of a motion to dismiss . . . an expert would not be necessary, thus, it follows [that] a good faith certificate per [General Statutes] § 52-190a(a) would not be required."
The defendant filed a reply memorandum to the plaintiff's objection. Therein, the defendant claims that " a timely objection to the request to amend has been filed, and the court has not ruled on that motion. Therefore, the (original complaint) remains operative, and as set forth above, must be dismissed because it does not comply with the requirements of [General Statutes] § 52-190a."
The court will begin its analysis with a discussion of the statute at issue. General Statutes § 52-190a(a) provides in relevant part that, in any medical malpractice action, " [n]o 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 . . . [T]he claimant or the claimants 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 . . ."
In Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011), our Supreme Court held that a legally sufficient opinion letter is part of legal process and implicates personal jurisdiction. " Section 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52-190a(c) provides: 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." (Internal quotation marks omitted.) Id., 396.
" Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction. '[J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.' (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989); see also Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991) (A writ of summons is a statutory prerequisite to the commencement of a civil action. It is an essential element to the validity of the jurisdiction of the court. 'Because the plaintiff in this case failed to comply in any fashion with these basic requirements [attaching the writ of summons to the complaint], we conclude that the trial court should have granted the defendants motion to dismiss the complaint . . . for lack of personal jurisdiction over the defendant.'). 'The defendant's claims concerning service of the summons and complaint implicate personal, rather than subject matter, jurisdiction.' Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415, 885 A.2d 768 (2005). Likewise, the attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court. As this court held in Connor v. Statewide Grievance Committee, supra, 260 Conn. at 442, 797 A.2d 1081, '[u]nless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.' (Citations omitted.)
" Accordingly, we conclude that, because the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies by its very terms. Because we conclude that the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction. It is in the nature of a pleading that must be attached to the complaint. Thus, we construe the term 'process' to include both the summons, the complaint and any requisite attachments thereto." (Footnote omitted.) Id., 401-02.
In the present case, the plaintiff does not dispute that his action is premised on medical malpractice. Rather, the plaintiff claims that he is excused from complying with § 52-190a(a) based on the circumstances of this case. In support of his objection to the defendant's motion to dismiss, the plaintiff cites appellate case law discussing exceptions to the general rule requiring expert opinion evidence in medical malpractice actions, including, as in this case, factual circumstances where the professional negligence rises to gross negligence. Accordingly, the plaintiff seeks to amend his complaint to allege such a cause of action.
Whether the plaintiff is excused at trial from producing expert evidence to prove his medical malpractice claim does not excuse him from complying with the statutory prerequisites under § 52-190a to commence such an action. The plaintiff's original complaint is legally defective pursuant to that statute because it failed to include a good faith certificate and an opinion letter. Therefore, it is subject to dismissal under the statute.
The court must next address the plaintiff's request for leave to amend his complaint for the sole purpose of changing the cause of action from general negligence under res ipsa loquitur to gross negligence. " The allowance of an amendment to a complaint more than thirty days after the return day . . . rests in the discretion of the court . . . The trial court's action is discretionary and subject to review for an abuse of discretion . . . Much depends upon the particular circumstances of each case. The factors to be considered include unreasonable delay, fairness to the opposing parties, and negligence of the party offering the amendment." Citation omitted.) Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957).
In Gonzales v. Langdon, 161 Conn.App. 497, 510, 128 A.3d 562 (2015), our Appellate Court discussed, among other things, whether a plaintiff can amend his or her complaint to cure a legally inadequate opinion letter. The court " conclude[d] that, if a plaintiff alleging medical malpractice seeks to amend his or her complaint in order to amend the original opinion letter, or to substitute a new opinion letter for the original opinion letter, the trial court (1) must permit such an amendment if the plaintiff seeks to amend as of right within thirty days of the return day and the action was brought within the statute of limitations, and (2) has discretion to permit such an amendment if the plaintiff seeks to amend within the applicable statute of limitations but more than thirty days after the return day. The court may abuse its discretion if it denies the plaintiff's request to amend despite the fact that the amendment would cure any and all defects in the original opinion letter and there is an absence of other independent reasons to deny permission for leave to amend." Id.
Here, while the plaintiff seeks to amend his complaint well within the statute of limitations, he is not doing so to include an opinion letter, or an entirely new opinion letter, that complies with § 52-190a(a). Although the plaintiff acknowledges that the present action alleges a cause of action for medical malpractice, the plaintiff has not made any effort to attach such an opinion letter to his original complaint or proposed amended complaint. There is no evidence that an opinion letter existed at the time the action was commenced. Rather, the plaintiff seeks to amend merely to bring a malpractice action based on the following allegation of gross negligence: " The conduct by the defendant in leaving the file in the plaintiff's tooth and not removing it immediately constituted gross negligence." The original complaint and the proposed amended complaint suffer from the same jurisdictional infirmity. The proposed amendment does not cure the jurisdictional defect, which makes the present action distinguishable from the facts in Gonzales .
In view of the foregoing, the plaintiff's request for leave to amend his complaint (104.00) is denied and the defendant's motion to dismiss (101.00) is granted.