Opinion
No. 065011368
March 14, 2011
MEMORANDUM OF DECISION
On September 25, 2006, the plaintiff, Erika Torres, brought this medical malpractice action against the defendants Alexander Carrese and Abraham Yaari, returnable to the court on October 17, 2006. The complaint alleged that each defendant was "a duly licensed physician engaged in the practice of medicine in the State of Connecticut and a specialist in the field of obstetrics and/or gynecology." The complaint alleged that the defendants were negligent in the obstetric care of the plaintiff. Specifically, count one of the complaint alleged that Carrese was the plaintiff's obstetrician for several months prior to August 5, 2004, and that he was negligent in his care of the plaintiff because, inter alia, he failed to maintain proper and adequate records, failed to diagnose the plaintiff's conditions known as placenta previa and placenta accreta, failed to alert another physician, who subsequently performed a cesarean section and related procedures on the plaintiff, that the plaintiff had a condition known as placenta previa, failed to advise the plaintiff that she had those conditions and failed to recognize that the plaintiff's condition required "the intervention of a urologist, but he failed and/or refused to procure the services of a urologist during the prenatal period, thereby undertaking to provide medical services which were within the specialty of a urologist." As a result, the plaintiff alleges, she was required to undergo a hysterectomy and sustained bladder damage that rendered her incontinent. Count two of the complaint alleged that Yaari was the obstetrician who performed a cesarean section on the plaintiff and that he was negligent because he "failed to take the proper precautions during the plaintiff's cesarean section and/or related procedures . . . to avoid injuring her bladder (including arranging for the delivery to occur in the appropriate facility and arranging for a urologist to deal with the potential placenta accreta condition," "failed to undertake the appropriate investigations to determine whether the plaintiff suffered from placenta previa and/or placenta accreta," "caused injury to the plaintiff's bladder," failed to advise the plaintiff of the risk that her bladder would be injured during the cesarean section and/or related procedures," and "undertook to perform medical services which were within the specialty of a urologist."
On June 30, 2006, the court had granted the plaintiff's petition to extend the statute of limitations ninety days pursuant to General Statutes § 52-190a(b). The statute of limitations would otherwise have expired on August 5, 2006. The extended statute of limitations, therefore, was November 4, 2006.
Although the complaint does not indicate whether the defendants are board certified, it is undisputed that they are both board certified obstetrician/gynecologists.
Placenta previa is a condition in which the placenta is implanted in the lower segment of the uterus, thereby partially or completely obstructing the internal bone of the cervix. T. Stedman, Medical Dictionary (28th Ed. 2006) p. 1502. Placenta accreta is a condition where the placenta has grown through the placental membrane and into the uterine wall, so that it cannot be detached without removing the uterus. Id. As this case and the literature indicates, placenta percreta is a condition in which the placenta can grow through the uterus and into the bladder.
General Statutes § 52-190a(a) provides, in pertinent part: "No civil action or apportionment complaint 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 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 . . . shall obtain a written and signed opinion 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 and includes a detailed basis for the formation of such opinion." Section 52-190a(c) states: "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."
Attached to the plaintiff's original complaint was a lengthy letter, dated September 5, 2006, from Jay Motola, a board certified urologist. Motola reviewed the plaintiff's care. He concluded that, overall, the plaintiff had received good care from her urologists. However, his report also stated: "On the other hand, the obstetricians involved in the care of this case need to be further scrutinized. Clearly the root cause of the subsequent urinary fistula does not lie with the urologic care that was provided, but rather the original injury to the urinary tract that the obstetricians created. It is my opinion to a reasonable degree of medical certainty, that the obstetricians, Drs. Carresse [sic] and Yaar [sic] breached the standard of care due to the patient by causing the original injury to her urinary tract. It is this injury that has rendered the patient in the state that she is presently in and therefore the liability lies on the part of the treating obstetricians.
Motola's name was expunged from the copy of the letter attached to the complaint, in accordance with § 52-190a(a), but was subsequently disclosed.
"Additionally questions that need to be answered, may best lie in their records. Particularly, the original treating gynecologist records need to be reviewed. Did the in office sonography that was performed miss the placenta previa? If it were identified preoperatively, would different arrangements have been made prior to delivery? (i.e. Could having a Urologist available at the start of the case potentially prevented the injuries from occurring).
