Barnes v. Greenwich Hospital ( 2021 )

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LORI BARNES ET AL. v. GREENWICH
HOSPITAL ET AL.
(AC 44055)
Prescott, Suarez and Bear, Js.
Syllabus
The plaintiffs, L and her husband, sought to recover damages from the
defendant physician, Z, her employer, and a hospital for, inter alia,
injuries L sustained during a colonoscopy procedure performed by Z.
The plaintiffs failed to attach an opinion letter written and signed by a
similar health care provider to their original complaint, as was required
by the applicable statute (§ 52-190a), and the defendants filed motions
to dismiss the complaint for that failure. In response, the plaintiffs filed
an amended complaint as of right pursuant to the applicable rule of
practice (§ 10-59), and attached such an opinion letter. The amended
complaint was filed and the opinion letter was dated after the expiration
of the applicable statute of limitations. Following oral argument, the
trial court granted the defendants’ motions to dismiss for lack of personal
jurisdiction as a result of the plaintiffs’ failure to attach an opinion letter
to their original complaint. On the plaintiffs’ appeal to this court, held
that the trial court did not err in its decision to grant the defendants’
motions to dismiss: the plaintiffs failed to comply with the requirement
set forth in § 52-190a (a), as they did not attach an opinion letter to
their original complaint, obtain an opinion letter prior to filing the action,
or file the amended complaint prior to the expiration of the statute of
limitations, and such noncompliance mandated dismissal of the action
under § 52-190a (c) when it was timely raised by the defendants; more-
over, the plaintiffs were not entitled to amend their deficient complaint
as of right under the rule articulated in Gonzales v. Langdon (161 Conn.
App. 497), because the scope of that remedy was limited to curative
efforts initiated prior to the expiration of the statute of limitations,
allowing only for the amendment or substitution of an existing opinion
letter, and the plaintiffs’ amendment instead sought to introduce a new
opinion letter; furthermore, this court declined to extend Gonzales to
permit the plaintiffs to cure the defect because it determined that doing
so would have undermined the purpose of § 52-190a (a), which was to
prevent frivolous medical malpractice actions by ensuring that there
was a reasonable basis for filing a case.
Argued May 20—officially released September 14, 2021
Procedural History
Action to recover damages for medical malpractice,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
court, Genuario, J., granted the defendants’ motions
to dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Paul Ciarcia, with whom, on the brief, was Frank
N. Peluso, for the appellants (plaintiffs).
Megan E. Bryson, with whom, on the brief, was Carol
S. Doty, for the appellee (named defendant).
Diana M. Carlino, for the appellees (defendant
Felice Zwas et al.).
Opinion
PRESCOTT, J. This appeal arises out of a medical
malpractice action brought by the plaintiffs, Lori Barnes
(Barnes) and Ray Barnes,1 against the defendants,
Felice Zwas, Greenwich Hospital, and the Center for
Gastrointestinal Medicine of Fairfield and Westchester,
P.C. (Center for Gastrointestinal Medicine),2 for an
injury Barnes sustained during a colonoscopy proce-
dure. The plaintiffs appeal from the judgment of the trial
court dismissing their complaint for failure to attach a
written opinion letter authored by a similar health care
provider as required by General Statutes § 52-190a (a).
On appeal, the plaintiffs claim that the trial court
improperly granted the defendants’ motions to dismiss
for failure to comply with § 52-190a because the
amended complaint filed by the plaintiffs as of right
pursuant to Practice Book § 10-59,3 to remedy their prior
failure to attach a written opinion letter, was filed after
the statute of limitations had expired and sought to
attach an opinion letter that did not exist at the time the
action was commenced.4 We disagree with the plaintiffs’
claim and affirm the judgment of the court.
On or about August 27, 2019,5 the plaintiffs com-
menced the present action6 against the defendants. The
return date was September 10, 2019. The plaintiffs’ com-
plaint contained the following allegations. On June 14,
2017, Barnes underwent a colonoscopy procedure at
the Center for Gastrointestinal Medicine. During the
procedure, the physician, Zwas, punctured Barnes’
colon. An ambulance took Barnes to Greenwich Hospi-
tal where she underwent emergency surgery, and she
then remained in the intensive care unit for three days.
Barnes continued to experience ongoing medical issues
as a result of the puncture and underwent an additional
surgical procedure in April, 2019, to address those
issues.
In counts one and two of the complaint, the plaintiffs
alleged that Barnes’ injuries were caused by the defen-
dants’ failure to exercise reasonable care and that the
medical treatment Barnes received was a deviation
from the standard of care ordinarily required by such
medical professionals. Ray Barnes further alleged, in
count three, a loss of consortium claim. Although the
plaintiffs attached to their complaint their attorney’s
good faith certificate of reasonable inquiry, they failed
to attach an opinion letter written and signed by a
similar health care provider as required by § 52-190a (a).
