Opinion
FBTCV156051794S
05-05-2016
Kate L. Doyle v. Aspen Dental
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS
William J. Wenzel, J.
This action comes before the court on two separate Motions to Dismiss. The first motion (#109) was filed by Defendant Brandon Kang, D.D.S. seeking dismissal of all counts pertaining to him; the second motion (#111) filed by Aspen Dental of Southern CT, PC and Aspen Dental Management, Inc. pertains to the balance of the counts asserted in the Complaint. The claimed basis of each motion is that the service of process was defective as each defendant was served with an expert opinion letter which fails to comply with General Statutes § 52-190a. While there are some minor differences in the arguments of Dr. Kang and Aspen, the legal principles at issue are exactly the same and there is but a single opinion letter at issue. For these reasons, the motions will be addressed together.
Standard of Review
Practice Book § 10-30(a) provides: " A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." In Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011), the Connecticut Supreme Court determined that failure to comply with the requirements of Connecticut General Statutes § 52-190a in an action for medical malpractice rendered the service of process defective and subject to a motion to dismiss. " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. at 400. " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id, 401. " [A]n action commenced by . . . improper service must be dismissed." Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.Bennett, 300 Conn. at 10-11, quoting from Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
While Bennett states: " The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." 300 Conn. at 11 (2011), quoting Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010), it turns out that Gold had truncated its own quotation of that language from Cogswell v. Am. Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). The complete statement from Cogswell was: " The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Emphasis added.) The court does not read Bennett 's omission of this language from Cogswell as precluding consideration of materials outside the complaint.
Discussion
The plaintiffs here are Kate and Brendan Doyle; alleged to be each other's spouse. The defendants are Aspen Dental of Southern CT and Aspen Dental Management, Inc. (collectively " Aspen") and Brandon Kang, DDS (Dr. Kang). Ms. Doyle brings the first five counts of the complaint in her name; the first three are for medical negligence against each of the three defendants and the fourth and fifth are against the corporate entities under the doctrine of respondent superior. Because Mr. Doyle's claim in count six for loss of consortium is a derivative claim, the motions are potentially dispositive of all claims herein.
Ms. Doyle alleges that she went to Aspen Dental for a broken crown and was treated by Dr. Kang. She further alleges that Dr. Kang extracted the tooth, provided bone grafting and then a dental implant. The complaint alleges that the implant was improperly seated and penetrated the nasal floor. Ms. Doyle further alleges that defendants repeatedly failed to advise her that the implant was improperly placed, was failing and could not be saved, but instead continued to provide treatment including bone grafting despite such being contraindicated. She alleges that such continued treatment was not only inappropriate, but extremely painful and motivated entirely by defendants' desire to charge for dental services. Ultimately, she alleges this negligence caused her tremendous pain and suffering, costly dental treatment to repair the tooth and other damages.
Attached to the complaint is a Certificate of Reasonable Inquiry from plaintiffs' counsel together with what purports to be " a written and signed opinion letter of a similar health care provider." The opinion letter is eleven pages in length and sets out the author's credentials, training and experience, his conclusion that there is evidence of medical negligence on the part of the three defendants and a rather detailed explanation of the treatment provided to Ms. Doyle which the author found to be negligent.
The opinion letter, as allowed by statute, initially had the author's name and signature redacted at the time of service. During the course of the motions, the author of the opinion letter was revealed to be Andrew Mogelof, DDS.
Each of the motions to dismiss assert that the opinion letter attached to the complaint is insufficient and defective because the letter was " not authored by a similar health care provider." As such, defendants claim they are entitled to dismissal. The Aspen defendants also challenge the opinion letter as not presenting sufficient facts to address the claims of negligence against them. The court will address the first claimed deficiency first.
In this case, it reasonably appears to the court that the opinion letter served was authored by person who was licensed and credentialed in the State of Connecticut as a dentist. The author describes having practiced as a dentist for a substantial number of years including the five years prior to the treatment described in the complaint and his training in comprehensive restorative dentistry, including oral surgery and prosthodontics. In the opinion letter, the author describes the area of his practice as " general dentistry." Defendants do not challenge the author's qualifications in that area of practice.
