Opinion
CV186048099S
10-04-2019
Joann RICCIO, Executrix of the Estate of Theresa Riccio v. The BRISTOL HOSPITAL, INC.
UNPUBLISHED OPINION
OPINION
Morgan, J.
This is the second medical malpractice action (Riccio II) brought by the plaintiff, Joann Riccio, executrix of the estate of Theresa Riccio, wherein it is alleged that the defendant The Bristol Hospital, Inc., negligently caused the death of the-plaintiff’s decedent. On-September-7, 2018, the court (J. Moore, J.) dismissed the first action (bearing Docket No. HHB-CV-18-6044405-S and referred to herein as Riccio I) for lack of personal jurisdiction because the plaintiff failed to file with her complaint legally sufficient medical opinion letters as required by General Statutes § § 52-190a(a) and 52-184c. More specifically, the Riccio I court held that under Lucisano v. Bisson, 132 Conn.App. 459, 466, 34 A.3d 983 (2011) (Lucisano), and Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 560-61, 36 A.3d 297 (2012) (Bell), the submitted opinion letters were legally insufficient because neither disclosed the author’s professional qualifications. The plaintiff did not appeal the court’s dismissal of Riccio I.
General Statutes § 52-190a(a) provides in relevant part: "No civil action ... 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 ... 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 or 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 or the claimant’s attorney, ... shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion."
General Statutes § 52-184c(a) through (d) provides:
(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, as defined in section 52-184b, 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.
(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself [or herself] out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience 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.
(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 [or herself] 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 [or her] 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 [or she]: (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.
In Riccio I, the plaintiff alleged that the institutional defendant, The Bristol Hospital, Inc., negligently acted through various unidentified employees, agents, and/or servants, including, but not limited to, physicians, nurses, and other medical professionals participating in the decedent’s care. Pl.’s Compl. 3-4, ¶¶18, 23. In its September 7, 2018 order dismissing Riccio I, the court stated: "It is important to note that the complaint is brought only against an institution, The Bristol Hospital, Inc., and to note that the allegations in the complaint invoke a vast spectrum of medical issues, touching upon such issues as elevated creatinine, hypoglycemia, elevated levels of lactic acids, various infections with septic shock, congestive heart failure, kidney disease, high blood pressure, internal bleeding, imbalanced levels of blood coagulation and gastric ulcers. In short, the brush of allegations paints very broadly ... Because of the shotgun style allegations of negligence against the defendant hospital, which may implicate five to ten areas of medical practice within the hospital, it is especially important to know the qualifications of each opinion author so that the court may determine whether each author is a ‘similar health care provider qualified to render an opinion as to the standard of care owed by the defendant.’" (Citations omitted.) Order No. 111.00 (Moore, J.), pp. 1-2, in ¶¶3, 7.
Approximately one month after Riccio I was dismissed, the plaintiff commenced this action under the accidental failure of suit statute, General Statutes § 52-592. In her complaint, the plaintiff alleges that Riccio I was dismissed due to the plaintiff’s "mere mistake or inadvertence" in failing to include the credentials of the experts in the opinion letters attached to the original complaint.
General Statutes § 52-592(a) provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form ... the plaintiff ... may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action ..." (Emphasis added.)
By motion dated January 8, 2019, the defendant moved to dismiss Riccio II for lack of subject matter jurisdiction on the grounds that: (1) Riccio I was not timely commenced due to the plaintiff’s failure to serve the defendant with a legally sufficient opinion letter prior to the expiration of the applicable statute of limitations established by General Statutes § 52-555(a); and (2) the dismissal of the plaintiff’s original action, Riccio I, was not a "matter of form" within the meaning of § 52-592 and, thus, cannot be "saved" under the accidental failure of suit statute. By order dated July 19, 2019, the court addressed and rejected the defendant’s first argument, but deferred ruling on the second argument pending an evidentiary hearing. See Order No. 115.02 (Morgan, J.).
General Statutes § 52-555(a) provides in relevant part: "[A]ny action ... for injuries resulting in death ... shall be brought ... within two years from the date of death ..."
Ordinarily, a motion to dismiss is not the appropriate procedural vehicle for challenging the applicability of § 52-592(a), "the proper challenge being by way of a properly pleaded special defense ..." LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn . 906, 868 A.2d 747 (2005). Where, however, as here, the plaintiff does not object to the defendant’s use of a motion to dismiss to challenge the applicability of § 52-592, the court may properly consider the motion to dismiss. See id.