"It is also my opinion that Dr. Carresse [sic] breached the prevailing standard of care by failing to maintain adequate medical records which [sic] taking care of this patient."
Thus, Motola's letter contained two criticisms of the defendants: (1) Carrese failed to maintain adequate medical records, and (2) Carrese or Yaari breached the standard of care by causing an injury to the plaintiff's urinary tract.
On November 13, 2006, Yaari filed a motion to dismiss on the grounds that the opinion letter accompanying the complaint did "not comply with the requirements of Connecticut General Statutes § 52-190a, as amended, in that the written good faith opinion is not authorized [sic] by a health care provider similar to the defendant Abraham J. Yaari, M.D. Therefore, this matter must be dismissed pursuant to § 52-190a(c)." On November 15, 2006, Carrese filed a motion to dismiss based on similar grounds.
The plaintiff objected to the defendants' motions, arguing that since "[t]he plaintiff's complaint alleges that the [defendants] . . . undert[ook] to provide medical services which were within the specialty of a urologist' . . . the opinion of a urologist is appropriate to this case." The plaintiff further argued that she was "in possession of a report of a board certified obstetrician/gynecologist . . . which also attests to the defendants' failure to comply with the prevailing standard of care." Finally, according to Judge Jones' memorandum, the plaintiff argued that whether the author of the written opinion is a "similar health care provider" is not properly addressed in a motion to dismiss, since it does not implicate the jurisdiction of the court.
After argument, the motions were denied by the court (Jones, J.) on the grounds that an insufficient opinion letter, as opposed to the absence of any opinion letter, was not grounds for dismissal. It does not appear that Judge Jones addressed the issue of whether Motola was a "similar health care provider" and therefore competent to author the opinion letter mandated by § 52-190a.
Judge Jones initially granted Yaari's motion because it was unopposed. That order was vacated. On reargument, Yaari's motion was denied.
On May 4, 2007, the defendants each filed motions to reargue contending, inter alia, that in denying their motions to dismiss, the court had improperly considered a subsequent complaint and opinion letter filed by the plaintiff. Judge Jones denied the defendants' motions to reargue but observed that he had not relied on the plaintiff's amended complaint or subsequent opinion letters in doing so. In denying the motions to reargue, Judge Jones explicitly declined to follow the Superior Court case of Tobing v. Lange, Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 06 5002163 (January 11, 2007, Shortall, J.) ( 43 Conn. L. Rptr. 251). In that case, Judge Shortall held that where the defendant was a board certified neurologist, a board certified neurosurgeon could not author the opinion letter required by § 52-190a, and that the required remedy was dismissal.
On January 3, 2007, the plaintiff amended her complaint to add an opinion letter by an obstetrician/gynecologist, Daniel Miller. Miller's letter stated that Carrese departed from the standard of care in not keeping good prenatal records. Dr. Miller's letter was dated December 11, 2006 and, therefore, was not in existence during the thirty days following the return date when the plaintiff could have amended her action as of right, nor within the extended statute of limitations, which had expired on November 5, 2006.
On February 26, 2007, the plaintiff again amended her complaint to add another opinion letter by an obstetrician/gynecologist, Jeffrey Richardson. Richardson's letter is dated February 22, 2007, and states in relevant part: "Dr. Yaari fell below the standard of care when recognized the possibility of placenta previa or worse prior to the C section and realized that a cesarean hysterectomy may be necessary and that urologic injury may occur. He should have had a Urologist standing by to help prevent and/or deal with these potential problems. Consequently, severe urologic injury occurred and excessive blood loss, which may have been prevented if he had a Urologist assist him at the cesarean hysterectomy. Cesarean hysterectomy is rarely performed in the career of an Obstetrician and is fraught with potential complications and this should have been prepared for when Dr. Yaari anticipated the cesarean hysterectomy."
The case then proceeded down the long and expensive road oft taken by protracted medical malpractice litigation.
