Opinion
No. X04 CV-07-5009731 S
May 21, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#170)
The court heard oral argument concerning the defendants Robert Lowe, M.D. and Connecticut Surgical Group, P.C.'s (movants) motion to dismiss on April 13, 2009 and April 27, 2009. The movants contend that the plaintiffs have failed to comply with the requirements for filing a medical malpractice lawsuit, as mandated by General Statutes § 52-190a, based on their assertion that the plaintiff failed to attach to the complaint an opinion letter from a similar health care provider. The movants and the plaintiffs each presented three written submissions addressed to the motion to dismiss. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.
Prior to April 27, 2009, the parties submitted supplemental briefs, which the court has considered, addressing the Appellate Court's recent decision in Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813 (2009).
I Background
The plaintiffs, administrators of the estate of Una B. Morgan (the decedent), commenced this action against the movants by service of their March 23, 2007 complaint on that date. Other defendants were named as well. Attached to the complaint was a certificate of good faith, also dated March 23, 2007 (Exhibit B), executed by the plaintiff's attorney, with attached opinion letters from Michael A. Fifer M.D., and Diane Marangulo, R.N. The complaint was filed in court on March 29, 2007.
This individual also lists other credentials. The plaintiffs do not claim that she is a similar health care provider to Dr. Lowe.
After requests to revise were filed, the plaintiff filed a revised complaint on February 22, 2008 (#134). On April 7, 2008, the movants filed a motion to strike (#145), contending that the fourth and tenth counts of the revised complaint were legally insufficient, in that the plaintiffs had not attached a physician's report in support of the allegations directed at the movants which complied with General Statutes § 52-190a. In particular, they argued that, since Dr. Fifer, the physician whose opinion letters were attached to the original complaint, is a board-certified internist, with a subspecialty in cardiovascular diseases, he is not a similar health care provider to Dr. Lowe, a vascular surgeon.
The plaintiffs then filed a request for leave to file amended complaint, and an amended complaint (#150), on April 15, 2008. No objection to the request for leave was filed within fifteen days. See Practice Book § 10-60(a)(3).
In the amended complaint, the plaintiffs allege that the decedent received medical care and treatment at Hartford Hospital between January 1, 2005 and January 5, 2005, when she died. The plaintiffs allege that, on January 3, 2005, a co-defendant, Dr. Jeffrey Hirst, performed a left heart catheterization, via the decedent's right femoral artery, after which ongoing bleeding was observed. The decedent had what was interpreted as a vasovagal episode, with a right abdominal hematoma. The plaintiffs allege that, as a result of the defendants' failure to timely diagnose and treat the decedent, she died.
As to Dr. Lowe the plaintiffs alleging part that he was the vascular surgeon attending, and that, on the morning of January 4, 2005, at 7:30 a.m., he noted that the decedent was exhibiting signs of ongoing bleeding and recommended an interventional approach. See amended complaint, fourth count, ¶ 7 (incorporated by reference in ¶ 27). The plaintiffs allege that his negligence caused the death of the decedent. See amended complaint, fourth count. Connecticut Surgical Group, P.C., Dr. Lowe's employer, is sued based on a claim of respondeat superior. See amended complaint, tenth count.
The plaintiffs' allegations against Dr. Lowe are discussed further below.
Attached to the amended complaint is a copy of the same certificate of good faith, dated March 23, 2007, referenced above, which was attached to the original complaint. In addition to the opinion letters previously attached to the original complaint, the plaintiffs also attached an opinion letter, dated April 26, 2007, after the date the original complaint was filed in court, from Richard S. Nitzberg, M.D., F.A.C.S. (Exhibit C).
Additional facts are discussed below.
The plaintiffs' statement of facts, set forth in their objection (#171), goes beyond what the court may consider. See discussion below concerning Standard of Review.
II Standard of Review
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007].
"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. Barde v. Board of Trustees, 207 Conn. 59, 63, 539 A.2d 1000 (1988). A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record . . ." Russell v. Yale University, 54 Conn.App. 573, 577, 737 A.2d 941 (1999). "[The motion to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31(a).
The Supreme Court has explained "[t]he distinction between a trial court's `jurisdiction' and its `authority to act' under a particular statute. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute . . . [I]n exercising its jurisdiction [the court] must obey the law, or its determination will be at least erroneous . . ." (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).
"Both statutory and Practice Book provisions provide for dismissals on the basis of nonjurisdictional grounds." Rios v. CCMC Corp., 106 Conn.App. 810, 821 n. 8, 943 A.2d 544 (2008).
