Opinion
No. CV 06 5001663
January 25, 2007
Motions to Dismiss/Motion to Amend
The issues presented to this court are whether the court should grant the defendant's motion to dismiss based on the plaintiff's failure to attach a good faith certificate and a written opinion of a similar healthcare provider to the original complaint and whether the plaintiff should be permitted to amend the complaint to include those documents.
FACTS
On June 13, 2006, the plaintiff, Lawrence Santorso, filed a three-count complaint against the defendants, Bristol Hospital, Jeffrey Goldberg and Rainer Bagdasarian. This action arises out of injuries allegedly sustained by the plaintiff as a result of medical negligence on the part of the defendants. In his complaint, the following facts are alleged: the plaintiff was a patient admitted to Bristol Hospital in February 2003 and placed under the care of the defendant physicians, Dr. Jeffrey Goldberg and Dr. Rainer Bagdasarian. The plaintiff was treated for and underwent surgery of the gallbladder, pancreatic abscesses and pancreatitis at that time. As part of those procedures, he receicved x-ray examinations that revealed a 15 mm nodule mass in his lungs. The mass was noted by radiologists who reviewed the x-rays in three separate reports that indicated the need for further examination. These reports were submitted to the plaintiff's hospital file and sent to the defendant physicians.
In 2005, the plaintiff received treatment for osteomylitis and a heel ulceration at Veterans Affairs Hospital in West Haven. During one of the procedures on June 5, 2005, the plaintiff's behavior caused the treating physician to order chest x-rays that revealed a mass in the upper left lobe of his lung. On June 10, 2005, a thoracic scan confirmed the existence of the mass. Subsequently, a physician at Veterans Affair Hospital requested and received the plaintiff's medical records from Bristol Hospital. After examination of those records, reports were issued on June 28, 2005 and September 5, 2005 indicating that the x-rays from 2003 and 2005 revealed similar masses that appeared to have become enlarged during the two-year time lapse. A pathology report later revealed that the plaintiff suffers from a malignant, metastatic squamous cell carcinoma that has spread outside his lungs to his lymph nodes and perinodal soft tissue.
The plaintiff filed his complaint on June 13, 2006. On July 5, 2006, the defendant, Jeffrey Goldberg filed a motion to dismiss the plaintiff's complaint with a memorandum of law based on the plaintiff's failure to comply with 52-190a(a) as amended by 2005 Public Act No. 05-275, Sec. 2(a). This section requires a good faith certificate and a written opinion of a similar healthcare provider be attached to the complaint. By the plaintiff's own admission, he failed to file these documents at the time the initial complaint was filed. On July 13, 2006, he filed a memorandum in opposition to the motion to dismiss. He attached both a good faith certificate and a document purporting to be a similar healthcare provider's opinion. On July 21, 2006, and September 8, 2006, the defendants, Bristol Hospital and Rainer Bagdasarian filed motions to dismiss on grounds similar to the earlier Motion to Dismiss and, more particularly, that the content of the written opinion submitted late did not comply with the statutory requirements. On July 28, 2006, the plaintiff filed an objection to Bristol Hospital's Motion to Dismiss. On August 17, 2006, the plaintiff filed a Motion to Amend to include these documents. On August 30, and 31, 2006, the defendants filed an objection to the plaintiff's request to Amend asserting that the Motion to Dismiss must first be resolved.
The bases of the defendant's motions to dismiss are that the court lacks subject matter jurisdiction over this action due to the plaintiff's failure to comply with the statutory requirements of Connecticut General Statutes § 52-190a as amended by Public Act 05-275. They allege that these sections require that a good faith certificate and written opinion of a similar healthcare provider be attached to the original complaint. The defendants further argue that the written opinion that was later submitted in an attempt by the plaintiff to correct the defect failed to comply with the statute in that the plaintiff failed to state the credentials of the author and that the submitted document appears not to have been written by a similar healthcare provider.
The plaintiff counters that failure to submit the documents in question does not implicate the court's subject matter jurisdiction such that dismissal of the case is mandatory. Rather, because the court has jurisdiction over this matter under common law, every effort should be made to preserve the court's jurisdiction. Further, the plaintiff argues that the court is not required to examine the content of the written opinion at this stage of the proceedings to determine the credentials of the author.
STANDARD OF REVIEW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] 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.) State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006). "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party . . . at any stage of the proceedings . . ." Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-3 (2006). "If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings." Temlock v. Temlock, 95 Conn.App. 505, 519, 898 A.2d 209 (2006). "Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case . . ." Ajadi v. Commissioner of Correction, supra, 280 Conn. 533 (2006).
In order to determine whether to grant the Motions to Dismiss, this court must first review the statutes in question. General Statutes § 52-190a provides, in pertinent part:
. . . (a) . . . The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party . . . 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 . . . 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'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 . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented . . ., the court upon motion or upon its own initiative shall impose . . . an appropriate sanction . . . (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.