The respective motions to dismiss, however, argue that an opinion letter from a general dentist is not sufficient because an evaluation of Dr. Kang's conduct, the principal defendant, requires review from a specialist. Defendants have presented as part of their motion papers evidentiary support that Dr. Kang has been trained and experienced in a specialty, namely oral and maxillofacial surgery, and holds himself out as a specialist in that particular area of dentistry. Defendants point out that the relevant definition of a " similar health care provider" under Connecticut General Statutes § 52-184c is:
The American Dental Association describes the speciality of Oral and Maxillofacial Surgery as follows: Oral and Maxillofacial Surgery :
(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.'
This language is distinctive in that the triggering qualifications of the defendant are alternatives, any one of which is sufficient, while those required of the author of the opinion letter are conjunctive, all must exist to suffice. In other words, if the defendant health care provider is a board certified specialist OR is trained and experienced in a medical specialty OR holds himself or herself out as a specialist, then the author of the opinion letter must be board certified AND trained and experienced in the same specialty as the defendant. Such construction of the statutory language is clearly addressed in Bennett, 300 Conn. at 21-22.
There is no claim or evidence here that Dr. Kang is in fact board certified in oral and maxillofacial surgery, thus the court will not further address this as one of the three triggering criteria.
The issue here is how this court should determine the presence of any of the triggering conditions for Dr. Kang which will, in turn, determine the requirements of the author of the opinion letter. The defendants argue that Dr. Kang is both trained and experienced in the area of oral and maxillofacial surgery and holds himself out as a specialist. To support these factual claims, the defendants have attached to their motion papers several affidavits and other documents in support of these claims. By way of example, in Dr. Kang's October 22, 2015 Affidavit (doc. #108) he states that he completed a four-year residency program in oral and maxillofacial surgery which is a dental specialty recognized by the ADA. He details the areas of rotation and service associated with that program. In that same affidavit, he affirms that he has treated patients as an oral and maxillofacial surgeon since 2009, introduces himself as an oral surgeon to patients and has been held out to patients as an oral and maxillofacial surgeon by his co-defendant Aspen Dental. More specifically, he states that " [a]ll of the treatment that I rendered to the [p]laintiff Kate L. Doyle was in my capacity as an oral and maxillofacial surgeon." Id., par. 8. In addition to the statements noted above by Dr. Kang, defendants have presented documentary evidence that Dr. Kang was referred to as an oral surgeon in medical records showing plaintiff's treatment. (Doc. #117 & Exhibit A). The court notes that this very part of the record is quoted by Dr. Mogelof in his opinion letter, specifically the notation the plaintiff would follow up with an " oral surgeon."
Dr. Kang also affirms, more specifically in his Supplemental Affidavit (doc. #117), that since his treatment of the plaintiff, he has been listed on websites of subsequent employers as an oral and maxillofacial surgeon. The court has not relied on this information for two reasons: First, this information post dates Dr. Kang's treatment of the plaintiff here. Second, notwithstanding the theory that all information on the internet is available to all persons, the court cannot conclude that such information was available to the plaintiff or her counsel in a meaningful way.
On the claim that Dr. Kang was held out to Ms. Doyle as an oral and maxillofacial surgeon, the plaintiff has presented her own affidavit stating to the contrary. The court fully appreciates the elusive task of deciding the fate of a case by having two current litigants try to recall and describe, some three years after an event, the exact manner in which they were introduced. The court declines to determine if that ground for requiring specialist review has been established simply by the conclusions of the defendants as to how the doctor was normally introduced or presented to the public.
Beyond the manner of their introduction to each other, however, there is significant evidence that Dr. Kang was being held out to the public as an oral surgeon and that the treatment afforded to the plaintiff fell into the area of oral and maxillofacial surgery. As noted above, Dr. Kang began treating the plaintiff immediately after her referral to " the oral surgeon." Moreover, the records which detailed the treatment of plaintiff were reviewed and quoted by the opinion author, including this very notation.
Of the three criteria which can trigger a specialist level of evaluation, the court finds that the evidence submitted in support of this motion by defendants proves that Dr. Kang was in fact trained and experienced in the area of oral surgery and was referred to and held out as an oral surgeon. The court further finds that oral surgery falls within a specialty recognized by the American Dental Association, namely, oral and maxillofacial surgery.
