Opinion
HHDCV146055010S
12-07-2015
Suzanne Gatti as Administrator of the Estate of Mary Ellen Gatti et al. v. St. Francis Hospital & Medical Center, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105) AND OBJECTION TO AMENDED COMPLAINT (#113)
Sheila A. Huddleston, Judge.
This case arises out of a clinical trial intended to study the effects of a drug, ibrutinib, alone or in combination with other drugs, in the treatment of older patients with chronic lymphocytic leukemia (CLL). The plaintiffs allege that the defendants, a hospital and a physician, recruited their patient Mary Ellen Gatti, who suffered from CLL, to participate in the trial without disclosing to her that one of the drugs in the study Rituxan (also known as Rituximab) can cause a disease known as progressive multifocal leukoencephalopathy (PML). PML is a brain infection caused by a virus that damages nerves in the brain and spinal cord, leading to grave disability and death. The plaintiffs allege that within weeks of starting the trial, Mrs. Gatti in fact developed PML, became severely disabled, and then died. The plaintiffs seek to recover damages on a number of legal theories, currently stated in eight counts.
When the complaint was first served and filed, the plaintiffs were Suzanne Gatti, as administrator of the estate of Mary Ellen Gatti, and Rudolph Gatti, Mary Ellen Gatti's widower. Although the plaintiffs did not move to substitute a new party plaintiff, the second amended complaint identified the plaintiff as Rudolph Gatti as executor of Mrs. Gatti's estate.
This action was originally filed on October 30, 2014, but neither the summons nor the complaint stated a return date. An amended complaint was filed on November 26, 2014, with a return date of December 23, 2014. A second amended complaint was filed on December 15, 2014. The defendants, St. Francis Hospital and Medical Center, Inc. (St. Francis) and Adam M. Boruchov, M.D., appeared through counsel on December 23, 2014. On January 14, 2015, they moved to dismiss the first and second counts of the second amended complaint on the ground that those counts sounded in medical malpractice but no written expert opinion letter had been attached to the complaint as required by General Statutes § 52-190a. Two days later, on January 16, 2015, the plaintiffs filed a " corrected second amended complaint, " to which was attached an opinion letter by Donald H. Marks, M.D. Five days later, on January 21, 2015, the plaintiffs filed a third amended complaint and a memorandum in opposition to the motion to dismiss, asserting that the filing of the amended complaint with Dr. Marks' written opinion letter satisfied the requirements of § 52-190a. They attached a declaration by counsel that the expert opinion letter, dated October 22, 2014, was obtained before the action was filed and was inadvertently omitted by the plaintiffs' counsel when the complaint was filed.
The complaint purports to allege causes of action against twelve " John Doe" defendants who served on an Institutional Review Board, but only St. Francis and Dr. Boruchov were served with the writ, summons and complaint.
The defendants objected to the filing of the third amended complaint on February 6, 2015, and on the same date filed a reply to the plaintiffs' objection to the motion to dismiss. The defendants argue that the expert opinion letter attached to the third amended complaint is insufficient because it is not by a " similar medical provider." More specifically, they observe that the complaint identifies defendant Boruchov as a specialist in medical oncology, but the opinion letter is silent as to the letter writer's board certifications and does not sufficiently state that he is a similar health care provider to the defendant.
On February 13, 2015, the plaintiffs filed a surreply to the defendants' motion to dismiss and a memorandum in opposition to the defendants' objection to the third amended complaint. In these papers, the plaintiffs admitted that the physician who authored the opinion letter is not a medical oncologist. They argue, however, that he is board certified in internal medicine and is an expert in medical pharmacology, FDA regulations, and clinical trials. The plaintiffs argue that under Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 104 A.3d 671 (2014), the author of the expert opinion letter should be deemed to be a " similar medical provider" to the defendant because he is more highly qualified than the defendant in the area of clinical trials of pharmaceuticals. They further argued that count two is not a medical malpractice claim but " sounds in garden-variety ordinary negligence" and is not subject to the requirement of an opinion letter under § 52-190a.