On September 20, 2019, Zwas and the Center for
Gastrointestinal Medicine filed a motion to dismiss the
complaint, pursuant to § 52-190a (c), for the failure to
attach a written opinion letter of a similar health care
provider. That same day, Greenwich Hospital also filed
a motion to dismiss on identical grounds. The two
motions primarily rely on the same substantive argu-
ments.7
On October 8, 2019, the plaintiffs responded by filing
an amended complaint as of right, pursuant to Practice
Book § 10-59, along with an opinion letter with an
attached curriculum vitae.8 The opinion letter is dated
October 6, 2019. On October 21, 2019, Zwas and the
Center for Gastrointestinal Medicine filed an objection
to the amended complaint. On December 9, 2019, the
plaintiffs filed a memorandum in opposition to the
defendants’ motions. The defendants filed replies. Oral
argument on the motions to dismiss was heard at short
calendar on January 27, 2020.
In a written memorandum of decision filed March
10, 2020, the court granted the defendants’ motions to
dismiss for lack of personal jurisdiction on the ground
that the plaintiffs had failed to attach to the original
complaint a written opinion letter of a similar health
care provider as required by § 52-190a. The court further
reasoned that the plaintiffs’ attempt to cure the defect
by amending the complaint pursuant to Practice Book
§ 10-59 and attaching an opinion letter dated October
6, 2019, was unavailing because the letter was obtained
after the action commenced, after the defendants had
filed their motions to dismiss, and after the applicable
statute of limitations9 had expired on September 12,
2019. In calculating the expiration of the statute of limi-
tations, the court relied on the plaintiffs’ allegation in
their complaint that they received a ninety day exten-
sion pursuant to § 52-190a (b).10 The court explained
that, in the present case, the limitation period expired
two years and ninety days after the date of the alleged
injury.11 This appeal followed.
The plaintiffs claim that the court improperly granted
the defendants’ motions to dismiss because the plain-
tiffs filed an amended complaint, as of right pursuant
to Practice Book § 10-59, to which they attached the
requisite opinion letter authored by a similar health
care provider. Specifically, the plaintiffs maintain that,
under Gonzales v. Langdon, 161 Conn. App. 497, 128
A.3d 562 (2015), when a plaintiff in a medical malprac-
tice action seeks to amend his or her complaint as of
right in order to attach the first and only opinion letter
the plaintiff has obtained, such amendment can be
sought after the statute of limitations has expired, and
the letter itself need not have been in existence at the
time the action was commenced nor prior to the expira-
tion of the statute of limitations. We disagree.
The following legal principles guide our review. ‘‘Our
standard of review in an appeal challenging the granting
of a motion to dismiss 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 . . .
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.’’ (Internal quotation marks omitted.) Peters v.
United Community & Family Services, Inc., 182 Conn.
App. 688, 699–700, 191 A.3d 195 (2018).12
Section 52-190a (a) provides in relevant part: ‘‘No
civil action . . . shall be filed to recover damages
resulting from personal injury or wrongful death
occurring on or after October 1, 1987, whether in tort
or in contract, in which it is alleged that such injury or
death resulted from the negligence of a health care
provider, unless the attorney or party filing the action
. . . has made a reasonable inquiry as permitted by the
circumstances to determine that there are grounds for
a good faith belief that there has been negligence in
the care or treatment of the claimant. . . . [T]he claim-
ant or the claimant’s attorney . . . shall obtain a writ-
ten 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. . . .’’
Moreover, § 52-190a (c) provides: ‘‘The failure to obtain
and file the written opinion required by subsection (a)
of this section shall be grounds for the dismissal of the
action.’’
Our Supreme Court has recognized that ‘‘[§] 52-190a
requires that the written opinion letter must have been
obtained prior to filing the action and that the good
faith certificate and opinion letter must be filed when
the action commences.’’ (Emphasis added.) Morgan v.
Hartford Hospital, 301 Conn. 388, 396, 21 A.3d 451(2011). ‘‘[T]he written opinion letter, prepared in accor-
dance with the dictates of § 52-190a . . . is akin to a
pleading that must be attached to the complaint in order
to commence properly the action.’’ Id., 398. ‘‘Our legisla-
ture . . . specifically authorized the dismissal of a
medical malpractice action for the failure to attach an
opinion letter to the complaint.’’ Kissel v. Center for
Women’s Health, P.C., 205 Conn. App. 394, 431, A.3d
(2021).