"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 [that] are well pleaded, invokes the existing record and must be decided [on] that alone." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10-11, 12 A.3d 865 (2011). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. Noncompliance with the time limitations in § 52-555 deprives the court of subject matter jurisdiction. See Angersola v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 264, 193 A.3d 520 (2018); Ecker v. West Hartford, 205 Conn. 219, 232-33, 530 A.2d 1056 (1987).
Riccio I was commenced by writ, summons, and complaint dated April 27, 2018, and returned to the court on May 3, 2018. The two-year statute of limitations for wrongful death actions, set out in § 52-555, having been extended ninety days pursuant to § 52-190a(b), expired on May 11, 2018. Riccio II was served upon the defendant on September 27, 2018, and returned to the court on October 9, 2018, approximately five months after the statute of limitations had expired. Consequently, this action is time barred unless § 52-592 applies. "Deemed a ‘saving statute, ’ § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations ... In order to fall within the purview of § 52-592, however, the original lawsuit must have failed for one or the reasons enumerated in the statute." (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). Section 52-592 is "intended to promote the strong policy favoring the adjudication of cases on their merits rather than the disposal of them on the grounds enumerated in § 52-592(a) ... [The court] note[s], however, that this policy is not without limits. If it were, there would be no statutes of limitations. Even the saving statute does not guarantee that all plaintiffs have the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain period of time." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 355, 63 A.3d 940 (2013) (Santorso).
General Statutes § 52-190a(b) provides: "Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
When a medical malpractice action has been dismissed pursuant to § 52-190a(c) for failure to supply a satisfactory opinion letter by a similar health care provider as required by § 52-190a(a), the Supreme Court has held that a plaintiff may commence an otherwise time barred new 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 ... was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his [or her] attorney." Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 56, 12 A.3d 885 (2011) (Plante).
"[I]n determining as a factual matter whether the failure to supply an opinion letter authored by a similar health care provider pursuant to § 52-190a(a) is not so ‘egregious’ as to be considered a matter of form subject to § 52-592(a), the trial court cannot ignore the qualifications of the opinion letter’s author. Such consideration will have the effect of alleviating some of the ‘harshness’ of the legislature’s strict requirement that only ‘similar health care providers’ may author opinion letters, which might well result in the dismissal of otherwise meritorious medical malpractice actions on technical grounds, while still achieving the purpose of § 52-190a, namely, protecting health care providers from frivolous malpractice actions ... Indeed, that the opinion letter author might well be qualified to testify at the trial of the action pursuant to § 52-184c(d), regardless of the fact that he or she is not a similar health care provider as strictly defined by § 52-184c(b) or (c) ... is one such factor that a trial court reasonably might consider in making the factual determinations attendant to a plaintiff’s invocation of the protections of § 52-592(a)." (Citations omitted; footnote omitted.) Plante, supra, 300 Conn. 54-55. "[T]he [plaintiff] must satisfy all of the criteria in § 52-592 in order to prevail ..." See Vessichio v. Hollenbeck, 18 Conn.App. 515, 519, 558 A.2d 686 (1989); see also Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998) ("Whether ... [§ 52-592] applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a ‘matter of form’ ..." [footnote omitted]).
The defendant argues that because appellate case law clearly established more than six years prior to the commencement of Riccio I that the professional qualifications of the author must be set forth in the opinion letter, the plaintiff’s counsel’s decision to file suit with deficient opinion letters was not the result of "mistake, inadvertence or excusable neglect." In response, the plaintiff argues: (1) that her failure to list the credentials of the experts in the opinion letters was merely a scrivener’s error; (2) that she met the intent of the law because both experts are properly credentialed for this case; and (3) that her failure to enumerate the experts’ credentials in the opinion letters was simply a "matter of form" due to "mistake, inadvertence or excusable neglect." For the reasons set forth below, the court finds that the plaintiff has not demonstrated that Riccio I was dismissed due to a "matter of form" within the meaning of § 52-592.
On August 22, 2019, the court conducted an evidentiary hearing on the issue of whether § 52-592 applies to this action. The sole witness was Joseph P. Zeppieri, one of the plaintiff’s lawyers in both Riccio I and Riccio II. Attorney Zeppieri’s co-counsel in both actions, Kevin C. Ferry, also attended the hearing but he did not testify. Based upon the evidence adduced at the hearing and a review of the relevant statutes, case law, and record in Riccio I, the court finds the following facts.
Attorney Zeppieri began practicing law in 2006. Prior to attending law school, he practiced medicine for more than thirty years. Attorney Zeppieri has been involved in medical malpractice cases since his admission to the bar. Since 2012, Attorney Zeppieri has represented clients in five medical malpractice actions and has joined with other counsel in a sixth action.
