Opinion
MMXCV186020234S
09-07-2018
Shane J. CARPENTER v. Bradley J. DAAR, DDS, MS et al.
UNPUBLISHED OPINION
OPINION
Domnarski, J.
In this medical malpractice action, the defendant Bradley J. Daar is a dentist who performed an endodontic procedure upon the plaintiff, Shane Carpenter. Daar is employed by the defendant Shoreline Modern Dental, LLC. The defendants have moved to dismiss this action on the ground that the opinion letter required under General Statutes § 52-190a is not from a similar health care provider. The plaintiff purports to allege that the defendant held himself out as a specialist in endodontics, consequently he has provided an opinion letter from a board certified endodontist. The defendant maintains that he is a licensed general dentist, and he has not held himself out as an endodontic specialist. The plaintiff’s alternative argument is that if the defendant is considered to be a non-specialist dentist, the opinion author should be considered a similar health care provider. The court concludes that the defendant is a general dentist, not a specialist, and finds that the opinion author, who is board certified in endodontics, is not a similar health care provider to the defendant. Therefore, the motion to dismiss is granted.
Section 52-190a provides in relevant part:
On June 16, 2015, the defendant performed a root canal procedure upon the plaintiff. The site of procedure became infected and the plaintiff underwent an extra-oral incision and tooth extraction at Yale-New Haven Hospital on June 18, 2015. The plaintiff brought an earlier action against the defendant, which was dismissed on October 11, 2017, because of a deficient opinion letter. Thereafter, the plaintiff commenced this action on February 21, 2018, pursuant to General Statutes § 52-592, the accidental failure of suit statute. The complaint contained an opinion letter and supplemental letter. The defendant filed this motion to dismiss on April 5, 2018. In addition to their opposition pleading, the plaintiff filed an affidavit from the opinion author which more fully describes his teaching activities and credentials.
DISCUSSION
I
Timeliness of the Affidavit
The defendant argues that under the holding of Gonzales v. Langdon, 161 Conn.App. 497, 510, 128 A.3d 562 (2015), the court cannot consider the information contained in the affidavit because it has been filed after the expiration of the two-year statute of limitations contained in General Statutes § 52-584. Gonzales established that amendments to legally insufficient opinion letters are permitted only if they are filed within the applicable statute of limitations. See id. The action in Gonzales was brought within the two-year statute of limitations contained in § 52-584. See id., 521. The present case is distinguishable from Gonzales since it was brought under the accidental failure of suit statute, § 52-592. Based upon Supreme Court precedent, this court concludes that the accidental failure of suit statute effectively modifies and extends the time limitations imposed by § 52-584 by the period of time the plaintiff is allowed to bring a second action under § 52-592. See Isaac v. Mount Sinai Hospital, 210 Conn. 721, 729, 557 A.2d 116 (1989) ("[s]ection 6024 [accidental failure of suit statute] does modify § 1005h [wrongful death statute] if the circumstances bring the case within its terms" [internal quotation marks omitted] ).
In this case, the statute of limitations contained in § 52-584 does not bar the filing of an affidavit by the author of an opinion letter. The original action was dismissed on October 11, 2017. This action, and the affidavit from the opinion author, have been filed within the time allowed under § 52-592.
II
Sufficiency of the Opinion Letter
The nature of the qualifications of the required "similar health care provider" are determined by the particular status of the defendant under § 52-184c. "[I]t is appropriate to look to the allegations of the plaintiff’s complaint to frame the requirements for who constitutes a similar health care provider for purposes of the good faith opinion certification." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 730-31, 104 A.3d 671 (2014). In the present case, in connection with his claim that the defendant is a specialist, the plaintiff has not utilized the specific language contained in § 52-184c(c) and has not alleged that the defendant is "trained and experienced in a medical specialty, or holds himself out as a specialist" in endodontics. The plaintiff only alleged that the defendant "held himself out as a practitioner of Endodontics" and "has completed hundreds of hours of training in Endodontics."
