Gonzales v. Langdon ( 2015 )

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LUZ MARINA GONZALES v. ROBERT
LANGDON ET AL.
(AC 37090)
DiPentima, C. J., and Gruendel and Prescott, Js.
Argued September 24—officially released December 1, 2015
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Stephen M. Reck, for the appellant (plaintiff).
Michael R. McPherson, for the appellees
(defendants).
Opinion
PRESCOTT, J. This appeal arises out of a medical
malpractice action brought by the plaintiff, Luz Marina
Gonzales, against the defendants, Robert Langdon and
Shoreline Dermatology, P.C., after a neck and jowl ‘‘S’’
facelift procedure performed by Langdon allegedly left
the plaintiff permanently injured. The plaintiff appeals
from the judgment of the trial court dismissing her
complaint against the defendants for failure to include
a legally sufficient opinion letter authored by a similar
health care provider as required by General Statutes
§ 52-190a (a). The plaintiff claims that the court improp-
erly granted the defendants’ motion to dismiss because
(1) the original opinion letter was legally sufficient, or,
in the alternative, (2) (A) the court should have granted
the plaintiff leave to amend her complaint, and (B)
furthermore, if leave had been appropriately granted,
the proposed amended opinion letter and the proposed
new opinion letter attached to the amended complaint
were legally sufficient.1 We reverse the judgment of
the court.
The plaintiff’s original complaint, filed on January 21,
2014,2 contained the following allegations. The plaintiff
was a patient of Langdon, ‘‘a dermatologist who holds
himself out as a specialist in cosmetic surgery . . . .’’3
On December 15, 2011, the plaintiff underwent a neck
and jowl ‘‘S’’ facelift procedure, performed by Langdon
at Shoreline Dermatology, P.C. During the procedure,
Langdon cut the plaintiff’s left facial nerves, buccal
branch nerves, and zygomatic branch nerves, resulting
in the plaintiff suffering facial neuropathy and defor-
mity. The plaintiff’s complaint alleged that Langdon neg-
ligently conducted the surgery and also that he departed
from the standard of care by performing a procedure
in which he was not properly skilled or trained.
Attached to the plaintiff’s complaint was her attor-
ney’s good faith certificate of reasonable inquiry and
an opinion letter. The opinion letter (original opinion
letter) was authored by a board certified dermatologist,
who stated that Langdon departed from the standard
of care when performing the neck and jowl ‘‘S’’ facelift
procedure by cutting the plaintiff’s left buccal nerve.
On February 26, 2014, in response to the plaintiff’s
complaint, the defendants filed a motion to dismiss for
lack of personal jurisdiction, alleging that the opinion
letter was legally insufficient and contained inadequate
details regarding the author’s qualifications as a similar
health care provider. Although the plaintiff maintained
that the original opinion letter was legally sufficient,
on March 11, 2014, she filed a request for leave to amend
her complaint along with an exact copy of her initial
complaint, an amended version of the original opinion
letter (proposed amended opinion letter), and a new
opinion letter authored by a board certified plastic sur-
geon (proposed new opinion letter). Although the plain-
tiff’s request for leave to amend her complaint was filed
more than thirty days from the return day, and thus,
past the time to amend as of right; see General Statutes
§ 52-128; Practice Book § 10-59; it was filed within the
applicable statute of limitations. General Statutes §§ 52-
190a (b) and 52-584.
The proposed amended opinion letter authored by
the board certified dermatologist stated in relevant part
that the author was ‘‘board-certified by the American
Board of Dermatology and perform[s] cosmetic surgical
procedures. The American Board of Medical Specialties
. . . does not recognize ‘Cosmetic Surgery’ as a board
specialty. The skills needed for cosmetic surgical proce-
dures are certified by the American Board of Derma-
tology.’’
The proposed new opinion letter, authored by a plas-
tic surgeon certified by the American Board of Plastic
Surgery, set forth the author’s credentials and stated
that ‘‘Langdon departed from the standard of care by
cutting the [plaintiff’s] buccal nerve and by performing
a surgery which should not be performed by a dermatol-
ogist. This surgery is not within [Langdon’s] medical
specialty and should be performed by a plastic
surgeon.’’
On May 5, 2014, the plaintiff’s request for leave to
amend and the defendants’ motion to dismiss were
argued on short calendar before Judge Brian T. Fischer.4
During oral argument, the parties disagreed as to
whether the original opinion letter, the proposed
amended opinion letter, or the proposed new opinion
letter should be the operative letter, and whether any
of the letters were legally sufficient under § 52-190a (a).
In a written memorandum of decision filed July 2, 2014,
the court granted the defendants’ motion to dismiss for
lack of personal jurisdiction on the ground that the
original opinion letter was not authored by a similar
health care provider. At no point in the court’s memo-
randum of decision did the court rule on or otherwise
discuss the plaintiff’s request for leave to amend her
complaint, or mention the proposed amended opinion
letter or the proposed new opinion letter.
On July 9, 2014, the plaintiff filed a motion to reargue,
for reconsideration, and for an articulation concerning
the plaintiff’s request for leave to amend her complaint.
The court denied the plaintiff’s motion without discus-
sion. On August 12, 2014, the plaintiff filed a motion
for order regarding her request for leave to amend her
complaint, to which the court never responded. This
appeal followed.
I
The plaintiff first claims that the trial court improp-
erly granted the defendants’ motion to dismiss because
the original opinion letter was legally sufficient pursu-
ant to § 52-190a (a). The plaintiff argues that she was
only required to obtain an opinion letter authored by
a board certified dermatologist because that was the
only certification that was listed on Langdon’s profile
on the Department of Public Health’s website. The
defendants argue that the original opinion letter was
insufficient because, on the basis of the allegations in
the complaint, the plaintiff was required to obtain an
opinion letter authored by a health care provider who
was board certified in cosmetic surgery. We agree with
the defendants that the original opinion letter was
legally insufficient.
