Doyle v. Aspen Dental of Southern CT, PC , 179 Conn. App. 485 ( 2018 )

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KATE L. DOYLE ET AL. v. ASPEN DENTAL OF
SOUTHERN CT, PC, ET AL.
(AC 39325)
Sheldon, Keller and Bishop, Js.
Syllabus
The plaintiff sought to recover damages from the defendant oral surgeon,
K, for dental malpractice in connection with an implant procedure per-
formed on the plaintiff by K. The trial court granted K’s motion to
dismiss on the ground that the plaintiff had failed to provide an opinion
letter from a similar health care provider, as required by statute (§§ 52-
190a and 52-184c [c]). Specifically, because the plaintiff had attached
an opinion letter authored by M, a general dentist, and K was trained
as an oral and maxillofacial surgeon and his treatment of the plaintiff
fell into the area of oral and maxillofacial surgery, the trial court deter-
mined that M’s opinion letter was not that of a similar health care
provider because M was not board certified in K’s specialty. On appeal
to this court, the plaintiff claimed that the opinion letter, authored by
a general dentist, was sufficient because there was no authentic public
record from which she could have discovered or verified that K had
training and experience in oral and maxillofacial surgery beyond the
information available on the website of the Department of Public Health,
which did not indicate that K was a board certified oral and maxillofacial
surgeon. Held that the trial court properly granted K’s motion to dismiss
for lack of personal jurisdiction; because it was undisputed that M was
not a board certified specialist trained and experienced in oral and
maxillofacial surgery, M was not a similar health care provider as defined
in § 52-184c (c) and, thus, the opinion letter attached to the plaintiff’s
complaint was legally insufficient under § 52-190a (a), and the plaintiff’s
claim that she could rely solely on the department’s website to determine
K’s credentials was unavailing, as this court previously has rejected a
similar claim, the plain language of § 52-190a (a) requires the plaintiff
to conduct a reasonable inquiry for a defendant health care provider’s
credentials, there are other methods, aside from searching the depart-
ment’s website, for ascertaining such credentials, including filing a bill
of discovery, and the plaintiff was put on notice of K’s credentials by
notations in the medical file referring to her treatment by an oral surgeon.
Argued October 17, 2017—officially released January 30, 2018
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged dental malpractice, and for other relief,
brought to the Superior Court in the judicial district
of Fairfield, where the court, Wenzel, J., granted the
defendants’ motions to dismiss and rendered judgment
thereon; thereafter, the court denied the plaintiffs’
motion to reargue, and the plaintiffs appealed to this
court; subsequently, the appeal was withdrawn as to
the named defendant et al. Affirmed.
Scott D. Camassar, for the appellants (plaintiffs).
Beverly Knapp Anderson, with whom was Craig A.
Fontaine, for the appellee (defendant Brandon Kang).
Opinion
BISHOP, J. This appeal arises out of a dental malprac-
tice action brought by the plaintiffs, Kate L. Doyle and
Brendan Doyle,1 against the defendants, Aspen Dental
of Southern CT, PC, and Aspen Dental Management, Inc.
(Aspen Dental), and Brandon Kang, DDS,2 in connection
with a dental implant procedure performed by Kang.
The plaintiff appeals from the judgment rendered by
the trial court dismissing her action against the defen-
dant on the basis of her failure to comply with General
Statutes § 52-190a (a),3 which required the plaintiff to
attach to her complaint an opinion letter authored by
a ‘‘similar health care provider,’’ as defined in General
Statutes § 52-184c (c).4 On appeal, the plaintiff argues
that the court erred in concluding that the opinion letter
written by a general dentist was not authored by a
‘‘similar health care provider’’ and that an opinion letter
from an oral and maxillofacial surgeon was required
instead. In support of this claim, the plaintiff alleges
that she had no method of discovering or verifying that
the defendant was an oral and maxillofacial surgeon in
addition to being a licensed general dentist because
there was no authentic public record from which the
plaintiff could have determined that the defendant had
training and experience as an oral and maxillofacial
surgeon. We conclude that the court properly deter-
mined that because the defendant did, in fact, have
training and experience in the specialty of oral and
maxillofacial surgery, the opinion letter submitted by
the plaintiff was not authored by a ‘‘similar health care
provider.’’5 Accordingly, we affirm the judgment of the
trial court.
