Opinion
No. CV05 500 04 77
May 23, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMIISS (#105)
This action arises out of the alleged negligence of the defendant/apportionment plaintiff, St. Vincent's Medical Center (St. Vincent's). On September 20, 2005, the plaintiff, Brian D. Mastrone, executor of the estate of David Mastrone, commenced the underlying suit against St. Vincent's by serving a one-count complaint, accompanied by certificate of good faith, alleging that the negligence of St. Vincent's ultimately led to the death of David Mastrone. On January 19, 2006, St. Vincent's served a one-count apportionment complaint, accompanied by a certificate of good faith, on the apportionment defendant, American Medical Response (American Medical). The certificate was issued by an attorney, not by a health care provider. The apportionment complaint alleges that the injuries alleged by the plaintiff, if proven, were caused in whole or in part by the negligence of American Medical.
At the time this action was commenced, General Statutes (Rev. to 2005) § 52-190a(a) read in pertinent part: "No civil action shall be filed to recover damages resulting from personal injury or wrongful death . . . 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." Effective October 1, 2005, § 52-190a was repealed and replaced by Public Acts 2005, No. 05-275, § 2. The plaintiff's case, however, was commenced prior to October 1, 2005, so the plaintiff was not required to conform to the additional requirements of Public Acts 2005, No. 05-275, § 2 when filing the complaint.
Public Acts 2005, No. 05-275, § 2, specifically includes apportionment complaints and requires that a written opinion of a similar health care provider, showing a basis for the alleged negligence, be attached to the complaint. The underlying complaint was served on September 20, 2005 and the apportionment complaint was filed on January 19, 2006. Therefore, whether St. Vincent's was required to comply with the requirements set forth in Public Acts 2005, No. 05-275, § 2, is directly at issue. Where appropriate, the court will refer to the newly codified § 52-190a as revised § 52-190a and the previous statute as previous § 52-190a. Other citations to § 52-190a refer to the newly codified statute.
On February 10, 2006, American Medical filed a motion to dismiss the apportionment complaint, accompanied by a memorandum of law in support pursuant to Practice Book § 10-31, on the grounds that St. Vincent's failed to comply with the requirements of revised § 52-190a. On February 21, 2006, St. Vincent's filed a memorandum of law in opposition accompanied by several exhibits.
St. Vincent's filed a copy of Public Acts 2005, No. 05-275, a copy of the case detail for this action and the written opinion of an emergency medical technician, dated January 17, 2006, stating that American Medical failed to meet the generally accepted standards for emergency medical technicians. The name and signature of the person providing the opinion was expunged as provided by § 52-190a(a).
"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687,490 A.2d 509 (1985).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [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." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8. "Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The court must first determine whether the defect alleged in the motion to dismiss implicates the court's personal or subject matter jurisdiction. "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Bove v. Bove, 77 Conn.App. 355, 362, 823 A.2d 383 (2003).
The motion to dismiss is grounded on St. Vincent's alleged failure to comply with the requirements of revised § 52-190a. Revised § 52-190a provides in relevant part: "(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death . . . 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. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall 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 claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant'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 . . . (c) 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." (Emphasis added.)
For actions commenced prior to October 1, 2005, failure to attach a good faith certificate did not implicate the court's subject matter jurisdiction. LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990). Public Acts 2005, No. 05-275, § 2, changed the requirements for filing complaints alleging negligence by a health care provider and provides that for actions commenced on or after October 1, 2005, complaints and apportionment complaints shall have a written opinion of a medical provider attached or be subject to dismissal. Therefore, revised § 52-190a(c), specifically limits the court's power to hear cases alleging negligence against a medical provider. Only those cases commenced by a complaint with the written opinion of a medical provider attached to the complaint or apportionment complaint may be heard and, thus, failure to attach the required opinion implicates the court's subject matter jurisdiction.