The court granted the defendants’ motion to dismiss
for lack of personal jurisdiction on the ground that
the original opinion letter was not legally sufficient.
Because the court’s ultimate conclusion that it lacked
personal jurisdiction is a legal conclusion, our review
is plenary. Torres v. Carrese, 149 Conn. App. 596, 608,
90 A.3d 256 (‘‘[o]ur review of a trial court’s ruling on
a motion to dismiss pursuant to § 52-190a is plenary’’),
cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).
We begin our analysis by setting forth the relevant
statutory provisions. Section 52-190a (a) provides in
relevant part that, prior to filing a personal injury action
against a health care provider, ‘‘the attorney or party
filing the action or apportionment complaint [must
make] a reasonable inquiry as permitted by the circum-
stances to determine that there are grounds for a good
faith belief that there has been negligence in the care
or treatment of the claimant. . . . To show the exis-
tence 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 [General
Statutes] 52-184c . . . that there appears to be evi-
dence of medical negligence and includes a detailed
basis for the formation of such opinion. . . .’’ Failure
to attach to the complaint a legally sufficient opinion
letter authored by a similar health care provider man-
dates dismissal because the court lacks personal juris-
diction over the defendant. General Statutes 52-190a
(c); see also Morgan v. Hartford Hospital, 301 Conn.
388, 402, 21 A.3d 451 (2011).
Section 52-184c defines ‘‘similar health care pro-
vider.’’ Pursuant to that provision, the precise definition
of similar health care provider depends on whether
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 . . . .’’ General Statutes 52-184c (c).
Our Supreme Court has ‘‘construe[d] § 52-184c (b) as
establishing the qualifications of a similar health care
provider when the defendant is neither board certified
nor in some way a specialist, and § 52-184c (c) as estab-
lishing those qualifications when the defendant is board
certified, ‘trained and experienced in a medical spe-
cialty, or holds himself out as a specialist . . . .’ ’’ Ben-
nett v. New Milford Hospital, Inc., 300 Conn. 1, 23, 12
A.3d 865 (2011).
If ‘‘the [plaintiff] [alleges] in his complaint that the
defendant [is a specialist] . . . the opinion letter . . .
ha[s] to be . . . authored by a similar health care pro-
vider as defined by § 52-184c (c),’’ even if the defendant
health care provider is not actually board certified in
that specialty. Id., 21, 23–24; see Wilkins v. Connecticut
Childbirth & Women’s Center, supra, 314 Conn. 730–31
(‘‘it is appropriate to look to the allegations of the plain-
tiff’s complaint to frame the requirements for who con-
stitutes a similar health care provider for purposes of
the good faith opinion certification’’). Pursuant to sub-
section (c) of § 52-184c, a similar health care provider
is one who ‘‘[i]s trained and experienced in the same
specialty; and (2) is certified by the appropriate Ameri-
can board in the same specialty . . . .’’ (Emphasis
added.)
Our precedent indicates that under § 52-184c (c), it
is not enough that an authoring health care provider
has ‘‘familiarity with or knowledge of the relevant stan-
dard of care . . . .’’ (Internal quotation marks omitted.)
Torres v. Carrese, supra, 149 Conn. App. 610. A similar
health care provider must be ‘‘trained and experienced
in the same specialty’’ and ‘‘certified by the appropriate
American board in the same specialty.’’ General Stat-
utes § 52-184c (c). A similar health care provider does
not have to ‘‘be certified by the same board as the
defendant health care provider, but rather [must be
board certified in] the same specialty.’’ Wilkins v. Con-
necticut Childbirth & Women’s Center, supra, 314
Conn. 735. ‘‘[A] medical professional who is board certi-
fied in the same specialty but has greater training and
experience, satisfies the purpose of the requirement of
the opinion letter.’’ Id., 727. For example, if the defen-
dant is a board certified nurse-midwife, a board certified
obstetrician and gynecologist is a similar health care
provider, even though the board certified obstetrician
and gynecologist holds a different board certification
and is more qualified in obstetrics than the board certi-
fied nurse-midwife, because both health care providers
have specialization in obstetrics. See id., 735.
The plaintiff claims that she was only required to
obtain an opinion letter authored by a dermatologist
because, in her view, Langdon is only board certified
as a dermatologist. According to the plaintiff, Langdon
is certified in cosmetic surgery by an inappropriate
board and the only board certification that is listed
on Langdon’s physician profile on the Department of
Public Health’s website is in dermatology. On the basis
of the plaintiff’s complaint and the allegations therein,
however, the plaintiff had admitted that Langdon ‘‘holds
himself out as a specialist in cosmetic surgery.’’ Accord-
ingly, based on the language that she chose to employ,
the plaintiff’s complaint triggered § 52-184c (c). As the
court held in Bennett, 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. On the basis of the plaintiff’s com-
plaint alone, the plaintiff was required to obtain an
opinion letter authored by a health care provider trained
and experienced in cosmetic surgery and certified by
the appropriate American board in cosmetic surgery.
Thus, we need not decide whether Langdon holds board
certification from an ‘‘appropriate American board’’
because the plaintiff did not necessarily have to find a
health care provider certified by the American Board
of Cosmetic Surgery, the board by which Langdon was
certified; but, she did have to obtain an opinion letter
from a health care provider board certified in cosmetic
surgery or in a medical specialty that includes equiva-
lent or greater training and experience than cosmetic
surgery.
