Opinion
HHDCV166067063S
08-24-2016
Mieczyslaw Assarabowski v. Anthony Gallo et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (#105, #107) AND REQUEST FOR LEAVE TO AMEND COMPLAINT (#109)
Sheila A. Huddleston, Judge.
The plaintiff, Mieczyslaw Assarabowski, brought this dental malpractice action against his dentist, Anthony Gallo, and his dentist's employer, New England Dental Center, P.C. (NEDC), alleging that Gallo negligently performed an extraction, causing the plaintiff to inhale an entire silver crown that became lodged in his lung and required removal. Each defendant moved to dismiss the action because the medical opinion letter attached to the complaint failed to provide essential information about the health care provider who wrote it.
In response, the plaintiff objected to the motions to dismiss and requested permission to amend his complaint to attach the curriculum vitae of the dentist whose letter attached to the original complaint. Each defendant objected to the motion to amend. For the reasons stated below, the request to amend is denied and the motions to dismiss are granted.
Facts and Procedural History
The plaintiff alleges the following facts in his original complaint. At all times relevant to this action, defendant Gallo was a general dentist employed by NEDC. On December 30, 2013, on a referral from his regular dentist, the plaintiff went to NEDC for the extraction of two teeth. Gallo performed the extractions at approximately 10 a.m. At some point during the procedure, the plaintiff began choking, coughing, and gasping for air. He told Gallo that he thought he had swallowed something, possibly a portion of a tooth. Gallo did not respond to the plaintiff's concern but continued the procedure. The plaintiff was in extreme distress through the rest of the procedure, and stated several times that he felt like he had swallowed something sharp. Gallo did not respond to the plaintiff's concerns and discharged him with no instructions.
The plaintiff had coughing and chest pain over the next several days. On January 7, 2014, he visited his primary care physician about his chest pain and coughing. An X-ray of the plaintiff's chest revealed a large foreign body in his right lung. He was referred to a pulmonologist, who reviewed his X-ray and believed that the plaintiff had a tooth or piece of a crown in his right lung. On January 9, 2014, the plaintiff underwent surgery at St. Francis Hospital to remove the foreign body, which was an entire silver crown with sharp edges.
The plaintiff commenced this action by service on defendant Gallo on March 15, 2016, and filed the action on March 29, 2016. In count one of his complaint, the plaintiff alleges that Gallo was negligent in several respects: he failed to use any device to prevent aspiration of foreign bodies during the procedure; failed to ensure that all pieces of fractured teeth, including crowns, were accounted for, despite notice of the need to do the same; failed to have protocols to prevent or address emergencies involving aspirated foreign bodies; and failed to recognize a medical emergency. The plaintiff alleges that he was harmed in several ways, including the need for past and future medical care and past and future pain and suffering. The plaintiff alleges that a written opinion of a similar health care provider is attached to the complaint and that he obtained a ninety-day extension of the statute of limitations pursuant to General Statutes § 52-190a(b). In count two, he alleges that NEDC is vicariously liable for Gallo's negligence.
The medical opinion that is attached to the original complaint contains no information about the credentials of its author other than those that appear in the signature block following the body of the opinion. The opinion is signed by " Arnold E. Ray, D.D.S., Associate Clinical Professor, New York University College of Dentistry." No information is provided about Dr. Ray's licensure, practice, or experience.
Separate counsel appeared for NEDC and Gallo on April 5, 2016, and NEDC filed a motion to dismiss on May 4, 2016. After obtaining an extension of time to plead, Gallo filed his motion to dismiss on May 12, 2016. Both motions were therefore timely under Practice Book § § 10-30 and 10-32, and the plaintiff has not argued otherwise. Both motions assert that the plaintiff's complaint must be dismissed because the medical opinion letter is plainly insufficient under § 52-190a and the cases construing it.
On May 31, 2016, the plaintiff objected to the motions to dismiss and simultaneously filed a request for permission to amend his complaint by attaching a curriculum vitae for Dr. Ray, which the plaintiff claimed would demonstrate that Dr. Ray is a similar health care provider as required by § 52-190a. The defendants each objected to the plaintiff's request to amend on two grounds: first, that it was filed outside the statute of limitations, and second, that the curriculum vitae was insufficient to satisfy the requirements of § 52-190a. The court agrees with the defendants as to both claims.
Applicable Law
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). " [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). " [B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to General Statutes § 52-190a constitutes insufficient service of process . . ." Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011).
General Statutes § 52-190a provides in relevant part: " (a) 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, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." Subsection (c) of § 52-190a further provides: " The failure to obtain and file the written opinion required by subsection (a) of this session shall be grounds for the dismissal of the action."
General Statutes § 52-184c sets out the requirements for determining whether the health care provider who offers the opinion is " similar" to the defendant. See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011). Where, as here, the defendant is not a specialist, § 52-184c(b) is the governing subsection. It provides: " If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a 'similar health care provider' is one who: (1) is licensed by the appropriate regulatory agency of this state or another state requiring the same of greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
The failure to provide a written opinion by a similar health care provider in compliance with § 52-190a constitutes insufficient process. See Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). " [S]ervice of that insufficient process does not subject the defendant to the jurisdiction of the court . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Id., 401-02. " [A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and . . . dismissal of a letter that does not comply with § 52-190a(c) is mandatory . . ." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 29.