The court heard oral argument on the motions on August 10, 2015. At that time, the plaintiffs' counsel focused his argument on the claim that the author of the opinion letter was highly qualified to testify as to the negligence of the defendants in failing to disclose the known risks of Rituxan to Mrs. Gatti. The defendants responded that the qualifications of the expert to provide the § 52-190a opinion letter, not his qualifications to testify at trial, were at issue.
For the reasons set forth below, the court agrees with the defendants that (1) the author of the opinion letter is not a " similar medical provider" to the defendant medical oncologist, and (2) both count one and count two sound in medical malpractice, requiring the opinion of a " similar medical provider" to be attached to the complaint. Accordingly, the motion to dismiss counts one and two of the operative complaint is granted, and the objection to the filing of the third amended complaint is sustained.
The court deems the plaintiffs' " corrected second amended complaint, " filed on January 16, 2015, to be a nullity in light of the fact that the plaintiffs filed a " third amended complaint" on February 6, 2015, before the defendants' motion to dismiss the (uncorrected) second amended complaint could be heard.
Analysis
" 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."
" [In Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (2011), the Supreme Court] held that § 52-190a dictated that a dismissal was the proper form of remedy for any party who did not comply with the statute." Morgan v. Hartford Hospital, supra, 301 Conn. 398. " 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 . . . 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.
In this case, the plaintiff filed the third amended complaint as of right under General Statutes § 52-128 and Practice Book § 10-59. It was filed on January 21, 2015, which was within the first thirty days after the return day of December 23, 2014. The defendants appear to have assumed, on the basis of dicta in the Appellate Court's decision in 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), that a plaintiff is permitted to amend a complaint to supply an opinion letter that had been obtained before the action was commenced but inadvertently omitted from the complaint as served and filed. The defendants therefore did not challenge the filing of an amended complaint but did object to the sufficiency of the opinion letter filed with it.
The plaintiffs have not argued that the defendants were required to file a new motion to dismiss the third amended complaint rather than an objection to it.
" [A] motion to dismiss is the proper procedural vehicle for challenging the sufficiency of an opinion letter and . . . an opinion letter must demonstrate that its author meets the qualifications of a similar health care provider." Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561, 36 A.3d 297 (2012).
General Statutes § 52-190a requires that the expert who provides the opinion letter must be a " similar health care provider" as defined by General Statutes § 52-184c. The provisions of § 52-184c that are relevant to the issues pending before this court are as follows:
(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 . . . 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 . . .
(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."
(d) Any health care provider may testify as an expert in any action if he: (1) Is a " similar health care provider" pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge 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 principles stated in Bennett v. New Milford Hospital govern the decision on the pending motion to dismiss. In Bennett, the Supreme Court expressly rejected the argument that an expert who may be qualified to testify at trial under § 52-184c(d)(2) can satisfy the requirements of a " similar health care provider" for purposes of the expert opinion letter required by § 52-190a(a). Bennett v. New Milford Hospital, supra, 300 Conn. 6. In that case, the complaint alleged that the defendant specialized in emergency medicine. The author of the opinion letter was a board certified general surgeon who regularly evaluated and treated injured patients in the emergency department, but was not board certified in emergency medicine. After examining the text, the textual context, and the legislative history of § 52-190a, the Supreme Court held that § 52-190a(a) requires a plaintiff to supply an opinion letter authored by a similar health care provider as that term is defined by § 52-184c(c). Id., 16-17. It further held that, despite the apparent harshness of the result, § 52-190a requires dismissal of an action if the plaintiff provides an opinion letter written by an expert who is qualified to testify at trial under § 52-184c(d) but is not a similar health care provider as defined under § 52-184c(c). Id., 21.
" As the court held in Bennett . . . the appropriate similar health care provider is defined by the allegations in the complaint." Gonzales v. Langdon, 161 Conn.App. 497, 506, ___ A.3d ___ (2015). Information regarding the qualifications of the author of the opinion letter must be included in the letter itself. Lucisano v. Bisson, 132 Conn.App. 459, 467, 34 A.3d 983 (2011).
