Carpenter v. Daar ( 2023 )

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SHANE J. CARPENTER v. BRADLEY
J. DAAR ET AL.
(SC 20524)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 52-190a (a)), a complaint sounding in medical malprac-
tice must be accompanied by a good faith certificate and ‘‘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 plaintiff sought to recover damages from the named defendant, D, a
dentist, and D’s practice, P Co., for malpractice in connection with a
root canal surgery D performed on the plaintiff. The plaintiff alleged
that, during the surgery, D negligently failed to diagnose and treat an
infection in the plaintiff’s tooth and that, as a result, the plaintiff suffered
a serious infection that required additional medical care, surgery, and
dental treatment. The plaintiff attached to his complaint a good faith
certificate and an opinion letter from S, an endodontist, along with a
description of S’s credentials in endodontics. In his complaint, the plain-
tiff alleged that S was a ‘‘similar health care provider,’’ as defined by
statute (§ 52-184c (c)), to D, who the plaintiff alleged had held himself
out as a specialist in endodontics. In support of that allegation, the
plaintiff quoted text from P Co.’s website indicating that D had completed
hundreds of hours in training in endodontics, which the website
described as dealing with tissues and structures inside the tooth. The
defendants moved to dismiss the action on the ground that the opinion
letter did not comply with §§ 52-190a (a) and 52-184c insofar as it failed
to establish that S was a ‘‘similar health care provider’’ to D, who was
a general dentist and not a specialist in endodontics. The defendants
asserted that S was not a ‘‘similar health care provider’’ under the
definition of that term in § 52-184c (c) because D was not a specialist
in endodontics and did not hold himself out to be one, or the definition
of that term in § 52-184c (b), which applies to nonspecialists, because
D was a practitioner of general dentistry and S had not practiced or
taught general dentistry within the five years preceding the date of the
incident giving rise to the plaintiff’s claim. The defendants attached to
their motion an affidavit from D, in which he attested that he is a general
dentist and not a specialist in endodontics or holding himself out as
such a specialist. The plaintiff objected to the motion to dismiss and
reiterated the claim made in his complaint that D had held himself out
to be a specialist in endodontics and that S was therefore a similar
health care provider under § 52-184c (c). The plaintiff did not dispute
the facts set forth in D’s affidavit, and, rather than request leave to
amend his complaint to attach a new or amended opinion letter, the
plaintiff attempted to cure the allegedly defective opinion letter by sub-
mitting, as an exhibit to his objection to the motion to dismiss, a supple-
mental affidavit in which S further elaborated on his credentials. The
trial court granted the motion to dismiss and rendered judgment for the
defendants. The court concluded that, because the plaintiff had not
disputed the facts in D’s affidavit, the court was not required to conclu-
sively presume the validity of the allegations in the complaint. The trial
court also concluded that D was not a specialist, as that term was
defined in § 52-184c (c), and, therefore, any opinion from a similar health
care provider was required to come from a general dentist. In addition,
the trial court rejected the plaintiff’s alternative argument that S was
qualified as a similar health care provider under the nonspecialist defini-
tion in § 52-184c (b). The Appellate Court affirmed the trial court’s
judgment, relying in part on Morgan v. Hartford Hospital (301 Conn.
388), which held that the failure to timely file a motion to dismiss,
pursuant to § 52-190a (c), waives any objection to the adequacy of the
opinion letter and that the opinion letter implicates the court’s personal
jurisdiction for purposes of the procedures governing the motion to
dismiss. The Appellate Court reasoned that, because the opinion letter
is a part of civil process for purposes of obtaining personal jurisdiction,
the plaintiff could not cure any deficiencies in the purportedly defective
opinion letter by way of a supplemental affidavit but, instead, was
required to amend his complaint. The Appellate Court also agreed that
the opinion letter itself did not contain sufficient information to demon-
strate that S was a similar health care provider to D under § 52-184c
(c) because D’s affidavit indicated that D was a general dentist and that
he performed the root canal in that capacity, rejecting the plaintiff’s
reliance on the statements on P Co.’s website about D’s training in
endodontics. In addition, the Appellate Court determined that the opin-
ion letter did not establish that S was a similar health care provider to
D under § 52-184c (b) and affirmed the trial court’s judgment, from
which the plaintiff, on the granting of certification, appealed to this
court. Held:
1. This court determined that Morgan was incorrectly decided and, accord-
ingly, overruled Morgan to the extent that it held that the opinion letter
required by § 52-190a implicates a court’s personal jurisdiction:
a. Nothing in the text or legislative history of § 52-190a suggested that
the legislature contemplated that the opinion letter would affect a court’s
personal jurisdiction over a defendant:
The legislature’s failure to use terms pertaining to jurisdiction, service,
or process in subsection (c) of § 52-190a, which provides that dismissal
is the remedy for failing to comply with the statute’s opinion letter
requirement, was strong textual evidence that the legislature did not
intend for the opinion letter and good faith certificate to implicate a
court’s personal jurisdiction, especially when the legislature uses such
terms in other statutes governing personal jurisdiction and the service
of process in a wide variety of contexts.
Nothing in the legislative history of § 52-190a supported the conclusion
that the statute implicates a court’s personal jurisdiction, as that history
demonstrated that the opinion letter requirement, enforced by way of a
motion to dismiss, was intended to prevent frivolous medical malpractice
actions by addressing the perceived problem that attorneys were misrep-
resenting the extent to which a factual basis existed for their good faith
in bringing those actions, not to serve as a sword to defeat otherwise
facially meritorious claims, and it also indicated that it was understood
that any dismissal under the statute was to be without prejudice.
Moreover, in Morgan, this court relied on a false logical premise insofar
as it assumed that, because this court previously had held that the good
faith certificate did not implicate a court’s subject matter jurisdiction,
dismissal under § 52-190a necessarily related to a court’s personal juris-
diction, as it failed to account for the numerous nonjurisdictional grounds
on which a court may dismiss a malpractice case.
b. The doctrine of stare decisis did not counsel against overruling the
holding in Morgan that the opinion letter required by § 52-190a implicates
a court’s personal jurisdiction:
There was not a strong case that the legislature had acquiesced in the
construction of § 52-190a (a) expressed in Morgan because, in the more
than eleven years since this court decided that case, the legislature had
made only a single, minor amendment to § 52-190a, and that amendment
was to a different subsection of the statute and was not germane to the
opinion letter requirement.
Moreover, developments in the law since Morgan justified this court’s
departure from precedent and illustrated the extent to which the court’s
holding as to personal jurisdiction had led to results that were at odds
with the legislature’s intent in enacting § 52-190a, as Morgan elevated
the credentials of the opinion letter’s author to a jurisdictional prerequi-
site and spawned a body of case law that imposed substantially greater
burdens on plaintiffs than the legislature intended by allowing potentially
curable, technical, prelitigation defects to defeat otherwise meritorious
medical malpractice actions, sometimes after several years of litigation.
c. This court clarified that the rules of practice (§§ 10-30 and 10-31)
governing motions to dismiss in civil matters and case law governing
the pleading and proof of jurisdictional facts are not applicable to motions
to dismiss filed under § 52-190a (c), the inquiry under § 52-190a is solely
framed by the allegations in the complaint, the only question at the
motion to dismiss stage is whether the author of the opinion letter is a
similar health care provider to the defendant, in view of their respective
qualifications as pleaded in the complaint and described in the opinion
letter, to the extent that the opinion letter is legally insufficient or defec-
tive under § 52-190a, trial courts retain the authority to permit amend-
ments to or supplementation of a challenged letter in response to a
motion to dismiss, and this court’s holding in Morgan that a motion to
dismiss for failure to file an opinion letter pursuant to § 52-190a is waiva-
ble, including by inaction, remained good law.
2. The Appellate Court incorrectly concluded that the allegations in the
plaintiff’s complaint and the attached opinion letter were legally insuffi-
cient to establish that S was a similar health care provider to D within
the meaning of § 52-184c (c), and, accordingly, that court improperly
upheld the trial court’s granting of the defendants’ motion to dismiss:
Although the complaint did not use certain talismanic words to indicate
that D was board certified or specialized in endodontics, a broad and
realistic reading of the allegations in the complaint, including that D
‘‘held himself out as a practitioner’’ in the field of endodontics and the
quoted language from P Co.’s website, as well as the opinion letter’s
recitation of S’s board certification and extensive credentials as a prac-
titioner and professor of endodontics, supported the conclusion that S
was a ‘‘similar health care provider’’ to D, as that term was intended
by the legislature when it amended § 52-190a to ensure that there are
nonfrivolous factual bases for malpractice claims brought in this
state’s courts.
Argued May 2, 2022—officially released February 1, 2023*
Procedural History
Action to recover damages for the defendants’ alleged
medical malpractice, brought to the Superior Court in
the judicial district of Middlesex, where the court,
Domnarski, J., granted the defendants’ motion to dis-
miss and rendered judgment thereon, from which the
plaintiff appealed to the Appellate Court, Keller, Elgo
and Pellegrino, Js., which affirmed the trial court’s judg-
ment, and the plaintiff, on the granting of certification,
appealed to this court. Reversed; further proceedings.
Kyle J. Zrenda, with whom was Theodore W. Heiser,
for the appellant (plaintiff).
Beverly Knapp Anderson, for the appellees
(defendants).
Alinor C. Sterling, Jeffrey W. Wisner, and Sarah
Steinfeld filed a brief for the Connecticut Trial Lawyers
Association as amicus curiae.
Liam M. West and Ryan T. Daly filed a brief for the
Connecticut Defense Lawyers Association as amicus
curiae.
Opinion
ROBINSON, C. J. This certified appeal requires us
to consider the extent to which our case law, most
significantly, Morgan v. Hartford Hospital, 301 Conn.
388, 21 A.3d 451 (2011), has resulted in the deviation of
Connecticut’s good faith opinion letter statute, General
Statutes § 52-190a,1 from the legislature’s intention that
it ‘‘prevent frivolous [medical] malpractice actions’’ but
not ‘‘serve as a sword to defeat otherwise facially meri-
torious claims.’’ Wilkins v. Connecticut Childbirth &
Women’s Center, 314 Conn. 709, 736 n.9, 104 A.3d 671(2014). The plaintiff, Shane J. Carpenter, appeals, upon
our grant of his petition for certification,2 from the judg-
ment of the Appellate Court upholding the dismissal of
his dental malpractice action against the defendants,
Bradley J. Daar and his business entity, Shoreline Mod-
ern Dental, LLC (Shoreline). Carpenter v. Daar, 199
Conn. App. 367, 369–70, 405, 236 A.3d 239 (2020). On
appeal, the plaintiff claims that the Appellate Court
incorrectly concluded that (1) because the opinion let-
ter implicates the court’s personal jurisdiction, the trial
court should not have considered an affidavit filed by
the plaintiff to supplement a potentially defective opin-
ion letter (supplemental affidavit) as an alternative to
amending the operative complaint, and (2) the author of
the opinion letter, Charles S. Solomon,3 an endodontist,
was not a ‘‘similar health care provider,’’ as defined by
General Statutes § 52-184c,4 to Daar, who is a general
dentist. Our review of the plaintiff’s claims leads us to
confront a more fundamental issue under § 52-190a,
namely, whether this court correctly concluded in Mor-
gan that the opinion letter requirement implicates the
court’s personal jurisdiction for purposes of the proce-
dures attendant to the motion to dismiss. See Morgan
v. Hartford Hospital, supra, 401–402. Having received
supplemental briefing on this issue; see footnote 2 of
this opinion; we conclude that Morgan was wrongly
decided on this point. We now hold that the opinion
letter requirement is a unique, statutory procedural
device that does not implicate the court’s jurisdiction
in any way. We further conclude that, consistent with
this court’s decision in Bennett v. New Milford Hospital,
Inc., 300 Conn. 1, 12 A.3d 865 (2011), for purposes of
the motion to dismiss pursuant to § 52-190a (c), the
sufficiency of the opinion letter is to be determined
solely on the basis of the allegations in the complaint
and on the face of the opinion letter, without resort to
the jurisdictional fact-finding process articulated in, for
example, Conboy v. State, 292 Conn. 642, 651–52, 974
A.2d 669 (2009). Because the opinion letter in the pres-
ent case established that Solomon was a similar health
care provider to Daar under the broadly and realistically
read allegations in the complaint, we conclude that
the plaintiff’s action should not have been dismissed.
Accordingly, we reverse the judgment of the Appel-
late Court.
We briefly summarize the facts and procedural his-
tory of this case, much of which is aptly described in
the opinion of the Appellate Court.5 ‘‘On February 21,
2018, the plaintiff commenced the present action
against the defendants6 . . . . As to dental malprac-
tice, the plaintiff alleged that, on June 16, 2015, during
root canal surgery, Daar negligently failed to diagnose
and treat an infection in the plaintiff’s tooth and that,
as a result, the plaintiff suffered an infection in his
mouth, throat, face and neck that required additional
emergency medical care, hospitalization, oral and neck
surgery and continuing dental treatment. The plaintiff
named Shoreline as a defendant on the basis of vicari-
ous liability for Daar’s negligent treatment.