‘‘Because the purpose of § 52-190a is to require the
opinion prior to commencement of an action, 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.’’ 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); id., 585–86 (The trial
court properly dismissed a medical malpractice action
where the plaintiff failed to attach a written opinion of
a similar health care provider to the complaint ‘‘because
it is clear that no opinion existed at the time the action
was commenced . . . . The plaintiff could not 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. . . . [Thus] the
plaintiff did not and could not comply with the statutory
mandate requiring that the written opinion letter be
filed with the complaint when the action was com-
menced . . . .’’); see also Torres v. Carrese, 149 Conn.
App. 596, 611 n.14, 90 A.3d 256 (‘‘[a]lthough the plaintiff
may have obtained opinion letters from [similar health
care providers] after the action commenced, after the
defendants had filed their motions to dismiss, and after
the statute of limitations had expired, the court may
not consider those documents’’), cert. denied, 312 Conn.
912, 93 A.3d 595 (2014).
As this court explained in Peters: ‘‘In Gonzales . . .
this court recognized an . . . avenue of recourse avail-
able to plaintiffs to correct defects in an existing opin-
ion letter. We held, as a matter of first impression, that
a plaintiff who files a legally insufficient opinion letter
may, in certain instances, cure the defective opinion
letter through amendment of the pleadings, thereby
avoiding the need to file a new action. Specifically, we
stated that if a plaintiff alleging medical malpractice
seeks to amend his or her complaint in order to amend
the original opinion letter, or to substitute a new opinion
letter for the original opinion letter, the trial court (1)
must permit such an amendment if the plaintiff seeks
to amend as of right within thirty days of the return
day and the action was brought within the statute of
limitations, and (2) has discretion to permit such an
amendment if the plaintiff seeks to amend within the
applicable statute of limitations but more than thirty
days after the return day. . . .
‘‘In Gonzales, this court reasoned that [t]he legislative
purpose of § 52-190a (a) is not undermined 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 prejudice the defendant or
unduly delay the action. . . . In light of the numerous
references in Gonzales to the statute of limitations, we
conclude that the court intended to limit the scope of
its newly recognized remedy to those curative efforts
initiated prior to the running of the statute of limita-
tions.’’ (Citations omitted; emphasis altered; internal
quotation marks omitted.) Peters v. United Commu-
nity & Family Services, Inc., supra, 182 Conn. App.
701–702. Similarly, in Ugalde v. Saint Mary’s Hospital,
Inc., 182 Conn. App. 1, 12, 188 A.3d 787, cert. denied,
330 Conn. 928, 194 A.3d 1195 (2018), this court
explained that ‘‘[t]he holding in Gonzales permits
amendments to legally insufficient opinion letters only
if they are sought prior to the expiration of the statute
of limitations.’’
Furthermore, in Kissel, this court again emphasized
that, based on our case law, ‘‘it cannot be disputed that
regardless of the method employed to cure a defect
in an opinion letter filed pursuant to § 52-190a, such
correction must be initiated prior to the expiration of
the statute of limitations.’’ Kissel v. Center for Women’s
Health, P.C., supra, 205 Conn. App. 426. In that recent
case, this court considered, after a jury trial and verdict
rendered in favor of the plaintiff in a medical malprac-
tice action, whether the trial court had improperly
denied the defendants’ pretrial motions to dismiss for
the plaintiff’s failure to comply with § 52-190a because
she failed to attach to her initial complaint an opinion
letter from a similar health care provider and her efforts
to cure this defect occurred outside of the limitation
period. Id., 397, 409. There, the trial court ‘‘found that
the opinion letter had been authored prior to the com-
mencement of the action and that the failure to attach
it to the original complaint resulted from inadvertence
or oversight.’’ Id., 409. This court concluded, however,
that the trial court ‘‘lacked personal jurisdiction over
[the defendants] as a result of the plaintiff’s failure to
cure the § 52-190a defect within the statutory limitation
period and that the medical malpractice action, there-
fore, should have been dismissed.’’ Id., 411.
In the present case, it is undisputed that there was
no opinion letter attached to the original complaint,
and the plaintiffs did not obtain an opinion letter prior
to filing the action. No opinion letter existed until Octo-
ber 6, 2019, after the expiration of the statute of limita-
tions on September 12, 2019, and the plaintiffs filed an
amended complaint on October 8, 2019, also after the
statute of limitations had expired on September 12,
2019. As such, the plaintiffs did not comply with the
requirement clearly set forth in § 52-190a (a), and such
noncompliance mandates dismissal of the action under
§ 52-190a (c) when timely raised by the defendants as
in this case. As this court pointed out in Votre, which
is factually analogous to the present case in that the
plaintiff there did not attach any opinion letter to her
original complaint and one did not exist at the time the
action was commenced, ‘‘allowing a plaintiff to obtain
. . . [an] 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.’’ Votre v. County Obstetrics &
Gynecology Group, P.C., supra, 113 Conn. App. 585.13
Nevertheless, the plaintiffs contend that they were
entitled to amend their deficient complaint as of right14
under the first prong of Gonzales because ‘‘the action
was brought within the statute of limitations . . . .’’