In this case, the plaintiffs allege that the defendant, Dr. Boruchov, " is a licensed practicing physician specializing in medical oncology and internal medicine . . ." Third Amended Complaint, paragraph 4. In the opinion letter attached to the third amended complaint, the author identifies himself as a member of the American Academy of Pharmaceutical Physicians with over twenty years experience in pharmaceutical and internal medicine. He represents that he has " authored numerous articles in medical and scientific journals and medical publications related to pharmaceutical medicine." He further indicates that he has experience as a practicing internal medicine physician. He does not identify any board certifications that he may hold. Nor does he indicate that he has any training in oncology.
All five versions of the complaint are identical as to this allegation in paragraph 4.
In their surreply in opposition to the motion to dismiss, the plaintiffs represent that Dr. Marks, the author of the opinion letter, is board certified in internal medicine, and they attach a copy of his curriculum vitae in support of that representation. Although no affidavit was provided, the defendants do not dispute Dr. Marks's credentials as a board certified internal medicine physician. They argue that he was required to be board certified in medical oncology to issue an adequate opinion letter in this case. Because the plaintiffs' decedent was being treated for leukemia, a condition within the specialty of a medical oncologist, the court agrees with the defendants.
The plaintiffs argue that the author of the opinion letter is an expert in pharmaceutical medicine and therefore is more qualified than the defendant physician to address the standard of care appropriate to clinical trials. Bennett, however, forecloses that argument as to the opinion letter required by § 52-190a. As the Bennett court observed, § 52-184c(c) expressly defines a " similar health care provider" as " 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 a 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 in original.) Bennett v. New Milford Hospital, supra, 300 Conn. 14.
Section 52-190a(a) thus directs the court to consider first the alleged specialty of the defendant health care provider and next to consider the condition for which he is providing diagnosis or treatment. If the condition is within his specialty, then a " similar health care provider" must be trained and experienced in the same specialty and certified in the same specialty by the appropriate American board. If the condition is not within his specialty, then a " similar health care provider" is one who is trained and experienced in the diagnosis and treatment of the condition.
It does not appear to be disputed that the condition for which the plaintiffs' decedent was under treatment--leukemia--is a condition within the specialty of medical oncology. According to the National Cancer Institute's Dictionary of Cancer Terms, " oncology" is " [a] branch of medicine that specializes in the diagnosis and treatment of cancer. It includes medical oncology (the use of chemotherapy, hormone therapy, and other drugs to treat cancer), radiation oncology (the use of radiation therapy to treat cancer), and surgical oncology (the use of surgery or other procedures to treat cancer)." According to the same source, " leukemia" is " [c]ancer that starts in blood-forming tissue, such as the bone marrow, and causes large numbers of abnormal blood cells to be produced and enter the bloodstream." Accordingly, because the defendant health care provider is alleged to be a specialist in medical oncology and the condition for which he was treating the plaintiffs decedent is a condition within his specialty, the plaintiff was required to obtain an opinion from a medical oncologist.
See National Cancer Institute, NCI Dictionary of Cancer Terms (last modified April 6, 2015), available at http://www.cancer.gov/publications/dictionaries/cancer-terms?CdrID=45434 (last visited December 7, 2015) (copy contained in the file of this case in the Superior Court clerk's office).
See National Cancer Institute, NCI Dictionary of Cancer Terms (last modified April 6, 2015), available at http://www.cancer.gov/publications/dictionaries/cancer-terms?cdrid=45343 (last visited December 7, 2015) (copy contained in the file of this case in the Superior Court clerk's office).
The plaintiffs argue that the Supreme Court's recent decision in Wilkins v. Connecticut Childbirth and Women's Center, 314 Conn. 709, 104 A.3d 671 (2014), holds that an expert who has greater training than the defendant health care provider can provide an opinion that satisfies the requirements of § 52-190a. Wilkins, however, cannot be read so broadly as to eliminate the requirement that the opinion letter be supplied by an expert within the same specialty as the defendant health care provider. In Wilkins, the defendant health care providers were nurse-midwives, while the author of the expert opinion letter was a physician who was board certified in obstetrics. The Supreme Court concluded that the requirements of § 52-190a(a) were met because the defendants and the opinion letter's author all practiced in the same specialty, obstetrics. Id., 736. The fact that the physician had greater training in the specialty than the defendants did not disqualify him from providing the § 52-190a(a) opinion letter. Id., 735. In this case, while the author of the opinion letter may have more experience and training than the defendant in the design of clinical trials, he does not have experience or training in the specialty of medical oncology.