The plaintiff’s complaint, filed on August 19, 2015,
contained the following factual allegations, the truth of
which the court was required to assume for purposes
of deciding the defendant’s motion to dismiss. On March
15, 2011, the plaintiff underwent an examination and
treatment at Aspen Dental for a broken crown on one
of her front teeth. The tooth was removed on March
29, 2011, after which the plaintiff, under sedation,
received a dental implant for the missing tooth on July
29, 2011. By December 21, 2012, however, the plaintiff’s
implant was failing, allegedly because it had been
placed at an improper angle. It penetrated the nasal
floor, resulting in bone loss along the sides of the
implant. The plaintiff alleged that the defendant knew
or should have known that the implant was failing, but
failed to inform her of this circumstance. On August 4,
2013, the defendant performed a bone grafting proce-
dure. At that time, the defendant informed the plaintiff
that the implant might have to be removed at a later
date.
The plaintiff commenced the present dental malprac-
tice action, alleging medical negligence by the defen-
dant, by complaint dated August 19, 2015. As required
by §§ 52-190a and 52-184c, the plaintiff attached to the
complaint a certificate of reasonable inquiry by the
plaintiff’s attorney and an opinion letter prepared by
Andrew Mogelof, a general dentist, who the plaintiff
claimed to be a ‘‘similar health care provider’’ to the
defendant.
On October 27, 2015, the defendant filed a motion
to dismiss the action against him for lack of personal
jurisdiction on the basis of the plaintiff’s failure to pro-
vide a proper opinion letter, as required by § 52-190a (a),
authored by a similar health care provider, as defined
in § 52-184c (c). Specifically, the defendant claimed that
‘‘the author of the opinion letter must be a board certi-
fied, trained and experienced oral and maxillofacial
surgeon because the defendant is trained and experi-
enced in the specialty of oral and maxillofacial surgery
and holds himself out as an oral and maxillofacial sur-
geon. . . . [Because] the [plaintiff] attached an opinion
letter authored by a general dentist . . . [she has]
failed to comply with . . . [§ 52-190a (a)].’’ In support
of his motion to dismiss, the defendant submitted an
affidavit dated October 22, 2015, in which he averred
that: ‘‘After obtaining my dental degree in 2004, I com-
pleted a four year residency program in [o]ral [and]
[m]axillofacial [s]urgery, which is one of the dental
specialties recognized by the American Dental Associa-
tion. This four year training certificate program covered
the full scope of [o]ral and [m]axillofacial [s]urgery.
Rotations included . . . [thirty-six] months on service
with [o]ral and [m]axillofacial [s]urgery. . . . At all
times while working at Aspen Dental, I represented
myself to patients as an oral and maxillofacial surgeon.
. . . All of the treatment that I rendered to [the] plaintiff
. . . was in my capacity as an oral and maxillofacial
surgeon. The consent form signed by [the] plaintiff was
entitled ‘Consent for Oral Surgery and Anesthesia.’ ’’
On December 14, 2015, the plaintiff filed a memoran-
dum of law in opposition to the defendant’s motion
to dismiss. In support of her opposition, the plaintiff
attached an affidavit from Mogelof, which stated, in
relevant part, that he is ‘‘experienced in all of the rele-
vant services provided by . . . [the defendant] in the
case of [the plaintiff].’’ In this affidavit, Mogelof also
acknowledged that he is ‘‘not trained as an oral and
maxillofacial surgeon.’’ Mogelof further stated that ‘‘the
failure to properly place and treat [the plaintiff’s] dental
implant was due to a failure to meet the standards
of care of basic general surgery and diagnosis, which
standards were required to have been met not only by
general dentists but also oral surgeons such as [the
defendant].’’