Gonzales v. Langdon, supra, 161 Conn. App. 510. This
argument is unpersuasive for two reasons. First, it fails
to account for the entirety of the language of the rule
articulated in Gonzales. The rule, as stated, only applies
‘‘if a plaintiff alleging medical malpractice seeks to
amend his or her complaint in order to amend the
original opinion letter, or to substitute a new opinion
letter for the original opinion letter . . . .’’ (Emphasis
added.) Id. Here, there was no ‘‘original opinion letter’’
to ‘‘amend’’ or ‘‘substitute.’’ Id. The amendment at issue
sought to introduce an opinion letter for the first time—
one that did not exist prior to the commencement of
the action nor prior to the expiration of the limita-
tion period.
Second, as this court specified in Peters, the court
in Gonzales ‘‘intended to limit the scope of its newly
recognized remedy to those curative efforts initiated
prior to the running of the statute of limitations.’’ Peters
v. United Community & Family Services, Inc., supra,
182 Conn. App. 702. Moreover, this court’s holding in
Kissel leaves no room for doubt that where a plaintiff
in a medical malpractice action fails to attach an opinion
letter to the initial complaint and his or her efforts to
cure that defect 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). See Kissel v.
Center for Women’s Health, P.C., supra, 205 Conn. App.
411. Here, the plaintiffs’ curative effort—namely, the
filing of an amended complaint—was initiated only after
the statute of limitations had expired. Therefore, the
recourse identified in Gonzales is not available.
We decline to further extend Gonzales to apply to the
circumstances of the present case because the recourse
the plaintiffs seek is contrary to what ‘‘[o]ur Supreme
Court has concluded [is] the purpose of § 52-190a (a)
[which] 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 . . . .’’ (Emphasis added;
internal quotation marks omitted.) Gonzales v. Lang-
don, supra, 161 Conn. App. 518. That purpose would
be undermined if we permit plaintiffs, after the statute
of limitations has expired and after the opposing party
has spent considerable time and resources in connec-
tion with an ultimately successful motion to dismiss,
to recast a medical malpractice action in a form that,
if it had been timely filed, may demonstrate sufficient
merit to satisfy the requirements of § 52-190a (a). Also,
as we previously noted, ‘‘allowing a plaintiff to obtain
[a similar health care provider] opinion after the action
has been brought would vitiate the statute’s purpose
by subjecting a defendant to a claim without the proper
[timely] substantiation that the statute requires.’’ Votre
v. County Obstetrics & Gynecology Group, P.C., supra,
113 Conn. App. 585.
Accordingly, we agree with the trial court’s decision
to grant the defendants’ motions to dismiss, as it is
undisputed that the plaintiffs failed to comply with § 52-
190a (a), and the rule articulated in Gonzales does not
apply in the present case to permit the plaintiffs to
remedy their defective complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer to Barnes and Ray Barnes collectively as the plaintiffs and
individually where appropriate.
2
We refer to Zwas, Greenwich Hospital, and the Center for Gastrointestinal
Medicine, collectively as the defendants and individually where appropriate.
3
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.’’
4
The plaintiffs also claim that the court improperly granted the defendants’
motions to dismiss because it failed to consider facts presented during oral
argument that the defendants fraudulently concealed the cause of action
pursuant to General Statutes § 52-595 and, thus, the statute of limitations
should have been tolled. We do not review this claim because the record
is inadequate. The plaintiffs raised this issue for the first time at oral argu-
ment to the trial court. There were no facts related to the issue of fraudulent
concealment alleged in the complaint, the amended complaint, or the memo-
randum in opposition to the defendants’ motions to dismiss. Moreover, the
trial court did not address this issue in its memorandum of decision, nor
did the plaintiffs seek an articulation from the court. See White v. Mazda
Motor of America, Inc., 313 Conn. 610, 632, 99 A.3d 1079 (2014) (‘‘[W]e
cannot consider this claim because the record is inadequate for our review.
This court does not consider claims raised for the first time during an oral
argument in the trial court when the trial court did not address the issue
in its decision and the appellant failed to obtain an articulation from the
trial court.’’ (Emphasis omitted.)).