On January 5, 2011, the Supreme Court officially released its opinion in Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011). In Bennett, the plaintiff had brought a medical malpractice action against a hospital and also against a physician (the defendant) who, while not board certified; id., 7 n. 5; specialized in emergency medicine. Pursuant to § 52-190a, the plaintiff had attached to his complaint a good faith certificate from his attorney and a written opinion from a physician. Id. The physician who authored the written opinion was a board certified general surgeon. Id., 8. The defendant moved to dismiss the action because the written opinion was not from a similar health care provider and failed to provide a "detailed basis" for the opinion. Id., 7-8. The trial court granted the motion and the Appellate Court affirmed that judgment. Id., 9-10. The plaintiff then appealed to the Supreme Court. Id., 10. The Supreme Court first held that "in cases of specialists, the author of an opinion letter pursuant to § 52-190a(a) must be a similar health care provider as that term is defined by § 52-184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c(d)." Id., 21. This was so even where the defendant specialist was not board certified. Id., 23-24. Second, and of particular relevance to the issue now before this court, the Supreme Court held that, while failure of an opinion letter to satisfy the requirements of § 52-190a did not impair the subject matter jurisdiction of the court, "§ 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers." Id., 25; see id., 28-29.
On January 19, 2011, the case was called for trial. On January 31, 2011, and February 10, 2011, during jury selection, Yaari and Carrese, respectively, filed new motions to dismiss. The defendants argue that they are both board certified obstetrician/gynecologists, that this action claims negligence in their obstetric care of the plaintiff, that the plaintiff failed to attach to her good faith certificate a written opinion from a similar health care provider, to wit, a board certified obstetrician/gynecologist, and that pursuant to Bennett this action must be dismissed.
The plaintiff responds that (1) the defendants' motions to dismiss are the functional equivalent of motions to reargue and are untimely under Practice Book § 11-12, (2) Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, should not be applied retroactively to this case, (3) the opinion letter attached to the plaintiff's good faith certificate was authored by a "similar health care provider," as that term is defined in General Statutes § 52-184c(c), (4) § 52-190a violates Article Second of the Connecticut Constitution, and (5) considerations of judicial economy require denial of the defendants' motions.
I
The plaintiff argues that the defendants' motions should be denied because they are, in essence, motions to reargue that are not timely filed, pursuant to Practice Book § 11-12. The plaintiff observes that the defendants filed motions to dismiss on November 13, 2006, and November 15, 2006, respectively. Those motions raised the issue of the adequacy of the plaintiff's § 52-190a opinion letter and were denied by the court (Jones, J.) on April 16, 2007. On May 4, 2007, the defendants moved for reargument. Those motions to reargue were denied by Judge Jones on October 3, 2007. The plaintiff argues that the defendants' motions fail to comply with the mandatory time requirement of Practice Book § 11-12 and that no statute or Practice Book provision authorizes the filing of a non-jurisdictional motion to dismiss five and a half years after the defendants have appeared. The defendants argue that their motions are not motions to reargue because, while their original motions to dismiss claimed that the plaintiff's failure to attach an opinion letter from a similar health care provider deprived the court of jurisdiction, their new motions seek dismissal pursuant to Bennett. While the court agrees with the plaintiff that the new motions are motions to reargue, the court further holds that it has jurisdiction to entertain the merits of those motions.
The court first addresses whether the defendants' motions are, in essence, second motions to reargue, as the plaintiff maintains. Practice Book § 11-12(a) provides, in relevant part: "A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies.
"(b) The judge who rendered the decision or order may, upon motion of a party and a showing of good cause, extend the time for filing a motion to reargue. Such motion for extension must be filed before the expiration of the twenty-day time period in subsection (a).
"(c) The motion to reargue shall be considered by the judge who rendered the decision or order . . ." Thus, a motion to reargue is a pleading in which a party seeks to reargue a decision or order already rendered by the court.