Oral argument on the defendant’s motion to dismiss
took place on December 21, 2015. Subsequently, the
parties filed supplemental briefs and affidavits on
December 31, 2015.6 Oral argument on the defendant’s
motion to dismiss continued on January 14, 2016. On
May 5, 2016, the court, Wenzel, J., granted the defen-
dant’s motion to dismiss. In its memorandum of deci-
sion, the court held that ‘‘there is significant evidence
. . . that the treatment afforded to the plaintiff fell into
the area of oral and maxillofacial surgery. . . . [The
defendant] began treating the plaintiff immediately after
her referral to ‘the oral surgeon.’ Moreover, the records
which detailed the treatment of [the] plaintiff were
reviewed and quoted by the opinion author, including
this very notation [referencing an oral surgeon]. Of the
three criteria which can trigger a specialist level of
evaluation, the court finds that the evidence submitted
in support of this motion by the [defendant] proves
that . . . [1] [the defendant] was in fact trained and
experienced in the area of oral surgery and [2] was
referred to and held out as an oral surgeon. . . .
Accordingly, having determined that . . . the author
of the opinion letter submitted was not a similar health
care provider having not been board certified in [the
defendant’s] specialty, the court grants the [defen-
dant’s] motion to dismiss.’’
On May 18, 2016, the plaintiff filed a motion to reargue
or reconsider, which the court denied on June 6, 2016.
This appeal followed.
On appeal, the plaintiff argues that the court erred
in dismissing her malpractice action for her failure to
attach to the complaint an opinion letter authored by
a board certified specialist in oral and maxillofacial
surgery. Specifically, the plaintiff argues that she ‘‘met
the requirement of [§ 52-190a (a)] because counsel
made a good faith inquiry into whether or not there
was dental malpractice, and found a ‘similar health care
provider’ in accordance with the [d]efendant’s creden-
tials on file with the public health authorities.’’ We
are unpersuaded.
We first set forth our standard of review. ‘‘The court
granted the [defendant’s] motion to dismiss for lack of
personal jurisdiction on the ground that the . . . opin-
ion letter [attached to the plaintiff’s complaint] was not
legally sufficient.’’ Gonzales v. Langdon, 161 Conn. App.
497, 503, 128 A.3d 562 (2015). In reviewing ‘‘a challenge
to a ruling on a motion to dismiss. . . [w]hen the facts
relevant to an issue are not in dispute, this court’s task
is limited to a determination of whether, on the basis
of those facts, the trial court’s conclusions of law are
legally and logically correct. . . . Because there is no
dispute regarding the basic material facts, this case
presents an issue of law, and we exercise plenary
review.’’ (Internal quotation marks omitted.) Helfant
v. Yale-New Haven Hospital, 168 Conn. App. 47, 56,
145 A.3d 347 (2016); see also 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).
‘‘[D]ismissal is the mandatory remedy when a plaintiff
fails to file an opinion letter that complies with § 52-
190a (a).’’ Bennett v. New Milford Hospital, Inc., 300
Conn. 1, 28, 12 A.3d 865 (2011); see also General Statutes
§ 52-190a (c) (‘‘[t]he failure to obtain and file the written
opinion required by subsection (a) of this section shall
be grounds for the dismissal of the action’’); Morgan
v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451
(2011) (failure to attach a proper opinion letter consti-
tutes lack of jurisdiction over the person). ‘‘Section 52-
190a (a) provides in relevant part that, prior to filing a
[malpractice] action against a health care provider, the
attorney or party filing the action . . . [must make] 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. . . . To show the existence
of such good faith, the claimant or the claimant’s attor-
ney . . . shall obtain a written and signed opinion of
a similar health care provider, as defined in [§] 52-
184c . . . that there appears to be evidence of medical
negligence and includes a detailed basis for the forma-
tion of such opinion.’’ (Internal quotation marks omit-
ted.) Gonzales v. Langdon, supra, 161 Conn. App. 504.
‘‘Pursuant to [§ 52-184c], the precise definition of sim-
ilar health care provider depends on whether the defen-
dant health care provider is certified by the appropriate
American board as a specialist, is trained and experi-
enced in a medical specialty, or holds himself out as
a specialist.’’ (Internal quotation marks omitted.) Id.