There are two issues to be addressed with regard to these findings. First, Plaintiff argues that while the services provided to the plaintiff may fall within the specialty of oral and maxillofacial surgery, they also fall within the practice of general dentistry. The author of the opinion letter sets out his own qualifications and experience and claims he is fully authorized and experienced in all areas of dentistry for which Dr. Kang provided services. There is no dispute however that the author of the opinion letter is not board certified in the specialty of oral and maxillofacial surgery.
Another issue is that the complaint here is devoid of any description of Dr. Kang as an " oral surgeon" or his services as " oral surgery." To the contrary, the complaint takes pain to describe his services as " performing general dentistry services" and describes the standard of care under which Dr. Kang labored as " the standard of care of a doctor of dental surgery who performs general dentistry services." In short, insofar as the plaintiffs allege in the complaint, all of the services were within the practice of general dentistry and that is exactly the standard of care which plaintiff's claim applies and which allegedly was not met.
On the other hand, based on the opinion letter and Dr. Kang's affidavit, defendants have established that the services provided to the plaintiff fall within the specialized practice of oral and maxillofacial surgery and that Dr. Kang was held out as an oral surgeon. This brings us back to the question posed earlier in this decision, whether the qualifications of the defendant are determined strictly by the allegations of the complaint or by evidence presented in the motion to dismiss.
In one recent Appellate Court decision, the court stated: " [T]he actual board certification of the defendant is not what matters; the appropriate similar health care provider is defined by the allegations in the complaint." Gonzales v. Langdon, 161 Conn.App. 497, 506, 128 A.3d 562 (2015) (citing Bennett for that conclusion.) Similar language has been used by the Connecticut Supreme Court in Wilkins v. Connecticut Childbirth & Women's Ctr., 314 Conn. 709, 730-31, 104 A.3d 671 (2014) (" This court has previously 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").
While at first blush, these statements seem dispositive of the issue, the court hesitates to transplant that language directly to this case. In both Gonzales and Bennett, the courts looked to the allegations of the complaint to determine that even though a plaintiff argued the author of their opinion letter was sufficiently qualified, one of the three triggers contained in § 52-184c was actually alleged in the complaint. In other words, the allegations in the complaint were referenced to find the presence of a triggering qualification for the defendant healthcare provider. These cases never expressly state the court cannot look beyond the complaint or that the allegations of the compliant preclude consideration of any triggers which plaintiff had not chosen to mention in the complaint.
Closer examination of another Appellate Court decision helps this court resolve this question. In Lohnes v. Hospital of St. Raphael, 132 Conn.App. 68, 31 A.3d 810 (2011), the court addressed the correctness of a dismissal on the ground that the author of a plaintiff's opinion letter was not a similar health care provider as defined by § 52-184c. It appears in that case that the court looked beyond the allegations of the complaint and considered the content of an affidavit from the defendant physician. 132 Conn.App. at 77-78.
This court also notes that the important policy decision which underlies the enactment of § § 52-190a and 52-184c will best be served by allowing consideration of objective evidence presented to the court at the time of a motion to dismiss. In Bennett, the Connecticut Supreme Court stated: " § 52-190a establishes objective criteria, not subject to the exercise of discretion, making the prelitigation requirements more definitive and uniform' and therefore not as dependent on an attorney or self-represented party's subjective assessment of an expert's opinion and qualifications." 300 Conn. at 21 (quoting in part from Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 549, 979 A.2d 1066 (2009)). Just as the legislature had expressed concerns over the deliberate or unintentional failure to secure pre-suit review by an appropriately qualified health care provider, it is doubtful the legislature would have intended to allow those precise standards to be avoided by the drafting skills of counsel in framing a malpractice complaint.
Accordingly, having determined that the defendant physician, Dr. Kang, was held out as an oral surgeon and practicing in the area of oral and maxillofacial surgery with regard to his treatment of the plaintiff patient, and evidence of this was available to and actually held by plaintiff's counsel at the time the opinion letter was submitted, and that the author of the opinion letter submitted was not a similar health care provider having not been board certified in that specialty, the court grants the motion to dismiss.
Oral and maxillofacial surgery is the specialty of dentistry which includes the diagnosis, surgical and adjunctive treatment of diseases, injuries and defects involving both the functional and esthetic aspects of the hard and soft tissues of the oral and maxillofacial region. (Adopted October 1990.) www.ada.org/en/education-careers .