"[T]he interpretation of pleadings is always a question of law for the court . . ." (Internal quotation marks omitted.) Dilieto v. County Obstetrics Gynecology Group, P.C., 265 Conn. 79, 104, 828 A.2d 31 (2003). So too is the construction of the effect of pleadings a question of law. Beckenstein v. Reid Riege, P.C., 113 Conn.App. 428, 446, 967 A.2d 513 (2009). "[P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). The basis of the defendants' original motions to dismiss was the plaintiff's failure to comply with § 52-190a by failing to attach an opinion letter from a similar health care provider. The remedy they sought was dismissal. Their present motions do the same. The defendants seek to change the order of Judge Jones. While the defendants argued in their original motions that the plaintiff's failure to comply with § 52-190a deprived the court of jurisdiction and argue in their new motions that dismissal of the action is mandated by Bennett and § 52-190a(c), the essence of the motions remains the same.
The defendants' motions, despite their moniker, are motions to reargue. "The defendant cannot change the nature of his motion by changing its title any more than one can make a bull a cow by giving it a female name . . . Thus, we analyze the defendant's motion for what it is . . . (Citation omitted). State v. Smith, 19 Conn.App. 646, 648, 563 A.2d 1034, cert. denied, 213 Conn. 806, 567 A.2d 836 (1989). Here, that is a motion to reargue.
"The granting of a motion for reconsideration . . . is within the sound discretion of the court." (Internal quotation marks omitted.) Mangiante v. Niemiec, 98 Conn.App. 567, 575, 910 A.2d 235 (2006). "A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it." (Internal quotation marks omitted.) Id., 577. When ruling on a motion for reconsideration, the trial court has the "power to undertake reconsideration that the trier believes to be warranted on equitable grounds." Id. Ordinarily, "[t]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . [A] motion to reargue . . . is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
The court turns to the plaintiff's claim that the defendants' motions are untimely. Unquestionably, they are. Practice Book § 11-12(a) provides: "A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue . . ." (Emphasis added.) The word "shall" generally connotes a mandatory obligation. "The rules of statutory construction apply with equal force to Practice Book rules . . . Our Supreme Court previously has recognized the significance of the [drafter's] choice in electing to choose `shall' or `may' in formulating a . . . directive . . . Absent an indication to the contrary, the [drafter's] choice of the mandatory term `shall' rather than the permissive term `may' indicates that the . . . directive is mandatory." (Citations omitted; internal quotation marks omitted.) Vargas v. Doe, 96 Conn.App. 399, 412, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006); but see Shelby Mutual Ins. Co. v. Evans, 20 Conn.App. 1, 4-5, 563 A.2d 1041 (1989) ("Whether a rule of practice is mandatory or directory depends on whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the [Practice Book] provision is mandatory . . . If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words."). This court therefore assumes that the twenty-day period in Practice Book § 11-12 is mandatory.
The plaintiff does not contest the court's authority to rule on the motions to reargue on the basis that they are not being heard by Judge Jones. Judge Jones has retired from the Superior Court. See Hudson Valley Bank v. Kissel, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4006330 (September 29, 2009, Tierney, J.T.R.).
However, "[r]ules of practice are not statutory or constitutional mandates, but they reflect the courts' authority to prescribe rules to regulate their proceedings and facilitate the administration of justice . . . Even if a . . . Practice Book rule must be strictly construed and is mandatory, compliance with its requirements does not necessarily become a prerequisite to a court's subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) State v. Falcon, 84 Conn.App. 429, 433, 853 A.2d 607 (2004), overruled on other grounds, State v. D'Antonio, 274 Conn. 658, 877 A.2d 696 (2005); see also LoSacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989) (failure to comply with mandatory time requirement does not affect subject matter jurisdiction); Practice Book § 1-8 ("The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."). Courts in other jurisdictions have recognized that "[t]rial courts have inherent authority to reconsider interim rulings until final judgment." Board of Medical Quality Assurance v. Superior Court, 203 Cal.App.3d 691, 701 n. 4, 250 Cal.Rptr. 182 (1988); accord Zukowski v. Germain, United States District Court, Docket No. 2:09-CV-662 (S.D.Ohio November 18, 2010); cf. Sammarco v. Hillside Village Condominium Ass'n., Superior Court, judicial district of Fairfield, Docket No. 403926 (January 5, 1998, Levin, J.) ("The court is not precluded from reexamining its own decision, within a reasonable time after its rendition, if it appears that otherwise injustice may result . . .") The Connecticut Supreme Court has held that even a failure to meet the twenty-day deadline to appeal a final judgment, contained in the Practice Book, does not deprive an appellate court