General Statutes ‘‘§ 52-184c (b) establishes the qualifi-
cations of a similar health care provider when the defen-
dant is neither board certified nor in some way a
specialist, and § 52-184c (c) [establishes] those qualifi-
cations when the defendant is board certified, trained
and experienced in a medical specialty, or holds himself
out as a specialist.’’ (Internal quotation marks omitted.)
Wilkins v. Connecticut Childbirth & Women’s Center,
314 Conn. 709, 725, 104 A.3d 671 (2014).
In the present case, it is undisputed that the defendant
is trained and experienced in the specialty of oral and
maxillofacial surgery. Pursuant to § 52-184c (c), ‘‘[i]f
the defendant health care provider . . . is trained and
experienced in a medical specialty . . . a ‘similar
health care provider’ is one who: (1) [i]s trained and
experienced in the same specialty; and (2) is certified by
the appropriate American board in the same specialty.’’
Thus, to satisfy the requirements of §§ 52-190a (a) and
52-184c (c), the plaintiff was required to obtain an opin-
ion letter from one who was (1) ‘‘trained and experi-
enced in’’ oral and maxillofacial surgery and (2)
‘‘certified by the appropriate American board in’’ oral
and maxillofacial surgery. See General Statutes §§ 52-
190a (a) and 52-184c (c).
The plaintiff attached to her complaint an opinion
letter authored by a general dentist. It is undisputed
that Mogelof was not board certified in the specialty
of oral and maxillofacial surgery. In his affidavit dated
November 12, 2015, Mogelof acknowledged that he is
‘‘not trained as an oral and maxillofacial surgeon.’’ Thus,
although Mogelof claimed to have knowledge of the
procedure performed by the defendant, and the relevant
standard of care applicable to that procedure, the pos-
session of such knowledge, alone, is insufficient to meet
the credentialing requirements of § 52-184c (c). See
Gonzales v. Langdon, supra, 161 Conn. App. 505 (‘‘Our
precedent indicates that under § 52-184c [c], it is not
enough that an authoring health care provider has famil-
iarity with or knowledge of the relevant standard of
care. . . . A similar health care provider must be
trained and experienced in the same specialty and certi-
fied by the appropriate American board in the same
specialty.’’ [Citation omitted; emphasis added; internal
quotation marks omitted.]). Given that Mogelof was
not trained and experienced, or board certified, in the
defendant’s specialty of oral and maxillofacial surgery,
as required by § 52-184c (c), the opinion letter submitted
by the plaintiff was not legally sufficient under § 52-
190a (a).
Despite the defendant’s training and experience in
oral and maxillofacial surgery, the plaintiff maintains
that an opinion letter from a general dentist was suffi-
cient in the present case because ‘‘there was no authen-
tic 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.7 More specifically, the
plaintiff argues that because the defendant’s profile on
the website of the Department of Public Health (depart-
ment) did not indicate that he was a board certified
oral and maxillofacial surgeon, she was not required
to obtain an opinion letter from a board certified oral
and maxillofacial surgeon. In response, the defendant
argues that ‘‘there is no statutory requirement that the
defendant’s specialty training be verifiable on the web-
site of a public health authority.’’ We agree with the
defendant.
As an initial matter, we reject the plaintiff’s reliance
on Gonzales v. Langdon, supra, 161 Conn. App. 497, to
support her argument that she could rely solely on the
information available on the department’s website to
determine the defendant’s credentials. This court pre-
viously has rejected that argument. In Gonzales, ‘‘[t]he
plaintiff argue[d] that she was only required to obtain
an opinion letter authored by a board certified dermatol-
ogist because that was the only certification that was
listed on [the defendant’s] profile on the [department’s]
website.’’ Id., 503. This court disagreed, concluding that
the plaintiff had failed to obtain an opinion letter from
a similar health care provider. See Gonzales v. Langdon,
supra, 503.
