Opinion
No. CV 98-0585453
March 2, 2004
MEMORANDUM OF DECISION ON MOTION TO DISMISS (# 121)
On December 14, 1998, the plaintiff, Faith W. Sneath, individually and as adminstratrix of the estate of Frank Sneath, III (decedent), filed an eight-count complaint against the defendants, Jamie Roche, M.D., James W. Cox-Chapman, M.D., Bloomfield Internists, P.C. and St. Francis Hospital and Medical Center. The plaintiff alleges that the defendants were negligent and/or careless in their treatment of the decedent (counts one, thee, five and seven). The plaintiff also alleges that she lost the consortium of her decedent husband because of the injuries the defendants negligently inflicted upon the decedent (counts two, four, six and eight).
The plaintiff alleges the following facts. On August 23, 1996, the decedent, complaining of abdominal pain, visited the medical office of Bloomfield Internists, P.C. Jamie Roche, M.D., diagnosed the decedent with gastroenteritis and advised the decedent to only drink liquids. Later the same evening, the decedent arrived at Saint Francis Hospital and Medical Center's emergency room because he continued to suffer from abdominal pain. The decedent was further diagnosed with gallbladder disease. He was advised to take the prescribed medication, to maintain a liquid diet, and to have an ultrasound, which was scheduled for August 26, 1996 at the offices of Bloomfield Internists, P.C. During the decedent's visit at the emergency room, hospital personnel telephoned Cox-Chapman, M.D., to discuss the decedent's condition. Cox-Chapman, during this telephone conversation, agreed with the treatment plan established by the hospital. From August 24, 1996 to August 25, 1996, Cox-Chapman and the decedent and his family discussed and followed the treatment plan prescribed by the hospital. On August 26, 1996, the decedent was found unconscious and was transported to Saint Francis Hospital and Medical Center, where he was later pronounced dead.
The plaintiff, on August 25, 1998, filed a timely petition for an automatic ninety-day extension of the statute of limitations, pursuant to General Statutes § 52-190a(b). As required by General Statutes § 52-190a(a), the plaintiff, along with her complaint, filed a certificate of good faith on December 14, 1998.
General Statutes § 52-190a(b) provides: "Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
General Statutes § 52-190a(a) provides:
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, on a form prescribed by the rules of the superior court, 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. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, 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. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determined after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney submitted the certificate.
On August 8, 2003, the defendants Cox-Chapman and Bloomfield Internists, P.C. filed a motion to dismiss all counts against them on the ground that the court lacks subject matter jurisdiction. The defendants also filed an accompanying memorandum of law in support. On October 10, 2003, the plaintiff filed a memorandum of law in opposition to the defendants' motion to dismiss.
Cox-Chapman and Bloomfield Internists, P.C. are the only defendants moving for a dismissal based on lack of subject matter jurisdiction. The other defendants, Roche and St. Francis Hospital and Medical Center have not filed for dismissal. All subsequent references to the defendants are to the movants, Cox-Chapman and Bloomfield Internist, P.C.
"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 . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court . . . The grounds which may be asserted in this motion 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." (Citation omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Practice Book [§ 10-33] provides: Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after the suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismss the action." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002).
"Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
The defendants set forth four separate grounds for granting the motion to dismiss based on the lack of subject matter jurisdiction. The defendants argue that this court lacks subject matter jurisdiction for the following reasons: 1) section 52-190a(b) does not authorize an extension of two-year time limitation contained in General Statutes § 52-555(a) because the two-year time limitation is a substantive statute of repose and § 52-190a(b) only authorizes a ninety-day extension for statutes of limitation; 2) interpreting § 52-190a(b) as granting the plaintiff the statutory authority to deprive the defendants of their substantive right to timely notice and freedom from stale claims under § 52-555(a), would deprive defendants of a vested property interest without due process of law in violation of the state and federal constitutions; 3) the plaintiff's petition for a ninety-day extension of the statute of limitations did not request an extension to pursue a medical malpractice action against the defendants, specifically, and, therefore, the complaint is untimely; and 4) the plaintiff's petition for a ninety-day extension of the statute of limitations only requested an extension on behalf of the estate of the decedent and, therefore, the plaintiff's cause of action for loss of consortium is untimely.
General Statutes § 52-555(a) provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
The defendants argue that § 52-190a(b) does not extend the two-year statute of limitations for wrongful death actions, provided by § 52-555(a). The defendants espouse that the two-year time limitation contained in § 52-555(a) is a substantive and jurisdictional prerequisite to bringing a wrongful death action that cannot be waived and may be raised at any time. The defendants further assert that the two-year time limitation is a substantive statute of repose because the § 52-555(a) only requires that a wrongful death action be brought "within two years from the date of death." General Statutes § 52-555(a). The defendants further argue that the ninety-day extension authorized by § 52-190a(b) only allows for an extension of statutes of limitation, not statutes of repose. The defendants note, however, that whether § 52-190a(b) authorizes an extension of the two-year time limitation contained in § 52-555 is an issue of first impression.