of jurisdiction, even where the opposing party files a motion to dismiss the untimely appeal. Kelley v. Bonney, 221 Conn. 549, 558-59, 606 A.2d 693 (1992). If the plaintiff failed to comply with § 52-190a and if Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, requires dismissal, it is hardly likely that an appellate court would uphold a judgment for the plaintiff on the simplistic ground that defendants did not move to reargue sooner. Cf. Johnson v. Atkinson, 283 Conn. 243, 250, 926 A.2d 656 (2007) ("From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling." (Internal quotation marks omitted.)). "It cannot be gainsaid that error, however belatedly recognized, ought not to be perpetuated." Ladd v. Douglas Trucking Co., 203 Conn. 187, 196, 523 A.2d 1301 (1987). This is especially so since it was reasonable for the defendants to wait for the Supreme Court to rule in Bennett, years after Judge Jones had issued his ruling, before taking the highly unusual and ordinarily improvident step of filing what amounts to a second motion to reargue before a second judge. The court holds that it may entertain the merits of the defendants' motions to dismiss. See Annan v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 04 0409311 (August 18, 2009, Bellis, J.) ( 48 Conn. L. Rptr. 240); Rose v. Tomaso, Superior Court, judicial district of New Haven, Docket No. CV 97 0404577 (May 2, 2000, Devlin, J.) ( 27 Conn. L. Rptr. 265).
II
Invoking the three-part test set down in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and applied in Neyland v. Board of Education, 195 Conn. 174, 487 A.2d 181 (1985), the plaintiff argues that Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, should not be applied retrospectively to this action.
"We start our analysis with the observation that [t]he courts of the states are free to determine the extent to which new decisions are to have retrospective effect." (Internal quotation marks omitted.) Neyland v. Board of Education, supra, 195 Conn. 179. It is important to observe that "judgments that are not by their terms limited to prospective application are presumed to apply retroactively . . ." (Emphasis added.) Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998); see State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986) ("a legal system based on precedent has a built-in presumption of retroactivity." (Internal quotation marks omitted.)). Thus, the court does not start its analysis with the scales evenly balanced. Rather, the scales are decidedly tipped in favor of retroactivity. See State v. Bernier, 46 Conn.App. 350, 372, 700 A.2d 680 (1997) ("Given the general decisional support for retroactivity, there must be cogent reasons to tip the scale and hold otherwise."). Retroactive application of appellate decisions is the general rule. Burlington Ins. Co. v. Northland Ins. Co., United States District Court, Civ. No. 09-3209 (N.J. February 3, 2011, Debevoise, J.).
In order to overcome this presumption, the plaintiff must satisfy Connecticut's version of the Chevron Oil test. See Chevron Oil Co. v. Huson, supra, 404 U.S. 106-07. This test provides that "[a] common law decision will be applied nonretroactively only if: (1) it establishes a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship." (Citation omitted; internal quotation marks omitted.) Ostrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997); accord Denardo v. Bergamo, 272 Conn. 500, 510, 863 A.2d 686 (2005).
"First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . ." (Citations omitted.) Chevron Oil Co. v. Huson, supra, 404 U.S. 106. The plaintiff's argument for nonretroactivity founders on this factor.
The principle of law that the plaintiff claims is "new" is Bennett's holding that "§ 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 25. Although Bennett also held that the "similar health care provider" who must author the opinion letter required by § 52-190a(a) is defined by § 52-184c(c), that is not the holding of Bennett which the plaintiff argues should be applied prospectively. What is at issue is Bennett's holding that dismissal is mandatory.
The plaintiff argues that she "relied upon the then clear and established doctrine (of Superior Court opinions since the issue had not been addressed at the appellate level) which are mentioned in Judge Jones' April 2007 decision as well as the fact that `[w]hile several decisions have dismissed cases based on a failure to comply with Sec. 52-190a, the plaintiffs in each had failed to attach a written opinion at all.' Page 6 of Judge Jones' Decision." Memorandum of Law In Support of Objection to Motion to Dismiss. This is not persuasive. First, "[t]rial court cases do not establish binding precedent." McDonald v. Rowe, 43 Conn.App. 39, 43, 682 A.2d 542 (1996). Second, it is neither credible nor persuasive to contend that the plaintiff willfully decided not to comply with § 52-190a, relying on an interpretation of the statute that her action would not be dismissed as a result of that noncompliance. Third, Bennett's holding that dismissal is mandatory was clearly foreshadowed by the statute itself. As the court in Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008), observed over three years before Bennett: "The plain language of this new statutory subsection [(c) of § 52-190a] . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a)." (Emphasis added.)