5
The return of service, which was filed on August 30, 2019, indicates that
Zwas and the Center for Gastrointestinal Medicine were served with the
writ, summons, and complaint on August 26, 2019, and Greenwich Hospital
was served with the same materials on August 27, 2019. See Rocco v. Garri-
son, 268 Conn. 541, 553, 848 A.2d 352 (2004) (‘‘[i]n Connecticut, an action
is commenced when the writ, summons and complaint have been served
upon the defendant’’).
6
On July 9, 2019, in the judicial district of Stamford-Norwalk, Barnes
commenced a prior medical malpractice action against Greenwich Hospital
and the Center for Gastrointestinal Medicine, based on the same alleged
conduct as in the present case. Barnes v. Greenwich Hospital, Superior
Court, judicial district of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S.
See Carpenter v. Daar, 199 Conn. App. 367, 370 n.2, 236 A.3d 239 (‘‘[t]his
court may take judicial notice of court files in other cases’’), cert. granted,
335 Conn. 962, 239 A.3d 1215 (2020). Greenwich Hospital and the Center
for Gastrointestinal Medicine each filed a motion to dismiss, which the court
granted on October 15, 2019.
7
As the trial court pointed out in its memorandum of decision, the defen-
dants also argued that this action should be dismissed on the basis of the
prior pending action doctrine. On October 15, 2019, however, the first action
filed by Barnes against the defendants, Greenwich Hospital and the Center
for Gastrointestinal Medicine, was no longer pending because it had been
dismissed by the court, Hon. Kenneth B. Povodator, judge trial referee, who
found that the plaintiff had pleaded a medical malpractice claim but had
failed to comply with § 52-190a.
8
As the trial court recognized in its memorandum of decision: ‘‘The pro-
posed new opinion letter provides that: ‘I have had the opportunity to review
the records provided of Lori Barnes. She sustained a 7 cm colonic perforation
during a procedure that was scheduled to be a routine colonoscopy exam.
I have been provided documents that indicate that the attending physician
was distracted during the procedure. Giving complete and total attention
during the performance of a procedure is a standard of care. A physician
who has a lack of attention during a procedure is a deviation. It is reasonable
to state that this lack of attention during the procedure led to the large
perforation that occurred during the procedure and to its sequelae.’ Also
attached on a separate page is a curriculum vitae which provides in relevant
part that the author is: ‘Board Certified—American Board of Gastroenterol-
ogy—1993.’ ’’
9
General Statutes § 52-584 provides in relevant part that the statute of
limitations for a medical malpractice action is ‘‘two years from the date when
the injury is first sustained or discovered or in the exercise of reasonable
care should have been discovered, and except that no such action may be
brought more than three years from the date of the act or omission com-
plained of . . . .’’
10
General Statutes § 52-190a (b) provides in relevant part: ‘‘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. . . .’’
11
Aside from the plaintiffs’ assertion that the statute of limitations was
equitably tolled because the defendants fraudulently concealed the cause
of action pursuant to General Statutes § 52-595; see footnote 4 of this opinion;
the plaintiffs do not claim that the trial court erred in calculating the expira-
tion of the statute of limitations.
12
This is the standard that applies when, as in the present case, ‘‘a trial
court decides a jurisdictional question raised by a pretrial motion to dismiss
on the basis of the complaint alone. . . . If, however, the complaint is
supplemented by undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . [or] other types of undisputed evi-
dence . . . the trial court, in determining the jurisdictional issue, may con-
sider these supplementary undisputed facts and need not conclusively pre-
sume the validity of the allegations of the complaint. . . . Rather, those
allegations are tempered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evidence submitted in sup-
port of a defendant’s motion to dismiss conclusively establish that jurisdic-
tion is lacking, and the plaintiff fails to undermine this conclusion with
counteraffidavits . . . 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 allegations . . . 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, where 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.’’ (Citation omitted;
internal quotation marks omitted.) Devine v. Fusaro, 205 Conn. App. 554,
562 n.8, A.3d (2021), quoting Conboy v. State, 292 Conn. 642, 651–54,
974 A.2d 669 (2009).
13
We note that the plaintiff in Votre did not attempt to amend her complaint
to add an opinion letter. Votre v. County Obstetrics & Gynecology Group,
P.C., supra, 113 Conn. App. 584. In this way, that case is distinguishable
from the present one, although that difference does not affect our analysis.
14
It is undisputed that the plaintiffs filed their amended complaint ‘‘during
the first thirty days after the return day,’’ which, as mentioned previously,
was September 10, 2019. Practice Book § 10-59.