Opinion
No. FST CV 09 5012548 S
January 22, 2010
MEMORANDUM OF DECISION ON REQUEST FOR LEAVE TO AMEND DATED NOVEMBER 18, 2009 (#115.00)
The court finds that it has discretion to act on the Request for Leave to Amend under Gen. Stat. § 52-190(a)(a) and (c). The court finds that the two health care provider opinion letters attached to the amended complaint existed prior to the commencement of this action. Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn. 569, 585 (2009), cert. denied 292 Conn. 911 (2009). The court exercises its discretion and grants the Request for Leave to Amend dated November 18, 2009 (#115.00). Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583 (2003); Alswanger v. Smego, 257 Conn. 58, 64-65 (2001); Moore v. Sergi, 38 Conn.App. 829, 835-36 (1995). The court has applied the factors set forth in the above three cases in granting the Request for Leave to Amend.
The plaintiffs are ordered to file with the clerk of the Superior Court and serve on all defendants pursuant to P.B. §§ 10-12 and 10-13 an original signed amended complaint consistent with this court order so that the court computer file will contain the document entitled Amended Complaint together with the attached exhibits.
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS DATED OCTOBER 27, 2009 (#103.00)
This Motion to Dismiss answers a question left open by the Appellate Court in Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569 (2009) concerning failing to attach health care provider opinion letters to the complaint that were obtained prior to the complaint.
The three plaintiffs, Agnes Squeo and Joseph Squeo individually, and Agnes Squeo, Fiduciary of the Estate of Stephen J. Squeo deceased, filed a writ, summons and complaint dated August 27, 2009 against The Norwalk Hospital Association and Deborah M. Shahid, a duly licensed advanced practice registered nurse. The first count alleges professional negligence as against both named defendants. The second count seeks money damages for bystander emotional distress on behalf of the two individual plaintiffs, as parents of the decedent Stephen J. Squeo. The entire writ, summons and complaint was served on the defendants on August 27, 2009. These documents were date stamped by the clerk of the Superior Court on August 28, 2009. Both counsel agree for the purposes of the underlying Motion to Dismiss that the file accurately reflects the service and return to court of the writ, summons and complaint.
The defendants' Motion to Dismiss states as follows: "The Complaint raises claims of medical negligence, and the plaintiffs failed to attach to the Complaint filed in the Stamford Superior Court an attesting medical opinion letter by a similar health care provider, as statutorily required by Connecticut General Statutes § 52-190a(a)" (#103.00). The defendants supported this Motion to Dismiss with a memorandum dated October 27, 2009 (#104.00). The plaintiffs opposed to the Motion to Dismiss by an Objection dated December 9, 2009 (#125.00). The defendants filed a Reply thereto dated December 11, 2009 (#126.00). The defendants are not making any claims as to the sufficiency of the health care provider opinions, whether or not they are submitted by a similar health care provider or that the opinions failed to address the medical negligence issues of the standard of care and/or the breach of the standard of care and/or causation. The failure to attach health care provider opinion letters is the only ground argued for dismissal.
The plaintiffs also filed a Request for Leave to Amend dated November 18, 2009 (#115.00), which stated: "in order to attach a medical opinion letter from a similar heathcare provider which was not annexed to the Complaint as originally filed." Attached to the Request for Leave to Amend is an Amended Complaint also dated November 18, 2009, with Exhibit A, consisting of a June 18, 2009 Petition for Automatic 90-Day Extension of Statute of Limitations and two letters from health care providers dated August 13, 2009 and August 19, 2009. The parties agreed that these two health care provider letters were not attached to the original writ, summons and complaint and were not served on the defendants with the original writ, summons and complaint. The defendants filed an Objection to Plaintiffs' Request for Leave to Amend their Complaint dated December 2, 2009 (#120.00). The plaintiff filed a Reply to Objection to Request for Leave to Amend dated December 9, 2009 (#124.00). The Request for Leave to Amend and the Objection and Reply thereto along with the Motion to Dismiss and the Objection and Reply thereto were argued before the court on the December 14, 2009 Law Arguable short calendar. Neither party offered any evidence or testimony.
Gen. Stat. § 52-190a(a) requires the plaintiff in a medical negligence action to "obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." "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." Gen. Stat. § 52-190a(c). The proper remedy for such a failure is the dismissal of the complaint. Rios v. CCMC Corporation, 106 Conn.App. 810, 819-20 (2008). "The usage of the term `filed' in these statutory provisions to refer to the act of bringing a complaint or other pleading to the clerk of the court comports with the usage of the term in subsection (b) of the statute at issue." Id., 818. "The plain and unambiguous meaning of the term `filed' refers to the bringing of a complaint or other pleading to the clerk of the court." Id., 820.
The Votre case upheld the trial court's dismissal of the writ, summons and complaint sounding in medical negligence because the plaintiff did not and could not comply with the statutory mandate requiring that the written medical opinion letter be filed with the complaint when the action was commenced. Gen. Stat. § 52-190a(c). Votre v. County Obstetrics and Gynecology Group, P.C., supra, 113 Conn.App. 586, cert. denied 292 Conn. 911 (2009).
In the instant case the writ, summons and complaint was dated August 27, 2009 and was served on the defendants by a return of service on August 27, 2009. The plaintiffs in their Request for Leave to Amend claim that they had in their possession two opinion letters from health care providers, both obtained by the plaintiffs earlier than August 27, 2009. See Affidavit dated December 9, 2009 as part of Plaintiffs' Objection to Motion to Dismiss (#125.00). Votre discussed such a possibility: "Given the fallibility existing in the legal profession once noted by Justice David M. Shea, 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." Votre v. County Obstetrics and Gynecology Group, P.C., supra, 113 Conn.App. 585.
This quote from Votre is not dictum. Although Votre did not involve a preexisting health care provider opinion letter, it did involve the plenary review of Gen. Stat. § 52-190a. Id., 581. Votre also discussed the purpose of Gen. Stat. § 52-190a. Id., 585. "It is not dictum however when a court . . . intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the contrary . . . Rather, such action constitutes an act of the court that it will thereafter recognize as a binding decision." Cruz v. Montanez, 294 Conn. 357, 377 (2009); Red II, LLC v. Conservation Commission, 117 Conn.App. 630, 647 (2009).
After Votre was released on April 7, 2009, the amendment issue was raised in a motion to dismiss pending in the complex litigation docket at Hartford. The trial judge found that the medical reports attached to the amended complaint did not exist when the original writ, summons and complaint was served. The motion to dismiss was granted. Votre was cited: "Because the purpose of § 52-190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without proper substantiation that the statute requires." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 585. Morgan et al. v. Hartford Hospital et al., Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket Number X04 CV 07-5009731 S (May 21, 2009, Shapiro, J.) [ 47 Conn. L. Rptr. 870].
Also after Votre, a trial court noted that the plaintiff did not file a health care provider opinion letter with her complaint but she did file an amended complaint with an attached health care provider opinion letter after the period within which she could amend her complaint as of right. The plaintiff claimed that the defendants' motion to dismiss on the basis of the failure to attach the opinion letter was cured by filing the amended complaint with the opinion letter attached. The motion to dismiss was granted. The court determined that the plaintiff had not obtained a written opinion from a health care provider until after she had commenced the action. Simmons v. CVS Pharmacy Inc. et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 08-5021084 S (June 17, 2009, Hiller, J.).
A third decision citing Votre also dealt with the same scenario. The original complaint in medical negligence did not have an attached health care provider opinion letter. The defendants' motion to dismiss was followed by the plaintiff's amended complaint that attached a health care provider opinion letter. That opinion letter was dated after the date of the original complaint. Citing Votre, the trial court found that the health care provider letter had not been inadvertently omitted from the initial filing, but rather had not been obtained until after the action had been commenced. The motion to dismiss was granted. Caplin v. Laser Center of Northeastern Connecticut, Superior Court, judicial district of Windham at Putnam, Docket Number CV 09-5003976S (April 27, 2009, Riley, J.). See also Copp v. Villanova, Superior Court, judicial district of Hartford at Hartford, Docket Number HHD-CV09-4044008S (September 29, 2009, Scholl, J.) [ 48 Conn. L. Rptr. 605] (dismissing a lawsuit transferred from the small claims docket alleging dental malpractice under Gen. Stat. § 52-190a, finding that the "plaintiff did not claim that, through inadvertence he had neglected to attach an opinion that he already had" and it was "clear that such a written opinion did not exist").
In this case the plaintiffs argue that they had attached a copy of both August 2009 health care providers opinion letters in a prior complaint but through inadvertence those two opinion letters dated August 13, 2009 and August 19, 2009 were not attached to the served and filed complaint. The plaintiffs asserted that those two opinion letters of the health care providers existed prior to the commencement of this lawsuit. The dates of the two letters substantiate this claim. There is no evidence to the contrary.
It can be argued that the underlying purpose of Gen. Stat. § 52-192a 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." Barrett v. Montesano, 269 Conn. 787, 796 (2004). "It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." Snow v. Callise, 174 Conn. 567, 574 (1978); Burton v. City of Stamford, 115 Conn.App. 47, 66 (2009); West Haven Lumber Co. v. Sentry Construction Corporation, 117 Conn.App. 465, 475 (2009). "We decline to exalt form over substance." Himmelstein v. Town of Windsor, 116 Conn.App. 28, 36 (2009). "It 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 . . ." Bayer v. Showmotion, Inc., 292 Conn. 381, 390 (2009). Courts shun hypertechnical reading of rules, pleadings and statutes. Clinch v. Generali — U.S. Branch, 110 Conn.App. 29, 37 (2008).
Our Supreme Court has approved the use of a motion to amend to cure otherwise dismissible defects utilizing the public policy of bringing about a trial on the merits whenever possible. This is current Connecticut procedural law. Coppola v. Coppola, 243 Conn. 657, 664 (1998).
Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state . . . [H]owever, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw. Id., 664-65.
We refuse to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiff's cause of action if the pleadings were technically imperfect. Id., 666.
The court leaves for another day whether the plaintiffs could have merely filed the two health care provider opinion letters as an Exhibit after the defendants filed their appearance pursuant to P.B. § 10-29, thus obviating the procedural device of amending their complaint.
The court having applied the appropriate standards on the Request for Leave to Amend, has exercised its discretion and has granted the Request for Leave to Amend dated November 18, 2009 (#115.00). See Memorandum of Decision dated January 22, 2010. The amendment does not change the cause of action of the original complaint and therefore relates back to the original complaint. Alswanger v. Smego, 257 Conn. 58, 64-65 (2001). Since the two healthcare provider opinion letters that pre-existed the complaint were inadvertently not attached to the original complaint and have now been attached to the amended complaint and filed with the court, the court therefore finds that the plaintiffs have complied with both the spirit and letter of Gen. Stat. § 52-190a.
The defendants' Motion to Dismiss dated October 27, 2009 (#103.00) is denied.