The second Chevron Oil factor is that "given its prior history, purpose and effect, retrospective application of the rule would retard its operation . . ." Ostrowski v. Avery, supra, 243 Conn. 377 n. 18. The plaintiff argues that the purpose of the statute is to screen out frivolous medical malpractice actions and that this is not a frivolous action. Memorandum of Law in Support of Objection to Motion to Dismiss.
It is true that overall "the purpose of § 52-190a . . . is to screen out frivolous medical malpractice actions . . ." Bennett v. New Milford Hospital, supra, 300 Conn 31. However, the purpose of subsection (c) of the statute is more focused. "Because the purpose of § 52-190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). "Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Id., 583-84. Subsection (c) of § 52-190a was added to the statute by Public Acts 2005, No. 05-275, § 2, and expressly made "[e]ffective October 1, 2005, and applicable to actions filed on or after said date . . ." Rios v. CCMC Corp., supra, 106 Conn.App. 817. Dismissal is the legislatively mandated remedy for medical malpractice actions that are filed unaccompanied by a written opinion of a similar health care provider on or after October 1, 2005. Therefore, retroactive application of the holding in Bennett would carry into effect rather than retard the operation of the statute.
The plaintiff also makes an argument more apropos of the third factor, that the entire case has been pre-litigated, the jury selected and "retroactive application of Bennett would serve no purpose as it would lead simply to the refiling of the case and, presumably, the commencement of jury selection again some months after the new return date has run." Memorandum of Law in Support of Objection to Motion to Dismiss. There is no question that the timing of the release of the opinion in Bennett with respect to the life of this case is unfortunate. However, appellate cases not infrequently cause sea changes in unrelated pending litigation, sometimes sinking previously seaworthy vessels. Moreover, it is in no way clear that the plaintiff would be able to reinstitute another action or that she would choose to do so. See generally Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011). If she were able to do so, and chose to do so, much of the discovery conducted in this action presumably could be imported into that second action.
The third Chevron Oil factor is that "retroactive application would produce substantial inequitable results, injustice or hardship." Ostrowski v. Avery, supra, 243 Conn. 377 n. 18. Here, the plaintiff repeats her argument, rejected supra, that Bennett overruled a long line of Superior Court decisions on which the plaintiff relied.
The court holds that the plaintiff has not overcome the presumption that the decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 25, that "§ 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers," should be applied retroactively to this action. Therefore, Bennett governs this case.
III
Turning to the merits of the defendants' motions, the defendants claim that this action should be dismissed because the plaintiff did not attach an opinion letter from a similar health care provider to the good faith certificate that accompanied the original complaint. They contend that because they are board certified obstetrician/gynecologists, a fact not in dispute, only another board certified obstetrician/gynecologist qualifies as a similar health care provider under § 52-190a and Bennett. The plaintiff contends that (1) this case falls within the statutory exception to the requirement that only board certified cognates of a defendant physician may author the written opinion required by the statute, to wit, where "the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty," (2) § 52-190a violates the separation of powers, and (3) considerations of judicial economy require the denial of the defendants' motions.
These are the only arguments the plaintiff has advanced, by memorandum or in oral argument, as to why the defendants' motions to dismiss should be denied. Any other arguments are deemed abandoned. Grace Community Church v. Planning Zoning Commission, 42 Conn.Sup. 256, 259, 615 A.2d 1092 (1992), aff'd, sub nom Grace Community Church v. Bethel, 30 Conn.App. 765, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S.Ct. 383, 126 L.Ed.2d 332 (1993).
The plaintiff's first argument fails for two reasons. First, in his September 5, 2006 letter, Motola never suggested that the defendants were treating the plaintiff for a condition not within their specialty. Second, as a matter of fact and as the plaintiff's counsel himself made abundantly clear in oral argument on the defendants' motions, the plaintiff's bladder and ureter were damaged when Yaari was performing a hysterectomy, an obstetric/gynecological procedure, because of the plaintiff's condition of placenta percreta, an obstetric condition.
To recapitulate, § 52-190a (a) provides, in relevant part: "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, 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 and includes a detailed basis for the formation of such opinion." In part I of Bennett, the Supreme Court held that "in cases of specialists, the author of an opinion letter pursuant to § 52-190a(a) must be a similar health care provider as that term is defined by § 52-184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c(d)." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 21. Section 52-184c(c) provides: "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.'"
With respect to these defendants, Motola stated two opinions of medical negligence in his letter. The first opinion in Motola's letter that satisfies the requirement of an opinion that "there appears to be evidence of medical negligence"; § 52-190a(a); was that Carrese "breached the prevailing standard of care by failing to maintain adequate medical records which [sic] taking care of this patient." As is clear from Motola's letter, Carrese was providing prenatal obstetric care to the plaintiff. Since Carrese is a board certified obstetrician and Motola is not, this opinion is not from a similar health care provider and therefore fails to satisfy the requirements of § 52-190a.
Motola also opined that the plaintiff's urologists did not deviate from the standard of care.
The second opinion in Motola's letter was the following: "It is my opinion to a reasonable degree of medical certainty, that the obstetricians, Drs. Carresse [sic] and Yaar [sic] breached that standard of care due to the patient by causing the original injury to her urinary tract. It is this injury that has rendered the patient in the state that she is presently in and therefore the liability lies on the part of the treating obstetricians." Nothing in Motola's letter suggests that the defendants were providing treatment or diagnosis for a condition which is not within their specialty.
As Motola's letter makes clear, at 35 weeks, the plaintiff presented to Yaari, who was covering for Carrese. The plaintiffs presenting symptoms were vaginal bleeding and contractions.
At that time, the examination demonstrated a placenta previa, which was suspicious for placenta accreta. A preoperative discussion was undertaken regarding the possible need for hysterectomy after the C-section was completed. The patient was brought to the delivery suite and underwent C-section; however complications in the delivery suite occurred. The patient delivered a 5 lb. 8 oz. baby girl, APGAR 3/7.
After the fundal uterine incision was made, it was noted that the placenta penetrated the posterior wall of the bladder. Pathologic review of the placenta confirmed that this was placenta percreta, the rarest of the pathologic entities which are associated with the abnormal attachment of placental to uterine tissue. Excessive bleeding was encountered and the patient underwent emergent hysterectomy.
During the course of the hysterectomy, it became apparent that a significant injury to the lower urinary tract occurred. Urologic consultation was requested and Drs. Armel, Armm and Small were involved in the emergent urologic care of this patient.
(Emphasis added.)
The plaintiff argues that Motola is a similar health care provider for the purposes of this opinion in accordance with the proviso contained in § 52-184c (c) that "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.) Diagnosis is defined as "the art or act of identifying a disease from its signs and symptoms"; Merriam-Webster's Collegiate Dictionary (10th Ed. 2000); "the determination of the nature of a disease, injury or congenital defect." T. Stedman, Medical Dictionary (2 8th Ed. 2006). "Treatment is the medical or surgical management of a patient." Id. However, as Motola's letter states, and as the parties agree, Yaari, covering for Carrese, was performing a hysterectomy on the plaintiff as surgical treatment for her placenta percreta, when the plaintiff's lower urinary tract (bladder) was damaged. A hysterectomy, a surgical procedure within the specialty of obstetrics and gynecology, is the appropriate treatment where, because of placenta percreta, a placenta cannot be manually removed. 1 (Gynecology-Obstetrics) Ausman Snyder's Medical Library (Lawyers Ed. 1988) § 2:46. Accordingly, the defendants did not provide treatment or diagnosis for a condition that is not within their specialty.
Oral argument was unusually helpful in assisting the court in resolving this matter.
A hysterectomy is the removal of the uterus. T. Stedman, Medical Dictionary (28th Ed. 2006).