We conclude that the original opinion letter is not
legally sufficient pursuant to § 52-184c (c). The original
opinion letter was authored by a board certified derma-
tologist, who did not claim to have any training or expe-
rience in cosmetic surgery, let alone a certification in
plastic surgery or cosmetic surgery. Although the board
certified dermatologist claimed to know the relevant
standard of care and that Langdon breached that stan-
dard, this is not sufficient to meet the requirements of
§ 52-184c (c). See Torres v. Carrese, supra, 149 Conn.
App. 610. The plaintiff was required to obtain an opinion
letter authored by a health care provider with experi-
ence and training in cosmetic surgery, and with board
certification in cosmetic surgery or in a specialty requir-
ing greater training and experience. Both of these
requirements are missing from the original opinion let-
ter. Thus, the original opinion letter was legally insuffi-
cient because it did not meet the statutory prerequisites
to commence the action.
II
The plaintiff next claims that, even if the original
opinion letter is legally insufficient, the court improp-
erly granted the defendants’ motion to dismiss because
it first should have granted her request for leave to
amend and considered the proposed amended com-
plaint before ruling on the motion to dismiss. According
to the plaintiff, had the court considered the proposed
amended complaint, it would have concluded that the
proposed amended opinion letter and proposed new
opinion letter complied with the requirements of § 52-
190a (a). Before addressing the legal sufficiency of the
proposed amended opinion letter and the proposed new
opinion letter, we first must consider whether a com-
plaint alleging medical malpractice that does not
include a legally sufficient opinion letter may be
amended to avoid dismissal, and under what circum-
stances an amendment is permitted.
The plaintiff argues that her amended complaint
should have been considered because her request for
leave to amend was filed prior to the running of the
statute of limitations. According to the plaintiff, if leave
to amend the complaint had been granted, the proposed
amended opinion letter would have been legally suffi-
cient because the author was a board certified dermatol-
ogist with experience in cosmetic surgery, just like
Langdon, and the proposed new opinion letter would
have been legally sufficient because it was authored by
a health care provider with even greater experience
and certification than a cosmetic surgeon.
The defendants argue, as they did in their objection
to the plaintiff’s request for leave to amend, that because
the original opinion letter was legally insufficient, there
was a defect in the process, which implicates the court’s
personal jurisdiction over the defendants and cannot
be cured by an amendment. Moreover, with respect to
the proposed new opinion letter specifically, the defen-
dants argue that, pursuant to our decision in Votre v.
County Obstetrics & Gynecology Group, P.C., 113
Conn. App. 569, 585, 966 A.2d 813, cert. denied, 292
Conn. 911, 973 A.2d 661 (2009), a plaintiff cannot amend
a complaint to cure a defective opinion letter by
obtaining a new opinion letter that did not exist at the
commencement of the action. Furthermore, the defen-
dants contend that, even if an amendment was permissi-
ble, neither the amended opinion letter nor the new
opinion letter was legally sufficient because the plaintiff
was required to obtain an opinion letter authored by a
board certified cosmetic surgeon. We agree with the
plaintiff that the court should have granted the plaintiff
leave to amend the complaint but, in light of the record
before us, we are unable to determine whether the
proposed new opinion letter satisfies § 52-190a (a).
A
We first address the plaintiff’s argument that the trial
court improperly failed to grant her request for leave
to amend the complaint. The defendants contend that
the original opinion letter was the operative letter and
that the court did not abuse its discretion by implicitly
denying the plaintiff’s request for leave to file an
amended complaint. Although the court never explicitly
ruled on the plaintiff’s request for leave to amend her
complaint, the defendants argue that the court, by not
explicitly ruling on the request and subsequently grant-
ing the defendants’ motion to dismiss, implicitly denied
the plaintiff’s request for leave to amend and, therefore,
we should review this claim pursuant to an abuse of
discretion standard. We agree with the defendants that
we should infer from the court’s silence that it implicitly
denied the plaintiff’s request for leave to amend. Pre-
sumably, the court implicitly denied the plaintiff’s
request for leave to amend because it believed that it
lacked the authority to do so in light of the plaintiff’s
failure to file a legally sufficient opinion letter when she
first commenced the action. See Ahneman v. Ahneman,
243 Conn. 471, 480, 706 A.2d 960 (1998) (‘‘[t]he trial
court’s decision not to consider the defendant’s motions
was the functional equivalent of a denial of those
motions’’).
We begin by setting forth our standard of review.
‘‘The allowance of an amendment to a complaint more
than thirty days after the return day . . . rests in the
discretion of the court. . . . The trial court’s action is
discretionary and subject to review for an abuse of
discretion. . . . Much depends upon the particular cir-
cumstances of each case. The factors to be considered
include unreasonable delay, fairness to the opposing
parties, and negligence of the party offering the amend-
ment.’’ (Citations omitted.) Antonofsky v. Goldberg, 144
Conn. 594, 597, 136 A.2d 338 (1957). ‘‘Although it is not
our habit to disturb a trial court’s determination of
whether an amendment should be permitted, we have
done so on rare occasions when allowing the ruling to
stand would work an injustice to one of the parties.’’
Falby v. Zarembski, 221 Conn. 14, 26, 602 A.2d 1 (1992).
‘‘It is the [plaintiff’s] burden in this case to demonstrate
that the trial court clearly abused its discretion.’’ (Inter-
nal quotation marks omitted.) Billy & Leo, LLC v.
Michaelidis, 87 Conn. App. 710, 714, 867 A.2d 119
(2005).