‘‘Pursuant to § 52-184c (c), the plaintiff further alleged
that Daar held himself out as a specialist in endodontics
on Shoreline’s website by indicating that he had com-
pleted hundreds of hours of training in endodontics and
by providing a general explanation of the nature of that
dental specialty.
‘‘The plaintiff attached to his complaint a good faith
certificate and what he alleged in the complaint to be
a ‘written and signed opinion from a similar health care
provider stating that there appears to be evidence of
negligence by the defendants, a violation of the standard
of care, and providing [a] detailed basis for the forma-
tion of that opinion, along with a supplemental corre-
spondence outlining that similar health care provider’s
qualifications.’ . . . The ‘supplemental correspon-
dence’ attached to the complaint, dated August 10, 2017,
contained information regarding Solomon’s qualifica-
tions to establish that he was a similar health care
provider to Daar.7 The supplemental correspondence,
also authored by Solomon, indicated that he is a gradu-
ate of Columbia University College of Dental Medicine
(Columbia), had been licensed to practice dentistry in
the state of New York, ‘with credentials that would
satisfy the requirement of any other state,’ and received
his ‘specialty [b]oards in [e]ndodontics’ in 1970. It also
stated that Solomon practiced endodontics in New York
for more than forty years, and that for the past eight
years he has been a full-time clinical professor of end-
odontics at Columbia, ‘teaching clinical and didactic
[e]ndodontics.’ ’’ (Citation omitted; footnote added;
footnote altered.) Carpenter v. Daar, supra, 199 Conn.
App. 370–72.
‘‘On April 5, 2018, the defendants moved to dismiss
the present action on the ground that the opinion letter
did not comply with §§ 52-190a (a) and 52-184c because
it failed to demonstrate that Solomon is a similar health
care provider to Daar, who is a general dentist, not a
specialist in endodontics. They argued that, as an endo-
dontist, Solomon is not a similar health care provider
under § 52-184c (b) because Daar is not a specialist in
endodontics and was not holding himself out to be one.
They further argued that Solomon also was not a similar
health care provider under § 52-184c (c) because Daar
is a practitioner of general dentistry and Solomon had
not practiced or taught general dentistry within the
five years preceding June 16, 2017 [i.e., the date of
the incident giving rise to the claim]. In addition to
submitting a memorandum of law in support of the
motion to dismiss, the defendants attached an affidavit
from Daar with other related exhibits.
‘‘In his affidavit, Daar attested that he is a general
dentist and has been licensed by the state of Connecti-
cut to practice dentistry since November, 1982. He indi-
cated that, as a general dentist, he provides such
services as fillings, inlay and onlays, crowns and brid-
ges, dentures, veneers, root canal treatments, simple
extractions, teeth whitening, certain types of orthodon-
tics, mouth guards, and some periodontal treatments.
Daar stated that he performed the root canal treatment
on the plaintiff’s tooth in 2015 in his capacity as a
general dentist. He further indicated that a quotation from
Shore-
line’s website, on which the plaintiff relied in his com-
plaint to support his allegations that Daar was holding
himself out as a specialist in endodontics, was only a
partial excerpt of a sentence, which stated in full: ‘[Daar]
has completed hundreds of hours of training in [e]nd-
odontics, [o]rthodontics, [p]eriodontics, [d]ental
[i]mplants, [s]leep [a]pnea and more.’
‘‘In support of his allegation that Daar held himself
out to be a specialist in endodontics, the plaintiff also
relied on information found on the website related to
Daar’s practice, in particular, information related to
endodontics that was accessed in a portion of the web-
site related to ‘Patient Education’ and ‘Services.’ In his
affidavit, Daar attested that, in the same portion of
the website, eleven additional links appeared. These
included links to the following subjects: educational
videos, cosmetic and general dentistry, emergency care,
implant dentistry, oral health, oral hygiene, oral surgery,
orthodontics, pediatric dentistry, periodontal therapy
and technology.
‘‘The plaintiff filed an objection to the motion to dis-
miss on June 5, 2018. The plaintiff continued to argue
that, as alleged in his complaint and on the basis of
the statements on Shoreline’s website, Daar had held
himself out to be a specialist in endodontics, and, thus,
Solomon, a specialist in endodontics, was a similar
health care provider to Daar pursuant to § 52-184c (c).
The plaintiff did not submit any evidence to dispute
the facts set forth in Daar’s affidavit, which sought to
establish that, at the time of the root canal procedure,
Daar was a general dentist, not a specialist in endodon-
tics or someone holding himself out to be a specialist
in endodontics. The plaintiff did not request leave to
amend his complaint [pursuant to Practice Book § 10-
60] to attach a new or amended opinion letter. Instead,
the plaintiff attempted to cure the alleged defects in
the opinion letter, which the defendants claimed man-
dated a dismissal, by submitting, as an exhibit to his
objection to the motion to dismiss, [the] supplemental
affidavit, executed by Solomon on May 30, 2018, which
further elaborated on his qualifications as a similar
health care provider. In his supplemental affidavit, Solo-
mon attested in relevant part that he is a clinical profes-
sor of dentistry at Columbia, served as the Director of
the Division of Endodontics from 2009 and continued
in that position to 2017, is a Diplomate of the American
Board of Endodontics, past President of the New York
Section of the American College of Dentists and past
President of the New York Academy of Dentistry. He
further attested that (1) he teaches both undergraduate
and postgraduate students in endodontics at Columbia
and that his ‘lectures to undergraduate students involve
general dentistry and the performance of endodontic
procedures, including root canals, by general dentists’;
(2) ‘[t]he present case involves an endodontic proce-
dure performed by a general dentist’; (3) ‘the proper
standards, procedures, and care to be followed is the
subject of my teaching to undergraduate dental students
and has been for more than the last five years’; and (4)
‘[t]he standard of care with respect to the treatment
provided by a general dentist in the scenario presented
in this case and an endodontist is the same.’
‘‘The plaintiff did not withdraw the allegation in his
complaint that, he maintained, alleged that Daar held
himself out to be a specialist. On the basis of the opinion
letter, alone or together with the supplemental affidavit,
the plaintiff argued that, even if Daar is a nonspecialist,
Solomon is a similar health care provider to Daar because,
pursuant to § 52-184c (b), Solomon’s teaching involved
instruction in endodontics as it pertains to the practice
of general dentistry, specifically relevant to root canals,
during the requisite five year period.’’ (Footnotes omit-
ted.) Id., 372–75.
Following oral argument, the trial court issued a
memorandum of decision and granted the defendants’
motion to dismiss. See id., 376–78. ‘‘The [trial] court
. . . analyzed the sufficiency of the opinion letter as
amended by the filing of the supplemental affidavit.’’8
Id., 376. The trial court determined that the allegations
in the complaint rendered applicable ‘‘the nonspecialist
definition in subsection (b) of § 52-184c, rather than
the specialist definition in subsection (c), as alleged by
the plaintiff in his complaint.’’ Id., 377. Citing Labisso-
niere v. Gaylord Hospital, Inc., 182 Conn. App. 445,
453, 185 A.3d 680 (2018), the trial court observed that
‘‘the plaintiff had not provided an affidavit disputing the
facts contained in the defendants’ affidavit in support
of their motion to dismiss and that, under such circum-
stances, the court ‘need not conclusively presume the
validity of the allegations in the complaint.’ The court
concluded that Daar was not a specialist as that term
is defined in § 52-184c (c), and therefore any opinion
from a similar health care provider must come from a
general dentist.’’ Carpenter v. Daar, supra, 199 Conn.
App. 377. After ‘‘reject[ing] the plaintiff’s alternative
argument that Solomon was qualified as a similar health
care provider under the nonspecialist definition in § 52-
184c (b)’’; id.; the trial ‘‘court granted the motion to
dismiss as to Daar. Because the alleged liability of
Shoreline was derivative of the cause of action brought
against Daar, the court . . . granted the motion as to
that defendant as well, and rendered judgment in favor
of both defendants.’’ Id., 378.
The plaintiff appealed from the judgment of dismissal
to the Appellate Court. Id., 369, 378. On appeal, the
plaintiff claimed that the trial court incorrectly ‘‘deter-
min[ed] that his certificate of good faith, specifically,
the accompanying opinion letter, as supplemented by
[the supplemental affidavit], failed to meet the require-
ments of . . . § 52-190a because the author of the opin-
ion letter and supplemental affidavit, [Solomon], was
not a ‘similar health care provider’ as defined in . . .
§ 52-184c.’’ Id., 369. The Appellate Court decided the case
on the basis of two ‘‘interrelated,’’ alternative grounds
for affirmance raised by the defendants. Id., 389; see
id., 405. Specifically, the Appellate Court ‘‘agree[d] with
the defendants’ first alternative ground for affirmance
that the plaintiff, in lieu of amending his complaint,
[could not] cure a § 52-190a (a) defect in the opinion
letter attached to the complaint with information con-
tained in a subsequently filed supplemental affidavit of
the opinion author [when] the plaintiff continue[d] to
maintain that his complaint properly alleged that Daar
was ‘holding himself out as a specialist,’ and the supple-
mental affidavit attempted to provide information that
allegedly qualified Solomon as a ‘similar health care
provider’ pursuant to the nonspecialist definition set
forth in § 52-184c (b).’’ Id., 389–90. On this point, the
Appellate Court emphasized that this court’s decision
in Morgan v. Hartford Hospital, supra, 301 Conn. 388,
rendered the ‘‘opinion letter . . . part of civil process’’
for purposes of obtaining personal jurisdiction; Carpen-
ter v. Daar, supra, 199 Conn. App. 399; and followed
its decision in Gonzales v. Langdon, 161 Conn. App.
497, 517–19, 128 A.3d 562 (2015), in agreeing with the
defendants’ argument that the plaintiff could not use
the supplemental affidavit to cure the deficiencies in
the process. See Carpenter v. Daar, supra, 398–403.
Considering the amendment procedures set forth in
Practice Book §§ 10-59 and 10-60, the Appellate Court
reasoned that the ‘‘essentially unrestricted’’ filing of the
supplemental affidavit ‘‘avoids the limitations a court
must consider before it allows the filing of an amend-
ment to a complaint.’’ Id., 403; see id., 404 (noting that
§ 52-190a does ‘‘not include any savings clause relative
to defective opinion letters, which suggests that the statu-
tory requirements must be more strictly construed’’).
Second, the Appellate Court agreed with the defen-
dants’ argument that ‘‘the opinion letter attached to the
complaint did not contain sufficient information to
demonstrate that Solomon is a similar health care pro-
vider to Daar under the specialist definition of a similar
health care provider in § 52-184c (c),’’ meaning that the
Appellate Court ‘‘necessarily address[ed] and disagree[d]
with the plaintiff’s claim that the [trial] court erred in
determining that the author of the opinion letter was
not a similar health care provider as defined in § 52-
184c (c).’’ Id., 390. The Appellate Court observed that
‘‘the affidavit of Daar submitted in connection with the
defendants’ motion to dismiss supported the conclusion
that he is a general dentist and that the root canal
treatment he performed on the plaintiff was performed
in his capacity as a general dentist.’’ Id., 392. The Appel-
late Court rejected the plaintiff’s reliance on the ‘‘ ‘hun-
dreds of hours’ [of] training’’ in endodontics as ‘‘alleged
to be stated on Daar’s website’’ because ‘‘it [could not]
be specifically determined from this promotional web-
site the exact amount of hours of training [Daar] may
have had in endodontics. The allegation that there is a
statement on the website that Daar completed hundreds
of hours of training in endodontics does not support a
finding that Daar held himself out as an endodontic
specialist. The website actually states that Daar ‘has
completed hundreds of hours of training’ in many sub-
jects. There is a distinction between a general dentist’s
training and experience, including continuing education
and a postdoctoral specialty residency program required
to become a specialist in a recognized dental specialty.’’9
Id., 392–93. Thus, the Appellate Court ‘‘conclude[d] that
the defendants’ informative and promotional website
references did not equate to Daar’s holding himself out
as a specialist in endodontics.’’10 Id., 394. The Appellate
Court then determined that the opinion letter did not
establish that Solomon was a similar health care pro-
vider to Daar under § 52-184c (b) because it established
that Solomon ‘‘taught endodontics for the past eight
years’’ but did not ‘‘demonstrat[e] that [Solomon] had
any active involvement in the practice or teaching of
general dentistry during the requisite five year period.’’
(Emphasis in original.) Id., 396.
On the basis of these conclusions, the Appellate Court
affirmed the trial court’s judgment dismissing the com-
plaint. Id., 405. This certified appeal followed. See foot-
note 2 of this opinion.
On appeal, the plaintiff claims that the Appellate
Court improperly upheld the dismissal of his action
for lack of personal jurisdiction. He contends that the
opinion letter was legally sufficient under § 52-190a
because the ‘‘contents of the complaint adequately
allege that . . . Daar held himself out as a specialist
endodontist . . . Daar’s affidavit failed to adequately
refute those allegations, and the opinion letter estab-
lishes that . . . Solomon,’’ himself a professor of end-
odontics, ‘‘is a similar health care provider to an
endodontic specialist.’’ In response, the defendants con-
tend that the Appellate Court properly relied on Daar’s
affidavit to establish that the plaintiff selected the wrong
health
care provider to author the opinion letter because Daar
is—as a factual matter—a general dentist and not an
endodontist.11
Our review of a trial court’s decision to grant a motion
to dismiss pursuant to § 52-190a is plenary. See, e.g.,
Wilkins v. Connecticut Childbirth & Women’s Center,
supra, 314 Conn. 718.