The Appellate Court recently applied the holding of Wilkins in a case involving a defendant who was alleged to be a " dermatologist who holds himself out as a specialist in cosmetic surgery" and who, according to the defendants, was certified in cosmetic surgery by the American Board of Cosmetic Surgery. Gonzales v. Langdon, supra, 161 Conn.App. at 500. In Gonzales, the author of the opinion letter attached to the original complaint was a board certified dermatologist. In response to the defendant's motion to dismiss, the plaintiff filed a request for leave to amend her complaint along with an amended version of the original opinion letter, which set forth the author's credentials in more detail and which stated that " cosmetic surgery" was not a board specialty, but that " the skills needed for cosmetic surgical procedures are certified by the American Board of Dermatology." Id., 502. The plaintiff also attached to the proposed amended complaint a new opinion letter authored by a board certified plastic surgeon. The trial court implicitly denied the request for leave to amend and dismissed the malpractice claims on the ground that the original opinion letter was inadequate. The Appellate Court affirmed the trial court's conclusion that the original opinion letter was insufficient because " [o]n the basis of the complaint alone, the plaintiff was required to obtain an opinion letter authored by a health care provider trained and experienced in cosmetic surgery and certified by the appropriate American board in cosmetic surgery." Id., 506. " The original opinion letter was authored by a board certified dermatologist, who did not claim to have any training or experience in cosmetic surgery, let alone a certification in plastic surgery or cosmetic surgery. Although the board certified dermatologist claimed to know the relevant standard of care and that [the defendant] breached that standard, this is not sufficient to meet the requirements of § 52-184c(c) . . . The plaintiff was required to obtain an opinion letter authored by a health care provider with experience and training in cosmetic surgery, and with board certification in cosmetic surgery or in a specialty requiring greater training and experience." Id., 507.
In this case, the plaintiff was required to obtain an opinion letter by a health care provider with experience and training in medical oncology and with board certification in medical oncology or in a specialty requiring greater training and experience in the diagnosis and treatment of leukemia, the condition for which the plaintiffs' decedent was being treated. As discussed above, the opinion letter proffered by the plaintiffs did not represent that its author had any training or experience in medical oncology or was board certified in any discipline. Accordingly, the letter was insufficient to satisfy the requirements of § 52-190a(a) as interpreted and applied by the courts in Wilkins and Gonzales.
In Gonzales v. Langdon, 161 Conn.App. 497, ___ A.3d ___ (2015), the Appellate Court reversed the trial court's implicit denial of the plaintiffs request to file an amended complaint for a factual determination as to whether the new opinion letter offered with the request to amend met the requirements of § 52-190a(a) and § 52-184c(c). Resolving an issue long debated in the trial courts, the Appellate Court held that a plaintiff may request to amend a complaint and submit a revised or a new opinion letter with the requested amendment as long as the request is filed within the original statute of limitations. Id., 521. The 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 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." Gonzales v. Langdon, supra, 161 Conn.App. at 510.
The plaintiffs argue, in the alternative, that even if count one (medical malpractice) must be dismissed, count two (research malpractice) is a " garden variety negligence" claim that alleges that the defendant was negligent in his role as a researcher. The court disagrees. " The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Emphasis in original; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 562-63, 864 A.2d 1 (2005). See also Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. at 576-77 (quoting same).