To determine if the court abused its discretion by
failing to grant the plaintiff leave to amend the com-
plaint, we first turn to whether, as a matter of law, a
plaintiff properly may attempt to cure a legally insuffi-
cient opinion letter by amending the complaint to attach
an amended opinion letter, or an entirely new opinion
letter, that complies with § 52-190a (a). For the reasons
that follow, we conclude that, if a plaintiff alleging medi-
cal malpractice seeks to amend his or her complaint
in order to amend the original opinion letter, or to
substitute a new opinion letter for the original opinion
letter, the trial court (1) must permit such an amend-
ment if the plaintiff seeks to amend as of right within
thirty days of the return day and the action was brought
within the statute of limitations, and (2) has discretion
to permit such an amendment if the plaintiff seeks to
amend within the applicable statute of limitations but
more than thirty days after the return day. The court
may abuse its discretion if it denies the plaintiff’s
request to amend despite the fact that the amendment
would cure any and all defects in the original opinion
letter and there is an absence of other independent
reasons to deny permission for leave to amend. See,
e.g., Falby v. Zarembski, supra, 221 Conn. 25–26 (abuse
of discretion to deny permission for leave to amend
complaint to cure mispleading if ‘‘no sound reason’’ for
denial exists, like unfair surprise or prejudice).
At the outset, we note that our Supreme Court has
not squarely addressed the issue before us. In Bennett
v. New Milford Hospital, Inc., supra, 300 Conn. 30 n.17,
our Supreme Court recognized that that case did not
present ‘‘an opportunity to resolve . . . [the issue of]
whether amendment of the defective pleading, includ-
ing the substitution of a new opinion letter for one that
appears not to comply with § 52-190a (a) or one that
was not filed at all, is an appropriate response to a
pending motion to dismiss pursuant to § 52-190a (c)
. . . .’’ The court specifically took note of the existence
of the issue, but concluded that it was not presented
by the facts in Bennett because the plaintiff had not
moved to amend her complaint. Id. In so doing, the
court recognized that there was a division in the Supe-
rior Court,5 and that the split of authority was in large
part engendered by the decision of the Appellate Court
in Votre v. County Obstetrics & Gynecology Group,
P.C., supra, 113 Conn. App. 585, in which we stated:
‘‘[g]iven the fallibility existing in the legal profession
. . . it is possible that a written opinion of a similar
health care provider, existing at the time of commence-
ment of an action, might be omitted through inadver-
tence. In such a scenario, it certainly may be within
the discretionary power of the trial judge to permit an
amendment to attach the opinion, and, in so doing,
deny a pending motion to dismiss.’’ (Emphasis added;
footnote omitted.)
In our view, the discussion in Votre was entirely dicta
because the issue of whether a plaintiff can amend his
or her complaint to cure a legally inadequate opinion
letter was not before this court. In Votre, the plaintiff
did not attach any opinion letter to her original com-
plaint, nor did she attempt to amend her complaint
to subsequently add one. Id., 574–75, 584. Rather, the
plaintiff in Votre argued that she was not required to
obtain an opinion letter because she was not alleging
medical malpractice. Id., 575. In dicta, we mentioned
that ‘‘the purpose of § 52-190a is to require the opinion
[letter by a similar health care provider] prior to com-
mencement of an action, [and] allowing a plaintiff to
obtain such opinion after the action has been brought
would vitiate the statute’s purpose by subjecting a
defendant to a claim without the proper substantiation
that the statute requires.’’ Id., 585. We further opined
that one situation in which a trial court may, in its
discretion, permit an amendment to attach an opinion
letter is when an opinion letter, ‘‘existing at the time
of commencement of an action, [is] omitted through
inadvertence.’’ Id. If no opinion letter exists at the com-
mencement of the action, there is no room for discretion
to allow for amendment and a ‘‘plaintiff [cannot] turn
back the clock and attach by amendment an opinion
of a similar health care provider that did not exist at
the commencement of the action.’’ Id., 586.
The present case is distinguishable from Votre, which
dealt with a specific set of facts, including that the
plaintiff never made a good faith effort in her original
complaint to attach an opinion letter, and never sought
to amend her complaint with an opinion letter within
the statute of limitations. In fact, the plaintiff in Votre
never made any attempt to obtain an opinion letter.
Accordingly, nothing in either Votre or Bennett prevents
us from deciding the issue presented by the facts in
this case.
After Bennett, our Supreme Court revisited § 52-190a
in Morgan v. Hartford Hospital, supra, 301 Conn. 402,
which held that ‘‘the failure to attach a proper written
opinion letter pursuant to § 52-190a constitutes insuffi-
cient . . . process’’ and, therefore, ‘‘implicates per-
sonal jurisdiction.’’ The court, in Morgan, however, did
not address whether a defect of this nature may be
cured by amendment. Although the court held that a
legally sufficient opinion letter is required to establish
personal jurisdiction over the defendant in a medical
malpractice case, it is clear from the discussion in Mor-
gan that § 52-190a is a statutory requirement that is
sui generis, but, at the same time, linked to personal
jurisdiction. In Morgan, the court discussed Plante v.
Charlotte Hungerford Hospital, 300 Conn. 33, 46–47,
12 A.3d 885 (2011), which held that an opinion letter
is a matter of form, not jurisdiction, under the accidental
failure of suit statute. The court in Morgan extended the
holding of Plante, so that although a legally sufficient
opinion letter is a ‘‘matter of form’’; Morgan v. Hartford
Hospital, supra, 301 Conn. 400; it nevertheless ‘‘impli-
cates personal jurisdiction.’’ Id., 402.
Since Morgan, our Supreme Court has not again con-
sidered § 52-190a and how it relates to process and
personal jurisdiction. Presumably, because Morgan
holds that a legally sufficient opinion letter is part of
process, General Statutes § 52-72 (a) for amending pro-
cess applies, which provides: ‘‘Upon payment of taxable
costs, any court shall allow a proper amendment to
civil process which is for any reason defective.’’ The
defendants argue that our Supreme Court, in New
England Road, Inc. v. Planning & Zoning Commis-
sion, 308 Conn. 180, 189, 61 A.3d 505 (2013), limited
the applicability of § 52-72 to technical defects in pro-
cess, like incorrect return days or late return of process
to court, and, therefore, the plaintiff cannot seek leave
to amend the complaint to cure a legally insufficient
opinion letter, which is a substantive defect in process.
In New England Road, Inc., the court granted the
defendant’s motion to dismiss a zoning appeal because
the plaintiff failed to serve a citation or summons with
the complaint, and, thus, the court lacked both subject
matter jurisdiction and personal jurisdiction over the
defendants. See id., 181–82 and n.1. The court in New
England Road, Inc., began its analysis by noting that
there is no absolute right of appeal from administrative
agency decisions. Id., 183. General Statutes § 8-8 pro-
vides trial courts with appellate jurisdiction over admin-
istrative agency decisions, and strict compliance with
the statute is required to establish both subject matter
jurisdiction and personal jurisdiction. See id., 183–84.
The court concluded that ‘‘§ 52-72 has applied histori-
cally only to allow cure of technical defects in the . . .
process’’; id., 189; and, because the plaintiff ‘‘failed to
comply in any fashion [with the requirement to include
a writ of summons or citation]’’; (internal quotation
marks omitted) id., 182–83; ‘‘the failure to serve a sum-
mons or citation [was] a substantive defect that is not
amendable pursuant to § 52-72.’’ Id., 191–92. ‘‘[Only]
technical deficiencies in the appeal do not deprive the
court of subject matter jurisdiction.’’ (Internal quotation
marks omitted; emphasis in original.) Id., 194.
New England Road, Inc., is distinguishable from the
facts of this case. Unlike the present case, New England
Road, Inc., was not a medical malpractice case, but
rather was a zoning appeal, which demands strict com-
pliance with the process requirements to establish the
court’s subject matter jurisdiction. Furthermore, in New
England Road, Inc., and the cases it cites to, the plaintiff
‘‘failed to comply in any fashion’’ with one or more
of the process requirements; (internal quotation marks
omitted) id., 191; which is distinguishable from the pre-
sent case, where the plaintiff made a good faith effort
in her original complaint to attach an opinion letter
authored by a similar health care provider. Accordingly,
nothing in New England Road, Inc., prevents us from
considering the issue presented by the facts in this case.
Despite New England Road, Inc., our Supreme Court
has not repudiated its language in Bennett or this court’s
language in Votre suggesting that an amendment may
be permissible to cure a legally insufficient opinion
letter. Although our Supreme Court in Morgan held that
a legally insufficient opinion letter implicates the court’s
personal jurisdiction over the defendant, the require-
ment of a legally sufficient opinion letter is unique to
that statute, and the court said nothing in Morgan to
suggest that the amendment of an opinion letter is
not permissible.
In light of our conclusion that there is no controlling
appellate authority on the issue of whether a plaintiff
in a medical malpractice action may comply with § 52-
190a (a) by amending a complaint to attach an amended
opinion letter or an entirely new opinion letter, we
turn to a discussion of the language of the statute, the
policies underlying it, and general principles of judicial
economy. As we must, we begin our analysis with the
language of § 52-190a (a).
Section 52-190a (a) states in relevant part that ‘‘[n]o
civil action . . . shall be filed to recover damages
resulting from [alleged medical practice] . . . unless
the attorney or party filing the action . . . has made a
reasonable inquiry as permitted by the circumstances
to determine that there are grounds for a good faith
belief that there has been negligence in the care or
treatment of the claimant. The complaint [or] initial
pleading . . . shall contain a certificate of the attorney
or party filing the action . . . that such reasonable
inquiry gave rise to a good faith belief that grounds
exist for an action against each named defendant . . . .
To show the existence of such good faith, the claimant
or the claimant’s attorney . . . shall obtain a written
and signed opinion of a similar health care provider,
as defined in section 52-184c, which similar health care
provider shall be selected pursuant to the provisions
of said section, that there appears to be evidence of
medical negligence and includes a detailed basis for
the formation of such opinion. . . . The claimant or
the claimant’s attorney . . . shall attach a copy of such
written opinion, with the name and signature of the
similar health care provider expunged, to such certifi-
cate. . . . In addition to such written opinion, the court
may consider other factors with regard to the existence
of good faith. . . .’’
When interpreting the language of a statute, our stan-
dard of review is plenary. State v. Boyd, 272 Conn.
72, 76, 861 A.2d 1155 (2004). ‘‘Relevant legislation and
precedent guide the process of statutory interpretation.
[General Statutes § 1-2z] provides that, [t]he meaning
of a statute shall, in the first instance, be ascertained
from the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Id.
Section 52-190a (a) contains no express language pro-
hibiting a plaintiff from amending an opinion letter after
the action is commenced. The statute clearly and unam-
biguously states that an opinion letter must be attached
to the certificate of good faith, but makes no reference
as to whether the complaint may be amended to attach
an amended or new opinion letter if the original opinion
letter is defective. In the absence of such an explicit
statutory prohibition against amending the complaint
and opinion letter, we can divine no legislative intent
to override the general applicability of General Statutes
§ 52-1286 and Practice Book §§ 10-597 and 10-60.8
Section 52-128 and Practice Book § 10-59 allow the
curing of ‘‘any defect [or] mistake’’ in a complaint as
of right within thirty days of the return date. If an amend-
ment is as of right, the amendment takes effect ‘‘ab
initio.’’ Sheehan v. Zoning Commission, 173 Conn. 408,
413, 378 A.2d 519 (1977); see also Dauti v. Stop & Shop
Supermarket Co., 90 Conn. App. 626, 639–40, 879 A.2d
507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
Practice Book § 10-60 allows a plaintiff to amend his
or her complaint more than thirty days after the return
day by judicial authority, written consent of the adverse
party, or filing a request for leave to amend with the
amendment attached. Although requests for leave to
amend pursuant to § 10-60 are subject to the court’s
discretion, ‘‘our courts have been liberal in permitting
amendments . . . .’’ (Internal quotation marks omit-
ted.) Connecticut National Bank v. Voog, 233 Conn.
