Opinion
No. NNH CV 11-6018319
October 18, 2011
MEMORANDUM ON MOTION TO DISMISS (#103)
This action concerns allegations of medical malpractice. Specifically, the plaintiff, Yolanda Xicohtencatl, alleges that the defendant, Yale New Haven Hospital, negligently provided treatment by failing to diagnose her breast cancer in September of 2007. The plaintiff previously brought suit against the defendant in January of 2009 alleging similar claims of medical malpractice for failure to detect her breast cancer. That complaint was dismissed by the court, Xicohtencatl v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 09 5026925 (January 8, 2010, Wilson, J.) ( 49 Conn. L. Rptr. 156), because it was found that the author of the written opinion letter, an obstetrician/gynecologist, was not a similar healthcare provider to the defendant's physician's assistant who allegedly provided the negligent care.
The summons in the present case is dated January 7, 2011, with a return date originally set for March 1, 2011. As attested to by the marshal's return, process was served upon the defendant on February 3, 2011. The plaintiff filed its complaint and summons with the court on March 2, 2011. The plaintiff, in her complaint, alleges that the defendant is a "health care provider" and "deviated from the applicable standard of care" in its treatment of the plaintiff, whereby she suffered injuries as a result including that her "chance of cure" and "chance of effective surgical and medical therapy has been reduced." (Complaint [Compl.] ¶¶ 1, 3, 11, 14-15.) The complaint alleges that the plaintiff "was examined and evaluated by a physician's assistant." (Compl. ¶ 5.)
The plaintiff did not attach the marshal's return at the time of filing the summons and complaint, but later filed the marshal's return of service on March 17, 2011.
The defendant filed its appearance in the matter on March 3, 2011, and contemporaneously filed a motion for extension of time, up to and including May 1, 2011, in which to respond to the plaintiff's complaint. The extension of time was granted by this court on March 16, 2011. On April 5, 2011, the defendant filed the present motion to dismiss, with accompanying memorandum of law in support. The defendant moves to dismiss this action because the court lacks personal jurisdiction over the defendant. Specifically, the defendant moves to dismiss pursuant to General Statutes § 52-190a because the plaintiff "failed to attach to her complaint a written opinion from a similar health care provider that there appears to be evidence of medical negligence. Since the plaintiff has not complied with § 52-190a (a), the defendant's motion to dismiss should be granted."
The defendant also claims that the complaint should be dismissed because the plaintiff failed to comply with § 52-46a, which requires that process in civil actions be returned at least six days before the listed return date. As the plaintiff did not comply with the requisites of 52-190a in filing the action, this further claim is not addressed.
On June 23, 2011, the plaintiff filed an objection to the motion to dismiss. The objection from the plaintiff does not address the actual merits of the motion to dismiss. Instead, the plaintiff counters the present motion to dismiss with a motion to stay the proceedings "pending the resolution of an action between these parties recently filed in Federal Court."
The motion to stay is not addressed in this memorandum. The defendant filed its motion to dismiss prior to the plaintiff's motion to stay and has properly raised a question regarding the jurisdiction of the court which must be first addressed. See Costanzo v. Hamden, 18 Conn.App. 254, 258, 557 A.2d 1279 (1989) ("A question relating to jurisdiction . . . [o]nce raised . . . must be acted upon by the court").
On June 27, 2011, the court heard oral argument from the parties. Thereafter, on June 30, 2011, three days after oral argument and just one week after requesting a motion to stay, the plaintiff subsequently made three filings with the court: (1) a motion for leave to amend its complaint; (2) an amended complaint, containing the same allegations, but with a revised return date listed as March 8, 2011, and; (3) a written opinion letter, dated December 15, 2008, from an obstetrician/gynecologist opining that the defendant's physician assistant was negligent in treating the plaintiff. The plaintiff, in its motion to amend, states that these filings address "defects raised in the defendants' motion to dismiss, specifically, to attach a physician's opinion certificate that was omitted inadvertently from the service copy of the complaint, but was attached to the complaint that commenced the underlying action; and, second, changing the return date."
The defendant, on July 18, 2011, filed an opposition to the plaintiff's motion to amend. The defendant argues that the motion for leave to amend the complaint should be denied because the court "must rule upon [the motion to dismiss] before entertaining any amendments to the complaint." It nonetheless argues that even if the court allows the amendment, the amended complaint should still be dismissed because the appended opinion letter is the same letter filed in the previously dismissed suit. In support, the defendant attaches a copy of the healthcare provider's written opinion letter which was submitted in the previous case.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). Specifically, pursuant to Practice Book § 10-31(a), "[t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).
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 . . . 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 . . . 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 . . . The claimant . . . shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate."
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." This statute "requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers." Bennett v. New Milford Hospital, 300 Conn. 1, 25, 12 A.3d 865 (2011).
In the present case, the plaintiff's claims are grounded in medical negligence against a health care provider. Thus, by the plain language of § 52-190a(a), the plaintiff was required to obtain, and file with its complaint, a written opinion from a similar health care provider to the defendant's physician assistant. There is no dispute in the present case that the plaintiff failed to do so at the time of filing its original complaint. However, the plaintiff later amended its complaint to attach an existing opinion letter from an obstetrician/gynecologist which it stated "was omitted inadvertently from the service copy of the complaint, but was attached to the complaint that commenced the underlying action."
The inadvertent failure to attach a written opinion letter was previously discussed by the Appellate Court. The court stated that "Given the fallibility existing in the legal profession . . . 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." Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813 (2009). The defendant itself concedes that the opinion letter was in existence at the time of commencement of this suit; in fact it is the basis for its argument for dismissal because the opinion letter is the same as filed in the previously dismissed suit.
Thus, in the court's discretion, the amended complaint and corresponding written opinion letter will be considered in regards to this motion to dismiss. However, despite the plaintiff's amendments, it has failed to confer jurisdiction over the defendant upon the court. As in the prior case, the plaintiff has failed to comply with § 52-190a(a) because its written opinion letter is not from a comparable healthcare provider. The complaint in this action alleges that the plaintiff "was examined and evaluated by a physician's assistant." Yet, the opinion letter attached to the amended complaint is again from an obstetrician/gynecologist who opined that the treatment provided by the defendant's physician assistant employee was negligent; the exact same healthcare providers compared in the previously dismissed case. Despite the passage of over a year from its prior suit, an obstetrician/gynecologist is still not a similar or "comparable healthcare provider" to a physician assistant under §§ 52-190a and 52-184c.
Thus, for substantially the same reasoning as set forth in Xicohtencatl v. Yale New Haven Hospital, supra, 49 Conn. L. Rptr. 156, the plaintiff's amended complaint is dismissed.