Conversely, the plaintiff asserts that § 52-190a(b) authorizes an extension of the two-year time limitation contained in § 52-555(a). The plaintiff argues that the language of § 52-190a(a) evidences the intent of the legislature to apply the ninety-day extension to wrongful death actions.
"The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Jones v. Kramer, 267 Conn. 336, 343, 838 A.2d 170 (2004).
"As with all issues of statutory interpretation, we look first to the language of the statute." Id., 344. Section 52-190a(a) provides, in relevant part: "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, on a form prescribed by the rules of the superior court, 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 . . ." General Statutes § 52-190a(b) provides: "Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
In addition to examining the language of the statute, the court will also look "to the legislative history and circumstances surrounding its enactment [and] to the legislative policy it was designed to implement . . ." (Internal quotation marks omitted.) Jones v. Kramer, supra, 267 Conn. 343. "The legislative history of § 52-190a is singularly unhelpful. The statute was one of many products of Tort Reform I in 1986 and Tort Reform II the following year. A tedious examination of the volumes of legislative history produced by this seminal legislation fails to reveal anything which even remotely shed light on the issue before the court. So too, the relationship of § 52-190a to existing legislation is unilluminating. Nor are there common law principles governing the same general subject matter." (Internal quotation marks omitted.) Falzone v. Hoos, Superior Court, judicial district of New Haven, Docket No. 368957 (March 27, 1998, Levine, J.) ( 21 Conn.L.Rptr. 585, 586).
The Supreme Court has indicated that "[t]he purpose of [§ 52-190a] 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. Section 52-190a requires a certificate of good faith that the health care provider had been negligent in the care and treatment of the plaintiff. The legislature recognized the additional time often required to obtain such a certificate and, therefore, provided the automatic ninety-day extension of the statute of limitations." Bruttomesso v. Northeastern Conn. Sexual Assault Crisis Services, Inc., 242 Conn. 1, 15-16, 698 A.2d 795 (1997). "Section 52-190a(b) grants an automatic ninety-day extension of the statute, making it clear that the ninety days is in addition to other tolling periods." Girard v. Weiss, 43 Conn. App. 397, 418, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
In light of the language and purpose of § 52-190a, the legislature intended for the ninety-day extension to apply in all actions involving personal injury or wrongful death caused by a healthcare provider. "The effect of the granting of such an extension is simply to extend by three months . . . the time within which a potential plaintiff must commence . . . [his or her] lawsuit." Lucid v. Arthritis Center of Connecticut, Superior Court, judicial district of Waterbury, Docket No. CV 99 0153804 (October 10, 2000, Wiese, J.) ( 28 Conn.L.Rptr. 404, 407). The plaintiff filed a timely petition for a ninety-day extension of the two-year time limitation, provided by § 52-555(a), which properly extended the two-year statute of limitation from twenty-four months to twenty-seven months.
The defendants also argue that "interpreting [§ 52-190a(b)] as granting plaintiffs the statutory authority to deprive defendants of their substantive right to timely notice and freedom from stale claims under [§ 52-555(a)] would deprive defendants of a vested property interest without due process of law in violation of the state and federal constitutions." (Defendants' memorandum of law in support of motion to dismiss, p. 25.) The defendants espouse that their property interest at stake is their "right to notice within the time required by § 52-555." (Defendants' memorandum of law in support of motion to dismiss, p. 27.) The defendants assert that their due process right to notice within the time required by § 52-555(a) was violated because they did not receive notice that a petition to extend the two-year time limitation under § 52-555(a) had been submitted and/or granted by the clerk. The defendants maintain that "such a procedure does not comply with the most basic right of due process, notice." (Defendants' memorandum of law in support of motion to dismiss, p. 33.)
The plaintiff argues that the defendants are not deprived of a vested property right by applying § 52-190a(b) to the two-year time limitation contained in § 52-555(a). Furthermore, the plaintiff maintains that even if the defendants possessed a vested property interest that required due process protection, the defendants' ability to defend themselves in a civil action would provide the defendants with notice sufficient to comport with the due process requirements of the state and federal constitutions.
"At their core, the due process clauses of the state and federal constitutions require that one subject to a significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard." (Internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 18-19, 835 A.2d 998 (2003). "[A]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity [to be heard] . . . [A]n essential function of notice is to enable the recipient to choose for himself whether to appear or default, acquiesce or contest . . . with regard to proceedings affecting the recipient's interests." (Citations omitted; internal quotation marks omitted.) Worsham v. Greifenberger, 242 Conn. 432, 440, 698 A.2d 867 (1997).