352, 364, 659 A.2d 172 (1995). Courts traditionally deny
leave to amend only if the amendment would prejudice
the defendant by causing undue delay or the amend-
ment does not relate back to the matters pleaded in
the original complaint. See id. (‘‘[t]he motion to amend
is addressed to the trial court’s discretion which may
be exercised to restrain the amendment of pleadings
so far as necessary to prevent unreasonable delay of
the trial’’); Constantine v. Schneider, 49 Conn. App.
378, 390, 715 A.2d 772 (1998) (‘‘such discretion may
be exercised as to amendments that involve matters
pleaded in the complaint sought to be amended’’).
Therefore, not only does § 52-190a not prohibit amend-
ments, but other statutes, the Practice Book, and our
case law support amendment in the absence of such a
statutory prohibition.
Next we turn to the policies underlying § 52-190a (a).
Our Supreme Court has concluded that the purpose of
§ 52-190a (a) is to prevent frivolous medical malpractice
actions by ‘‘[ensuring] that there is a reasonable basis
for filing a medical malpractice case under the circum-
stances and . . . eliminat[ing] some of the more ques-
tionable or meritless cases . . . .’’ (Internal quotation
marks omitted.) Bennett v. New Milford Hospital, Inc.,
supra, 300 Conn. 20. Although our Supreme Court in
Bennett did not reach this issue, the court did suggest
that allowing amendments would not undermine the
purpose of § 52-190a (a): ‘‘[B]oth the trial lawyers and
the defendant acknowledge the potential severity of the
statutory dismissal remedy, and, along with an aca-
demic commentator . . . identify the free amendment
of challenged opinion letters as a way to ensure compli-
ance with § 52-190a (a) while protecting nonfrivolous,
but procedurally flawed, actions from dismissal.’’ Id.,
30.
The legislative purpose of § 52-190a (a) is not under-
mined by allowing a plaintiff leave to amend his or her
opinion letter or to substitute in a new opinion letter
if the plaintiff did file, in good faith, an opinion letter
with the original complaint, and later seeks to cure a
defect in that letter within the statute of limitations.
Amending within this time frame typically will not preju-
dice the defendant or unduly delay the action. The plain-
tiff is still required to prove that his or her claims are
meritorious at the beginning of the action9 and meritless
claims can be weeded out quickly.
Allowing amendments filed after the thirty days to
amend as of right but before the statute of limitations
period has run favors judicial economy for the following
reasons. If a medical malpractice case is dismissed for
lack of a legally sufficient opinion letter, the dismissal
is without prejudice, ‘‘and even if the statute of limita-
tions has run, relief may well be available under the
accidental failure of suit statute, General Statutes § 52-
592.’’ Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 31. Thus, if a plaintiff is unable to amend the
original opinion letter during this time frame, the action
would be dismissed without prejudice and could be
filed anew, either within the statute of limitations or
pursuant to the accidental failure of suit statute. Thus,
an unduly restrictive reading of § 52-190a would only
serve to generate multiple proceedings arising from
the same case due to the unnecessary refiling of valid
medical malpractice claims. Additionally, it would cre-
ate further litigation regarding whether the plaintiff’s
action was within the ambit of the accidental failure of
suit statute. See, e.g., Plante v. Charlotte Hungerford
Hospital, supra, 300 Conn. 33. In our view, there is no
need to require a plaintiff to file an entirely new action
if an amendment can cure a defect in the initial opinion
letter within a relatively short span of time after the
filing of the initial complaint.10
Furthermore, our conclusion is consistent with the
decision in at least one other state that has a statute
similar to § 52-190a. For example, Nevada Revised Stat-
utes 41A.071 is similar to § 52-190a, requiring dismissal
without prejudice of medical malpractice claims if a
legally sufficient affidavit of merit authored by a medi-
cal expert, who practices or who has practiced in an
area ‘‘substantially similar’’ to that of the defendant, is
not attached to the complaint. The Nevada Supreme
Court, in Borger v. Eighth Judicial District Court, 120
Nev. 1021, 1029–30, 102 P.3d 600 (2004),11 held that
when there is ‘‘a legitimate dispute over whether a filed
affidavit of merit complies with the statute . . . a dis-
trict court, within its sounds discretion and considering
the need for judicial economy, may grant leave to amend
malpractice complaints supported by disputed affida-
vits under circumstances where justice so requires.’’
The court’s rationale for this holding was that ‘‘[the
statute] contains no explicit prohibition against amend-
ments, and . . . legislative changes in the substantive
law may not unduly impinge upon the ability of the
judiciary to manage litigation . . . .’’ Id., 1029. The
same rationales apply here. Not only does § 52-190a not
prohibit amendments, but judicial economy and justice
support allowing amendments in cases, like this one,
where a legally insufficient opinion letter in a seemingly
nonfrivolous medical malpractice claim can be easily
cured by amendment within a short time frame.
