Opinion
HHDCV176080978S
09-17-2018
Christine SOUZA v. Robert G. ZBROWOSKI
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
This matter is before the court concerning the defendant Robert G. Zbrowoski’s motion to dismiss for lack of personal jurisdiction, due to noncompliance with General Statutes § 52-190a. The court heard oral argument on July 9, 2018. After considering the parties’ written submissions and oral arguments, the court issues this memorandum of decision.
Section 52-190a(a) provides, in relevant part, "(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 ... 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 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 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. The claimant or the claimant’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."
Background
The plaintiff, Christine Souza, alleges the following facts in her complaint. The defendant, Robert G. Zbrowoski, is a licensed dentist. Around March 28, 2016, the plaintiff employed the defendant for dental care and treatment. Thereafter, the defendant performed a full mouth extraction of the plaintiff’s twenty remaining teeth. During the extraction procedure (procedure), the plaintiff coughed and showed signs of choking and pain. Nevertheless, the defendant ignored and/or failed to respond to these signs in an appropriate manner. As a result, the "plaintiff was caused and/or allowed to aspirate a tooth root which became lodged in her left lower lung, and which [led] to ... injuries, losses, and damages ..." Following the procedure, the plaintiff had a chest x-ray that revealed a tooth in her left lower lung.
The plaintiff further alleges that, because of the defendant’s negligence, the plaintiff sustained personal injuries, a painful and severe aspiration of a tooth fragment, and multiple failed attempts to remove the tooth fragment. The tooth fragment was discovered sixteen days after the procedure, and the plaintiff underwent surgery, was hospitalized in intensive care, suffered the insertion of chest tubes, shortness of breath, chest pain, sneezing, coughing and wheezing.
On August 4, 2017, the plaintiff filed her complaint against the defendant. On September 28, 2017, the defendant filed a motion to dismiss the plaintiff’s complaint, based on lack of personal jurisdiction, for failure to attach a letter authored by a similar health care provider. On October 2, 2017, the plaintiff filed a request to amend her complaint in addition to an objection to the defendant’s motion to dismiss. The defendant filed a reply on May 16, 2018, and the plaintiff responded on June 11, 2018. On June 29, 2018, the defendant supplemented his memorandum to support his motion to dismiss.
II
Standard Of Review
"The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ..." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 ... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ...; other types of undisputed evidence; ... and/or public records of which judicial notice may be taken; ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ...; the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ... Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ..." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
"[A] challenge to the jurisdiction of the court presents a question of law ..." Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
"[A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and ... dismissal of a letter that does not comply with § 52-190a(c) is mandatory ..." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). "[A]n action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 12 A.3d 865 (2011).
III
Discussion
A
General Statutes § 52-190a(a) requires that a medical malpractice complaint "shall contain a certificate of the attorney or party filing the action ... that ... reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ..." Section 52-190a(a) also "requires a plaintiff in a medical malpractice action to attach to the complaint a written ‘opinion of a similar health care provider’ attesting to a good faith basis for the action ..." Morgan v. Hartford Hospital, 301 Conn. 388, 392, 21 A.3d 451 (2011). The good faith certificate and written opinion letter "must be attached to the complaint in order to commence properly the action." Id., 398.
"[T]he 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." Id., 401. The court "conclude[d] that the absence of a proper written opinion letter is a matter of form, [which] implicates personal jurisdiction. It is in the nature of a pleading that must be attached to the complaint." Id., 402.
"[T]he grant[ing] of a motion to dismiss ... is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). "[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 28.
The defendant first argues that, although not specifically mentioned in the complaint, the plaintiff’s claim alleges malpractice of a health care provider, and it should be analyzed as such. As noted above, in response, the plaintiff seeks to amend the complaint to add a medical opinion letter. In her request for leave to amend (# 105), page 1, the plaintiff characterizes this matter as a dental malpractice action. It is undisputed that her claim sounds in malpractice and that compliance with § 52-190a is required.
On September 28, 2017, the defendant filed his motion to dismiss on the ground that the plaintiff failed to attach the required opinion letter authored by a similar health care provider. Four days later, on October 2, 2017, the plaintiff filed a request to amend her complaint, and an objection to the defendant’s motion to dismiss. The plaintiff contends that the opinion letter was inadvertently omitted from the original complaint.
