Opinion
No. CV 10 6004786
May 6, 2011
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION. No. 122 MOTION TO SET ASIDE DISMISSAL, No. 126
This court, Martin, J., granted the defendants' motion to dismiss the plaintiff's complaint on February 18, 2011. On February 25, 2011, the plaintiff filed a motion for reconsideration of the court's decision. The defendants filed an objection to the plaintiff's motion on March 1, 2011. In addition, the plaintiff filed a motion to set aside this court's judgment of dismissal on March 14, 2011; the defendants filed an objection on March 16, 2011. The plaintiff also filed a request to amend her complaint on April 1, 2011, to which the defendants objected on April 4, 2011. Oral argument was heard on this matter on April 4, 2011.
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
In her motion for reconsideration, the plaintiff argues that General Statutes § 52-190a does not provide for dismissal as a consequence of an inadequate written opinion if written by a similar health care provider. In response, the defendants cite the most recent Supreme Court decision interpreting § 52-190a, Bennet v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (2011), for the proposition that dismissal is mandatory when an opinion letter is deficient and does not comply with § 52-190a(c).
At the outset, it must be emphasized that the plaintiff continues to assert, erroneously, that dismissal of a case is not proper so long as a plaintiff attaches a letter by a similar health care provider to his or her complaint. Under the plaintiff's view, as long as any letter is attached, the case cannot be dismissed. This view is incorrect for three reasons: (1) it is contrary to the plain language of § 52-190a; (2) it goes against direct appellate authority on this matter; and (3) it is in contradiction with the legislative intent of the statute.
First, § 52-190a unequivocally requires the opinion letter of a similar health care provider to contain a detailed basis for the health care provider's opinion, and failure to comply with the statute renders the case subject to dismissal. Section 52-190a(a) provides in relevant part: "[T]he claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." Section 52-190a(c) provides: "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." Thus, the plain language of the statute dictates that an opinion letter must include a detailed basis for the formation of the similar health care provider's opinion and the failure to obtain and file an opinion letter that complies with subsection (a) is grounds for dismissal.
Further, the Supreme Court, in line with previous Appellate Court authority, has declared that dismissal is mandatory in the event that a plaintiff does not comply with § 52-190a. Indeed, the most recent Supreme Court case addressing the myriad issues concerning § 52-190a, Bennet v. New Milford Hospital, supra, 300 Conn. 1, confirms that dismissal was procedurally proper in this case because of the deficiency of the original letter that was attached to the complaint. The plaintiff in Bennet made the same argument as the plaintiff in the present case, namely "that dismissal was not appropriate because that remedy is limited to the situation wherein a plaintiff fails to attach any opinion letter at all . . ." Id., 24. The court rejected this argument after concluding that "the legislative history [of § 52-190a(c)] indicates that a motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and that dismissal of a letter that does not comply with § 52-190a(a) is mandatory . . ." Id., 29.
Moreover, the plaintiff's argument that a court cannot dismiss a case where an opinion letter lacks a detailed basis for its opinion actually contradicts the statute's policy of preventing frivolous claims, especially if plaintiffs are allowed to circumvent the statute's requirements and mandate of dismissal by merely attaching a letter, no matter how short, vague or conclusory, so long as it is written by a similar health care provider. "The . . . purpose of the original version of § 52-190a was to prevent frivolous medical malpractice actions." (Internal quotation marks omitted.) Bennet v. New Milford Hospital, supra, 300 Conn. 18. The requirement of an opinion letter from a similar health care provider was added in Public Act 05-275, "in order to help [e]nsure that there is a reasonable basis for filing a medical malpractice case under the circumstances and . . . eliminate some of the more questionable or meritless cases filed under the present statutory scheme." (Internal quotation marks omitted.) Id., 20. If a defendant is not permitted to challenge the sufficiency of an opinion letter through the remedy called for in § 52-190a(c), dismissal, then the statute's underlying policy would be rendered meaningless.
In her motion for reconsideration, the plaintiff has not shown that the court, in dismissing her action, overlooked a controlling principle of law or misapprehended the facts of this case. Indeed, the Supreme Court case that was released one month prior to this court's judgment of dismissal confirms the original decision to grant the defendants' motion to dismiss. Therefore, the court hereby denies the plaintiff's motion for reconsideration.
Notwithstanding the conclusion that this court was correct in granting the defendants' motion to dismiss, the court is acutely aware and mindful of the Connecticut judiciary's policy of avoiding dismissal on procedural, curable technicalities and of finding jurisdiction whenever reasonably possible. The court also recognizes that the plaintiff would likely succeed in reviving this case through the accidental failure of suit statute, General Statutes § 52-592. In Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 56, 12 A.3d 885 (2011), the Supreme Court held that "a plaintiff may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592(a) only when the trial court finds as a matter of fact that the failure in the first action to provide an opinion letter that satisfies § 52-192a(a) was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney." In the interest of judicial economy, however, Practice Book § 17-4 and General Statutes § 52-212a authorize a trial judge to set aside a dismissal as long as a motion to set aside the judgment is filed within four months. Whether to set aside the dismissal pursuant to such a motion is entirely within the court's discretion. See Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 467, 440 A.2d 159 (1981).
It is significant to note that the circumstances warranting dismissal in the Supreme Court's two most recent cases on this subject are not present in the case at bar. In Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 57, "the plaintiffs' lack of diligence in selecting an appropriate person or persons to review the case for malpractice [for § 52-190a purposes] can only be characterized as blatant and egregious conduct . . ." In Bennet v. New Milford Hospital, supra, 300 Conn. 25, the opinion letter was clearly not written by a similar health care provider, in the present case, the opinion letter was in fact written by a similar health care provider, a doctor who has already been disclosed as an expert witness. In addition, the doctor has provided the plaintiff and her attorney with a much more detailed letter to establish that there was a good faith basis for instituting this action against the defendants.
Section 52-190a was intended to be a gatekeeper statute, designed to curb frivolous medical malpractice cases that had become a drain on the judicial system and a significant distraction to the medical community. In Bennet v. New Milford Hospital, supra, 300 Conn. 31, the Supreme Court "emphasize[d] that, given the purpose of § 52-190a, which is to screen out frivolous medical malpractice actions, plaintiffs are not without recourse when facing dismissal occasioned by an otherwise minor procedural lapse . . . First, the legislature envisioned the dismissal as being without prejudice . . . and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute, General Statutes § 52-592." Further, in a footnote, the Bennet court quoted a recent decision where the Appellate Court stated in dictum that "it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion . . ." Id., 30 n. 17, quoting 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). It is clear that the present case is not one that § 52-190a intended to prohibit. Further, forcing the plaintiff to proceed under the accidental failure of suit statute would be costly to both the plaintiff and the defendants, as well as a waste of judicial resources. Thus, in the interests of public policy and judicial economy, the court will use its discretion given the circumstances of this particular case to set aside the dismissal. The plaintiff will be permitted to amend her complaint with an attached opinion letter that complies with § 52-190a(a).
CONCLUSION
In summary, the plaintiff's motion for reconsideration is denied. The plaintiff's motion to set aside the dismissal is granted. The court also grants the plaintiff's request to amend her complaint and overrules the defendants' objection.