Opinion
CV196051645S
10-24-2019
Marek Czarnota v. Dr. Wilford Samson, DDS
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Morgan, Lisa K., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO DISMISS (NO. 102.00)
Morgan, J.
The plaintiff, Marek Czarnota, commenced this dental malpractice action against the defendant, Dr. Wilford Samson, DDS, a dentist operating under the business name Enfield Family Dental. The defendant moves to dismiss the action for lack of personal jurisdiction on the grounds that (1) the opinion letter attached to the complaint is not written by a "similar health care provider" as required by General Statutes § 52-190a and defined by § 52-184c; and (2) the opinion letter does not satisfy the "detailed basis" requirement of § 52-190a. The plaintiff objects to the motion to dismiss on the ground that the written opinion letter fully complies with the statutory requirements.
Section 52-190a(a) provides in relevant part: "No civil action ... shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action ... has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint ... shall contain a certificate of the attorney or party filing the action ... that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ... 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."
Sections 52-184c(a) through (c) provide:
(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(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 [or herself] 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 [or herself] 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 [or her] specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’
In his reply memorandum, the defendant argues that the plaintiff’s opposition to the motion to dismiss should be denied because the plaintiff’s opposition memorandum was not timely filed. The court, in its discretion, has considered the plaintiff’s opposition memorandum despite its untimeliness.
In his complaint, the plaintiff alleges that on or about October 2, 2017, he received treatment from the defendant and was given two dental implants. Approximately three weeks later, the plaintiff returned for a follow-up visit at which time the defendant determined that there was a problem with one of the implants. The defendant removed the implant and discovered an infection which required the plaintiff to take antibiotics and undergo additional treatment. The plaintiff returned to the defendant’s office several more times for follow-up examinations, diagnostic testing, inserts and re-inserts of the implants, and treatment of pain in the implant sites. After receiving treatment from the defendant for some time, the plaintiff sought a second opinion from Dr. John K. Holzinger, a periodontist who had successfully treated the plaintiff in the past. Dr. Holzinger examined the plaintiff, performed a "Cone Beam (dental CAT scan)," and determined that the plaintiff suffered from nerve damage in the areas of the implants. Dr. Holzinger advised the plaintiff that due to the nerve damage, implants were no longer an option. The plaintiff continues to experience pain as a result of the dental implants. He claims that the defendant was negligent in the care and treatment of his dental issues. Attached to the plaintiff’s complaint is a certificate of reasonable inquiry in which the plaintiff’s counsel certifies that he has a good faith belief that there has been negligence in the care of treatment of the plaintiff together with an opinion letter from Dr. Holzinger.
Section 52-190a(a) "requires a plaintiff in a medical malpractice action to attach to the complaint a written ‘opinion of a similar health care provider’ attesting to a good faith basis for the action ..." Morgan v. Hartford Hospital, 301 Conn. 388, 392, 21 A.3d 451 (2011). The statute further requires that the letter include both the opinion of the similar health care provider that "there appears to be evidence of medical negligence" and a "detailed basis for the formation of such opinion." General Statutes § 52-190a(a). "[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Morgan v. Hartford Hospital, supra, 401.
A motion to dismiss is the proper procedural vehicle to challenge the insufficiency of an opinion letter in a medical malpractice action. Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). "[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)." Id., 28. See also Gen. Stat. § 52-190a(c) ("[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action"). "A plain reading of [§ 52-190a(c)] indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 12 A.3d 865 (2011).
The defendant’s first argument is that Dr. Holzinger’s opinion letter is legally insufficient under § 52-190a(a) because it was not authored by a "similar health care provider" as that term is defined in § 52-184c. Section 52-184c offers two separate definitions for a "similar health care provider." Section 52-184c(b) "establishes the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and [subsection (c) ] [establishes] those qualifications when the defendant is board certified, trained and experienced in a medical specialty, or holds himself out as a specialist ..." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 725, 104 A.3d 671 (2014). Our Supreme Court has determined "that it 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." Id., 730-31.
In this case, the plaintiff alleges that the defendant "operated a full scope professional dental practice ... providing services including but not limited to, implants, tooth extractions, surgical procedures, diagnostic testing, dental care and treatment." Complaint, ¶2. In describing the ways in which the defendant was allegedly negligent, the plaintiff alleges that the defendant, inter alia, failed to properly treat the plaintiff’s "dental issues." Complaint, ¶21(g). There are no allegations in the complaint that the defendant is certified by any board as being a specialist, is trained or experienced in a medical specialty, or holds himself out as a specialist.
In support of his motion to dismiss, the defendant filed an affidavit in which he attests that he is a general dentist licensed in the state of Connecticut, that he actively practices and holds himself out as a general dentist, that at all times he treated the plaintiff within the scope of his practice as a general dentist, that he is not board certified in any dental specialty and does not hold himself out as a specialist, that he is not a board certified periodontist, and that he has never held himself out as a periodontist. The plaintiff has not submitted any evidence that disputes the facts asserted in the defendant’s affidavit. In light of the allegations of the plaintiff’s complaint and the undisputed facts contained in the defendant’s affidavit, the court finds that the defendant is a general dentist and that § 52-184c(b), the non-specialist subsection, supplies the appropriate definition for a "similar health care provider" in relation to the defendant.