A malpractice action that is dismissed for lack of a sufficient opinion letter may be saved by the accidental failure of suit statute, General Statutes § 52-592(a) " only if that failure was caused by a simple mistake or omission, rather than egregious conduct or gross negligence attributable to the plaintiff or his attorney." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 400. Whether § 52-592(a) will apply to this case is a question for another day.
Although an insufficient opinion letter affects the court's personal jurisdiction over a defendant, the court should nevertheless consider a request to amend the written opinion letter before deciding a motion to dismiss a malpractice action for insufficiency of the opinion letter. See Gonzales v. Langdon, 161 Conn.App. 497, 128 A.3d 562 (2015). The Gonzales court held that " if 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 plaintiff's 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.
Analysis
It is clear that the original opinion letter was insufficient under § 52-190a and § 52-184c(b) because it provided no information about the opinion writer's credentials other than indicating that he is a " D.D.S." and an associate clinical professor at New York University College of Dentistry. The plaintiff effectively admitted the inadequacy of the original opinion letter when he filed his request for leave to amend the complaint to attach the writer's curriculum vitae. In the absence of a timely and sufficient amendment, then, the case should be dismissed for failure to comply with § 52-190a.
This case was filed on March 29, 2016, with a return day of April 5, 2016. The request for permission to amend was filed on May 31, 2016, well outside the thirty-day period for amendments as of right. The question, then, is whether the request to amend was filed within the statute of limitations. The court concludes that it was not.
General Statutes § 52-184 provides the applicable limitation period for professional negligence cases, including dental malpractice. It 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 . . ." General Statutes § 52-190a(b), however, provides for an automatic extension of ninety days of malpractice actions, upon petition to the clerk of the court, to allow malpractice plaintiffs to conduct a reasonable inquiry to determine whether there is a good faith basis for bringing the action.
In this case, the plaintiff sustained his injury on December 30, 2013, when Gallo performed the extraction. The plaintiff knew or should have known of his injury no later than January 9, 2014, when he underwent surgery and a silver crown with sharp edges was retrieved from his lung. The statute of limitations under General Statutes § 52-184 would have run, therefore, no later than January 9, 2016. The plaintiff obtained a ninety-day extension pursuant to General Statutes § 52-190a(b), extending the statute of limitations to April 9, 2016. He filed his request to amend his complaint on May 31, 2016, some seven weeks after the extended statute of limitations ran and nearly four weeks after the first motion to dismiss was filed.
In Gonzales, the Appellate Court reversed a trial court's dismissal of a malpractice action because the trial court had not considered the plaintiff's request to amend the written opinion letter. The Gonzales court emphasized, however, that a request for permission to amend a complaint to correct deficiencies in a written opinion letter must be filed before the statute of limitations runs. It distinguished its earlier decision in Torres v. Carrese, 149 Conn.App. 596, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014), where it had affirmed a trial court's dismissal of a malpractice action despite the filing of an amended complaint. It reasoned: " In Torres, we noted that the trial court could not consider a new opinion letter attached to the amended complaint because it was obtained 'after the action commenced, after the defendants had filed their motions to dismiss, and after the statute of limitations had expired ' . . . Therefore, Torres is distinguishable from the present case and falls outside the time frame for when amending an opinion letter is allowed." (Emphasis in original; citation omitted.) Gonzales v. Langdon, supra, 161 Conn.App. 520 n.10. In light of Gonzales, the court concludes that this plaintiff's request to amend must be denied because it was filed after the statute of limitations, as extended by § 52-190a(b), had expired.
Even if the request for permission to amend had been filed within the statute of limitations, moreover, it would have been insufficient to cure all of the deficiencies in the plaintiff's original opinion letter. Although the curriculum vitae attached to the proposed amended complaint provides information about the opinion writer's career in dentistry from 1962 to the present, it does not indicate that he is currently licensed to practice dentistry in Connecticut or in a state with equal or greater qualifications. See General Statutes § 52-184c(b)(1). It does indicate that he practiced dentistry in private practice from 1964 to 1995, which suggests that he was licensed during that period. It also indicates that he has been the director of clinical licensure examinations at the New York University College of Dentistry from 2007 to the present. Even if that information were sufficient to allow the court to infer that he is currently licensed in New York--which is not expressly stated in the curriculum vitae--it provides no information as to the relative qualifications for licensure as between Connecticut and New York. Without that information, the opinion letter is insufficient.
Conclusion
The request for leave to amend the complaint is denied because it was filed after the statute of limitations expired and the proposed amendment failed to satisfy the requirements of § 52-184c(b) and § 52-190a. The defendants' motions to dismiss are granted because the medical opinion attached to the original complaint does not provide a factual basis for determining that the opinion writer is a similar health care provider when compared with Gallo, a general dentist.