III Discussion A Similar Health Care Provider
General Statutes § 52-190a sets forth a "statutory prerequisite to suit . . . of conducting a precomplaint inquiry into whether there was a good faith basis to bring the action against the defendant." Monti v. Wenkert, 287 Conn. 101, 128, 947 A.2d 261 (2008). "[T]he general purpose of 52-190a is to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990).
Section 52-190a applies to any action in which a claimant alleges that a health care provider was negligent. In relevant part, it provides: "No civil action or apportionment complaint 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 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 . . . 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 § 52-184c, . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate." See General Statutes § 190a(a).
The statute further provides that a claimant's failure to obtain and file the written opinion of a similar health care provider "shall be grounds for dismissal of the action." See § 52-190a(c). This subsection, added by the legislature in 2005, "expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a(a)." (Footnote omitted.) Rios v. CCCM Corp., supra, 106 Conn.App. 822. "The plain and unambiguous meaning of the term `filed' [in § 52-190a] refers to the bringing of a complaint or other pleading to the clerk of the court. Accordingly, . . . the plaintiffs filed their action on [March 29, 2007], when the writ of summons and complaint were filed with the clerk of the Superior Court." Id., 820.
"A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action. However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813 (2009).
Since § 52-190a is in derogation of common-law, it must be strictly construed. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 37, 848 A.2d 418 (2004). "It is axiomatic that statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction." (Internal quotation marks omitted.) Id.
It is undisputed that Dr. Lowe is board certified by the American Board of Surgery and the American Board of Thoracic Surgery. His specialty is thoracic surgery and his subspecialty is vascular surgery. See movants' Exhibit D (Connecticut Department of Public Health Physician Profile).
While the movants argue that Dr. Lowe has additional board certification in cardiothoracic surgery (see memorandum of law (#170.25), page 16), their Exhibit D does not list a board certification in cardiothoracic surgery.
General Statutes § 52-184c(c) provides that "[i]f the defendant health care provider is certified by the appropriate American board 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.'"
As discussed above, here, the plaintiffs allege that Dr. Lowe was acting as a vascular surgeon. See amended complaint, fourth count, paragraph 7, incorporated in paragraph 27, in which the plaintiffs allege that, as the attending vascular surgeon, Dr. Lowe wrote, at approximately 7:30 a.m., on January 4, 2005, that there were signs of ongoing bleeding and recommended an interventional approach. The plaintiffs allege that Dr. Lowe was negligent, in that he failed to observe, detect, monitor and manage the decedent's condition; he performed a surgical intervention to stop the ongoing bleeding in a timely fashion; he failed to perform a non-surgical intervention to stop the ongoing bleeding; and he failed to maintain adequate medical records to communicate the decedent's status, assess needs, formulate a plan of care and record patient outcomes. See amended complaint, fourth count, ¶ 28.
Ellegard v. Hennessey, Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. X03 CV 06 5008281 (March 28, 2007, Langenbach, J.) (43 Conn. L. Rptr. 195), cited by the plaintiffs, presented a distinctly different situation from that which is alleged here. There, two physicians were involved in performing an operation. "The allegations of negligence in the plaintiff's complaint are based upon one procedure conducted at Bradley Memorial Hospital where both Drs. Hennessey and Rocco were present. In this case, the subject of the plaintiff's complaint is an operation that resulted in the removal of her right ovary and Fallopian tube and the perforation of her uterus. The allegations of negligence against Dr. Rocco include claims that he failed to refer the plaintiff to a physician with adequate experience in taking down adhesions and he failed to competently assess that the plaintiff's condition was beyond his realm of expertise." Id. The court concluded that "[t]he allegations against Dr. Rocco described above can be construed to include claims of negligence based upon providing treatment for a condition which is not within his specialty." Thus, the court denied a motion to dismiss, finding, based on the allegations at issue, that the written opinion of a board certified obstetrician gynecologist was sufficient as to allegations against a board certified general surgeon.
Here, in contrast, as discussed above, it is alleged that Dr. Lowe was acting as a vascular surgeon. The plaintiffs' argument that a similar health care provider here would be one who is board certified in retroperitoneal bleed management (see plaintiffs' sur-reply (#174 page 12) is not well-founded. There is no allegation that such bleed management is an area outside Dr. Lowe's expertise. See Mather v. Griffin Hospital, 207 Conn. 125, 133-34, 540 A.2d 666 (1988) (condition was a matter within area of pediatric neurology and outside of obstetrician/gynecologist's area of expertise); Wallace v. St. Francis Hospital Medical Center, 44 Conn.App. 257, 259, 260, 688 A.2d 352 (1997) (patient died from intraperitoneal hemorrhage; non-surgeon not permitted to render an expert opinion on a surgical outcome). The plaintiffs have not alleged in their complaint that Dr. Lowe was "providing treatment or diagnosis for a condition which is not within his specialty . . ." See General Statutes § 52-184c(c). Unlike Ellegard v. Hennessey, supra, Superior Court, Docket No. X03 CV 06 5008281, the allegations here against Dr. Lowe cannot be construed to include claims of negligence based upon providing treatment or diagnosis for a condition which is not within his specialty.