The defendant argues that because the plaintiff failed to attach the required written opinion letter authored by a similar health care provider, dismissal of her claim is the mandatory remedy. In response, the plaintiff argues that there is no need to dismiss the present action, requiring the plaintiff to commence a new one, when the defect can be cured by attaching the opinion letter in a relatively short time by amendment.
In particular, the plaintiff relies on Gonzales v. Langdon, 161 Conn.App. 497, 520-21, 128 A.3d 562 (2015) (Gonzales ), where the Appellate Court stated, "there is no need to require a plaintiff to file an entirely new action if an amendment can cure a defect in the initial opinion letter within a relatively short span of time after the filing of the initial complaint." (Footnote omitted.) Id., 520. There, the court also stated that "the trial court abused its discretion by not permitting leave to amend because, although the plaintiff did not seek to amend as of right, she did request leave to amend her complaint within the statute of limitations and no other circumstances that would justify denying leave to amend, such as undue delay or prejudice, existed in this case." Id., 521. The plaintiff also relies on Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) (Votre ), where the Appellate Court stated, "[I]t 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." Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 585.
In Gonzales, unlike the present action, an opinion letter was attached to the original complaint. There, "[a]ttached to the plaintiff’s complaint was her attorney’s good faith certificate of reasonable inquiry and an opinion letter. The opinion letter (original opinion letter) was authored by a board certified dermatologist ..." Gonzales v. Langdon, supra, 161 Conn.App. 501.
Under those circumstances, the court addressed the issue of "whether, as a matter of law, a plaintiff properly may attempt to cure a legally insufficient opinion letter by amending the complaint to attach an amended opinion letter, or an entirely new opinion letter, that complies with § 52-190a(a). For the reasons that follow, we conclude 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." Id., 510. Here, in contrast, as stated above, it is undisputed that no opinion letter was attached to the complaint when it was served and filed in court.
In Gonzales, the court also addressed Votre and stated 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." Id., 512. Thus, it also found that "[t]he present case is distinguishable from Votre, which dealt with a specific set of facts, including that the plaintiff never made a good faith effort in her original complaint to attach an opinion letter, and never sought to amend her complaint with an opinion letter within the statute of limitations." Id., 513.
As stated above, the Supreme Court has stated that an opinion letter must be included with the original complaint in order to properly commence a malpractice action. See Morgan v. Hartford Hospital, supra, 301 Conn. 392, 398. The court in Gonzales repeatedly reiterated the necessity of providing an opinion letter with the original complaint. In distinguishing the facts there from the circumstances in the Supreme Court’s decision in New England Rd., Inc. v. Planning & Zoning Comm’n of Town of Clinton, 308 Conn. 180, 61 A.3d 505 (2013), the Gonzales court stated that, in Gonzales, "the plaintiff made a good faith effort in her original complaint to attach an opinion letter authored by a similar health care provider." Id., 515. In contrast, in New England Rd., "the plaintiff failed to comply in any fashion with one or more of the process requirements[.]" (Internal quotation marks omitted.) Gonzales v. Langdon, supra, 161 Conn.App. 515.
The court also stated that "The statute clearly and unambiguously states that an opinion letter must be attached to the certificate of good faith, but makes no reference as to whether the complaint may be amended to attach an amended or new opinion letter if the original opinion letter is defective." (Emphasis added.) Id., 517.
The court then reiterated that "[t]he legislative purpose of § 52-190a(a) is not undermined by allowing a plaintiff leave to amend his or her opinion letter or to substitute in a new opinion letter if the plaintiff did file, in good faith, an opinion letter with the original complaint, and later seeks to cure a defect in that letter within the statute of limitations." (Emphasis added.) Id., 519. More recently, in Peters v. United Cmty. & Family Servs., Inc., 182 Conn.App. 688, 701 (2018), the Appellate Court summarized its decision in Gonzales, expressly stating that it applied in the context of the filing of a defective opinion letter: "We held, as a matter of first impression, that a plaintiff who files a legally insufficient opinion letter may, in certain instances, cure the defective opinion letter through amendment of the pleadings, thereby avoiding the need to file a new action."