I
WHETHER THE CONBOY JURISDICTIONAL FACT
ANALYSIS IS APPLICABLE TO THE § 52-190a
INQUIRY
The defendants’ arguments, which rely in substantial
part on factual claims that go beyond the allegations
on the face of the complaint and the opinion letter, beg
the question whether the well established jurisdictional
fact analysis implementing Practice Book §§ 10-30 and
10-31, as articulated in Conboy v. State, supra, 292 Conn.
651–5212 applies in the context of conducting the similar
health care provider inquiry under § 52-190a. See Stan-
dard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d
503 (1983) (observing that ‘‘a determination of whether
sufficient minimum contacts with Connecticut exist is
a fact question’’ in concluding that due process requires
‘‘a trial-like’’ evidentiary hearing when ‘‘issues of fact
are necessary to the determination of a court’s jurisdic-
tion’’). Thus, with the aid of supplemental briefs submit-
ted by the parties and the amicus curiae, the
Connecticut Trial Lawyers Association (trial lawyers); see
footnote
2 of this opinion; we consider, as a threshold matter,
the extent to which the opinion letter requirement is
jurisdictional in nature. This inquiry raises the question
of the continuing vitality of this court’s decision in Mor-
gan v. Hartford Hospital, supra, 301 Conn. 401–402, in
which this court held that, pursuant to Practice Book
§ 10-32,13 the failure to file a timely motion to dismiss
waives any objection to the adequacy of the opinion
letter.
A
Review of Morgan
In concluding in Morgan that the failure to file a
timely motion to dismiss waives any objection to the
adequacy of the opinion letter, this court held that the
opinion letter affects personal jurisdiction. See Morgan
v. Hartford Hospital, supra, 301 Conn. 401–402. This
court determined that the opinion letter necessarily
implicated personal jurisdiction, given its previous con-
clusion in LeConche v. Elligers, 215 Conn. 701, 702–703,
714, 579 A.2d 1 (1990), that the good faith certificate
requirement, later supplemented by the opinion letter,
is not subject matter jurisdictional.14 See Morgan v.
Hartford Hospital, supra, 397–98. This court observed
‘‘that the written opinion letter, prepared in accordance
with the dictates of § 52-190a, like the good faith certifi-
cate, is akin to a pleading that must be attached to the
complaint in order to commence properly the action.’’
Id., 398. The court also observed in Morgan that, in its
then recent decision in Bennett v. New Milford Hospi-
tal, Inc., supra, 300 Conn. 31, which had held that dis-
missal was the mandatory remedy for failure to comply
with the opinion letter statute, this court had ‘‘cited
favorably [to] Votre v. County Obstetrics & Gynecology
Group, P.C., 113 Conn. App. 569, 583–84, 966 A.2d 813,
cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), in
which the Appellate Court held that the failure to follow
the statutory attachment requirements does not impli-
cate a plaintiff’s right to bring a medical malpractice
action . . . [or] affect the court’s power to hear such
actions. Thus, the court in Votre concluded that such
a failure does not implicate the subject matter jurisdic-
tion of the court. . . . In Votre, the Appellate Court
also held that a defendant may waive the statutory
requirements of § 52-190a.’’ (Citation omitted.) Morgan
v. Hartford Hospital, supra, 398–99. In Morgan, how-
ever, the court went a step further and read Votre’s
conclusion as to subject matter jurisdiction necessarily
to ‘‘[support] the proposition that the failure to attach
a sufficient written opinion letter of a similar health care
provider involves in personam jurisdiction’’ because it
is ‘‘fundamental that jurisdiction over a person can be
obtained by waiver.’’15 (Emphasis in original; internal
quotation marks omitted.) Id., 399.
In Morgan, the court also observed that ‘‘the legisla-
ture did not establish a mandatory time limit in § 52-
190a for the filing of a motion to dismiss. It did, however,
establish a mandatory attachment to the complaint in
the form of a written opinion letter from a similar health
care provider. This certificate, therefore, serves as a
precondition to effective service of process for the initi-
ation of a medical malpractice action.’’ Id., 400–401; see
id., 402 (‘‘constru[ing] the term ‘process’ to include . . .
the summons, the complaint and any requisite attach-
ments thereto’’). The court then cited case law concern-
ing the failure to establish personal jurisdiction because
of noncompliance with statutory service requirements
and stated: ‘‘Likewise, the attachment of the written
opinion letter of a similar health care provider is a
statutory prerequisite to filing an action for medical
malpractice. 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.’’16 Id., 401; see id., 402 (‘‘[T]he failure to attach
a proper written opinion letter pursuant to § 52-190a
constitutes insufficient service of process and, there-
fore, Practice Book § 10-32 and its corresponding time
and waiver rule [apply] by [their] very terms. Because
we conclude that the absence of a proper written opin-
ion letter is a matter of form, it implicates personal
jurisdiction.’’ (Footnote omitted.)).
B
Whether Morgan Was Correctly Decided
1
Statutory Analysis of § 52-190a
In determining whether Morgan correctly concluded
that the opinion letter required by § 52-190a implicates
the court’s personal jurisdiction, our analysis begins
with the governing statutory text, as required by Gen-
eral Statutes § 1-2z.17 Section 52-190a (a), which is set
forth in footnote 1 of this opinion, provides in relevant
part: ‘‘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. 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 health care provider expunged, to such cer-
tificate. . . .’’ Subsection (c) of § 52-190a then 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.’’
In reading the statute, we bear in mind that, doctrin-
ally, personal jurisdiction relates to the court’s authority
to render judgment against a particular defendant who
has been haled before it, such as by compliance with
statutorily prescribed methods for serving process, con-
sistent with constitutional due process guarantees.18
See, e.g., Argent Mortgage Co., LLC v. Huertas, 288
Conn. 568, 576, 953 A.2d 868 (2008); Lombard Bros.,
Inc. v. General Asset Management Co., 190 Conn. 245,
250, 460 A.2d 481 (1983); see also, e.g., Commissioner
of Environmental Protection v. Connecticut Building
Wrecking Co., 227 Conn. 175, 195–96, 629 A.2d 1116(1993) (‘‘[a]lthough the Superior Court has general sub-
ject matter jurisdiction . . . it may exercise jurisdic-
tion over a person only if that person has been properly
served with process, has consented to the jurisdiction
of the court or has waived any objection to the court’s
exercise of personal jurisdiction’’ (citations omitted)).
Nothing in the text of § 52-190a suggests that the
legislature contemplated that the opinion letter would
affect the court’s personal jurisdiction over a defendant.
The statute does not use terms pertaining to jurisdic-
tion, service, or process when it provides in subsection
(c) that dismissal is the remedy for failing to comply
with the opinion letter requirement set forth in subsec-
tion (a). See General Statutes § 52-190a (c); see also
Bennett v. New Milford Hospital, Inc., supra, 300 Conn.
28 (‘‘dismissal is the mandatory remedy’’ for failure ‘‘to
file an opinion letter that complies with § 52-190a (a)’’).
As the plaintiff and the trial lawyers point out, the
absence of jurisdictional language puts § 52-190a in
stark contrast to other statutes governing personal juris-
diction and the service of process in a wide variety
of contexts, including those, like § 52-190a, that are
codified in title 52 of the General Statutes, which specifi-
cally concerns civil actions.19 See, e.g., General Statutes
§ 52-45a (‘‘[c]ivil actions shall be commenced by legal
process consisting of a writ of summons or attachment,’’
which ‘‘shall be accompanied by the plaintiff’s com-
plaint’’ (emphasis added)). In contrast to these other
statutes, the absence of the terms ‘‘process,’’ ‘‘service’’
or ‘‘personal jurisdiction’’ in § 52-190a is significant
because we have described them as ‘‘express[ly]’’ impli-
cating the court’s ‘‘personal jurisdiction,’’ insofar as ‘‘the
legislature frequently employs the term ‘service’ when
dictating the necessary procedures by which a court
may gain jurisdiction over a person.’’ Lostritto v. Com-
munity Action Agency of New Haven, Inc., 269 Conn.
10, 32–33, 848 A.2d 418 (2004); see id., 33 (concluding
that 120 day period for commencement of apportion-
ment action implicates personal jurisdiction, rather
than subject matter jurisdiction, given multiple refer-
ences to ‘‘the term ‘service’ ’’); Commissioner of Trans-
portation v. Kahn, 262 Conn. 257, 273–74, 811 A.2d 693(2003) (concluding that trial court’s failure to provide
notice to Commissioner of Transportation, as required
by General Statutes § 13a-76, did not implicate court’s
personal jurisdiction over commissioner in condemna-
tion proceeding because ‘‘absent from the statute is any
reference to ‘service’ or ‘process,’ terms commonly used
in our statutes to dictate the necessary procedure by
which the court obtains jurisdiction over the person’’);
see also Ahrens v. Hartford Florists’ Supply, Inc., 198
Conn. App. 24, 38–40, 232 A.3d 1129 (2020) (concluding
that General Statutes § 52-577a (b), setting forth proce-
dure for third-party product liability claim, implicates
court’s personal jurisdiction because it provides partic-
ular procedure for service of process).
The legislature’s failure to use the terms ‘‘personal
jurisdiction’’ or ‘‘service of process’’ in § 52-190a, when
it so readily uses those terms in other statutes in the
same title governing civil actions, provides strong tex-
tual evidence that the legislature did not intend the
opinion letter and good faith certificate to implicate
the court’s personal jurisdiction. See, e.g., Hartford/
Windsor Healthcare Properties, LLC v. Hartford, 298
Conn. 191, 205, 3 A.3d 56 (2010); see also Commissioner
of Transportation v. Kahn, supra, 262 Conn. 273 (‘‘[i]n
light of the frequency with which the legislature expressly
employs such terms to dictate the means by which
notice must be given, we presume from their absence
that neither service of process nor an order of notice
is required under the statute’’). Although we find strong
support in the text of § 52-190a indicating that the opin-
ion letter and good faith certificate requirements do not
implicate a court’s personal jurisdiction, we neverthe-
less assume that this court’s contrary interpretation of
the statute in Morgan v. Hartford Hospital, supra, 301
Conn. 401–402, is reasonable for purposes of determin-
ing ambiguity in connection with the § 1-2z analysis.
Accordingly, we now turn to extratextual sources,
namely, the legislative history of § 52-190a. See, e.g.,
Wilkins v. Connecticut Childbirth & Women’s Center,
supra, 314 Conn. 718–19.
The legislative history of § 52-190a does not support
Morgan’s construction of the statute as implicating the
court’s personal jurisdiction. The legislature added the
opinion letter requirement to § 52-190a in 2005 as No.
05-275, § 2, of the 2005 Public Acts (P.A. 05-275), which
was part of a comprehensive tort reform effort to
address a perceived crisis resulting from skyrocketing
medical malpractice insurance premiums in high-risk
specialties, in part by deterring frivolous medical mal-
practice actions. See id., 728. Supporters of the opinion
requirement letter viewed it, in the words of then Sena-
tor Andrew J. McDonald, as ‘‘mak[ing] substantial improve-
ments’’ over the statute’s existing good faith certifica-
tion requirement20 in the screening of frivolous medical
malpractice actions because it would demand a detailed
explanation of the requisite good faith basis for the
medical malpractice action. 48 S. Proc., Pt. 14, 2005
Sess., p. 4411; see id., pp. 4410–11; see also Wilkins v.
Connecticut Childbirth & Women’s Center, supra, 314
Conn. 728–30. The opinion letter provision, with
enforcement via a motion to dismiss, addressed the
perceived problem that attorneys were misrepresent-
ing—often ‘‘ ‘innocently’ ’’—the extent to which a fac-
tual basis existed for their good faith in bringing the
action. Wilkins v. Connecticut Childbirth & Women’s
Center, supra, 730.
The only legislative history concerning the nature of
the dismissal for failure to provide a compliant opinion
letter appears in an exchange during a Judiciary Com-
mittee hearing between Senator Edward Meyer and
Attorney Michael D. Neubert, who spoke on behalf of
the Connecticut State Medical Society in support of the
bill. Attorney Neubert did not mention jurisdiction but,
instead, confirmed his understanding that any dismissal
would be without prejudice, given the lack of any
express language in the bill stating that dismissal would
be with prejudice, although he did observe that ‘‘the
[s]tatute of [l]imitations is always an issue.’’ Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 18, 2005
Sess., p. 5552. Significantly, he observed that it would
be easy for plaintiffs to fix potentially noncompliant
opinion letters, observing: ‘‘Let’s say [someone] were
to file a case. The letter doesn’t state what he says it
says and the court agrees . . . and dismisses it. I guess
clearly he could have another bite at the apple and
submit another complaint with another letter or possi-
bly respond by attaching the letter that met the require-
ments of the [s]tatute.’’ (Emphasis added.) Id. In response
to Senator Meyer’s observation that the provision ‘‘doesn’t
have a lot of teeth,’’ Attorney Neubert opined that this
provision was envisioned as affecting only ‘‘the cases
on the margins,’’ in which ‘‘attorneys, based on their
own judgment and maybe in good faith have misread
what an expert’s told them’’ about the merits of their
case. Id., p. 5553.
Beyond its lack of support in the statutory text or
the legislative history, Morgan’s conclusion that the
opinion letter requirement implicates the court’s per-
sonal jurisdiction also relies on a false logical premise.
Specifically, Morgan assumed that, because, in LeCon-
che v. Elligers, supra, 215 Conn. 702–703, 714, the court
held that the good faith certificate was not subject mat-
ter jurisdictional, the dismissal provided by § 52-190a
(c) necessarily had to relate to personal jurisdiction.
See Morgan v. Hartford Hospital, supra, 301 Conn.
397–99. As the plaintiff and the trial lawyers observe,
this either/or assumption fails to recognize that a case
may be dismissed on nonjurisdictional grounds in a
variety of situations, some of which implicate the merits
of the case. For example, the legislature has made a
‘‘special motion to dismiss’’ available under certain cir-
cumstances to dispose of strategic lawsuits against pub-
lic participation (SLAPP lawsuits). General Statutes
§ 52-196a (b); see, e.g., Lafferty v. Jones, 336 Conn. 332,
380–82, 246 A.3d 429 (2020), cert. denied, U.S. ,
141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021). It similarly fails
to account for the concept of dismissal as a disciplinary
sanction. See, e.g., Ridgaway v. Mount Vernon Fire
Ins. Co., 328 Conn. 60, 70–71, 176 A.3d 1167 (2018);
Millbrook Owners Assn., Inc. v. Hamilton Standard,
257 Conn. 1, 16–17, 776 A.2d 1115 (2001); see also, e.g.,
General Statutes § 52-549t (b) (discretionary dismissal
when party fails to appear before fact finder); Practice
Book § 14-3 (dismissal for lack of diligence in prosecut-
ing action). Indeed, numerous other examples of nonju-
risdictional dismissals can be cited, such as certain
prudential doctrines. See, e.g., Practice Book § 23-29
(providing for dismissal of habeas corpus actions on
numerous substantive and jurisdictional grounds); Dur-
kin v. Intevac, Inc., 258 Conn. 454, 480, 782 A.2d 103(2001) (forum non conveniens); Halpern v. Board of
Education, 196 Conn. 647, 652 and n.4, 495 A.2d 264(1985) (prior pending action doctrine is ‘‘a rule of justice
and equity’’ that may be raised by motion to dismiss, as
successor procedure to ‘‘a plea in abatement’’ (internal
quotation marks omitted)); see also Votre v. County
Obstetrics & Gynecology Group, P.C., supra, 113 Conn.
App. 582, 583–84 (observing that ‘‘motions to dismiss
are not limited to jurisdictional challenges’’ and holding
that ‘‘[a] plaintiff’s failure to comply with the require-
ments of § 52-190a (a) does not destroy the court’s
subject matter jurisdiction over the claim,’’ rendering
‘‘[d]ismissal pursuant to this section . . . 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’’);
Rios v. CCMC Corp.,106 Conn. App. 810, 821 n.8, 821–22,
943 A.2d 544 (2008) (observing that ‘‘motions to dismiss
are [not] limited to jurisdictional challenges’’ in con-
cluding that plain language of § 52-190a (c) made
motion to dismiss, rather than motion to strike, proper
procedural vehicle to challenge medical malpractice
complaint filed without written opinion letter).
The legislature’s focus on preventing frivolous medi-
cal malpractice litigation, and the suggestion proffered
by Attorney Neubert in his testimony before the Judi-
ciary Committee that some plaintiffs’ attorneys had
stretched the results of their precomplaint investiga-
tions when signing good faith certificates, indicates that
the dismissal prescribed by § 52-190a is a statutory
device that, like some of these other examples, plays a
nonjurisdictional, merits related, gatekeeping function.
Indeed, a conclusion to the contrary is inconsistent with
the maxim that the legislature is presumed to be aware
of this court’s interpretation of statutes when it acts;
see, e.g., State v. Ashby, 336 Conn. 452, 493, 247 A.3d
521 (2020); because, by adding subsection (c) to § 52-
190a, P.A. 05-275 made clear the necessity of dismissal
as the remedy for failure to file a proper certificate,
which had been a subject of considerable discussion
in LeConche without changing the existing statutory
language providing that challenges to the good faith
underlying the certificate were not considered until
‘‘ ‘after the completion of discovery,’ ’’ on which the
court had relied in determining that the good faith certif-
icate did not implicate the court’s jurisdiction. (Empha-
sis added.) LeConche v. Elligers, supra, 215 Conn.
711–13; see footnote 14 of this opinion. Although the
legislature acted decisively by making dismissal manda-
tory in the event of noncompliance, its decision to con-
tinue to defer considerations of good faith until after
the discovery process suggests that it did not consider
that dismissal to contemplate the court’s jurisdictional
power to hale a health care provider before it.
2
Stare Decisis Concerns
Although there is no support in the text or legislative
history of § 52-190a for Morgan’s holding that it impli-
cates the court’s personal jurisdiction, and ample sup-
port exists for a conclusion that it is a statutory device
intended only to weed out frivolous medical malprac-
tice suits by requiring plaintiffs to obtain a corroborat-
ing expert opinion prior to commencing a lawsuit, our
inquiry does not end there. ‘‘The doctrine of stare deci-
sis counsels that a court should not overrule its earlier
decisions unless the most cogent reasons and inescap-
able logic require it.’’ (Internal quotation marks omit-
ted.) State v. Ashby, supra, 336 Conn. 487. ‘‘[Although]
stare decisis is not an inexorable command . . . the
doctrine carries such persuasive force that we have
always required a departure from precedent to be sup-
ported by some special justification.’’ (Internal quota-
tion marks omitted.) State v. Petion, 332 Conn. 472,
503, 211 A.3d 991 (2019). ‘‘When a prior decision is seen
so clearly as error that its enforcement [is] for that very
reason doomed . . . the court should seriously con-
sider whether the goals of stare decisis are outweighed,
rather than dictated, by the prudential and pragmatic
considerations that inform the doctrine to enforce a
clearly erroneous decision.’’ (Internal quotation marks
omitted.) Id., 503–504; see Conway v. Wilton, 238 Conn.
653, 659–60, 680 A.2d 242 (1996).
‘‘[I]n evaluating the force of stare decisis, our case
law dictates that we should be especially wary of over-
turning a decision that involves the construction of a
statute. . . . When we construe a statute, we act not as
plenary lawgivers but as surrogates for another policy
maker, [that is] the legislature. In our role as surrogates,
our only responsibility is to determine what the legisla-
ture, within constitutional limits, intended to do. Some-
times, when we have made such a determination, the
legislature instructs us that we have misconstrued its
intentions. We are bound by the instructions so pro-
vided. . . . More often, however, the legislature takes
no further action to clarify its intentions. Time and
again, we have characterized the failure of the legisla-
ture to take corrective action as manifesting the legisla-
ture’s acquiescence in our construction of a statute.
. . . Once an appropriate interval to permit legislative
reconsideration has passed without corrective legisla-
tive action, the inference of legislative acquiescence
places a significant jurisprudential limitation on our
own authority to reconsider the merits of our earlier
decision.’’ (Internal quotation marks omitted.) Graham
v. Commissioner of Transportation, 330 Conn. 400,
417–18, 195 A.3d 664 (2018); accord Spiotti v. Wolcott,
326 Conn. 190, 201–202, 163 A.3d 46 (2017).
a
Considerations of Legislative Acquiescence
The legislative acquiescence doctrine does not neces-
sarily foreclose reconsideration of a decision interpre-
ting a statute. This is because ‘‘the legislative
acquiescence doctrine requires actual acquiescence on
the part of the legislature. [Thus] [i]n most of our prior
cases, we have employed the doctrine not simply
because of legislative inaction, but because the legisla-
ture affirmatively amended the statute subsequent to a
judicial or administrative interpretation, but chose not
to amend the specific provision of the statute at issue.
. . . In other words, [l]egislative concurrence is partic-
ularly strong [when] the legislature makes unrelated
amendments in the same statute.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Stuart v. Stuart, 297 Conn. 26, 47, 996 A.2d 259 (2010);
see, e.g., State v. Ashby, supra, 336 Conn. 492–93; Spiotti
v. Wolcott, supra, 326 Conn. 202; State v. Salamon, 287
Conn. 509, 525–26, 949 A.2d 1092 (2008).
Legislative acquiescence is not particularly strong in
the present case because the legislature has made only
a single minor amendment to § 52-190a in the more than
eleven years since this court decided Morgan, and that
amendment was to a different subsection of the statute
and not germane to the opinion letter requirement at
issue in Morgan and the present case.21 See State v.
Salamon, supra, 287 Conn. 525–26 (concluding that
there was no actual acquiescence to interpretations
of second degree kidnapping statute, General Statutes
§ 53a-94, when, ‘‘with the exception of a 1993 amend-
ment . . . affecting only its penalty provisions, neither
that section nor the pertinent definitional section . . .
ha[d] been subject to any substantive amendments
since it first was enacted in 1969’’ (footnote omitted));
Conway v. Wilton, supra, 238 Conn. 678 (‘‘[w]e have
. . . frowned [on] the use of legislative inaction regard-
ing one section of a statute as a reliable indicator of
legislative intent when the legislature has undertaken
to amend other sections of the same statute’’).
b
Practical Effects of Morgan
Moving beyond concerns of legislative acquiescence,
‘‘[a]mong the factors that may justify overruling a prior
decision interpreting a statute are intervening develop-
ments in the law, the potential for unconscionable
results, the potential for irreconcilable conflicts and
difficulty in applying the interpretation.’’ (Internal quo-
tation marks omitted.) Graham v. Commissioner of
Transportation, supra, 330 Conn. 421. ‘‘In addition, a
departure from precedent may be justified when the
rule to be discarded may not be reasonably supposed
to have determined the conduct of the litigants . . . .’’
(Internal quotation marks omitted.) Spiotti v. Wolcott,
supra, 326 Conn. 202–203; see Conway v. Wilton, supra,
238 Conn. 661. As a procedural rule in a tort case, § 52-
190a cannot reasonably be deemed to have determined
the litigants’ conduct. See, e.g., George v. Ericson, 250
Conn. 312, 326–27, 736 A.2d 889 (1999); Conway v.
Wilton, supra, 661–62; see also Corley v. United States,
11 F.4th 79, 86–87 (2d Cir. 2021) (rejecting government’s
‘‘contention that § 52-190a is substantive’’ for purposes
of Federal Tort Claims Act proceeding because, despite
its ‘‘substantive goal . . . to deter frivolous medical
malpractice claims,’’ it is ‘‘[a] rule that regulates plead-
ing and service of process, and that has been expressly
construed . . . [in Morgan] as having no effect on the
standard for substantive liability’’ (internal quotation
marks omitted)).
Developments in the law since Morgan illustrate the
extent to which its holding as to personal jurisdiction
has led to results that, in our view, are wholly unjustifi-
able in light of the legislature’s intent in enacting § 52-
190a. First, given this court’s contemporaneous conclu-
sion in Bennett v. New Milford Hospital, Inc., supra,
300 Conn. 21, that ‘‘the author of an opinion letter pursu-
ant to § 52-190a (a) must be a similar health care pro-
vider as that term is defined by § 52-184c (c), regardless
of his or her potential qualifications to testify at trial
pursuant to § 52-184c (d),’’ Morgan’s holding elevates
the qualifications of the opinion letter’s author to a
jurisdictional factual prerequisite that is flatly inconsis-
tent with the substantive law of medical malpractice.
Under this regime, a plaintiff may prevail on the merits
of a medical malpractice claim at trial on the basis of
the opinion of an expert witness who would fail to
qualify as a ‘‘similar health care provider’’ under § 52-
184c and, thus, could not be used to establish that the
claim was nonfrivolous for gatekeeping purposes under
§ 52-190a.22 See General Statutes § 52-184c (d).
Second, in the wake of Morgan and Bennett, a volumi-
nous body of case law23 has developed to flesh out
the proper procedures under § 52-190a. Although the
defendants argue that this body of law demonstrates
the extent to which Morgan’s conclusion as to personal
jurisdiction has become ‘‘black letter law,’’ the plaintiff
and the trial lawyers contend that these cases demon-
strate how far we have deviated from the purpose of
§ 52-190a, insofar as they require the dismissal of poten-
tially nonfrivolous actions due to curable technical flaws
unrelated to the actual merits of the claim. Accordingly,
we now review the body of Appellate Court cases expand-
ingon Morgan and the procedural incongruities that
have arisen because of the jurisdictional nature of its
holding.24
These cases demonstrate that the combined force of
the case law construing § 52-190a imposes substantially
greater burdens on a plaintiff than intended by the legis-
lature in enacting the statute to require the substantia-
tion of the precomplaint investigation. This is
particularly so when coupled with case law requiring
the plaintiff to prove the existence of personal jurisdic-
tion in response to a motion to dismiss pursuant to
§ 52-190a. See, e.g., LaPierre v. Mandell & Blau, M.D.’s,
P.C., 202 Conn. App. 44, 49 n.3, 243 A.3d 816 (2020);
Young v. Hartford Hospital, 196 Conn. App. 207, 211,
229 A.3d 1112 (2020); see also Standard Tallow Corp.
v. Jowdy, supra, 190 Conn. 53–54. One significant line
of cases holds that the case law governing motions to
dismiss under Practice Book §§ 10-30 and 10-31, such
as Dorry v. Garden, 313 Conn. 516, 522–23, 98 A.3d 55(2014), and Conboy v. State, supra, 292 Conn. 651–52,
allows for courts deciding motions to dismiss under
§ 52-190a to consider ‘‘supplementary undisputed facts’’
in affidavits to ‘‘conclusively establish that jurisdiction
is lacking,’’ rather than to ‘‘conclusively presume the valid-
ity of the allegations in the complaint.’’ (Internal quota-
tion marks omitted.) Labissoniere v. Gaylord Hospital,
Inc., supra, 182 Conn. App. 453; see id., 452 (rejecting
plaintiff’s argument that trial court should not have
‘‘consider[ed] the affidavits that the defendants attached
to their motions because the issues . . . do not involve
factual issues concerning personal jurisdiction that are
not determinable on the face of the record’’ (emphasis
added; internal quotation marks omitted)); see also Lab-
issoniere v. Gaylord Hospital, Inc., 199 Conn. App. 265,
279–81, 235 A.3d 589 (trial court was not ‘‘obligated
to accept as true [the plainitiffs’] allegations that the
diagnosis and treatment of the decedent’s postsurgical
complications were within the specialty of general sur-
gery and outside the specialty of internal medicine’’),
cert. denied, 335 Conn. 968, 240 A.3d 284, and cert.
denied, 335 Conn. 968, 240 A.3d 285 (2020); Lohnes v.
Hospital of Saint Raphael, 132 Conn. App. 68, 78, 31
A.3d 810 (2011) (relying on affidavit submitted in con-
nection with motion to dismiss to establish that defen-
dant was board certified in emergency medicine,
rendering pulmonologist who authored opinion letter
not ‘‘similar health care provider’’ for purposes of § 52-
190a, given lack of ‘‘an express allegation’’ in complaint
that defendant was practicing outside of his specialty),
cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).
Another series of Appellate Court decisions explains
the restricted curative options—beyond resort to the
accidental failure of suit statute following dismissal;
see General Statutes § 52-592; Plante v. Charlotte Hun-
gerford Hospital, 300 Conn. 33, 46–47, 12 A.3d 885(2011)—that are available to plaintiffs given the jurisdic-
tional implications of defective opinion letters under
§ 52-190a, as interpreted by Morgan. The leading deci-
sion of Gonzales v. Langdon, supra, 161 Conn. App.
518–19 and n.9, holds that the amendment of the com-
plaint and opinion letter under General Statutes § 52-
128 and Practice Book §§ 10-59 and 10-60 is available
only when the request for leave to amend—whether
discretionary or as of right within thirty days of the
return day—is filed prior to the running of the applica-
ble statute of limitations. To this end, the Appellate
Court has also held that plaintiffs should not be permit-
ted to use the amendment process to provide a missing
opinion letter in the first instance, even during the thirty
day period in which amendments are permitted as of
right pursuant to Practice Book § 10-59. See Barnes v.
Greenwich Hospital, 207 Conn. App. 512, 523–25, 262
A.3d 1008, cert. denied, 340 Conn. 904, 263 A.3d 100(2021).
Two decisions illustrate how restrictive Gonzales is
in its application, given its roots in the personal jurisdic-
tion aspect of Morgan. The upshot is that, ‘‘[r]egardless
of the type of procedure a plaintiff elects to employ to
cure a defect in an opinion letter filed in accordance
with § 52-190a, that procedure must be initiated prior
to the running of the statute of limitations. Otherwise,
the sole remedy available will be to initiate a new action,
if possible, pursuant to [the accidental failure of suit
statute] § 52-592.’’ Peters v. United Community & Fam-
ily Services, Inc., 182 Conn. App. 688, 706, 191 A.3d
195 (2018). Consistent with this principle, the Appellate
Court has held that the jurisdictional implications of
the opinion letter preclude the use of the relation back
doctrine to render timely amendments to complaints
that are intended to cure legally insufficient opinion
letters. See Ugalde v. Saint Mary’s Hospital, Inc., 182
Conn. App. 1, 9–13, 188 A.3d 787, cert. denied, 330 Conn.
928, 194 A.3d 1195 (2018); see id., 12–13 (noting that
permitting use of relation back doctrine to save actions
supported by insufficient opinion letters would ‘‘[cir-
cumvent]’’ accidental failure of suit procedure and ‘‘would
be fundamentally inconsistent with [the approach]
taken by the legislature in mandating the dismissal
of such actions for lack of personal jurisdiction’’
(emphasis added)). Further, the Appellate Court has
held that an explanatory or clarifying affidavit may not
be used to address defects in the opinion letter itself,
after the expiration of the limitation period, rejecting an
attempt to limit Gonzales’ application ‘‘only [to] those
cases in which a plaintiff has sought to cure a defective
opinion letter by way of an amendment of the pleadings
. . . .’’25 Peters v. United Community & Family Ser-
vices, Inc., supra, 703; see id., 705 (‘‘[i]t simply would
be illogical and an unwarranted circumvention of our
decision in Gonzales to conclude that a plaintiff could
avoid dismissal by submitting an affidavit in lieu of
an amendment’’).
Tying it all together, the Appellate Court’s recent
decision in Kissel v. Center for Women’s Health, P.C.,
205 Conn. App. 394, 258 A.3d 677, cert. denied, 339
Conn. 917, 262 A.3d 137, and cert. granted, 339 Conn.
917, 262 A.3d 138 (2021), and cert. granted, 339 Conn.
916, 262 A.3d 139 (2021), illustrates the extreme result
of considering the opinion letter to implicate personal
jurisdiction. Although the plaintiff in Kissel had obtained
an opinion letter from a similar health care provider,
she neglected to attach it to the complaint out of ‘‘inad-
vertence or oversight.’’ (Internal quotation marks omit-
ted.) Id., 409; see id., 421–22. When the action was
brought in 2012, the trial court denied the defendant’s
motion to dismiss for lack of ‘‘personal jurisdiction on
the basis of the plaintiff’s failure (1) to attach an opinion
letter from a similar health care provider to her medical
malpractice complaint and (2) to cure that defect within
the applicable two year statutory limitation period.’’26
Id., 400; see id., 401. Five years later, in 2017, the case
was tried to a jury, which returned a verdict for the
plaintiff. Id., 409. After trial, the trial court denied the
defendant’s motion for reconsideration of the denial of
the motion to dismiss. See id., 409–10.
On appeal in Kissel, the Appellate Court reversed the
judgment of the trial court, concluding that the trial
court had improperly relied on equitable and public
policy grounds in denying reconsideration of its denial
of the motion to dismiss. See id., 397, 406, 410. The court
first emphasized that, under Bennett v. New Milford
Hospital, Inc., supra, 300 Conn. 27–29, and Morgan v.
Hartford Hospital, supra, 301 Conn. 399, ‘‘in a medical
malpractice action, a plaintiff must comply with § 52-
190a by including an opinion letter from a similar health
care provider with the complaint to establish personal
jurisdiction, and a timely challenge to the failure to
include a legally sufficient opinion letter will result in
a dismissal.’’ Kissel v. Center for Women’s Health, P.C.,
supra, 205 Conn. App. 416. Discussing Gonzales v. Lan-
gdon, supra, 161 Conn. App. 497, Ugalde v. Saint Mary’s
Hospital, Inc., supra, 182 Conn. App. 1, and Peters v.
United Community & Family Services, Inc., supra,
182 Conn. App. 688, the Appellate Court then observed
that, during ‘‘the time period between the denial of the
2012 motions and the second motion for reconsidera-
tion filed in 2018, the law concerning § 52-190a devel-
oped in our appellate courts. . . . Significantly, our
jurisprudence shifted from consideration of whether
the opinion letter had existed at the time the plaintiff
commenced the malpractice action to a focus on
whether the elected procedure to remedy a defective
opinion letter had begun prior to the expiration of the
statute of limitations.’’ (Citations omitted.) Kissel v.
Center for Women’s Health, P.C., supra, 422–23. The
Appellate Court then afforded that body of case law
retroactive effect, despite the ‘‘extended time period’’ at
issue in the case, given the timely personal jurisdictional
challenge raised by the defendant in 2012. Id., 429; see
id., 428–30.
Acknowledging its ‘‘pragmatic nature’’; id., 431; the
Appellate Court nevertheless rejected the ‘‘plaintiff’s
contention [in Kissel] that, as a result of the jury’s
verdict, the purpose of § 52-190a, preventing frivolous
medical malpractice actions, was served . . . and,
therefore, to dismiss the medical malpractice action at
[that] juncture would elevate form over substance to
an unreasonable degree.’’ Id., 430. The Appellate Court
stated: ‘‘Consistent with established precedent, an
appellate determination that the trial court [incorrectly]
concluded that personal jurisdiction existed has
resulted in the dismissal or vacatur of the subsequent
proceedings before the trial court. . . . For these rea-
sons, we are not persuaded by the plaintiff’s argument
that a jury verdict in a medical malpractice action would
insulate a defect in the required opinion letter from
appellate review.’’ (Citations omitted.) Id., 432; see
Barnes v. Greenwich Hospital, supra, 207 Conn. App.
524 (‘‘this court’s holding in Kissel leaves no room for
doubt that [when] a plaintiff in a medical malpractice
action fails to attach an opinion letter to the initial
complaint and [curative efforts] are not initiated prior
to the expiration of the statute of limitations, the court
lacks personal jurisdiction over the defendant and the
action is subject to dismissal pursuant to § 52-190a
(c)’’). The Appellate Court’s recent decision in Kissel,
which is wholly consistent with its post-Morgan body
of case law with respect to addressing flawed or absent
opinion letters, reveals the danger of Morgan’s conclu-
sion that the opinion letter implicates personal jurisdic-
tion. By elevating the opinion letter to a jurisdictional
prerequisite of any kind, it allows a potential prelitiga-
tion defect to defeat a medical malpractice action that
a jury has deemed meritorious after several years of liti-
gation.
C
Conclusion and Other Procedural Issues
Attendant to Overruling Morgan
For all of the foregoing reasons, we agree with the
plaintiff and the trial lawyers that Morgan is clearly
wrong and should be overruled to the extent that it
holds that the opinion letter implicates the court’s per-
sonal jurisdiction.27 Particularly with respect to the diffi-
culty of amending flawed opinion letters, the
jurisdictional body of case law spawned by Morgan has
created roadblocks for otherwise meritorious cases that
are squarely at odds with the legislature’s limited goal
of ensuring an adequate, good faith investigation and
eliminating only frivolous cases. Put differently, catego-
rizing the opinion letter in any way as jurisdictional has
had the effect of elevating the credential of the authoring
health care provider to a jurisdictional prerequisite and
turned what the legislature intended to be a simple
prelitigation documentation of the plaintiff’s good faith
inquiry into, in essence, a trap under which even merito-
rious suits are subject to dismissal. Instead, we con-
clude that the legislative history and text indicate that
dismissal under § 52-190a is a unique statutory remedy
intended to strengthen the existing good faith inquiry
and to expedite the disposition of obviously frivolous
medical malpractice actions.
We recognize that this conclusion renders inapplica-
ble to the § 52-190a motion to dismiss the rules of prac-
tice and applicable case law governing the pleading and
proof of jurisdictional facts, as explicated by Conboy
v. State, supra, 292 Conn. 650–52, and set forth in foot-
note 12 of this opinion. See Durkin v. Intevac, Inc.,
supra, 258 Conn. 464, 480 (thirty day deadline provided
by Practice Book §§ 10-30 and 10-32 was not applicable
to motion to dismiss on ground of forum non conveni-
ens, which is principle of deference rather than jurisdic-
tion). Accordingly, we provide two more points of
procedural clarification as to the adjudication of
motions to dismiss under § 52-190a that guide our analy-
sis of the motion to dismiss in the present case.
First, we agree with the argument of the trial lawyers
and clarify that, as stated in Bennett, the inquiry under
§ 52-190a is squarely and solely framed by the allega-
tions in the complaint, rendering the only question at
the motion to dismiss stage whether the author of the
opinion letter is a similar health care provider to the
defendant as their respective qualifications are pleaded
in the complaint and described in the opinion letter.
See Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 23–24 (general surgeon was not similar health
care provider when complaint alleged ‘‘that the defen-
dant ‘specialize[d] in the field of emergency medi-
cine’ ’’); see also Gonzales v. Langdon, supra, 161 Conn.
App. 506 (relying on Bennett for proposition that ‘‘the
actual board certification of the defendant is not what
matters; the appropriate similar health care provider is
defined by the allegations in the complaint’’). Thus,
contrary to the Appellate Court’s decision in Labisso-
niere v. Gaylord Hospital, Inc., supra, 182 Conn. App.
452–53, there simply is no place in the § 52-190a inquiry
for the consideration of affidavits or other materials
intended to inject factual disputes beyond the adequacy
of the pleadings and the annexed letter. Because the
opinion letter is not itself process, to the extent that
the opinion letter itself is legally insufficient or defective
under § 52-190a, trial courts retain the authority to per-
mit amendments or supplementation of a challenged
letter in response to a motion to dismiss, as the legisla-
ture itself evidently contemplated.28 See Conn. Joint
Standing Committee Hearings, supra, p. 5552.
Second, we emphasize that our ultimate holding in
Morgan, namely, that a motion to dismiss for failure
to file an opinion letter pursuant to § 52-190a remains
waivable, including by inaction, remains good law. See
Morgan v. Hartford Hospital, supra, 301 Conn. 391.
Specifically, we agree with the trial lawyers that, consis-
tent with the legislature’s intent of screening out frivo-
lous malpractice actions early in the litigation process,
the order of the pleadings provided by Practice Book
§§ 10-6 and 10-729 continues to render dismissal under
§ 52-190a waivable for failure to file a timely motion to
dismiss; see id.; and requires that the motion to dismiss
be filed early in the action, as the legislature envisioned
in enacting the statute.30 See, e.g., Wilkins v. Connecti-
cut Childbirth & Women’s Center, supra, 314 Conn.
729–30.
II
REVIEW OF THE FACIAL SUFFICIENCY OF THE
OPINION LETTER AND THE ALLEGATIONS
IN THE COMPLAINT
We now turn to the plaintiff’s claim that the opinion
letter was legally sufficient under § 52-190a because the
‘‘contents of the complaint adequately allege that . . .
Daar held himself out as a specialist endodontist . . .
Daar’s affidavit failed to adequately refute those allega-
tions, and the opinion letter establishes that . . . Solo-
mon,’’ a professor of endodontics, ‘‘is a similar health
care provider to an endodontic specialist.’’ Relying on
well established case law holding that pleadings should
be read ‘‘broadly and realistically, rather than narrowly
and technically’’; (internal quotation marks omitted)
Doe v. Cochran, 332 Conn. 325, 333, 210 A.3d 469 (2019);
the plaintiff argues that his complaint adequately
alleged that Daar held himself out as a specialist in
endodontics ‘‘by virtue of advertising [on Shoreline’s
website] that he received substantial additional training
in endodontics.’’31 The plaintiff then argues that Solo-
mon’s statement in the opinion letter that ‘‘he received
his specialty boards,’’ read in context with Solomon’s
credentials as a professor of endodontics at Columbia
and his practice of endodontics in New York City, estab-
lishes that he is a ‘‘similar health care provider’’ by
supporting the reasonable inference that his board certi-
fication is in endodontics, as defined by the American
Association of Endodontists. We agree with the plaintiff
and conclude that a broad and realistic reading of the
face of the complaint and opinion letter establishes
their compliance with § 52-190a.
‘‘The interpretation of pleadings is always a question
of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary. . . . Furthermore, we long have eschewed the
notion that pleadings should be read in a hypertechnical
manner. Rather, [t]he modern trend, which is followed
in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically.
. . . [T]he complaint must be read in its entirety in such
a way as to give effect to the pleading with reference
to the general theory [on] which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension.’’ (Emphasis added; internal quotation
marks omitted.) Flannery v. Singer Asset Finance Co.,
LLC, 312 Conn. 286, 299–300, 94 A.3d 553 (2014); see,
e.g., Doe v. Cochran, supra, 332 Conn. 333–34; Travelers
Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467(2002). ‘‘As long as the pleadings provide sufficient
notice of the facts claimed and the issues to be tried
and do not surprise or prejudice the opposing party,
we will not conclude that the complaint is insufficient
to allow recovery.’’ (Internal quotation marks omitted.)
Flannery v. Singer Asset Finance Co., LLC, supra, 300.
The challenged portions of the operative pleadings
support the plaintiff’s position. Quoting from Shore-
line’s website in support of the allegation, the operative
complaint alleges that Daar ‘‘held himself out as a prac-
titioner of [e]ndodontics, stating on [Shoreline’s] web-
site that ‘he has completed hundreds of hours of training
in [e]ndodontics.’ ’’ The complaint then states that Shore-
line’s website ‘‘describes [e]ndodontics, in part, as . . .
‘the dental specialty that deals with tissues and struc-
tures located inside the tooth’ ’’ and explains root
canal therapy.32
A broad and realistic reading of the allegation that
Daar ‘‘held himself out as a practitioner’’ in the specific
field of endodontics, with the accompanying descrip-
tion of the field of endodontics and his extensive train-
ing in that field, triggers the applicability of § 52-184c
(c) with respect to the selection of a similar health care
provider to author the good faith opinion letter required
by § 52-190a. The plain meaning of the word ‘‘prac-
titioner’’ suggests one who has elected to make a chosen
professional field his or her occupation, in this case,
endodontics. See American Heritage College Dictionary
(4th Ed. 2007) p. 1093 (defining ‘‘practice’’ as ‘‘[t]o work
at, [especially] as a profession,’’ and ‘‘practitioner’’ as
‘‘[o]ne who practices something, [especially] an occupa-
tion, profession, or technique’’). One widely regarded
dictionary, which defines ‘‘practitioner’’ as ‘‘a person
engaged in the practice of a profession, occupation,
etc.,’’ specifically identifies ‘‘doctor,’’ ‘‘master,’’ and
‘‘specialist’’ as related words. (Emphasis added.) Dic-
tionary.com, available at https://www.dictionary.com/
browse/practitioner (last visited January 31, 2023).
Although the complaint does not use certain talis-
manic words to indicate that Daar is board certified,
‘‘specializes’’ in endodontics, or ‘‘held himself out’’ as
such a ‘‘specialist,’’ a reasonable reading of the com-
plaint, accompanied by the opinion letter reciting Solo-
mon’s board certification and extensive academic
credentials in endodontics, supports the conclusion
that Solomon is a ‘‘similar health care provider’’ to Daar,
as that term was intended by the legislature when it
amended § 52-190a to ensure that there are nonfrivolous
factual bases for medical malpractice claims brought in
Connecticut’s courts. See, e.g., Wilkins v. Connecticut
Childbirth & Women’s Center, supra, 314 Conn. 728–30.
A conclusion to the contrary runs afoul of the ‘‘well
settled’’ principle that our ‘‘courts do not interpret
pleadings so to require the use of talismanic words and
phrases.’’ Antonio A. v. Commissioner of Correction,
205 Conn. App. 46, 90, 256 A.3d 684, cert. denied, 339
Conn. 909, 261 A.3d 744 (2021); see State v. Elson, 311
Conn. 726, 752–53, 91 A.3d 862 (2014) (emphasizing
‘‘this court’s refusal in a variety of contexts to attach
talismanic significance to the presence or absence of
particular words or phrases’’ (internal quotation marks
omitted)); see also, e.g., Flannery v. Singer Asset Finance
Co., LLC, supra, 312 Conn. 303–304 (‘‘[a]lthough it
would have been a far better practice for the plaintiff
to use the words ‘continuing course of conduct’ in his
pleading in avoidance, the record demonstrates that the
defendant was sufficiently apprised of the plaintiff’s
intent to rely on that doctrine and suffered no prejudice
as a result of the plaintiff’s lapse in pleading’’); Deming
v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905
A.2d 623 (2006) (rejecting ‘‘the defendants’ contention
that the plaintiffs’ allegations referring to ‘renewals,’
rather than ‘renewal commissions,’ and ‘insurance
agent’ or ‘Nationwide agent,’ rather than ‘producer,’ are
dispositive’’); Travelers Ins. Co. v. Namerow, supra,261 Conn. 800–801 (insurer was not required to plead
special defense using words ‘‘civil arson’’ given detailed
nature of allegations in answer, which alleged inten-
tional act by insured and described fire as ‘‘ ‘incendi-
ary’ ’’ in nature); Antonio A. v. Commissioner of
Correction, supra, 90 (conclusion that petitioner did
not raise claim of actual innocence in habeas petition
was ‘‘based on the lack of material facts contained
therein in support of a claim of actual innocence; it
[was] not the result of the petitioner’s failure to use the
specific phrase ‘actual innocence’ ’’). Thus, we conclude
that that a broad and realistic reading of the complaint
suggests that it is pleading that Daar held himself out
as a specialist in endodontics, rendering Solomon, a
professor of endodontics, a similar health care pro-
vider.33 The Appellate Court, therefore, improperly
upheld the trial court’s granting of the defendants’
motion to dismiss.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand the
case to that court with direction to deny the defendants’
motion to dismiss and for further proceedings accord-
ing to law.
In this opinion the other justices concurred.
* February 1, 2023, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 52-190a provides: ‘‘(a) No civil action or apportion-
ment 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
or for an apportionment complaint against each named apportionment
defendant. To show the existence of such good faith, the claimant or the
claimant’s attorney, and any apportionment complainant or the appor-
tionment complainant’s attorney, shall obtain a written and signed opin-
ion 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. 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, and any apportionment complainant or apportionment complain-
ant’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. The similar health care
provider who provides such written opinion shall not, without a showing
of malice, be personally liable for any damages to the defendant health care
provider by reason of having provided such written opinion. In addition to
such written opinion, the court may consider other factors with regard to
the existence of good faith. If the court determines, after the completion
of discovery, that such certificate was not made in good faith and that no
justiciable issue was presented against a health care provider that fully
cooperated in providing informal discovery, the court upon motion or upon
its own initiative shall impose upon the person who signed such certificate
or a represented party, or both, an appropriate sanction which may include
an order to pay to the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading, motion or other
paper, including a reasonable attorney’s fee. The court may also submit the
matter to the appropriate authority for disciplinary review of the attorney
if the claimant’s attorney or the apportionment complainant’s attorney sub-
mitted the certificate.
‘‘(b) Upon petition to the clerk of any superior court or any federal district
court 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.
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
(Emphasis added.)
2
We initially granted the plaintiff’s petition for certification to appeal,
limited to the following issue: ‘‘Did the Appellate Court properly uphold the
trial court’s dismissal of the plaintiff’s medical malpractice action for failure
to comply with . . . § 52-190a?’’ Carpenter v. Daar, 335 Conn. 962, 239 A.3d
1215 (2020).
Following oral argument in this certified appeal, on July 5, 2022, pursuant
to Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 162–63, 84 A.3d 840 (2014), we ordered the parties and
invited the amici curiae—the Connecticut Defense Lawyers Association
and the Connecticut Trial Lawyers Association—to file supplemental briefs,
limited to the following issue: ‘‘Did this court properly conclude in Morgan
v. Hartford Hospital, [supra] 301 Conn. 388 . . . that the good faith opinion
letter required by . . . [§] 52-190a implicates the personal jurisdiction of
the court over the defendant?’’ See, e.g., State v. Peluso, 344 Conn. 404, 413
n.7, 279 A.3d 707 (2022) (Supreme Court may modify certified question
as necessary).
3
‘‘Although the opinion letter attached to the complaint in the present
action had the name of the author redacted, which is authorized pursuant
to § 52-190a (a), in their briefs, both the plaintiff and the defendants acknowl-
edge that Solomon was the author.’’ Carpenter v. Daar, supra, 199 Conn.
App. 369 n.1.
4
General Statutes § 52-184c 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 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 qualifica-
tions; 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 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 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: (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 prac-
tice 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.’’
5
The Appellate Court’s opinion sets forth a more detailed recitation of
the facts and procedural history. See Carpenter v. Daar, supra, 199 Conn.
App. 370–78.
6
We note that the plaintiff brought the present action pursuant to General
Statutes § 52-592, the accidental failure of suit statute, following the dismissal
of a previous action against the defendants for failure to provide an opinion
letter that complied with § 52-190a. See Carpenter v. Daar, supra, 199 Conn.
App. 370.
7
Hereinafter, we refer to the opinion letter and the supplemental corre-
spondence, both of which were attached to the complaint, as the ‘‘opin-
ion letter.’’
8
The trial court ‘‘rejected the defendants’ argument . . . that the plaintiff
could not cure any deficiencies in the opinion letter attached to his complaint
with Solomon’s supplemental affidavit because it was filed after the statute
of limitations had expired.’’ Carpenter v. Daar, supra, 199 Conn. App. 375.
In so concluding, the trial court relied on the ‘‘[effective]’’ modification
and extension of the applicable statute of limitations; id., 376; see General
Statutes § 52-584; by the accidental failure of suit statute; see General Stat-
utes § 52-592; but ‘‘did not find any facts or provide any analysis as to why,
under the circumstances of this case, the plaintiff was entitled to the benefit
of the saving provisions of the accidental failure of suit statute . . . .’’
Carpenter v. Daar, supra, 376.
9
The Appellate Court further observed: ‘‘General Statutes § 20-106a pro-
hibits any licensed or registered dentist from designating that his practice
is limited to a specialty recognized by the American Dental Association
unless the dentist has completed two or more years of advanced or postgrad-
uate education in the area of the specialty. The completion of hours of
continuing education over the years when Daar has been practicing as a
general dentist in Connecticut since 1982, is not synonymous with being a
specialist. Dentists in Connecticut are prohibited from renewing their prac-
tice licenses unless they take a requisite number of continuing education
credits. See General Statutes § 20-126c (b) (requiring all licensed dentists
to have minimum of [twenty-five] contact hours of continuing education
within twenty-four months preceding their application for renewal). The
plaintiff’s theory that hours of continuing education [contribute] to holding
oneself out as a specialist would result in treating all physicians and dentists,
regardless of whether they are trained and experienced in a specialty, as
health providers holding themselves out as specialists merely because they
have completed required continuing education.’’ Carpenter v. Daar, supra,
199 Conn. App. 393.
10
The Appellate Court also noted that ‘‘the plaintiff took no steps [pursuant
to Practice Book § 10-3 (c)] to counter the contents of Daar’s affidavit,
which indicated that he has been engaged in the practice of general dentistry
since 1982 and refuted the plaintiff’s mischaracterization of the content of
his website.’’ Carpenter v. Daar, supra, 199 Conn. App. 394. The Appellate
Court held that the trial ‘‘court was not bound to presume the validity of
only the facts alleged in the complaint. Furthermore, [the trial court] noted
that the complaint itself failed to sufficiently allege [that] Daar was holding
himself out as a specialist. The indeterminate complaint, as well as the
undisputed facts alleged in Daar’s affidavit, justified the [trial] court’s conclu-
sion that Daar was neither a specialist . . . nor holding himself out to be
one . . . .’’ Id., 395.
11
The defendants contend that the plaintiff misquoted Shoreline’s website
out of context in elevating Daar’s continuing education to claims of specialty
training. They emphasize the ‘‘distinction between a general dentist’s contin-
uing education and the postdoctoral specialty residency program to become
a specialist in a recognized dental specialty such as endodontics’’; (footnote
omitted); given the statutory requirements for board certification under
General Statutes § 20-106a. See footnote 9 of this opinion.
12
In Conboy, a sovereign immunity case, this court considered the various
factual circumstances under which trial courts can consider motions to
dismiss for lack of subject matter jurisdiction under Practice Book §§ 10-
30 and 10-31, namely, ‘‘(1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed
facts. . . . Different rules and procedures will apply, depending on the state
of the record at the time the motion is filed.’’ (Citation omitted; internal
quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651.
‘‘The standard of review for a court’s decision on a motion to dismiss
[under Practice Book § 10-31 (a) (1)] is well settled. A motion to dismiss
tests, inter alia, whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will be de novo. . . .
When a . . . court decides a jurisdictional 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.
. . . In undertaking this review, we are mindful of the well established
notion that, in determining whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be indulged. . . .
‘‘Trial courts addressing motions to dismiss for lack of subject matter
jurisdiction pursuant to [Practice Book] § 10-31 (a) (1) may encounter differ-
ent situations, depending on the status of the record in the case. As summa-
rized by a federal court discussing motions brought pursuant to the
analogous federal rule, [l]ack of subject matter jurisdiction may be found
in any one of three instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the com-
plaint supplemented by undisputed facts plus the court’s resolution of dis-
puted facts. . . . Different rules and procedures will apply, depending on
the state of the record at the time the motion is filed.
‘‘When a trial court decides a jurisdictional question raised by a pretrial
motion to dismiss on the basis of the complaint alone, 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. . . .
‘‘In contrast, if the complaint is supplemented by undisputed facts estab-
lished by affidavits submitted in support of the motion to dismiss; Practice
Book § 10-31 (a); [and/or] other types of undisputed evidence . . . taken
. . . the trial court, in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not conclusively presume
the validity of the allegations of the complaint. . . . Rather, those allega-
tions are tempered by the light shed on them by the [supplementary undis-
puted facts]. . . . If affidavits [or] other evidence submitted in support of
a defendant’s motion to dismiss conclusively establish[es] that jurisdiction
is lacking, and the plaintiff fails to undermine this conclusion with counteraf-
fidavits; see Practice Book § 10-31 (b); or other evidence, the trial court
may dismiss the action without further proceedings. . . . If, however, the
defendant submits either no proof to rebut the plaintiff’s jurisdictional allega-
tions . . . or only evidence that fails to call those allegations into question
. . . the plaintiff need not supply counteraffidavits or other evidence to
support the complaint . . . but may rest on the jurisdictional allegations
therein. . . .
‘‘Finally, [when] a jurisdictional determination is dependent on the resolu-
tion of a critical factual dispute, it cannot be decided on a motion to dismiss
in the absence of an evidentiary hearing to establish jurisdictional facts.
. . . Likewise, if the question of jurisdiction is intertwined with the merits
of the case, a court cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary hearing is necessary
because a court cannot make a critical factual [jurisdictional] finding based
on memoranda and documents submitted by the parties.’’ (Citations omitted;
internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 521–24,
98 A.3d 55 (2014); see Conboy v. State, supra, 292 Conn. 650–54; see also
Conboy v. State, supra, 653 n.15 (‘‘[a] preliminary evidentiary hearing ordi-
narily will suffice [when] the jurisdictional issue is distinct and severable
from the merits of the action, for example, when personal jurisdiction is
called into question’’).
Although Conboy itself concerned subject matter jurisdiction, the sub-
stance of its analysis has been applied to consider claims in personal jurisdic-
tion cases. See, e.g., North Sails Group, LLC v. Boards & More GmbH, 340
Conn. 266, 269–70, 264 A.3d 1 (2021). This includes challenges to personal
jurisdiction arising under § 52-190a, as interpreted by Morgan. See, e.g.,
Barnes v. Greenwich Hospital, 207 Conn. App. 512, 518–19 and n.12, 262 A.3d
1008, cert. denied, 340 Conn. 904, 263 A.3d 100 (2021); Caron v. Connecticut
Pathology Group, P.C., 187 Conn. App. 555, 563–64, 202 A.3d 1024, cert.
denied, 331 Conn. 922, 206 A.3d 187 (2019). This analysis is consistent with
the extension of the due process aspects of the hearing required by Standard
Tallow Corp., which involved the issue of minimum contacts in the personal
jurisdiction context; see Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56,
459 A.2d 503 (1983); to issues of subject matter jurisdiction. See, e.g., Bank
of New York Mellon v. Tope, 345 Conn. 662–63, 682, A.3d (2022)
(plaintiff’s standing to bring foreclosure action); Graham v. Commissioner
of Transportation, 330 Conn. 400, 443, 195 A.3d 664 (2018) (D’Auria, J.,
dissenting) (proof of agency relationship between Commissioner of Trans-
portation and state employee for purposes of waiver of sovereign immunity
under General Statutes § 13a-144); Bayer v. Showmotion, Inc., 292 Conn.
381, 393 n.8, 973 A.2d 1229 (2009) (prior pending action doctrine).
13
Practice Book § 10-32 provides: ‘‘Any claim of lack of jurisdiction over
the person or insufficiency of process or insufficiency of service of process
is waived if not raised by a motion to dismiss filed in the sequence provided
in Sections 10-6 and 10-7 and within the time provided by Section 10-30.’’
14
In LeConche, this court considered whether the failure of a medical
malpractice complaint to include a good faith certificate deprived the court
of subject matter jurisdiction. See LeConche v. Elligers, supra, 215 Conn.
707–709. In concluding that it did not, and that the trial court therefore
should have permitted the plaintiffs to amend their complaint to include
the certificate; see id., 715; this court observed that, although ‘‘the general
purpose of § 52-190a is to discourage the filing of baseless lawsuits against
health care providers . . . the good faith certificate is [not] so central to
that purpose that it is ‘of the essence of the thing to be accomplished,’ ’’
thus rendering it subject matter jurisdictional in nature. Id., 710–11. The
court emphasized that the ‘‘purpose of the certificate is to evidence a plain-
tiff’s good faith derived from the precomplaint inquiry. It serves as an assur-
ance to a defendant that a plaintiff has in fact made a reasonable
precomplaint inquiry giving him a good faith belief in the defendant’s negli-
gence. In light of that purpose, the lack of a certificate does not defeat what
would otherwise be valid jurisdiction in the court. The purpose is just as
well served by viewing the statutory requirement that the complaint contain
a good faith certificate as a pleading necessity akin to an essential allegation
to support a cause of action. Viewed through that prism, the absence from
the complaint of the statutorily required good faith certificate renders the
complaint subject to a motion to strike . . . for failure to state a claim [on]
which relief can be granted, and to render that absence curable by timely
amendment . . . .’’ (Footnote omitted.) Id., 711.
In so concluding, this court observed in LeConche that the pre-2005 version
of § 52-190a did ‘‘not address the consequences of a failure to file a certifi-
cate’’ but did ‘‘address the consequences of filing of what is later deemed
to be a false certificate,’’ with that determination to be made after the
completion of discovery. Id., 712. The court observed: ‘‘Assuming without
deciding that ‘an appropriate sanction’ for filing a false certificate includes
dismissal, it is clear that such a dismissal would be discretionary, rather
than required due to lack of subject matter jurisdiction.’’ Id.
15
In concluding in Morgan that the opinion letter and good faith certificate
did not pertain to subject matter jurisdiction, this court cited to Plante v.
Charlotte Hungerford Hospital, 300 Conn. 33, 46–47, 12 A.3d 885 (2011),
which held that, ‘‘ ‘when a medical malpractice action has been dismissed
pursuant to § 52-190a (c) for failure to supply an opinion letter by a similar
health care provider required by § 52-190a (a), a plaintiff may commence
an otherwise time barred new action pursuant to the matter of form provi-
sions of [General Statutes] § 52-592 (a) only if that failure was caused by a
simple mistake or omission, rather than egregious conduct or gross negli-
gence attributable to the plaintiff or his attorney.’ Consequently, we recog-
nized that the written opinion letter, much like the good faith certificate in
LeConche [v. Elligers, supra, 215 Conn. 701], involved a matter of form [the]
deficiencies [of which], at least in the case of simple mistake or omission,
could be remedied by the failure of form provisions of the accidental failure
of suit statute.’’ Morgan v. Hartford Hospital, supra, 301 Conn. 399–400.
16
Significantly, the court in Morgan squarely rejected the argument that
‘‘the statutory remedy of dismissal does not invoke the court’s jurisdiction
in any manner and that any conclusion to the contrary would lead to bizarre,
unworkable results.’’ (Emphasis added.) Morgan v. Hartford Hospital,
supra, 301 Conn. 403. In particular, the court determined that the defendant’s
reading of § 52-190a as not relating to personal jurisdiction would excuse
compliance with the deadlines set by Practice Book §§ 10-30 and 10-32 and
lead to absurd results by (1) presuming that experienced defense attorneys
would miss the thirty day dismissal deadline and allow a frivolous case to
proceed, and (2) allowing motions to dismiss to be filed many months into
the litigation, perhaps at the nineteenth hour after the expense of deposi-
tions. See id., 403–404.
17
‘‘[W]hen the legal issue presented in connection with a motion to dismiss
is one of statutory construction, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seeking to determine that
meaning . . . § 1-2z directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining such text and
considering such relationship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results, extratextual evidence
of the meaning of the statute shall not be considered. . . . The test to
determine ambiguity is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation. . . . Further, in construing
statutes, we presume that there is a purpose behind every sentence, clause
or phrase used in an act, and that no part of a statute is superfluous.’’
(Citation omitted; internal quotation marks omitted.) Wilkins v. Connecticut
Childbirth & Women’s Center, supra, 314 Conn. 718–19.
18
This is in contrast to subject matter jurisdiction, which ‘‘is the power
[of the court] to hear and determine cases of the general class to which the
proceedings in question belong. . . . A court has subject matter jurisdiction
if it has the authority to adjudicate a particular type of legal controversy.’’
(Internal quotation marks omitted.) Lostritto v. Community Action Agency
of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004).
19
Examples abound in title 52 of the General Statutes. See, e.g., General
Statutes § 52-59b (a) through (c) (long arm statute setting forth numerous
bases for acts committed ‘‘in person or through an agent,’’ over which ‘‘a
court may exercise personal jurisdiction over any nonresident individual,
foreign partnership or foreign voluntary association, or over the executor or
administrator of such nonresident individual, foreign partnership or foreign
voluntary association,’’ emphasizing that, ‘‘[w]here personal jurisdiction is
based solely upon this section, an appearance does not confer personal
jurisdiction with respect to causes of action not arising from an act enumer-
ated in this section,’’ and describing method by which ‘‘any process in any
civil action brought against the nonresident . . . may be served upon the
Secretary of the State and shall have the same validity as if served . . .
personally’’ (emphasis added)); General Statutes § 52-102b (a) (apportion-
ment action may be commenced by service of ‘‘a writ, summons and com-
plaint upon a person not a party to the action who is or may be liable
pursuant to said section for a proportionate share of the plaintiff’s damages
in which case the demand for relief shall seek an apportionment of liability,’’
and ‘‘such writ, summons and complaint, [i.e.] the apportionment complaint,
shall be served within one hundred twenty days of the return date specified
in the plaintiff’s original complaint’’ (emphasis added)).