Dr. Holzinger states in his opinion letter that he is a periodontist who has been practicing since 1984, that he is familiar with the standard of care as it relates to dentistry and dental implantology and that he has personally successfully placed over 7, 000 dental implants in his career. However, Dr. Holzinger does not state that he is a general dentist or that he was actively involved in the practice or teaching of general dentistry within the five-year period before the incident giving rise to the claim of malpractice. In fact, the opinion letter does not provide any information regarding the time period during which Dr. Holzinger was practicing general dentistry, if he ever was at all. While the court recognizes that there is some overlap in treatment provided to patients by periodontists and dentists, that commonality alone is not sufficient to establish that Dr. Holzinger is a "similar health care provider" to the defendant under § 52-184c(b).
The letterhead and signature block of the opinion letter indicate that Dr. Holzinger holds a DMD degree. The defendant’s affidavit indicates that the defendant holds a DDS degree. DMD stands for Doctor of Dental Medicine whereas DDS stands for Doctor of Dental Surgery. According to the American Dental Association, there is no difference between the two degrees. American Dental Association, "General Dentistry," available https://www.ada.org/en/education-careers/careers-in-dentistry/general-dentistry (last visited at October 24, 2019).
Absent information in the opinion letter from which the court could determine whether Dr. Holzinger was actively involved in the practice or teaching of general dentistry within the requisite five-year period, the letter does not meet the requirement that it "disclose that the health care provider possesses the qualifications set forth in § 52-184c." Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561 n.6, 36 A.3d 297 (2012). See also Samsonenko v. Manchester Family Dental, LLC, Superior Court, judicial district of Hartford, Docket No. CV-17-6078556-S, 2018 WL 1137530, *3 (January 30, 2018, Noble, J.) (65 Conn.L.Rptr. 863) (in dental malpractice action against general dentist and family dental practice, opinion letter from licensed dentist who specialized in field of orthodontics and dentofacial orthopedics did not meet the "similar health care provider" requirement of § 52-184c(b) where there was no indication in opinion letter that author, a specialist by training and experience, ever practiced in the field of general dentistry within the requisite five-year time period); Thibodeau v. Southbury Dental Care, Superior Court, judicial district of Waterbury, Docket No. CV-15-6028643-S, 2016 WL 6078789, *5 (September 12, 2016, Shapiro, J.) (in dental malpractice action against two general dentists, opinion letter from board certified practicing oral and maxillofacial surgeon who had experience in the field of dentistry did not meet the "similar health care provider" requirement of § 52-184c(b) where the letter failed to set forth the states in which the author was licensed to practice dentistry and contained no reference to the author’s active involvement in the practice or teaching of general dentistry within the requisite five-year period); Harger v. Odlum, Superior Court, judicial district of New Britain, Docket No. CV-13-6022808-S, 2014 WL 2922590, *2 (May 22, 2014, Shortall, J.T.R.) (58 Conn.L.Rptr. 225) (in dental malpractice action against general dentist, original opinion letter from periodontist licensed and credentialed as a general dentist in Connecticut did not contain sufficient information to demonstrate that the author possesses all of the specific qualifications of a similar health care provider set forth in § 52-184c(b) where there was no information in letter from which the court could determine that the author was actively involved in the practice or teaching of general dentistry within the five-year period preceding the incident giving rise to the claim of malpractice), appeal dismissed, 153 Conn.App. 764, 107 A.3d 430 (2014). Accordingly, Dr. Holzinger is not a similar health care provider to the defendant as required by the applicable statutes.
As an alternative argument, the defendant contends that Dr. Holzinger’s opinion letter is legally insufficient because it fails to comply with the "detailed basis" requirement of § 52-190a. "[A] written opinion satisfies the ‘detailed basis’ requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider’s opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider’s opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider’s conclusion concerning the breach of the standard of care." Wilcox v. Schwartz, 303 Conn. 630, 643, 37 A.3d 133 (2012).
In the present case, Dr. Holzinger states in his letter that he is familiar with the standard of care as it relates to dentistry and dental implantology and that he "think[s] the patient would have been better served if a Cone Beam had been taken at the time of the Implant placement." However, the letter does not state what the standard of care was and it does not state whether or how the defendant breached that standard of care. Moreover, nowhere in Dr. Holzinger’s letter does he state that there appears to be evidence of medical negligence committed by the defendant. These deficiencies render Dr. Holzinger’s opinion letter legally insufficient under § 52-190a. See Wilcox v. Schwartz, supra, 303 Conn. 643.
The court has considered the allegations of the complaint in their most favorable light, as it is required to do when deciding a question raised by a pretrial motion to dismiss; see Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 11; and finds that Dr. Holzinger’s written opinion letter is legally insufficient under § 52-190a(a) because it was not authored by a "similar health care provider" as that term is defined in § 52-184c(b) and because it does not satisfy the "detailed basis" requirement of § 52-190a. The failure of the plaintiff to provide a written opinion letter that complies with § 52-190a(a) constitutes insufficient process and service of insufficient process does not subject the defendant to the jurisdiction of this court. See Morgan v. Hartford Hospital, supra, 301 Conn. 401. The mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a) is dismissal of the action. See Bennett v. New Milford Hospital, Inc., supra, 28. For these reasons, the plaintiff’s dental malpractice action must be dismissed. The defendant’s motion to dismiss is therefore granted.