Opinion
No. CV05-6000010
June 7, 2006
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS (NOS. 104 AND 107)
This is an action sounding in medical malpractice which the plaintiff filed on October 21, 2005. Plaintiff did not attach to her complaint either a certificate of good faith or the written, supporting opinion of a "similar health care provider," as required under Conn. Gen. Stat. § 52-190a, as amended effective October 1, 2005.
Plaintiff's counsel acknowledged, at oral argument that his only effort to deal with these deficiencies was to attach an "Amended Complaint," dated February 21, 2006 to the brief he filed in response to one of the subject motions to dismiss. This amended complaint was not submitted along with a request for leave to amend, nor was it filed by agreement of counsel. It is therefore not properly before the court. Counsel attached a "Certificate of Good Faith" to the purported amended complaint, as well as various medical records from a physician's assistant associated with an orthopedic surgeon who treated plaintiff for the alleged injuries at issue in this lawsuit.
Even if plaintiff had properly amended her complaint in February, she has not complied with the requirements of the statute. The language of the new § 52-190a could not be clearer. Subsection (a) states that the certificate of good faith "shall" be part of the complaint, and further states that the supporting opinion "shall" be attached to the certificate of good faith, with the name and signature of the author expunged. Subsection (c) states that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." The medical records attached to the purported certificate of good faith contain no language which suggests that either defendant deviated from his applicable standard of care. Even if they did, the court finds that this does not constitute compliance with § 52-190a(a).
Obviously, § 52-190a was promulgated "to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710 (1990). This was clarified during the legislative debate over P.A. 05-275. Representative and Judiciary Committee Co-Chairman Michael Lawlor stated that the purpose of the written, supporting opinion is to have a "sort of threshold opinion that in fact [the case] . . . is actually medical malpractice" H.R. Proc. 2005 Session. Quoted in Andrikis v. Phoenix Internal Medicine, Docket No. CV05-5000482 (J.D. of Waterbury, April 19, 2006) (Matasavage, J.), 2006 Conn.Super. LEXIS 1180. This is why § 52-190a(c) requires that the required written opinion be disclosed when the lawsuit is filed.
The only known decision addressing this issue is Mansour v. Levine, Docket No. CV05-5000261 (J.D. of New London, February 22, 2006) (Jones, J.) ( 40 Conn. L. Rptr. 783), in which the court granted a motion to strike because the plaintiff failed to attach the written opinion to the good faith certificate filed with her complaint which was filed after October 1, 2005. This court believes that the language of § 52-190a(c) makes it clear that a failure to comply with the written opinion requirement deprives the court of subject matter jurisdiction and that this issue can appropriately be addressed through a motion to dismiss.
Both motions to dismiss are therefore granted. Defendants have also asked the court to impose sanctions, as provided for under § 52-190a(a). This situation clearly came about because of plaintiff's counsel's misunderstanding of the law, and not because of any bad faith on his part or on the part of his client. Given these circumstances, the court believes that the imposition of sanctions would not be appropriate and will not order them.