Beyond title 52, other titles in the General Statutes also have provisions
that refer specifically to personal jurisdiction and the service of process.
See, e.g., General Statutes § 1-101oo (a) and (c) (prescribing that, ‘‘[i]n
addition to its jurisdiction over persons who are residents of this state, the
Office of State Ethics may exercise personal jurisdiction over any nonresi-
dent person, or the agent of such nonresident person, who makes a payment
of money or gives anything of value to a public official or state employee
in violation of section 1-101nn, or who is, or is seeking to be, prequalified
under section 4a-100,’’ and setting forth method for ‘‘service of process’’ on
either such nonresident’s ‘‘registered agent’’ or ‘‘the Secretary of the State’’);
General Statutes § 7-137c (‘‘the owner of any property so assessed may
appeal to the superior court . . . from the valuation of his assessment, by
service of process made in accordance with the provisions of section 52-57’’).
20
‘‘Section 52-190a originally was enacted as part of the Tort Reform Act
of 1986. See Public Acts 1986, No. 86-338, § 12. The original version of the
statute required the plaintiff in any medical malpractice action to conduct
‘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 [plaintiff]’ and to file a certificate ‘that such
reasonable inquiry gave rise to a good faith belief that grounds exist for an
action against each named defendant.’ General Statutes (Rev. to 1987) § 52-
190a (a). The original statute did not require the plaintiff to obtain the
written opinion of a similar health care provider that there appeared to be
evidence of medical negligence, but permitted the plaintiff to rely on such
an opinion to support his good faith belief. The . . . purpose of the original
version of § 52-190a was to prevent frivolous medical malpractice actions.’’
Dias v. Grady, 292 Conn. 350, 357, 972 A.2d 715 (2009).
21
Specifically, in 2019, the legislature amended § 52-190a when it enacted
No. 19-64, § 16, of the 2019 Public Acts (P.A. 19-64), which is the annual
court operations bill. Section 16 of P.A. 19-64 made a minor change to
subsection (b), which extends the limitation period upon petition to the
clerk of court to allow for the completion of the good faith inquiry, by
replacing the phrase ‘‘the court where the civil action will be filed,’’ with
‘‘any superior court or any federal district court . . . .’’ That amendment
of subsection (b) of § 52-190a pertains only to the extension of the statute
of limitations for purposes of the good faith inquiry, which is a provision
that preexisted the enactment of the opinion letter requirement in 2005.
Moreover, there is no recorded legislative history with respect to the enact-
ment of § 16 of P.A. 19-64 that could potentially indicate any relationship
between the opinion letter requirement and the 2019 amendment of § 52-
190a (b).
22
Jurisdiction aside, for purposes of authoring an opinion letter, this court
observed in Bennett that ‘‘strictly adhering to the legislature’s articulation
of who is a similar health care provider may be harsh to would-be plaintiffs,
but [it] is not absurd or unworkable. . . . Specifically, the text of the related
statutes and the legislative history support the . . . determination that,
unlike § 52-184c (d), which allows for some subjectivity as it gives the trial
court discretion in determining whether an expert may testify, § 52-190a
establishes objective criteria, not subject to the exercise of discretion, mak-
ing the prelitigation requirements more definitive and uniform and, therefore,
not as dependent on an attorney or self-represented party’s subjective assess-
ment of an expert’s opinion and qualifications.’’ (Citation omitted; internal
quotation marks omitted.) Bennett v. New Milford Hospital, Inc., supra,
300 Conn. 21.
23
See, e.g., Peters v. United Community & Family Services, Inc., 182
Conn. App. 688, 689–90, 690 n.1, 191 A.3d 195 (2018) (‘‘extensive litigation
since [the] enactment’’ of opinion letter requirement has resulted in ‘‘[a]
computer search for Connecticut cases citing § 52-190a yield[ing] almost
[one] thousand results’’).
24
By way of background, we go beyond procedure and briefly discuss
the series of cases expanding on Bennett v. New Milford Hospital, Inc.,
supra, 300 Conn. 1, insofar as their explication of what the opinion letter
must include substantively governs the motion to dismiss and illustrates
the potential pitfalls in complying with the statute. This line of cases is
significant because it demonstrates the numerous substantive reasons that
might result in dismissal under § 52-190a.
First, to ensure that the plaintiff has complied with § 52-190a (a) by
procuring an opinion authored by a ‘‘similar health care provider,’’ the
Appellate Court has held that the opinion letter must include ‘‘adequate
information that could be used to determine whether the author is a similar
health care provider,’’ such as his or her professional qualifications. Luci-
sano v. Bisson, 132 Conn. App. 459, 466–67, 34 A.3d 983 (2011); see Bell v.
Hospital of Saint Raphael, 133 Conn. App. 548, 561 n.6, 36 A.3d 297 (2012)
(declining ‘‘to require that the letter ‘contain a complete exposition of the
health care provider’s bona fides,’ but [requiring] merely that it disclose
that the health care provider possesses the qualifications set forth in § 52-
184c’’). We note that the trial lawyers specifically ask us to overrule the
Lucisano line of cases as inconsistent with the text of § 52-190a (a); we
leave this request for another day in a case in which the issue is squarely
presented by the parties. See, e.g., Commissioner of Public Safety v. Free-
dom of Information Commission, 312 Conn. 513, 550–51 n.35, 93 A.3d
1142 (2014).
Turning to the specifications of negligence, we note that an opinion letter
complies with ‘‘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’’ because ‘‘a blanket
requirement mandating a more onerous or stringent standard would serve
to deter not only frivolous lawsuits but some meritorious ones, as well, a
result that the legislature did not intend to achieve.’’ Wilcox v. Schwartz,
303 Conn. 630, 643–44, 37 A.3d 133 (2012); see Dias v. Grady, 292 Conn. 350,
359, 972 A.2d 715 (2009) (concluding that ‘‘the phrase ‘medical negligence,’
as used in § 52-190a (a),’’ requires only that author explain breach of standard
of care and does not require author to opine as to causation).
Finally, the Appellate Court more recently explained the extent to which
a plaintiff must undertake a ‘‘reasonable inquiry’’ into the credentials of the
defendant health care provider to secure the appropriate similar health care
provider to author the opinion letter. See Doyle v. Aspen Dental of Southern
CT, PC, 179 Conn. App. 485, 497, 179 A.3d 249 (2018). In concluding that a
general dentist could not author a letter against an oral and maxillofacial
surgeon, the Appellate Court rejected the plaintiff’s reliance on the defen-
dant’s profile on the Department of Public Health website, which did not
indicate the defendant’s board certification, and her argument that ‘‘there
was no authentic public record by which to determine or verify that [the
defendant] had training as an oral and maxillofacial surgeon and she could
verify only that the defendant was a licensed general dentist.’’ (Internal
quotation marks omitted.) Id., 494; see id., 494–95. The Appellate Court held
that ‘‘a reasonable inquiry as permitted by the circumstances’’ would go
beyond the department’s website to ‘‘other methods for ascertaining a defen-
dant health care provider’s credentials,’’ such as simply asking the defendant
or his employer, or filing an independent action for a bill of discovery.
(Emphasis omitted; internal quotation marks omitted.) Id., 496–97.
25
Because it would have been time barred in any event, the Appellate
Court deemed it unnecessary to reach the plaintiff’s broader attempt in
Peters ‘‘to establish that the use of an explanatory or supplemental affidavit
to cure a defect in an opinion letter in response to a motion to dismiss
comports with language in Practice Book § 10-31 (a) permitting supporting
affidavits to establish facts necessary for the adjudication of the motion to
dismiss.’’ Peters v. United Community & Family Services, Inc., supra, 182
Conn. App. 704; see id., 703–704 (observing that ‘‘certain Superior Court
decisions provide some authority for permitting a plaintiff to cure a defective
opinion letter by [a] supplemental affidavit rather than by following the
amendment procedures set forth in Practice Book §§ 10-59 and 10-60’’).
26
The trial court in Kissel had denied the 2012 motion to dismiss, following
dictum from the Appellate Court’s 2009 decision in Votre v. County Obstet-
rics & Gynecology Group, P.C., supra, 113 Conn. App. 585, and determining
that it had the discretion to permit the plaintiff to amend her complaint to
include the opinion letter given the unchallenged attestations of the plaintiff’s
attorney that the letter existed prior to the commencement of the action,
with the failure to attach it to the complaint having been an ‘‘oversight.’’
Kissel v. Center for Women’s Health, P.C., supra, 205 Conn. App. 408; see
id., 407–409.
27
Swinging for the fences, the trial lawyers also challenge several aspects
of Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, as inconsistent
with the focus of § 52-190a on ‘‘good faith’’ and ‘‘reasonableness,’’ in particu-
lar focusing on (1) the difficulty of obtaining an exact match in credentials
between the defendant and authoring health care providers, given the multi-
plicity of overlapping medical specialties, and (2) the extent to which dis-
missal is, or should be, the mandatory remedy for failure to supply a
compliant opinion letter. As with their challenge to the Appellate Court’s
decision in Lucisano v. Bisson, 132 Conn. App. 459, 466–67, 34 A.3d 983(2011); see footnote 24 of this opinion; we leave these arguments about
Bennett for another day.
28
If a defendant intends to raise the issue whether the plaintiff acted in
good faith with respect to the selection of the similar health care provider for
purposes of the opinion letter, that topic may be taken up at the conclusion
of discovery, as § 52-190a (a) has provided both before and after the addition
of the opinion letter requirement in 2005. See General Statutes § 52-190a
(a); see also LeConche v. Elligers, supra, 215 Conn. 708 (‘‘The statute . . .
clearly requires a factual inquiry by the court regarding the sufficiency of
the precomplaint investigation. That inquiry is to be undertaken after the
completion of discovery.’’).
29
Practice Book § 10-6 provides that a motion to dismiss shall be filed
after the complaint, and Practice Book § 10-7 provides that, unless otherwise
ordered by the court, ‘‘the filing of any pleading provided for by [Practice
Book § 10-6] will waive the right to file any pleading which might have been
filed in due order and which precedes it in the order of pleading provided
in that section.’’
30
To the extent that additional elaboration may be helpful as to more
specific procedures governing motions to dismiss under § 52-190a, the legis-
lature is free to provide such guidance, as it has done in similar contexts.
See General Statutes § 52-196a (c), (d) and (e) (prescribing procedure for
special motion to dismiss under anti-SLAPP statute, including thirty day
extendable deadline for motion, stay of discovery upon filing of motion,
and expedited hearing and decision procedure). Thus, the legislature, along
with the Rules Committee of the Superior Court, remains best suited to
consider the views of the relevant stakeholders as to the resolution of any
remaining procedural lacunae or ambiguities with respect to § 52-190a. See,
e.g., Newland v. Commissioner of Correction, 322 Conn. 664, 686 n.7, 142
A.3d 1095 (2016); Commissioner of Public Safety v. Freedom of Information
Commission, 312 Conn. 513, 550, 93 A.3d 1142 (2014).
31
The plaintiff argues that the term ‘‘holds himself out as a specialist,’’
as used in § 52-184c (c), is undefined and a question of fact. The plaintiff
emphasizes that ‘‘[h]ealth care providers [who] attempt to present their
continuing education coursework as particularized training, as . . . Daar
did, should be deemed to have held themselves out as specialists, rather
than those [who] simply adhere to their professional responsibilities.’’
32
The complaint avers: ‘‘One of the most common endodontic treatments
is root canal therapy, a procedure [that] effectively eases the pain associated
with a bacterial infection deep within the pulp of the tooth. Of course, root
canal treatment doesn’t just relieve pain—it also stops the infection by
removing dead and dying tissue from the tooth’s pulp. Plus, it helps to
save the tooth, which is in danger of being lost if left untreated.’’ (Internal
quotation marks omitted.)
33
We disagree with the defendants’ claim that the opinion letter itself is
inadequate because Solomon’s statement that he ‘‘ ‘received [his] specialty
[b]oards in [e]ndodontics in 1970’ . . . does not lead to the conclusion that
the author is American board certified in the specialty of endodontics.’’
(Citation omitted; emphasis in original.) They contend that the ‘‘reference
to plural ‘specialty [b]oards in [e]ndodontics’ also is indeterminate and
ambiguous. There simply is no way for a court to determine from the opinion
letters attached to the complaint whether [Solomon’s] reference to ‘specialty
[b]oards’ included board certification by the American Board of Endodontics
. . . [or] any basis to find that [Solomon] had maintained his board certifica-
tion since it was obtained in 1970.’’ (Emphasis in original.) They further
argue that, although Solomon adequately stated that he ‘‘teaches endodon-
tics, there is no specific information as to his training in the specialty
of endodontics,’’ citing General Statutes § 20-106a, which governs when a
Connecticut licensed dentist may designate himself or herself as a specialist.
See footnote 9 of this opinion. We disagree. Although the plaintiff likely
would have benefited had Solomon stated his qualifications more specifically
in the opinion letter, Solomon’s failure to use talismanic words does not
preclude us from reading it broadly and realistically—given his statements
about receiving his specialty boards and academic career teaching endodon-
tics—to deem him the requisite similar health care provider.