General Statutes § 52-184c defines a similar health care provider in very detailed terms. A similar health care provider is defined as follows: (b) 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) 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" . . .
(Emphasis added.)
This is not a case of first impression. The passage of P.A. 05-257 on October 1, 2005, amended CGS sec. 52-190a(a), and requires a detailed written opinion of a similar healthcare provider. Since that date, other courts have had the opportunity to address this issue under similar but not identical fact patterns. Indeed, there is a split of authority as to whether the failure to file a good faith certificate and/or opinion implicates the court's subject matter jurisdiction.
In Fyffe-Redman v. Rossi, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) [41 Conn. L. RPtr. 504], the plaintiff failed to submit a good faith certificate and a written opinion of a similar healthcare provider with the original complaint. The court granted the motion to dismiss because an amended complaint was filed without the proper request to amend. The court found that even with a proper request, the amendment failed to comply with the written opinion requirement and deprived the court of subject matter jurisdiction.
In Andrikis v. Phoenix Internal Medicine, No. CV 05-5000482 (April 19, 2006), the court, Matasavage, J., [ 41 Conn. L. Rptr. 222] denied a Motion to Dismiss on similar facts and ordered that the certificate be filed within fifteen days. In that case, the defendant alleged that the certificate that was filed did not support the allegations, was inadequate and thus the plaintiff had failed to comply with the requirements of P.A. 05-257. The court engaged in a persuasive and lengthy analysis of the newly amended statute and determined that although the plain language states that the remedy for failure to obtain and file a written opinion presents grounds for dismissal, the statutory language provides no clear remedy for the instance when an opinion is inadequate. The court considered the plain language of the statutes and the legislative history and determined that, given that the plaintiff had attempted to comply with the statute, the insufficient opinion did not require dismissal of the action. Thus, the motion to dismiss in that case was denied.
In Donovan v. Sowell, No. CV 06-5000596 5 (June 21, 2006), the court (Matasavage, J.) [ 41 Conn. L. Rptr. 609] again addressed the issue of whether to grant a Motion to Dismiss when the plaintiff failed to file a written opinion of a similar healthcare professional. The court noted that "[the] written opinion, like the certificate, provides the defendant with some evidence that the plaintiff conducted an inquiry prior to filing the complaint, and that the inquiry gave the plaintiff a good faith belief that the defendant was negligent."
Relying on LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), the court held that "the language the legislature used in [§ 52-190a(c)] is not the type of mandatory language that can only be read as implicating the court's subject matter jurisdiction." Noting that the court traditionally has jurisdiction over common-law medical malpractice actions, the court held that so long as it has competence to entertain the action before it, lack of subject matter cannot be a ground for dismissal. In its analysis, the court considered the purpose for which the statute was enacted, which was to discourage the filing of baseless lawsuits, and held that because this purpose is not so central to the purpose of [sec.] 52-190a that it is `the essence of the thing to be accomplished,' the plaintiff's failure to file the written opinion should not defeat the court's subject matter jurisdiction over this action . . . as such, the plaintiff's failure to file a written opinion, is, like the failure to file the certificate of good faith, a curable deficiency."
In Grammond v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5000533 (August 16, 2006, Lewis, J.T.R.) [ 41 Conn. L. Rptr. 852], the plaintiff failed to submit a written opinion of a similar healthcare provider. He amended the complaint as of right and attached the good faith certificate and written opinion to it. The court denied the motion to dismiss, holding that the amended complaint cured the jurisdictional defect. In Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001608 (October 2, 2006, Adams, J.), the plaintiff failed to attach a good faith certificate and written opinion of a similar healthcare provider to it. The court denied the motion to dismiss and distinguished this case from Fyffe-Redman, by finding that the amended complaint was proper and that the statute does not require detailed specific deviations from the standard of care in the opinion.
This court agrees with the analyses and conclusions in both the Andrikis and Donovan decisions and finds them applicable to the instant case. Here, the allegation is that the good faith certificate and opinion were not initially filed with the complaint. The defendants further argue that once the certificate and opinion were filed, the content of the opinion attached did not reflect the opinion of a similar medical professional as required by the statute. This court need go no further than finding that the plaintiff failed to file the good faith certificate and the opinion as is required by the statute as amended. This court concludes that as in Andrikis and Donovan, that defect is curable.
Questions have been raised by the defendants with respect to the sufficiency of the plaintiff's opinion letter, including its content; lack of credentials and signature line. This decision in no way suggests that the defendants are precluded from questioning the sufficiency of the opinion, once discovery has been completed.
Accordingly, the Motions to Dismiss are denied. The plaintiff is ordered to amend the complaint to include the good faith certificate and the opinion of a health care professional similar to each defendant within a period of thirty days.