Section 52-190a was enacted in 1986. See Public Acts 1986, No. 86-338, § 12. In 2005, the legislature amended § 52-190a to require the filing of a written and signed opinion letter by a similar health care provider. See Public Acts 2005, No. 05-275, § 2. In 2011, our Appellate Court held in Lucisano, supra, 132 Conn.App. 468, that "the language of § 52-190a, read in the context of § 52-184c, clearly and unambiguously requires that the qualifications of the opinion letter author be set forth" in the opinion letter. The court’s holding was reaffirmed a few months later in Bell, supra, 133 Conn.App. 561.
Attorney Zeppieri became involved in Riccio I at the behest of Attorney Ferry. Attorneys Ferry and Zeppieri agreed that Attorney Zeppieri would find the experts necessary to file Riccio I. To that end, Attorney Zeppieri solicited and obtained two opinion letters, one dated February 2, 2018, and the other dated March 8, 2018. Neither opinion letter sets forth the professional qualifications of the respective opining health care provider. Attorney Zeppieri provided both letters to Attorney Ferry. Attorney Ferry thereafter signed the complaint and the certificate of reasonable inquiry to which the opinion letters were appended, and filed the action with the court. Although Attorney Zeppieri’s name appears below Attorney Ferry’s signature block on the complaint and certificate of reasonable inquiry, Attorney Zeppieri did not file an appearance in Riccio I until a month after the action had been returned to court.
As noted by the court in its September 7, 2018 order dismissing Riccio I: "The only passing nod to the qualifications of either letter writer is a portion of the unredacted letterhead in the second letter attached, which contained the phrase ‘Orthopedics Medical Surgical Legal Nurse Consultant’ encircling a caduceus blended with the scales of justice." Order No. 111.00 (Moore, J.), p. 1, ¶2.
On June 28, 2018, the defendant, relying upon Lucisano and Bell, moved to dismiss Riccio I for lack of personal jurisdiction on the ground that the opinion letters were legally insufficient because neither supplied the professional qualifications of the authors. On August 28, 2018, the plaintiff filed an objection to the motion in which she acknowledged that the credentials of the medical professionals were not included in the two opinion letters, but argued that the letters were legally sufficient nonetheless. While the motion to dismiss was pending in Riccio I, the plaintiff attempted to amend her complaint by submitting revised opinion letters. The court denied the plaintiff’s request to amend the complaint; see Ugalde v. Saint Mary’s Hospital, Inc., 182 Conn.App. 1, 5-6, 188 A.3d 787 (amendments to legally insufficient opinion letters are permitted only if they are sought prior to the expiration of the statute of limitations), cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018); and granted the defendant’s motion to dismiss the action because neither of the opinion letters disclosed the authors’ qualifications.
Prior to filing Riccio I, Attorney Zeppieri had not read the Appellate Court’s decisions in Lucisano, supra, 132 Conn.App. 459, or Bell, supra, 133 Conn.App. 548. He only became aware of those decisions when the defendant filed its motion to dismiss in Riccio I. Attorney Zeppieri acknowledged that it was a mistake not to have been aware of controlling case law before commencing Riccio I; he, however, considers his error an insubstantial technical mistake. Although Attorney Zeppieri was primarily responsible for ensuring compliance with § 52-190a, Attorney Ferry also shared in that responsibility. The scope and extent of Attorney Ferry’s involvement in the review of the opinion letters or his knowledge of the Appellate Court’s holdings in Lucisano and Bell is unknown. Attorney Ferry declined the court’s invitation to testify at the evidentiary hearing and the defendant’s counsel did not elicit any testimony from him. The parties did not introduce any other evidence at the hearing.
Turning to the plaintiff’s arguments, the court rejects the notion that the plaintiff’s failure to file legally sufficient medical opinion letters in Riccio I was a scrivener’s error. First, the plaintiff offered no evidence to support this claim. As our courts have repeatedly held, the representations of counsel are not evidence. See, e.g., Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); Norberg-Hurlburt v. Hurlburt, 162 Conn.App. 661, 670, 133 A.3d 482 (2016). Second, a "scrivener’s error," also known as a "clerical error," is defined as "[a]n error resulting from a minor mistake or inadvertence and not from judicial reasoning or determination; esp., a drafter’s or typist’s technical error that can be rectified without serious doubt about the correct reading. Among the numberless possible examples of clerical errors are omitting an appendix from a document; typing an incorrect number; mistranscribing or omitting an obviously needed word; and failing to log a call." Black’s Law Dictionary (11th Ed. 2019); see also State v. Piekos, 3 Conn.Cir.Ct. 278, 279, 282, 212 A.2d 836 (1965) (omission of the letter ‘a’ after the numerals ‘14-227’ in information clearly charging offense of driving under the influence of intoxicating liquor is in category of "clerical error"). Dating an opinion letter "2009" when it was actually drafted in 2019 is a scrivener’s error. Failing to include any information in an opinion letter about the author’s qualifications is not a scrivener’s error.