Here, since the plaintiff did not comply "in any fashion" with the service requirement of providing an opinion letter with the complaint, the court did not acquire personal jurisdiction over the defendant. See Morgan v. Hartford Hospital, supra, 301 Conn. 401. Under such circumstances, dismissal is mandatory and an amendment to allow the filing of an opinion letter is not permitted.
B
The defendant also argues that, even if the court properly could consider the plaintiff’s proposed amendment, it would not cure the § 52-190a(a) deficiency because the author of the opinion, a specialist in periodontics, is not a similar health care provider to the defendant, who is a board certified oral and maxillofacial surgeon.
In the defendant’s reply memorandum in support of his motion to dismiss, the defendant argues that the plaintiff cannot escape the applicable statutory requirements by simply omitting the defendant’s specialty from the complaint. Therefore, the defendant argues, because the defendant is a trained and board certified oral and maxillofacial surgeon, and not simply a "dentist" as alleged in the complaint, 52-184c(c) should be applied to determine whether the author of the opinion letter is a similar health care provider. The plaintiff argues that the defendant’s affidavit does not identify his specialty, therefore, the question to be addressed "is whether a board-certified periodontist and general dentist ... is certified in the same specialty as the [d]efendant oral surgeon and general dentist." See plaintiff’s response (# 128), p. 6. Additionally, the plaintiff asserts that the specialties of board certified periodontists and oral surgeons overlap when it comes to the treatment of diseases of the teeth and surrounding tissues.
"To determine if an opinion letter meets the requirements of § 52-190a(a), the letter must be read in conjunction with § 52-184c(c), which defines the term similar health care provider." (Internal quotation marks omitted.) Torres v. Carrese, 149 Conn.App. 596, 608-09, 90 A.3d 256, cert. denied, 312 Conn. 912 (2014). See Helfant v. Yale-New Haven Hosp., 168 Conn.App. 47, 59, 145 A.3d 347, 354 (2016) (rejecting the argument that omission of the defendant’s specialty from the complaint’s allegations is controlling: "if that assertion were accepted, it would seem that by omitting such language regarding a defendant’s specialty, a plaintiff could always plead his or her way around the statute").
Section 52-184c(c) provides: "If 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, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ "
The plaintiff alleges in her complaint that the defendant "is a duly licensed dentist engaging in his profession ..." Therefore, it is not alleged in the complaint that the defendant 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. To counter the plaintiff’s allegations that the defendant is a "dentist," the defendant submitted an affidavit (# 127) stating his qualifications, which include obtaining certification in Oral and Maxillofacial Surgery from the American Board of Oral and Maxillofacial Surgery. Additionally, the defendant contends that, at the time of the plaintiff’s treatment he "treated patients ... in my capacity as an oral and maxillofacial surgeon." See affidavit, ¶ 3. Although the plaintiff does not allege in her complaint that the defendant is a specialist, it is evident, based on the defendant’s affidavit, that, at the time of the plaintiff’s treatment, he was board certified in Oral and Maxillofacial Surgery and treated patients in that capacity.
The author of the proposed opinion letter states: "I am a licensed and credentialed general dentist in the state of Connecticut. I have also completed a certificate of specialty in Periodontics, and am certified by the American Board of Periodontology. I routinely perform surgical and non-surgical extractions in my practice and have done many full mouth extraction cases." It is clear that because the author has a certificate in Periodontics, and is certified by the American Board of Periodontology, while the defendant is certified by the American Board of Oral and Maxillofacial Surgery, that they are certified in two different specialties. There is no information provided in the proposed opinion letter to show that Periodontics and Oral and Maxillofacial Surgery are the same specialties, and are certified by the appropriate American board in the same specialty.