The plain and unambiguous meaning of § 52-190a and § 52-184c(c), when read together, is that, for the purposes of the allegations against him in this case, a `similar health care provider' to Dr. Lowe is one who is trained and experienced in vascular surgery and is board certified in the same categories of surgery for which Dr. Lowe is certified, general surgery and thoracic surgery. Accordingly, "before bringing an action alleging medical negligence on his part, the [plaintiff] must obtain and file a written and signed opinion from such a physician that there appears to be evidence of such negligence." Tobing v. Lange, Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. X 09 CV 06 5002163 (January 11, 2007, Shortall, J.) (43 Conn. L. Rptr. 251).
As to Dr. Fifer, the physician whose opinion letters were attached to the original complaint, and are also attached to the amended complaint, it is undisputed that his specialties are cardiovascular diseases and internal medicine. He is board-certified in internal medicine with a subspecialty in cardiovascular disease. See movants' Exhibit F (Massachusetts Board of Registration in Medicine Physician Profile). He is not a vascular surgeon and is not board certified in general surgery or thoracic surgery.
The plaintiff urges the court also to consider § 52-184c(d)(2), which permits a health care provider to testify as an expert if he is "not a similar health care provider," "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. Subsection (d) thus deals with the presentation of expert testimony.
While there is some division in the Superior Court decisions on this issue, this court agrees with the analysis in Tobing v. Lange, supra, Superior Court, Docket No. X 09 CV 06 5002163. "By the very terms of subsection (d), however, that type of witness is not a `similar health care provider.' After defining `similar health cares providers' in subsections (b) and (c), § 52-184[c] goes on to provide, in subsection (d) that, `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.' . . . So, subsection (d) of § 52-184c provides no support for the plaintiffs' argument that a `similar health care provider' need not be board-certified in the same specialty as the defendant doctor." (Emphasis in original; footnote omitted; internal quotation marks omitted.) Tobing v. Lange, Superior Court, supra, Docket No. X09 CV 065002163.
The court in Beaudette v. Ryan, Superior Court, judicial district of Tolland at Rockville, Docket No. TTD CV 075002285 (October 17, 2008, Sferrazza, J.) (46 Conn. L. Rptr. 508) came to the same conclusion in granting a motion to dismiss. "Subsection (d) of § 52-184c permits, at trial, the testimony of both experts who meet the definition of `similar health care provider' under subsections (b) or (c) and experts who `[are] not a similar health care provider pursuant to subsection (b) or (c).' bother words, § 52-184c explicitly recognizes that not all medical experts testifying at trial must be `similar health care providers.' But because § 52-190a(a) expressly limits the authorship of the requisite opinion to similar health care providers, as defined by § 52-184c, and because Doctor Depman [board-certified in internal medicine] fails to satisfy the definition of that phrase under § 52-184c(c), with respect to Doctor Ryan [board certified in emergency medicine], the good faith certificate in this case lacks the opinion of a similar health care provider." (Emphasis in original.) Beaudette v. Ryan, supra, Superior Court, Docket No. TTD CV 07 5002285.
Likewise, as Judge Eveleigh stated, in interpreting § 52-190a, "[t]he fact that an opinion may be attached from a doctor who is not a similar health care provider is not sufficient to withstand a Motion to Dismiss. It is the very type of action which the Legislature addressed in its amendment to the statute. An opinion derived from a doctor who is not a similar health care provider, and attached to the complaint, is effectively the same as no opinion at all for the purposes of conferring statutory jurisdiction upon the court." Cataldo v. Zuccala, Docket No. UWY X02 CV 06 5004649 (September 27, 2007, Eveleigh, J.) (44 Conn. L. Rptr. 300) (internist not a similar health care provider to a board-certified surgeon).
The plaintiffs' reference to Manende v. Griffin Hospital, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 4000555 (March 29, 2007, Esposito, J.) (43 Conn. L. Rptr. 215), is unpersuasive. The court's analysis there was not based on § 52-190a. Rather, the court denied a motion for summary judgment, concluding that expert testimony by a cardiologist against a vascular surgeon was permissible under § 52-184c(d), that cardiology is a field related to that of vascular surgery, and that the cardiologist had "demonstrate[d] a knowledge acquired from experience or study of the standards of the specialty of the defendant physician . . . ; and [was] competent to testify as to the prevailing standard of care for surgeons issuing postoperative orders incident to a carotid endarterectomy." (Citation omitted; internal quotation marks omitted.) Manende v. Griffin Hospital, supra, Superior Court, Docket No. CV 044000555. The pre-suit inquiry requirements of § 52-190a were not at issue in Manende.
Also, the court may not consider the plaintiff's references to medical publications in order to attempt to show an overlap between cardiology and vascular surgery. No foundation has been laid for the presentation of these texts. See Cogswell v. American Transit Insurance Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); Pestey v. Cushman, 259 Conn. 345, 369, 788 A.2d 496 (2002).
The plaintiffs' reference to Dr. Hirst's (a co-defendant) deposition testimony, see plaintiffs' sur-reply, pages 16-17, is unpersuasive. The fact that he treats patients for bleeding after catheterizations is insufficient, under §§ 52-190a, to show that a cardiologist is a similar health care provider to a board-certified vascular surgeon.
For the purposes of § 52-190a, Dr. Fifer, a board-certified internist, with a subspecialty in cardiovascular disease, is not a similar health care provider to Dr. Lowe, a board-certified vascular surgeon. Neither is Ms. Marangelo, who is a registered nurse. Thus, the original complaint was statutorily deficient in that an opinion of medical malpractice from a similar health care provider was not attached thereto when it was filed.
Under these circumstances, the court need not consider the movants' additional argument that Dr. Fifer's written opinion fails to support the claims against Dr. Lowe.
B Consent and Waiver
The plaintiffs also argue that the movants waived the right to challenge the inclusion of the opinion letter by Dr. Nitzburg with the amended complaint, since they did not object to the request for leave to amend. In particular, they rely on two superior court decisions, Peloso v. Walgreen Eastern Co., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5002136 (February 16, 2007, Holden, J.) (42 Conn. L. Rptr. 838) (plaintiff requested leave to amend, which was not objected to; amended complaint deemed filed by consent under P.B. § 10-60(a)(3)) and Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 065001608 (October 2, 2006, Adams, J.) (plaintiff amended complaint as of right under P.B. § 10-59 after defendant filed motion to dismiss). Both of these Superior Court decisions pre-dated the Appellate Court's decisions in Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 569, and Rios v. CCMC Corp., supra, 106 Conn.App. 810.
In Votre, the court made it clear that "[b]ecause the purpose of § 52-190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires." Votre v. County Obstetrics Gynecology Group, P.C, supra, 11-3 Conn.App. 585.
The court also stated that "it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in so doing, deny a pending motion to dismiss. Such a discretionary action would not be at variance with the purpose of § 52-190a, to prevent groundless lawsuits against health care providers . . ." Id., 113 Conn.App. 585. However, such discretion did not apply "in the present ease because it is clear that no opinion existed at the time the action was commenced, and, therefore, there was no room for discretion to be employed. Although the defendants might have waived this statutory requirement enacted for their benefit, they did not do so . . . The plaintiff could not turn back the clock and attach by amendment an opinion of a similar health care provider that did not exist at the commencement of the action." Id., 585-86.
As discussed above, here the plaintiffs did not amend their complaint as of right within thirty days of the return day, pursuant to Practice Book § 10-59 ("plaintiff may amend any defect, mistake or informality in the writ, complaint or petition . . ., during the first thirty days after the return day.") and General Statutes § 52-128 (similar provisions). Accordingly, the court need not address the relationship of General Statutes § 52-190a to these provisions of the Practice Book and the General Statutes.
Such a statutory requirement was not at issue in Motiejaitis v. Johnson, 117 Conn. 631, 169 A. 606 (1933), cited by the plaintiffs. There, the court stated that an amendment to correct a misnomer as to the defendant would relate back to the beginning of the action. See id., 638.
Thus, § 52-190a precludes the plaintiffs' addition of Dr. Nitzburg's written opinion as a means to satisfy the statutory requirement. Here, it is evident that Dr. Nitzburg's written opinion did not exist when the complaint was filed on March 29, 2007, since his letter is dated afterwards, on April 26, 2007. His written opinion was not omitted from filing with the original complaint by inadvertence.