In this case, count two incorporates all prior allegations in the complaint, including all of count one, the medical malpractice count. The general allegations that are incorporated into all counts of the complaint include the following: Boruchov is a licensed physician specializing in medical oncology (paragraph 4); Rituxan is a medication that interferes with the growth and spread of cancer cells but has a known potential side effect of causing a deadly disease (paragraphs 8-10); St. Francis initiated a clinical trial, with Boruchov as its principal investigator, involving the use of another drug, ibrutinip, either alone or in combination with Rituxan, in patients older than 65 who have been diagnosed with CLL (paragraphs 12-16); Mrs. Gatti was born in 1939 and diagnosed with CLL in 2009 (paragraphs 20-21); she transferred her care to St. Francis and Boruchov in 2013 (paragraph 22); she was recruited to participate in the trial without being advised of the risk of contracting PML (paragraphs 23-26); within six weeks of beginning infusions of Rituxan, she developed symptoms of muscle weakness (paragraphs 33-34); her husband, Rudolph Gatti, contacted Boruchov on May 14 and May 15, 2014, to report rapidly progressing symptoms of muscle weakness (paragraphs 35-36); and Mrs. Gatti's condition worsened rapidly, causing her severe disability and leading to her death on August 24, 2014 (paragraphs 38-43).
Paragraph 61 of count two incorporates, inter alia, the following allegations from count one: St. Francis and Boruchov held themselves out to be skillful and qualified to attend, care for, treat and render medical services to patients such as Mrs. Gatti (paragraph 53); St. Francis and Boruchov treated Mrs. Gatti and were at all times charged with the duty of rendering proper care and treatment to her (paragraph 54); St. Francis and Boruchov were negligent in failing to properly and adequately care and treat Mrs. Gatti during the clinical trial and afterward, including physical therapy and rehabilitation at St. Francis (paragraph 57[c]); they were further negligent in failing to perform proper medical practices and procedures in accordance with the standards prevailing in the community (paragraph 57[d]); they were negligent in failing to monitor her condition and treat her symptoms properly before, during, and after the clinical trial (paragraph 57[f]); and they failed to exercise reasonable care under all the circumstances in accordance with the accepted practices and procedures in the medical community in which they practiced (paragraph 57[j]).
Finally, count two alleges in relevant part that the defendants were charged with the professional responsibility of assuring that proper care and attention were rendered to the plaintiff during all periods that she remained in their care and treatment (paragraph 62); and that the defendants were negligent in using trusted physicians to recruit patients to be human subjects and in failing to remove Mrs. Gatti from the clinical trial (paragraphs 63[l] and 63[n]).
The actual text of paragraph 62 is somewhat garbled. It reads in relevant part as follows: " At all times mentioned herein and material hereto, these defendants were charged with the professional responsibility of . . . rending and assuring that proper care and attention were rendering during all periods of time during which Boruchov remained under their care and attention." The court assumes that the plaintiffs intended to say that the defendants were charged with assuring that proper care and attention were rendered to Mrs. Gatti (not to Boruchov, the defendant physician) during the time she remained under their care.
Considering these allegations, it is clear that in count two (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. See Boone v. William W. Backus Hospital, supra, 272 Conn. 562-63. Accordingly, count two, like count one, sounds in medical malpractice, and an opinion letter by a similar health care provider (that is, a medical oncologist) was required to be obtained before the action was commenced.
Because counts one and two sound in medical malpractice and the plaintiffs failed to attach an expert opinion letter to the complaint, the plaintiffs have not satisfied the mandate of § 52-190a(a), and pursuant to § 52-190a(c), these two counts must be dismissed. For the same reasons, the defendants' objection to the third amended complaint is sustained.
In this case, as discussed above, the amended complaint with the opinion letter was filed as of right within thirty days of the return day but, because the letter does not establish that it is authored by a similar health care provider, the letter does not cure the defect in the plaintiff's original complaint. In their reply to the plaintiff's objection to the motion to dismiss, the defendants in effect amended their motion to dismiss to encompass a new ground (that is, the insufficiency rather than the absence of the opinion letter), and the plaintiffs responded in kind in their surreply. Similarly, with respect to the proposed third amended complaint, the parties briefed and argued the objection and response on substantive grounds--the sufficiency of the attached opinion letter--rather than procedural grounds. In the interest of judicial efficiency, the court has decided the issue before it on the grounds presented by the parties.