General Statutes § 52-184c provides in relevant part:
Attached to the motion to dismiss is an affidavit by the defendant in which he states the following: He has been licensed in Connecticut as a general dentist since 1982. The root canal treatment performed on the plaintiff was performed in his capacity as a general dentist. The hundreds of hours of training alleged in the plaintiff’s complaint is a reference to a statement on his website which reads, in full, "[h]e has completed hundreds of hours of training in Endodontics, Orthodontics, Periodontics, Dental Implants, Sleep Apnea, and more."
The plaintiff has not provided an affidavit which disputes the facts contained in the defendant’s affidavit. Under these circumstances, the court "need not conclusively presume validity of the allegations in the complaint." Labissoniere v. Gaylord Hospital, Inc., 182 Conn.App. 445, 453, 185 A.3d 680 (2018). In view of the indeterminate allegations in the complaint, and the undisputed facts contained in the defendant’s affidavit, the court cannot find that the defendant is a specialist as that term is defined in § 52-184c(c). From the present record, the court concludes that any opinion from a similar health care provider to the defendant must come from one who is a general dentist.
Attached to the plaintiff’s complaint in this action was an opinion letter and supplemental opinion letter from Dr. Charles Solomon. The plaintiff also submitted an affidavit from Dr. Solomon with his memorandum in opposition to this motion. These submissions indicate that Dr. Solomon is a licensed dentist in New York, and he is certified by the American Board of Endodontics. Dr. Solomon is a Clinical Professor of Dentistry at Columbia University College of Dental Medicine and was director of the Division of Endodontics from 2009 to 2017. He teaches endodontics to both undergraduate and post-graduate students.
The plaintiff maintains that if the defendant is determined by the court to be a non-specialist, general dentist, Dr. Solomon is also a similar health care provider who is qualified to author an opinion letter. The plaintiff relies on the fact that Dr. Solomon is a licensed dentist and his "lectures to undergraduate students involve general dentistry and the performance of endodontic procedures, including root canals, by general dentists." The plaintiff seeks to qualify Dr. Solomon as a general dentist under § 52-184c(b) which requires a similar health care provider to be "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."
There is a lack of information to establish that Dr. Solomon has practiced general dentistry within the requisite five-year period. Furthermore, there is a paucity of facts from which it can be found he has been teaching general dentistry during that period. From the information provided, the court finds that Dr. Solomon is a specialist in endodontics and he has training and experience as a result of the active teaching of endodontics. He is not, however, a similar health care provider to the defendant, who is a general dentist. The fact that Dr. Solomon teaches endodontics to undergraduate dental students does not equate to the teaching of general dentistry. If such were the case, any teaching specialist at a dental school or medical school would automatically be a similar health care provider to any non-specialist dentist or medical doctor. Such an interpretation would vitiate the provisions of § 52-184c which requires different qualifications for a specialist and a non-specialist health care provider.
This is not the only case in which Daar’s professional status has been determined, relative to a proposed "similar health care provider." In the case of Samsonenko v. Manchester Family Dental, LLC, Superior Court, judicial district of Hartford, Docket No. 17-6078556-S (January 30, 2018, Noble, J.) (65 Conn.L.Rptr. 863, 863), the plaintiff alleged that Daar was medically negligent when he administered orthodontic treatment to him. The plaintiff provided the opinion of a general dentist who was a specialist in the field of orthodontics. Id., 865. Daar filed a motion to dismiss on the grounds that the opinion letter was not from a similar health care provider. Id., 864. Judge Noble found that Daar was a general dentist, the orthodontic specialist who authored the opinion was not a similar health care provider, and granted the motion to dismiss. Id., 864-65.
For the foregoing reasons, the motion to dismiss is granted as to the defendant Bradley Daar. Since the liability of defendant Shoreline Modern Dental, LLC is based upon the liability of Daar, the motion is also granted as to that defendant. See Helfant v. Yale-New Haven Hospital, 168 Conn.App. 47, 61, 145 A.3d 347 (2016) ("because we conclude that the medical opinion letter was insufficient as offered against [the physician defendant], we conclude that it was insufficient as against the institutional defendants as well").
(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death ... 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, and any apportionment complainant or the apportionment complainant’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 ...
(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.
(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider."