Peters v. United Cmty. & Family Servs.

Full title: Steven Peters, Jr. v. United Community & Family Services, Inc. et al

Court: Superior Court of Connecticut

Date published: Aug 8, 2016

KNLCV166026050S (Conn. Super. Ct. Aug. 8, 2016)

Opinion

KNLCV166026050S

08-08-2016

Steven Peters, Jr. v. United Community & Family Services, Inc. et al

Robert F. Vacchelli, Judge.

UNPUBLISHED OPINION

RULING RE MOTION TO DISMISS BY THE DEFENDANT REYNOLDS, DOC. NO. 106.00

Robert F. Vacchelli, Judge.

This case is an action by the plaintiff, Steven Peters, Jr, against the defendant, United Community & Family Services, Inc., and several dentists and other health care personnel associated with that organization, alleging medical negligence. Inparticular, Count Three is against the defendant, Edward Reynolds, Jr., D.D.S. Pending before the court is a motion to dismiss by the defendant, Dr. Reynolds, arguing that the action against him should be dismissed for two reasons: (a) because the required opinion letter attached to the plaintiff's complaint is deficient in that it fails to demonstrate that the author of the letter is a similar health care provider, and (b) because that letter does not state that there was any medical negligence by Dr. Reynolds, as required by General Statutes § 52-190a. For the following reasons, the court grants the motion to dismiss based on the first ground for dismissal only. Accordingly, the Third Count of the plaintiff's complaint is dismissed, without prejudice.

I

A challenge to the adequacy of an opinion letter, required to be attached to a complaint alleging medical negligence pursuant to General Statutes § 52-190a, is properly raised by a motion to dismiss because the defect constitutes an insufficiency of process. Santorso v. Bristol Hospital, 308 Conn. 338, 351, 63 A.3d 940 (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." (Citation omitted; internal quotation marks omitted.) Bennett v. New Milford Hospital, 300 Conn. 1, 10-11, 12 A.3d 865 (2011).

II

The defendant urges two grounds for dismissal. The issues are discussed seriatim.

A

The first grounds for dismissal advanced by the defendant is that the plaintiff has failed to attach to his complaint an opinion letter from a similar health care provider finding evidence of medical negligence. That requirement is contained in General Statutes § 52-190a. That statute provides, in pertinent part, as follows:

(a) No civil action . . . shall be filed . . . to recover damages resulting from personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a healthcare provider, unless the attorney . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney . . . 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 healthcare 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. 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 healthcare provider expunged, to such certificate.

General Statutes § 52-190a(a) (emphasis added).

The qualifications of the similar healthcare provider providing an opinion letter are set forth as follows:

If the defendant health care provider is certified by the appropriate American board as being 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 . . .

General Statutes § 52-184c(c) (emphasis added).

In the instant case, the plaintiff alleges that " [a]t all times mentioned herein, the defendant, Edward Reynolds, Jr., DDS., held himself out to the general public as a physician and surgeon duly licensed to practice medicine in the State of Connecticut, practicing in Norwich and specializing in oral and maxillofacial surgery." Complaint, Count Three, para. 1. The appropriate " similar health care provider" is defined by the allegations of the complaint. Gonzales v Langdon, 161 Conn.App. 497, 506, 128 A.3d 562 (2015). Thus, the plaintiff was required to attach to his complaint an opinion letter from a doctor board certified in oral and maxillofacial surgery. The written opinion letter attached to the complaint in the instant case is dated November 25, 2015. The name of the author is redacted. The letter states that the author is an oral and maxillofacial surgeon, but it is silent as to whether author is board certified in that specialty. The letter states:

After graduating from the University of Scranton, Magna Cum Laude in 1983, I entered the Harvard School of Dental Medicine, graduating Cum Laude in 1988. I trained in Oral and Maxillofacial Surgery at the University of Connecticut, graduating in 1993. I spent a year fellowship as a AO/AFIS fellow in Switzerland, Germany and Southfield, Michigan. In 1994 I was the Leonard Fellow at Hartford Hospital where I have practiced since. I am one of four Craniofacial Trauma Surgeons at Hartford Hospital and I am the Oral and Maxillofacial surgeon for the Connecticut Children's Medical Center Craniofacial Team.

Opinion Letter.

The court finds that plaintiff has not complied with the statute. The statute requires, in this circumstance, that the opinion letter writer be both trained and experienced in the same specialty and board certified. The opinion letter writer in this case does not state that he is board certified. The statute has not been satisfied. Strict adherence is required. " [I]n cases of specialists, the author of an opinion letter pursuant to § 52-190a(a) must be a similar health care provider as that term is defined in § 52-184c(c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c(d) [allowing non-board certified specialists in certain circumstances]." Bennett v New Milford Hospital, Inc., supra, 300 Conn. 21.

The remedy for using an opinion letter from a person not identified as a similar health care provider as defined by the statute is dismissal. General Statutes § 52-190a(c); Bennett v New Milford Hospital, Inc., Id., 28. That statute provides as follows:

(c) 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.

General Statutes § 52-190a(c).

Dismissal is without prejudice. Bennett v New Milford Hospital, Inc., supra 300 Conn. 31. Accordingly, Count Three of the complaint, which alleges medical negligence as to Dr. Reynolds, must be dismissed, without prejudice.

The plaintiff seeks to stave off dismissal by arguing that it is questionable whether the statute requires that the author describe how he purports to be a similar health care provider in the letter. The court is not persuaded. " The only plausible application of the plain language of § § 52-190a and 52-184c requires the disclosure of qualifications in the opinion letter." Lucisano v. Bisson, 132 Conn.App. 459, 466, 34 A.3d 983 (2011); see also, Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561, 36 A.3d 297 (2012).

Alternatively, the plaintiff supplies the court with an affidavit by the author, who identifies himself as Richard G. Bevilacqua, D.M.D., M.D., averring that he is, in fact, board certified by the American Board of Oral and Maxillofacial Surgery. Plaintiff argues that the failure to include that information in the letter was a mere circumstantial defect, and asks the court to accept the affidavit in explanation. Plaintiff cites as authority for the use of explanatory affidavits a long line of Superior Court decisions which have allowed such affidavits in similar circumstances, favorably comparing the affidavit procedure to Appellate Court language sanctioning the curing of such defects by amendment practice, available under Practice Book § 10-60. See, e.g., Field v. Lawrence & Memorial Hospital, Superior Court, judicial district of New London, Doc. No. CV 14-6019542 (June 10, 2014, Devine, J.) [58 Conn.L.Rptr. 308, ] citing 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) and Jaboin v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, No. CV 09-5023443 (September 11, 2009, Bellis, J.) [48 Conn.L.Rptr. 469, ] (" If the Appellate Court has given a trial court the authority to allow a plaintiff to amend the complaint to add an opinion letter, it seems reasonable that the court could consider an affidavit that explains an existing opinion letter"). Indeed, the practice was recognized, but not ruled upon, in Bennett v. New Milford Hospital, 300 Conn. 30, n.17.

The defendant does not contest the plaintiff's ability to seek to amend, or explain by affidavit, in general, but he contends that the plaintiff cannot do so now in the instant case because the statute of limitations has now run, and the court does not have discretion to consider a supplemental or amended opinion letter filed after the statute of limitations has run, citing Gonzales v Langdon, 161 Conn.App. 497, 128 A.3d 562 (2016). That case holds 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 date." Id., 510.

In the instant case, the plaintiff alleged that the procedure that caused his injury occurred on September 19, 2012, and that he continued to treat with the defendants until October 11, 2013, when he became aware that there may have been a breach of the standard of care. Complaint, Count One, paras. 4-6. Considering that the two-year statute of limitations in General Statutes § 52-584 began to run on October 11, 2013, and adding the ninety-day extension allowed by General Statutes § 52-190a(b), which the plaintiff took advantage of in this case, the court finds that the statute of limitations ended on January 9, 2016. The return date in this case was February 9, 2016. The affidavit was filed on May 9, 2016. Thus, under the Gonzales v. Langdon rule, the plaintiff's effort to cure the defect by amendment or affidavit was too late.

Plaintiff does not dispute that his effort was too late under these measures. Rather, he argues that Gonzales v. Langdon is inapposite because it concerned amendments--presumably pursuant to Practice Book § 10-60. He argues that he did not file a request to amend the opinion letter; rather, he merely clarified an existing opinion letter with an affidavit. The court is not persuaded that plaintiff's affidavit should be exempt from the Gonzales v. Langdon rule. The reason why affidavits have been allowed is because they are compared favorably to appellate court authority allowing amendments. Since any amendment that sought to supply this missing necessary information would be too late, so too would be an affidavit that sought to accomplish the same thing.

Nor can the court consider the defect here to be an excusable circumstantial defect. The designation of circumstantial defect is reserved for defects that are not substantive or jurisdiction in nature. See General Statutes § 52-123; Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., 136 Conn.App. 683, 693, 47 A.3d 394 (2012); Colon v. State, 129 Conn.App. 59, 66, 19 A.3d 699 (2011); Larrivee v. McGann, 26 Conn.Supp. 508, 511, 227 A.2d 809 (1967). Our Supreme Court has identified the defect in the instant case as depriving the court of personal jurisdiction, the consequence of which is dismissal. See Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). (" 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.") Accordingly, this court cannot characterize the failure to state statutorily required information in the opinion as a mere, excusable circumstantial defect. To the contrary, it is a substantive defect under the circumstances. All other efforts to distinguish Gonzales v. Langdon are repetitious of plaintiff's previous arguments earlier found to be unpersuasive.

Accordingly, the defendant's motion to dismiss on this ground is granted, and Count Three is dismissed without prejudice, accordingly.

B

The second ground for dismissal is that the opinion letter is defective in that it does not state that there was any medical negligence by Dr. Reynolds. The court is not persuaded.

As cited earlier, the statute requires that the required attached opinion letter state " that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-190a(a). An opinion letter is " akin to a pleading." Morgan v. Hartford Hospital, supra, 301 Conn. 398. Pleadings are to be read " broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

Reading the opinion letter in that fashion, and in pertinent part, the letter clearly conveys that the plaintiff presented for treatment at the defendants' facility on August 12 and September 5, 2012, and that he was seen by the defendant Dr. Jose Rivera, who was under the supervision of, inter alia, the defendant, Dr. Reynolds. The letter finds that the plaintiff underwent certain procedures on September 19 and 26, 2012, and that the performance of the defendants was in extreme departure from the standard of care. The letter describes in particular medical terms how the treatment breached the standard of care.

" [A] written opinion satisfies the " detailed basis" requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider's opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care." Wilcox v. Schwartz, 303 Conn. 630, 643, 37 A.3d 133 (2012). The court finds that the information in the letter meets the legal standard.

III

For all of the foregoing reasons, the court grants the motion to dismiss of the defendant, Edward Reynolds, Jr., D.D.S, on the first ground for dismissal only. Accordingly, the Third Count of the plaintiff's complaint is dismissed, without prejudice.