The plaintiff’s second argument, i.e., that she met the intent of the law because both experts are properly credentialed, is equally unavailing. The plaintiff filed no affidavits or other documentation in opposition to the motion to dismiss and offered no evidence at the August 22 hearing as to the opinion letter authors’ qualifications. Consequently, the court cannot determine whether the experts who authored letters in Riccio I were properly credentialed or whether the intent of § 52-190a was met, namely, protecting health care providers from frivolous malpractice actions.
Finally, the plaintiff contends that her failure to enumerate the experts’ credentials in their opinion letters was simply a matter of form due to mistake, inadvertence, or excusable neglect. The court disagrees. As found previously, Attorney Zeppieri practices in the complex, vigorously contested area of medical malpractice law. He undertook to obtain opinion letters from experts for use in a wrongful death medical malpractice action. Before undertaking that representation, he failed to read controlling Appellate Court case law. After Lucisano, there could be no doubt that it was incumbent upon the plaintiff to include sufficient qualifications of the author in the opinion letter to demonstrate compliance with § 52-190a. Had Attorney Zeppieri read Lucisano or Bell, he would have known that the opinion letters he solicited and obtained for Riccio I were legally insufficient and would render the action subject to dismissal. Attorney Zeppieri offered no explanation for his misconduct. Likewise, Attorney Ferry did not explain his involvement in the decision to file Riccio I with clearly deficient opinion letters.
The adequacy of a "similar health care provider" opinion letter is one of the most frequently litigated pretrial issues in medical malpractice actions. Given the law in Connecticut at the time Riccio I was commenced, the plaintiff’s counsel reasonably could not have believed that the opinion letters they supplied complied with § 52-190a. Counsel’s admitted failure to read and comply with controlling appellate precedent, decided more than six years before Riccio I was filed, is egregious, inexplicable, and inexcusable conduct.
Our Supreme Court has twice held that § 52-592 did not save a medical malpractice action that was previously dismissed for failure to comply with § 52-190a. In Plante, supra, 300 Conn. 44-45, the court found that the plaintiff’s lack of diligence in selecting an appropriately qualified health care provider to author the written opinion letter could "only be characterized as blatant and egregious conduct [that] was never intended to be condoned and sanctioned by the ‘matter of form’ provision of § 52-592." (Emphasis omitted; internal quotation marks omitted.) In Santorso, supra, 308 Conn. 358, the court agreed with the trial court’s finding that "[i]t [could not] be said that counsel’s failure to file a good faith certificate and opinion letters in [the first action] was the result of ‘mistake, inadvertence, or excusable neglect.’" In both Plante and Santorso, the plaintiff’s action was ultimately barred by the applicable statute of limitations because it could not be saved by the accidental failure of suit statute. Plante, supra, 300 Conn. 49-58; Santorso, supra, 308 Conn. 358.
Here, the court finds on the facts before it that the plaintiff’s counsel’s lack of diligence in knowing and complying with Appellate Court precedent is blatant and egregious conduct that was not intended to be condoned and sanctioned by the "matter of form" provision of § 52-592. Simply put, the plaintiff’s counsel’s ignorance of the law in this case does not constitute excusable neglect. "The familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one, are founded upon public policy and in necessity, and the idea [behind] them is that one’s acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men’s [and women’s] minds." (Internal quotation marks omitted.) Provident Bank v. Lewitt, 84 Conn.App. 204, 209-10, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 580 (2004). Moreover, the plaintiff’s counsel failure to provide this court with evidence as to the qualifications of the authors of the Riccio I opinion letters precluded the court from considering whether the authors are "similar health care providers" as defined by § 52-184c(b) or (c), or whether either might be otherwise qualified to testify at the trial of the action pursuant to § 52-184c(d). See Plante, supra, 300 Conn. 55.
On the evidence before it, the court cannot find that the dismissal of Riccio I was the result of mistake, inadvertence, or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or her attorneys. Having failed to meet her burden of demonstrating that the dismissal of Riccio I was a matter of form, the plaintiff cannot avail herself of the accidental failure of suit statute. Riccio II was commenced five months after the statute of limitations expired. Thus, the action is time barred by § 52-555, and the court lacks subject matter jurisdiction over the plaintiff’s medical malpractice claim. The defendant’s motion to dismiss is therefore GRANTED.