Opinion
UWYCV156028643S
05-09-2016
Peter Thibodeau v. Southbury Dental Care/Dr. Steven Stirbl, DMD et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON OBJECTIONS TO MOTION FOR LEAVE TO AMEND COMPLAINT (#120.121)
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.
This malpractice matter is before the court concerning the defendants' Dr. Steven Stirbl and Jonathan E. Mason, LLC's objections to the plaintiff's February 9, 2016 motion for leave to amend complaint (#114), which appeared on the short calendars for March 7, 2016 and March 14, 2016, to be adjudicated on the papers. The plaintiff filed a memorandum in support of his motion (#122), to which defendant Jonathan E. Mason, LLC filed a reply (#123).
Defendant Stirbl adopted the arguments set forth by defendant Jonathan E. Mason, LLC.
I
Background
The court summarizes below the plaintiff's allegations. In his complaint, dated September 9, 2015, the plaintiff alleges that he was a dental patient of Dr. Stirbl at Southbury Dental Care Center from 1988 until February 2015, and that Dr. Mason, who was a staff member or employed by Stirbl, also treated the plaintiff. He alleges that, sometime before November 16, 2011, he presented to Stirbl for dental treatment and it was determined that it was necessary for him to undergo dental implant surgery to restore his failing bridge. See complaint, count one, ¶ 7. On or about November 16, 2011, Mason performed oral surgery on the plaintiff, consisting of three dental implants. See complaint, count one, ¶ 8. See discussion below concerning the proposed amendments to this paragraph.
In June 2012 and August 2012, the plaintiff underwent second and third surgical procedures, to uncover the implants and have temporary abutments placed, and for the placement of a fourth implant, by Mason, to supplement or correct the November 16, 2011 surgical procedure. See complaint, count one, ¶ ¶ 9-10. On or about March 26, 2013, he underwent a fourth surgical procedure, to place a fourth temporary abutment. See complaint, count one, ¶ 11. As the final step in this process, on July 10, 2013, Stirbl placed a prosthesis onto the implants. See complaint, count one, ¶ 12.
In paragraph 13, the plaintiff alleges that " [o]n or about October 2013, Plaintiff noticed one of the dental implants placed by . . . Mason starting to poke through the gums above the prosthesis cemented by . . . Stirbl." See complaint, count one and Exhibit A (photograph).
In addition, the plaintiff alleges that, from August 1, 2013 until February 3, 2015, he received routine dental care from Stirbl, who never disclosed to him that malpractice had occurred and did not " inform . . . him that anything was wrong with the non-restorable implant that was poking through his gums." See complaint, count one, ¶ 14.
The plaintiff also alleges that, from August 1, 2013 until February 3, 2015, Stirbl had several occasions, during oral examinations and cleanings, to inform him that there had been a breach in the standard of care and medical malpractice regarding the surgical procedure. See complaint, count one, ¶ 15. He alleges that, in March 2015, another dentist informed him of the medical malpractice.
The plaintiff alleges that he suffered injuries and damages as a result of the defendants' negligence, including failure to perform a comprehensive work-up concerning him, failure to place all implants in the maxilla in a restorable position; failure to inform him of the existence of the malpositioned implant; failure to use anesthetic in the extraction of teeth or placement of implants on November 16, 2011; failure to inform him of the existence of the non-restorable implant; failure to inform him of possible complications and challenges associated therewith; and failure to check and document the degree of ossification of the implants before placement of the prosthesis. Annexed to the complaint as Exhibit B was an opinion letter from a board certified oral and maxillofacial surgeon, certifying that medical malpractice had occurred.
In its support of their objections, the defendants assert that the plaintiff seeks to amend by attaching a new opinion letter from a different expert, a new certificate of good faith, and new allegations of negligence, on an entirely new theory, that there was a fracture of plaintiff's buccal plate during teeth extractions and implant placements performed in November 2011. See proposed amended complaint, count one, ¶ 8. They note that they previously filed motions to dismiss pursuant to General Statutes § 52-190a (##103, 106), and contend that the amendments are barred by the statute of limitations contained in General Statutes § 52-584. In support of the motions to dismiss, the defendants argue that dismissal is required due to lack of personal jurisdiction.
In count one, paragraph 8 of the proposed amended complaint (#114), the plaintiff alleges that " [o]n or about November 16, 2011, . . . Dr. Mason and . . . Dr. Stirbl jointly performed oral surgery on Plaintiff, consisting of the extraction of three (3) teeth and the immediate placement of three (3) dental implants. During this procedure, . . . Dr. Mason . . . and or . . . Dr. Stirbl caused Plaintiff to suffer a fractured buccal plate leaving the resulting bone weak and unstable . . . Dr. Mason and or . . . Dr. Stirbl then completed the procedure without letting the bone heal."
General Statutes § 52-190a(a) provides, in relevant part: " No [medical malpractice] action . . . shall be filed . . . unless the . . . 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 . . . shall contain a certificate of the . . . 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 . . . To show the existence of such good faith, the claimant . . . 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 . . ."
Section 52-584 provides, in relevant part, " No action to recover damages for injury to the person . . . caused by . . . malpractice of a . . . dentist . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
In addition, defendant Jonathan E. Mason, LLC argues that dismissal is warranted also due to lack of proper service of process.
They also assert that even if not barred, the amendments should be denied since they were caused by plaintiff's own negligence, are unduly prejudicial, and would result in an unreasonable delay in the argument and decision of the pending motions to dismiss.
In response, the plaintiff asserts that the statute of limitations is tolled by the continuing course of conduct and continuing course of treatment doctrines, affording the court discretion to grant the motion to amend. The plaintiff also asserts that the issue of the statute of limitations should be addressed at the summary judgment phase, after permitting his proposed amendments. He also argues that the new allegations in the amended complaint relate back to the single group of facts which were originally pleaded and do not present an entirely new and different factual situation. Further, he asserts that granting leave to amend would not prejudice either defendant and would allow the case to proceed on its merits.
II
Discussion
A
General Statutes § 52-190a
" [T]he grant[ing] of a motion to dismiss . . . is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). Lack of compliance with § 52-190a " constitutes insufficient process, which implicates personal jurisdiction over the defendant." (Internal quotation marks omitted.) Id., 351.
The Appellate Court, in Gonzales v. Langdon, 161 Conn.App. 497, 128 A.3d 562 (2015), discussed the applicability of § § 52-190a(a). There, the plaintiff filed a request for leave to amend her complaint after the defendants filed a motion to dismiss for lack of personal jurisdiction, alleging that the accompanying opinion letter was legally insufficient. See id., 501. The court held that a plaintiff may request to amend a complaint and submit a revised or a new opinion letter with the requested amendment as long as the request is filed within the original statute of limitations. See id., 521. " [I]f a plaintiff alleging medical malpractice seeks to amend his or her complaint in order to amend the original opinion letter, or to substitute a new opinion letter for the original opinion letter, the trial court (1) must permit such an amendment if the plaintiff seeks to amend as of right within thirty days of the return day and the action was brought within the statute of limitations, and (2) has discretion to permit such an amendment if the plaintiff seeks to amend within the applicable statute of limitations but more than thirty days after the return day. The court may abuse its discretion if it denies the request to amend despite the fact that the amendment would cure any and all defects in the original opinion letter and there is an absence of other independent reasons to deny permission for leave to amend." Id., 510.
Further, " [t]he legislative purpose of § 52-190a(a) is not undermined by allowing a plaintiff leave to amend his or her opinion letter or to substitute in a new opinion letter if the plaintiff did file, in good faith, an opinion letter with the original complaint, and later seeks to cure a defect in that letter within the statute of limitations . Amending within this time frame typically will not prejudice the defendant or unduly delay the action." (Emphasis added.) Id., 519.
The defendants assert that, according to the allegations in the complaint, and in the proposed amended complaint, dated February 9, 2016, the negligent acts occurred during the extraction and implant placements performed on November 16, 2011, more than four years before the filing of the proposed amendments, making them barred by the three-year statute of repose in § 52-584. In addition, they argue that the two-year discovery period also expired prior to the proposed amendment because, as discussed above, the plaintiff noticed one of the implants poking through his gum in October 2013. See complaint, count two, ¶ 13.
Section 52-584 " imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of . . . The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose." (Emphasis in original; internal quotation marks omitted.) Wojtkiewicz v. Middlesex Hosp., 141 Conn.App. 282, 286-87, 60 A.3d 1028, 1031 (2013), cert. denied, 308 Conn. 949, 67 A.3d 291 (2013).
In response, the plaintiff contends that the statute of limitations has been tolled under the continuing course of conduct and the continuing course of treatment doctrines. " The question of whether a party's claim is barred by the statute of limitations is a question of law . . ." (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 582, 22 A.3d 1214 (2011).
The Supreme Court established a three-part test concerning whether the statute of limitations is tolled under the continuing course of conduct doctrine, requiring a plaintiff to prove that the defendant: " (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2003).