As the court has determined that its subject matter jurisdiction is implicated by the present motion to dismiss, the court must determine whether St. Vincent's apportionment complaint must conform to the mandates of revised § 52-190a. American Medical argues that since it is a health care provider, St. Vincent's was required to attach a written medical opinion to its apportionment complaint and its failure to do so warrants dismissal pursuant to revised § 52-190a(c). St. Vincent's does not dispute that it failed to attach a written opinion of a similar health care provider to its apportionment complaint, but argues that since the plaintiff commenced the underlying action on September 20, 2005, it was not required to comply with the requirements of previous § 52-190a. St. Vincent's further contends that even if it was required to comply with the requirements of revised § 52-190a, the mere failure to file the written opinion is not grounds for dismissal. St. Vincent's did, in fact, obtain the required written opinion prior to filing the apportionment complaint, and to dismiss the case simply because it failed to attach the written opinion to its apportionment complaint would be contrary to the purpose of the statute.
Neither party disputes that § 52-190a governs the requirements of the apportionment complaint. The parties mainly disagree about whether St. Vincent's, at the time that St. Vincent's filed its apportionment complaint, was required to conform to the newly enacted requirements § 52-190a. Public Acts 2005, No. 05-275, § 2 became "[e]ffective October 1, 2005, and [is] applicable to actions filed on or after [October 1, 2005] (Emphasis added.) St. Vincent's argues that although the legislature clearly differentiated between actions and apportionment complaints in the body of the act, in the language specific to applicability of the act, it is limited to "actions."
The apportionment complaint is not a new "action." The reasoning of the court in Oram v. DeCholnoky, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 05 4005513 (March 10, 2006, Shay, J.) ( 41 Conn. L. Rptr. 46), is persuasive. In Oram, the court denied the apportionment defendant's motion to dismiss, despite the plaintiffs' failure to follow the mandates of § 52-190a. The plaintiffs attempted to revise their complaint to allege negligence directly against the apportionment defendants. The court examined the language of Public Acts 2005, No. 05-275, § 2, specifically the applicability language, and noted that "the Legislature could have included the words `apportionment complaints' in the heading as it had done throughout the body of the statute, which could well have signaled that it intended it to apply to specific, individual pleadings. It did not. Rather it referred to `actions filed' which is a more common usage. The Connecticut Supreme Court has held that the definition of the term `action' encompasses many kinds of `proceedings' to obtain redress in court, in addition to the usual civil action instituted by process . . . Second, all of the pleadings, whether filed before or after October 1, 2005, are part of the same action and all have the same docket number. There was no new case on the docket with the filing of . . . the apportionment complaint . . ." (Citation omitted; internal quotation marks omitted.) Id.; see also General Statutes § 52-102(b) ("apportionment . . . shall include the docket number assigned to the original action and no new entry fee shall be imposed.").
In the present case, the underlying action was commenced prior to October 1, 2005 and St. Vincent's did attach a good faith certificate, signed by an attorney, to its apportionment complaint as required by previous § 52-190a. The fact that St. Vincent's filed an apportionment complaint after the effective date of Public Acts 2005, No. 05-275 § 2 does not alter the fact that the action was filed prior to October 1, 2005. Therefore, St. Vincent's was not required to file the opinion of a similar health care provider and the court's subject matter jurisdiction was not defeated by St. Vincent's failure to do so.
Additionally, St. Vincent's did attach an opinion, appearing to meet the requirements of revised § 52-190a and dated prior to service of the apportionment complaint, to its memorandum in opposition to the motion to dismiss. Therefore, the finding that a new action was not commenced with the filing of an apportionment complaint, in this case, is in harmony with the general intent of § 52-190a "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." Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 15, 698 A.2d 795 (1997); see also Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000482 (April 19, 2006 Matasavage, J.) (discussing legislative history of Public Acts 2005, No. 05-275, § 2). Furthermore, "[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).
For the foregoing reasons, the motion to dismiss should be and is denied.