The only argument put forth by the plaintiff pointing to both specialties being the same is that there are treatments that overlap. This is insufficient. As illustrated in an analogous context, concerning internal medicine, "a broad specialty such as internal medicine often overlaps with other medical specialties. Under the plaintiffs’ argument, there likely never would be a situation where a physician’s treatment of a patient falls within the specific specialty of internal medicine, as physicians who are board certified in that specialty are often called upon to diagnose and treat a variety of conditions that could fall within a variety of medical specialties." Labissoniere v. Gaylord Hosp., Inc., 182 Conn.App. 445, 458, 185 A.3d 680 (2018). The court concluded that "the plaintiffs were required to obtain an opinion letter from an expert who (1) had training and experience in internal medicine, and (2) was board certified in internal medicine." Id., 459.
The plaintiff’s reliance on the Supreme Court’s analysis of § 52-184c(c) in Wilkins v. Connecticut Childbirth & Women’s Cir., 314 Conn. 709, 735, 104 A.3d 671 (2014), is misplaced. There, in contrast to the facts here, applying § 52-184c(c), the court allowed an opinion letter to be provided from a medical professional whose qualifications in a specialty exceeded those of the medical professional alleged to be negligent. See id.
That there may be some overlap in the treatment provided by periodontists and by oral and maxillofacial surgeons does not make them similar health care providers for the purposes of § 52-184c. Accordingly, the author of the opinion letter is not a similar health care provider as required by the applicable statute.
Alternatively, even if the court bases its analysis on section 52-184c(b) because the plaintiff did not allege that the defendant is a specialist, the authored opinion letter also does not satisfy section 52-184c(b). Although the author states that he or she routinely performs extraction and has done full mouth extractions, the letter failed to state whether such experience has been a result of active involvement in practice or teaching within the five-year period before the incident giving rise to this claim. Accordingly, the proposed opinion letter fails to meet the requirements of the statute.
Section 52-184c(b) provides "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."
C
Finally, the plaintiff argues that the defendant waived his claim of insufficiency of the proposed written opinion letter. The plaintiff argues that the defendant waited more than 226 days after the plaintiff provided her proposed written opinion letter before he raised this argument. Consequently, the plaintiff asserts, if a claim is not timely raised by the defendant in its motion to dismiss, it is waived. In response, the defendant asserts that he did not waive his rights because a timely motion to dismiss was filed within thirty days, in which a claim for lack of personal jurisdiction was raised.
"A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process. (b) Any defendant, wishing to contest the court’s jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30. Additionally, Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Consequently, "a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance." Foster v. Smith, 91 Conn.App. 528, 536, 881 A.2d 497 (2005).
In the present case, the defendant filed his motion to dismiss within thirty days of filing an appearance, as required by Practice Book § 10-32. See Morgan v. Hartford Hospital, supra, 301 Conn. 402 (§ 10-32 is applicable). In his motion to dismiss, filed on September 28, 2017, the defendant argues that failure to provide a written opinion letter in accordance with § 52-190a deprives the court of jurisdiction over the defendant. Therefore, the defendant raised personal jurisdiction in his initial motion to dismiss.
After the plaintiff filed a proposed opinion letter, the defendant replied, arguing that the plaintiff’s proposed opinion letter does not meet the statutory requirements. The defendant did not file another motion to dismiss at that point; rather, he replied to the plaintiff’s objection and proposed opinion letter. Moreover, the defendant could not challenge the sufficiency of the letter in his original motion to dismiss because the complaint lacked one.
The plaintiff’s reliance on Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) (50 Conn.L.Rptr. 199), a decision which pre-dated Morgan v. Hartford Hospital, supra, 301 Conn. 388, is unavailing. There, after filing various pleadings, including a motion for summary judgment, the defendants filed a motion to dismiss based on § 52-190a about one year after the action was commenced. See id. That procedural history markedly contrasts with the timely motion to dismiss which was filed in this case.
Because the defendant raised personal jurisdiction in its motion to dismiss within thirty days of filing an appearance, the defendant did not waive its right to file a reply to the proposed allegations. Accordingly, the defendant did not waive his rights to challenge the insufficiency of the proposed opinion letter by way of a claim for lack of personal jurisdiction.
CONCLUSION
For the reasons stated above, the motion to dismiss is granted.
It is so ordered.