The court is unpersuaded that the movants waived the right to challenge the inclusion of Dr. Nitzburg's written opinion with the amended complaint by not objecting to the plaintiffs' request to amend. "Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . [V]arious statutory and contract rights may be waived . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007).
In a decision which pre-dated Votre v. County Obstetrics Gynecology Group, P.C., supra, Cassala v. Coccomo Memorial Health Care Center, Superior Court, judicial district of New Haven at New Haven, Docket No. CV08 5022319 (February 19, 2009, Corradino, J.) the court addressed this issue: "[E]ffect must be given to the legislature's intent in amending § 52-190a. It appears the legislature wanted to change the practice authorized by LeConche v. Elligers, 215 Conn. 701 [, 579 A.2d 1,] (1990) which simply permitted parties not complying with § 52-190a requirements to respond to a motion to strike by pleading over. The amended § 52-190a does say that failure to comply with the written opinion requirement of § 52-190a shall be grounds for dismissal . . ." Further, the court stated, "merely allowing the amendment under these circumstances which presents a complaint with certificate and opinion does not, in fact cannot, insulate the amended pleadings from further attack by way of a motion to dismiss. That would be a silly result since LeConche would still reign under a new name — an amendment would be allowed as a substitute for a right to plead over after a motion to strike." Cassala v. Coccomo Memorial Health Care Center, supra, Superior Court, Docket No. CV08 5022319.
This view is consistent with the Supreme Court's repeatedly reiterated statements directing that issues of law should not be addressed in ruling on objections to requests to amend. "[E]ven if a proposed pleading is alleged to be insufficient, a `plaintiff should be permitted to file [the amended pleading], so that the issues arising under it may be determined in proceedings properly adapted to that end.' Newman v. Golden, 108 Conn. 676, 680, 144 A. 467 (1929) (trial court improperly denied plaintiff's motion to file substitute pleading on ground that proposed pleading failed to state claim); see also Smith v. Furness, 117 Conn. 97, CT Page 8389 100, 166 A. 759 (1933) (`[w]e go no farther . . . than to point out that it was error for the trial court to refuse to permit [the amended pleading] to be filed upon the ground that the facts stated in it would not legally constitute a defense')." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256-57, 905 A.2d 1165 (2006).
"[A] ruling on a motion to amend pleadings should not be a vehicle to decide an issue of law . . ." (Internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 05 4007323 (August 12, 2008, Jennings, J.).
Thus, an objection to a request for leave to amend may not present a challenge under § 52-190a for resolution by the court. The movants did not waive their right to challenge the timeliness of the inclusion of Dr. Nitsburg's written opinion when they did not object to the request for leave to amend.
Dr. Nitzburg's written opinion was not in existence when the original complaint was filed. Attaching it to the amended complaint does not cure the statutory deficiency, under § 52-190a, of failing to provide a written opinion of a "similar health care provider." In Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 586, the Appellate Court has made it clear the plaintiffs may not "turn back the clock and attach by amendment" such an opinion. Dismissal pursuant to § 52-190a is an appropriate statutory remedy here, since the movants may not be "subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 584.
C Constitutional Challenge
To the extent that the plaintiffs purport to raise a constitutional challenge to § 52-190a, because they contend that it presents a significant interference with the orderly functioning of the Superior Court's power to adopt and promulgate rules regulating pleading, practice and procedure in judicial proceedings, see plaintiffs' sur-reply, pages 20-21, the court declines to consider it, based on the reasons stated below.
In Aselton v. East Hartford, 277 Conn. 120, 153, 890 A.2d 1250 (2006), the Supreme Court reiterated that it would not consider inadequately briefed state constitutional claims. "We decline to reach the defendant's state constitutional claim . . . because it was inadequately briefed pursuant to the standard this court enunciated in State v. Geisler, 222 Conn. 672, [684-85,] 610 A.2d 1225 (1992). As we concluded in Geisler, [i]n order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach . . . (2) holdings and dicta of this court (3) federal precedent . . . (4) sister state decisions or sibling approach . . . (5) the historical approach, including the historical constitutional setting and the debates of the framers and (6) economic/sociological considerations . . . We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the [claimant] has provided an independent analysis under the particular provisions of the state constitution at issue." (Citation omitted.) Id., 277 Conn. 153. The plaintiffs' constitutional challenge here, raised for the first time in their sur-reply, does not present the required constitutional analysis by addressing the factors listed in State v. Geisler, supra.
CONCLUSION
Based on the foregoing reasons, defendants Robert Lowe, M.D. and Connecticut Surgical Group, P.C's motion to dismiss is granted.
It is so ordered.