Accordingly, we conclude that the court was not pro-
hibited from considering whether to grant the plaintiff
leave to amend the complaint to attach both the pro-
posed amended opinion letter and the proposed new
opinion letter. We also conclude that, under the circum-
stances of this case, the trial court abused its discretion
by not permitting leave to amend because, although the
plaintiff did not seek to amend as of right, she did
request leave to amend her complaint within the statute
of limitations and no other circumstances that would
justify denying leave to amend, such as undue delay or
prejudice, existed in this case.
Although great deference is given to the trial court
pursuant to an abuse of discretion standard of review,
this is one of the rare occasions in which not permitting
the plaintiff to amend her complaint may work an injus-
tice. The defendants in this case never argued before
the trial court that the amendment did not relate back
to the original complaint or that they would have been
prejudiced by undue delay, and, therefore, there were
no other independent reasons for the trial court to deny
leave to amend. In sum, the court abused its discretion
by not granting the plaintiff leave to amend her com-
plaint with the amended opinion letter and new opin-
ion letter.
B
Having concluded that the court should have granted
the plaintiff leave to amend her complaint, we turn to
the plaintiff’s claim that the court improperly granted
the defendants’ motion to dismiss because both the
proposed amended opinion letter and the proposed new
opinion letter were legally sufficient. The defendants
argue that an adequate opinion letter in this case must
be authored by a health care provider board certified in
cosmetic surgery, and, thus, neither the original opinion
letter nor the proposed amended opinion letter is suffi-
cient.12 We agree with the defendants that the proposed
amended opinion letter was legally insufficient, but we
conclude that the record is inadequate to determine
whether the proposed new opinion letter was legally
sufficient, and we remand the case for further proceed-
ings on that issue.
As we concluded in part I of this opinion, in the
present case, for the opinion letter to be legally suffi-
cient, it had to meet the requirements of § 52-184c (c),
which required the plaintiff to obtain an opinion letter
authored by a health care provider experienced and
trained in cosmetic surgery, and board certified in cos-
metic surgery or in a medical specialty that includes
equivalent or greater training and experience in cos-
metic surgery. Thus, the plaintiff did not have to find
a health care provider certified by the American Board
of Cosmetic Surgery, through which Langdon was certi-
fied, but she did have to obtain an opinion letter from
a health care provider board certified in cosmetic sur-
gery or in a medical specialty that includes equivalent or
greater training and experience than cosmetic surgery.
The proposed amended opinion letter clearly does
not meet this requirement. Although the board certified
dermatologist stated that he has performed cosmetic
surgical procedures, satisfying the experience and train-
ing prong of subsection (c) of § 52-184c, he did not
claim to be board certified either in cosmetic surgery
or in a medical specialty that includes training and
experience equivalent to or exceeding those of cosmetic
surgeons. Thus, the defendants are correct that the
proposed amended opinion letter is insufficient to meet
the requirements of §§ 52-190a and 52-184c.
Concerning the proposed new opinion letter, the
record is insufficient to determine whether it meets
the requirements of § 52-184c (c). The proposed new
opinion letter was authored by a board certified plastic
surgeon, who has performed neck and jowl ‘‘S’’ facelifts.
The plaintiff argues that, although the board certifica-
tions are not identical, plastic surgeons have ‘‘creden-
tialed training’’ in cosmetic surgery that exceeds the
training and certification of cosmetic surgeons, and,
thus, under Wilkins, the proposed new opinion letter
is sufficient. On the other hand, the defendants claimed
in the trial court that, although there is some overlap
between plastic surgeons and cosmetic surgeons, there
are different board certifications for each discipline and
the training is different. There appears to be an ongoing
nationwide debate regarding the validity of the Ameri-
can Board of Cosmetic Surgeons and the amount of
overlap between the qualifications of plastic surgeons
and cosmetic surgeons. See Fowler v. Capital Cities/
ABC, Inc., United States District Court, Docket No.
3:00CV2417 (JAS), 2002 WL 31230802, *1 (N.D. Texas
September 30, 2002) (‘‘[a]pparently, there has been
some public debate concerning whether cosmetic sur-
geons, as opposed to plastic surgeons, are qualified to
perform cosmetic surgery procedures’’); Lo v. Lee, 231
Ariz. 531, 532, 298 P.3d 220 (2012) (‘‘[c]osmetic surgery
is an essential component of plastic surgery’’ [internal
quotation marks omitted]); American Board of Cos-
metic Surgery v. Medical Board of California, 162 Cal.
App. 4th 534, 544–45, 75 Cal. Rptr. 3d 574 (2008) (dis-
cussing the different training and experience level of
plastic surgeons and cosmetic surgeons and that plastic
surgeons are more trained than cosmetic surgeons).
In light of the limited record in this case, however,
we decline to weigh in on this debate at this time.
Because the court did not grant the plaintiff leave to
amend her complaint, it did not consider the proposed
new opinion letter when it granted the defendants’
motion to dismiss, and, therefore, made no factual find-
ings in its memorandum of decision regarding whether
a board certified plastic surgeon has training and experi-
ence equivalent to or greater than a board certified
cosmetic surgeon. In light of the limited record before
us and the inappropriateness of this court making any
factual determination on the relative training of plastic
surgeons and cosmetic surgeons in the first instance,
we remand this case to the trial court for consideration
on whether the proposed new opinion letter was legally
sufficient pursuant to §§ 52-190a and 52-184c.
The judgment is reversed and the case is remanded
with direction to grant the plaintiff’s request for leave
to amend her complaint and for further proceedings
consistent with this opinion.
In this opinion the other judges concurred.
1
The plaintiff also asserts that the court improperly denied her motion
to reargue, reconsider, and articulate its decision. Because we agree in part
with her second claim, we need not address this claim.
2
On October 9, 2013, the plaintiff filed a petition for a ninety day extension
of the statute of limitations pursuant to § 52-190a (b), which was subse-
quently granted. Thus, the plaintiff had until March 17, 2014, to initiate
this action.
3
According to the defendants’ reply brief in support of their motion to
dismiss, Langdon is certified in cosmetic surgery by the American Board
of Cosmetic Surgery. Langdon also advertised on his website that he is
certified in cosmetic surgery. The court’s memorandum of decision implicitly
found that Langdon is so certified.
4
The scheduling order issued by the court indicated that oral argument
concerning the defendants’ objection to the plaintiff’s request for leave to
amend was set for April 28, 2014. Although nothing in the record explicitly
states that the date for oral argument on the issue was changed, it can be
inferred that both the objection to the request for leave to amend and the
motion to dismiss were heard on May 5, 2014, because both issues were
argued that day and no other hearing took place.
5
Compare, e.g., Sestito v. Mandara, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-09-6002437-S (August 2, 2010) (50 Conn.
L. Rptr. 462, 464–65) (granting defendant’s motion to dismiss and not consid-
ering amended complaint with new opinion letter that did not exist at
commencement of action on the basis of Votre), and Patenaude v. Norwalk
Hospital, Superior Court, judicial district of Fairfield, Docket No. CV-09-
5029048-S (July 19, 2010) (50 Conn. L. Rptr. 352, 354) (holding that plaintiff
cannot amend complaint with amended opinion letter that clarifies already
existing opinion letter when motion to dismiss pending), with Ducharme
v. Medical Center of Northeast Connecticut, Superior Court, judicial district
of Windham, Docket No. CV-13-6006421-S (January 6, 2014) (57 Conn. L. Rptr.
407, 412) (allowing amended opinion letter naming defendant specifically),
Avery v. Maxim Healthcare Services, Inc., Superior Court, judicial district
of New Haven, Docket No. CV-12-6033069-S (June 7, 2013) (56 Conn. L.
Rptr. 227, 229) (allowing amended opinion letter that only made technical
changes to original opinion letter, like elaborating author’s credentials), and
Dixon v. Med Now Family Walk-In & Industrial Medical Center, Superior
Court, judicial district of Fairfield, Docket No. CV-08-5014898-S (February
25, 2010) (49 Conn. L. Rptr. 407, 409) (allowing amended complaint with
new opinion letter but only if plaintiff made good faith effort to attach
reasonable opinion letter to first complaint, and if it was ambiguous as to
who was responsible health care provider).
6
General Statutes § 52-128 provides in relevant part: ‘‘The plaintiff may
amend any defect, mistake or informality in the writ, complaint, declaration
or petition, and insert new counts in the complaint or declaration, which
might have been originally inserted therein, without costs, within the first
thirty days after the return day . . . .’’
7
Practice Book § 10-59 provides: ‘‘The plaintiff may amend any defect,
mistake or informality in the writ, complaint or petition and insert new
counts in the complaint, which might have been originally inserted therein,
without costs, during the first thirty days after the return day.’’
8
Practice Book § 10-60 provides in relevant part that, more than thirty
days after the return day: ‘‘[A] party may amend his or her pleadings or
other parts of the record or proceedings at any time . . . by order of judicial
authority . . . written consent of the adverse party; or . . . filing a request
for leave to file such amendment with the amendment appended . . . .’’
9
A motion to dismiss for lack of personal jurisdiction must be filed at
the beginning of an action; see Practice Book §§ 10-6 and 10-8; otherwise
any defect in personal jurisdiction is waived. See Practice Book §§ 10-30
(b) and 10-32; Morgan v. Hartford Hospital, supra, 301 Conn. 404. Thus,
allowing amendments to cure a defect in the opinion letter after a defendant
has filed a motion to dismiss will not unduly delay the action and still forces
the plaintiff to prove that his or her claim is nonfrivolous at the beginning
of the action.
10
Our analysis is not inconsistent with our decision in Torres v. Carrese,
supra, 149 Conn. App. 596, which was decided after Votre. In Torres, we
noted that the trial court could not consider a new opinion letter attached
to the amended complaint because it was obtained ‘‘after the action com-
menced, after the defendants had filed their motions to dismiss, and after
the statute of limitations had expired . . . .’’ (Emphasis added.) Id., 611
n.14. Therefore, Torres is distinguishable from the present case and falls
outside the time frame for when amending an opinion letter is allowed.
Our conclusion permitting a plaintiff to amend the complaint to add an
amended or a new opinion letter is consistent with our recent warning in
Briere v. Greater Hartford Orthopedic Group, P.C., 158 Conn. App. 66, 83,
118 A.3d 596, cert. denied, 319 Conn. 910, 118 A.3d 596, cert. granted, 319
Conn. 950, A.3d (2015), against a ‘‘hypertechnical reading of the
pleadings’’ in medical malpractice actions, which ‘‘present a conundrum in
that there is typically unequal access to the underlying facts and conditions
of the claim at the time a complaint is served. The reality in medical malprac-
tice cases is that plaintiffs must heavily rely on the discovery process as it
unfolds to flesh out their claims . . . .’’
11
Our Supreme Court, in Bennett, also cited to Borger, indicating that the
Nevada statute is sufficiently similar to § 52-190a so as to warrant our
consideration of judicial decisions interpreting the Nevada statute. See Ben-
nett v. New Milford Hospital, Inc., supra, 300 Conn. 31 n.17.
12
The defendants make no substantive argument in their brief on appeal
as to why the proposed new opinion letter is legally insufficient, but did
state in their objection to the plaintiff’s request for leave to amend that the
new opinion letter was legally insufficient because there are different board
certifications for cosmetic surgery and plastic surgery.