The defendants receive adequate notice, which comports with the requirements of due process, from the filing of the civil action. Once the civil action is filed, the defendants are notified of the action and afforded an opportunity to be heard. The court finds, therefore, that the defendants' due process claim is without merit because the defendants received adequate notice and did not suffer any harm.
Additionally, the defendants argue the plaintiff did not request an extension of time to pursue any claims against the defendants because the plaintiff, in her petition for extension of the statute of limitation, only requested an extension of time with respect to the claims against Saint Francis Hospital and Medical Center and James G. Joseph, M.D. The defendants assert that the plaintiff was not granted an extension with respect to the defendants because the plaintiff failed to name the defendants in her petition. Pursuant to § 52-190a(b), the plaintiff maintains that she is not required to name all potential health care providers against whom she may anticipate filing an action.
"There is a split of authority among Superior Court decisions regarding the applicability of § 52-190a to unnamed parties and the issue has never been addressed by the appellate court. The majority of Superior Court cases have held that § 52-190a(b) is applicable to all potential unnamed parties." Mastroianni v. Mayor, Superior Court, judicial district of New Haven, Docket No. CV 99 0432044 (February 11, 2002, Zoarski, J.T.R.).
"[T]he attorney or party filing the action [must make] 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." General Statutes § 52-190a(a).
"The attorney filing a petition for an extension of time need not name the health care provider against whom the attorney may expect to file an action. In fact, the language of the statute suggests that the attorney need not name any health care provider in the petition. It is sufficient if the attorney files a petition to determine if there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant . . . Were the rule to be that an attorney seeking an extension of the statute of limitations to make a reasonable inquiry was required to name in his petition every defendant against whom his reasonable inquiry might indicate liability, there is little doubt but that the medical malpractice bar would, with Pavlovian predictability, name every health care provider anywhere in the geographical or clinical proximity of the medical malpractice." (Citation omitted; internal quotation marks omitted.) Lucid v. Arthritis Center of Connecticut, Superior Court, supra, 28 Conn.L.Rptr. 407.
The court finds that the majority's position is persuasive: The plaintiff's petition for extension of statute of limitations, therefore, applies to the defendants.
Finally, the defendants argue that the plaintiff's loss of consortium claim is untimely because the plaintiff's petition for extension of the statute of limitation only requested an extension on the behalf of the estate of the decedent and did not request an extension on behalf of the plaintiff, individually. The plaintiff argues that her loss of consortium claim is derivative from the wrongful death claim and, as such, her loss of consortium claim is also extended by ninety days, pursuant to her petition for extension of the statute of limitation.
Section 52-555(b) provides, in relevant part: "Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse, which claim or cause of action may include, without limitation, claims for damages with respect to loss of the society of, affection of, moral support provided by, services provided by, sexual relations with or companionship of the other spouse, suffered because of the death of the other spouse, shall be brought with or joined with the claims and causes of action with respect to the death of the other spouse."
"An action for loss of consortium is derived from the injured [spouses'] cause of action." Monk v. Lime Rock Associates, Superior Court, judicial district of Litchfield, Docket No. CV 000082466 (November 16, 2000, Matasavage, J.) ( 28 Conn.L.Rptr. 541, 544). "The postmortem loss of consortium cause of action, although separate and independent as a basis for claiming damages, remains derivative of the claim arising out of injury to the spouse, and it could not come into existence without that injury." Demarinis v. United Services Automobile Assn. Casualty Ins. Co., 44 Conn. App. 172, 178, 687 A.2d 1305 (1997). "An action for loss of consortium must be joined with the wrongful death action . . . General Statutes [§§] 52-555[(a)] to 52-555[(d)] were enacted as supplement to the wrongful death statute by the Connecticut Legislature, in 1989, for the sole purpose of recognizing a postmortem claim for loss of consortium that did not exist previously in Connecticut and that the statutory scheme did not purport to change the nature of the claim for loss of consortium which had always been recognized as a separate but derivative of a bodily injury sustained by the injured spouse." (Citations omitted; internal quotation marks omitted.) Monk v. Lime Rock Associates, Superior Court, supra, 28 Conn.L.Rptr. 541.
The plaintiff's loss of consortium claim is a derivative action that is understood to constitute a part of the wrongful death action. The plaintiff's loss of consortium claim is, therefore, not untimely because the plaintiff's petition for extension of the statute of limitation extended by ninety days the time in which the plaintiff had to bring her loss of consortium claim.
For the foregoing reasons, the court denies the defendants' motion to dismiss based on lack of subject matter jurisdiction.
Hennessey, J.