" [T]o establish a continuous course of treatment for purposes of tolling the statute of limitations in medical malpractice actions, the plaintiff is required to prove: (1) that he or she had an identified medical condition that required ongoing treatment or monitoring; . . . (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; . . . and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated." (Footnotes omitted; internal quotation marks omitted.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 754-55, 924 A.2d 831 (2007).
Here, as to Mason, the last treatment is alleged to have occurred on August 29, 2012 (see complaint, count two, paragraph 10), more than three years before the filing of the motion for leave to amend and the proposed amended complaint on February 9, 2016. In the absence of allegations of continuing treatment or conduct, the limitations period was not tolled as to Mason.
Also, as discussed above, the plaintiff alleges that he discovered the protrusion of an implant through his gum in October 2013. " When applying § 52-584 to determine whether an action was timely commenced, . . . an injury occurs when a party suffers some form of actionable harm . . . Actionable harm occurs when the plaintiff discovers . . . that he or she has been injured and that the defendant's conduct caused such injury . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof . . . The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories . . . [T]he continuing treatment doctrine [does] not apply to the discovery portion of § 52-584. Once the plaintiff has discovered her injury, the statute begins to run." (Citations omitted; internal quotation marks omitted.) Wojtkiewicz v. Middlesex Hosp., supra, 141 Conn.App. 287.
Similarly, " [t]he continuing course of conduct doctrine has no application after the plaintiff has discovered the harm." Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004).
Since, according to the plaintiff's allegations, actionable harm was discovered in October 2013, neither the continuing course of treatment doctrine nor the continuing course of conduct doctrine applies to toll the limitations period. The statute of limitations had run prior to the filing of the proposed amended complaint in February 2016.
B
Relation Back
" [I]f a party seeks to add new allegations to a complaint and a statute of limitations applicable to those allegations has run since the filing of the complaint, the party must successfully invoke the relation back doctrine before amendment will be permitted." New Hartford v. Connecticut Resource Recovery Authority, 291 Conn. 433, 483, n.38, 970 A.2d 592 (2009).
The Supreme Court has explained the relation back doctrine as it applies to amended pleadings. " [A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 555, 985 A.2d 1042 (2010).
" [I]n determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence . . . This particular focus is guided by the policy reasons underlying the relation back doctrine--namely, ensuring that parties receive fair notice while at the same time allowing parties who have complied with the applicable statute of limitations the benefit of expanding upon existing claims. Our analysis, therefore, necessarily compares the allegations in the original complaint to those in the amended substitute complaint." (Citations omitted; internal quotation marks omitted.) Id., 556-57. " If . . . the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." Id., 563.
" Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 559, 51 A.3d 367 (2012). " [I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations." Id., 560.
In accordance with the above-cited recent appellate authority, in order to determine whether the new allegations relate back, the court has compared the previous allegations with those in the proposed amended complaint. As discussed above, the gravamen of the new allegations is the allegation in proposed paragraph 8, that during the November 16, 2011 procedure the defendants caused the plaintiff to suffer a fractured buccal plate, leaving the resulting bone weak and unstable.
In contrast, as discussed above, previously, in the complaint, count one, paragraph 8, the plaintiff simply alleged that oral surgery was performed, consisting of the placement of three dental implants. The focus of the alleged malpractice, according to the complaint and the opinion letter annexed to the complaint, was improper placement and positioning of the implants. In addition, the plaintiff alleges that an anesthetic should have been used.
Here, the original complaint did not provide notice of a claim of a buccal plate fracture. Clearly, to prove the challenged allegations of the amended complaint would require the presentation of new and different evidence. The new allegations do not merely amplify and expand on what was previously alleged. As explained in Sherman v. Ronco, supra, 294 Conn 561, " [t]he mere fact that the new . . . allegations arose in connection with [the same event] is not sufficient to bring those allegations within the scope of [the plaintiff's] original complaint." (Internal quotation marks omitted.) Since the plaintiff's new theory of liability is " not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." Id., 563.
The challenged new allegations do not relate back to the original allegations of negligence in the complaint and are barred by § 52-584's statute of limitations. See New Hartford v. Connecticut Resource Recovery Authority, supra, 291 Conn. 483, n.38. Accordingly, the amendment may not be permitted.
Under these circumstances, the court need not consider the parties' other arguments.
CONCLUSION
For the reasons stated above, the defendants' objections to the plaintiff's motion for leave to amend complaint are sustained. It is so ordered.