While the plaintiff may have obtained opinion letters from board certified obstetrician/gynecologists after the action had been brought, after the defendants had filed their motions to dismiss and after the statute of limitations had expired, the court may not consider those documents. "[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 28. "Because the purpose of § 52-190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires." Votre v. County Obstetrics Gynecology Group, supra, 113 Conn.App. 585. Since Motola was not a similar health care provider with respect to either of the opinions he rendered against the defendants, his opinion letter did not satisfy the requirements of § 52-190a.
IV
Next, the plaintiff argues that "[b]y establishing a procedure which — on a prelitigation basis — completely deprives trial courts of any discretion regarding what evidence may be used to establish a prima facie case, the legislature, in adopting in C.G.S. Sec. 52-190a in its current form, improperly encroached upon the powers which the Connecticut constitution has reserved as the exclusive domain of the judiciary." Memorandum of Law In Support of Objection to Motion to Dismiss. The plaintiff follows this statement with only three sentences, none of which cites case law in support of the assertion. The claim is unclear and the plaintiff did not explain it further at the time of oral argument. Nevertheless, the following observations seem appropriate.
Article second of the constitution of Connecticut, as amended by article eighteen of the amendments, provides: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. The legislative department may delegate regulatory authority to the executive department; except that any administrative regulation of any agency of the executive department may be disapproved by the general assembly or a committee thereof in such manner as shall by law be prescribed." The Supreme Court has "recognized that [t]he primary purpose of [the separation of powers] doctrine is to prevent commingling of different powers of government in the same hands . . . The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch's independence and performance of assigned powers . . . It is axiomatic that no branch of government organized under a constitution may exercise any power that is not explicitly bestowed by that constitution or that is not essential to the exercise thereof . . . Nevertheless, we are mindful that the branches of government frequently overlap, and . . . the doctrine of the separation of powers cannot be applied rigidly . . ." (Citations omitted; internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 827, 950 A.2d 1220 (2008).
"A statute violates the constitutional mandate for a separate judicial magistracy only if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts . . . [T]he rules of evidence . . . have never in this state been regarded as exclusively within the judicial domain." (Citations omitted; internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 269, 646 A.2d 1318 (1994). "Over a period of many years, the legislature has enacted various statutes modifying the rules of evidence prevailing at common law . . . These changes have been accepted by our courts and have never been challenged as violating the principle of separation of powers." State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989). In State v. Lockhart, 298 Conn. 537, 618 n. 27, 4 A.3d 1176 (2010), the Supreme Court cited McDougall v. Schanz, 461 Mich. 15, 30-31, 597 N.W.2d 148 (1999), with approval for the proposition that a statutory rule of evidence violates state constitutional separation of powers principles only when "no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified."
"[T]he legislature enacted P.A. 05-275 as a comprehensive effort to control significant and continued increases in malpractice insurance premiums by reforming aspects of tort law, the insurance system and the public health regulatory system." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 18. "The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts." Dias v. Grady, 292 Conn. 350, 357-58, 972 A.2d 715 (2009). Section 52-190a represents a clear legislative policy reflecting considerations other than judicial dispatch of litigation, and thus does not violate the separation of powers. See Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 584 ("Any change to the dismissal remedy when the required written opinion is not annexed to the complaint would require a legislative remedy, not a judicial one").
V
Finally, the plaintiff claims that considerations of judicial economy require denial of the motion since the plaintiff is entitled to re-file her action under the accidental failure of suit statute.
It is true that the Bennett court stated that "the legislature envisioned the dismissal [pursuant to General Statutes § 52-190a(c)] as being without prejudice . . . and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute, General Statutes § 52-592." (Emphasis added.) Bennett v. New Milford Hospital Inc., supra, 300 Conn. 31. This court need not determine whether the plaintiff may be able to reinstitute suit under § 52-592. See Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 33. Bennett held that "§ 52-190a(c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers." Bennett v. New Milford Hospital Inc., supra, 300 Conn. 25. "It is axiomatic that a trial court is bound by Supreme Court precedent . . . This principle is inherent in a hierarchical judicial system." (Citations omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996).
The defendants' motions to dismiss are granted.