Nevertheless, the plaintiff in the present case claims
that this court, in Gonzales, described reliance on the
department’s website as a ‘‘good faith effort . . . to
attach an opinion letter authored by a similar health
care provider.’’ Id., 515. Our review of the case reveals
that the plaintiff takes this quote out of context. In
Gonzales, this court was simply explaining why the
situation it confronted, where ‘‘the plaintiff made a good
faith effort in her original complaint to attach an opinion
letter authored by a similar health care provider’’; id.,
515; by looking at the department’s website, differed
from the situation in New England Road, Inc. v. Plan-
ning & Zoning Commission, 308 Conn. 180, 189, 61
A.3d 505 (2013), where ‘‘the plaintiff failed to comply
in any fashion with one or more of the process require-
ments.’’ (Internal quotation marks omitted.) Gonzales
v. Langdon, supra, 161 Conn. App. 515. More import-
antly, the reference to the plaintiff’s ‘‘good faith effort’’
in Gonzales is found in this court’s analysis of whether
the trial court in that case improperly denied the plain-
tiff’s request for leave to amend the complaint, not
whether the plaintiff’s reliance on the department’s
website rendered the opinion letter legally sufficient in
the first place. Id., 509, 515. Accordingly, we find the
plaintiff’s reliance on Gonzales unavailing.8
The plaintiff argues that, aside from the department’s
website, she had no way of verifying the defendant’s
training in oral and maxillofacial surgery, and she ‘‘can-
not be expected to match credentials that [she has] no
way of discovering and verifying.’’ We disagree.
We first note that the plain language of § 52-190a
(a) requires that a plaintiff, prior to filing a medical
malpractice action against a health care provider, 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.’’ (Emphasis added.) General
Statutes § 52-190a (a). As part of that reasonable
inquiry, a plaintiff ‘‘shall obtain a written and signed
opinion of a similar health care provider, as defined in
[§] 52-184c, which similar health care provider shall be
selected pursuant to the provisions of said section.
. . .’’ See General Statutes § 52-190a (a). Our legislature
amended § 52-190a (a) in 2005 to include this require-
ment that a plaintiff obtain ‘‘the written opinion of a
similar health care provider that there appears to be
evidence of medical negligence . . . [as] part of a com-
prehensive effort to control significant and continued
increases in malpractice insurance premiums by
reforming aspects of tort law, the insurance system
and the public health regulatory system.’’ (Citations
omitted; internal quotation marks omitted.) Wilkins v.
Connecticut Childbirth & Women’s Center, supra, 314
Conn. 728. Thus, to the extent that the plaintiff suggests
that she should not be expected to conduct a reasonable
inquiry for a defendant health care provider’s creden-
tials, we disagree because the plain language of § 52-
190a (a) requires her to do so.
Further, in focusing her argument solely on informa-
tion that was available on the department’s website,
the plaintiff ignores the existence of other methods for
ascertaining a defendant health care provider’s creden-
tials. She specifically could have asked Aspen Dental
or the defendant for the defendant’s credentials or
resume, a simple request that she does not allege she
undertook unsuccessfully in her affidavit in opposition
to the defendant’s motion to dismiss. Even if the defen-
dant was not forthcoming with the plaintiff’s requests
for information on the defendant’s credentials, the
plaintiff could have filed a bill of discovery. See, e.g.,
Journal Publishing Co., Inc. v. Hartford Courant Co.,
261 Conn. 673, 680–81, 804 A.2d 823 (2002) (‘‘The bill
of discovery is an independent action in equity for dis-
covery, and is designed to obtain evidence for use in
an action other than the one in which discovery is
sought. . . . As a power to enforce discovery, the bill
is within the inherent power of a court of equity . . .
[and] is well recognized . . . . [B]ecause a pure bill of
discovery is favored in equity, it should be granted
unless there is some well founded objection against the
exercise of the court’s discretion. . . . To sustain the
bill, the petitioner must demonstrate that what he seeks
to discover is material and necessary for proof of, or
is needed to aid in proof of or in defense of, another
action already brought or about to be brought. . . .
Although the petitioner must also show that he has no
other adequate means of enforcing discovery of the
desired material, [t]he availability of other remedies
. . . for obtaining information [does] not require the
denial of the equitable relief . . . sought.’’ [Internal
quotations marks omitted.]). In sum, the department’s
website is not, as the plaintiff suggests, the only reliable
method of obtaining or verifying a defendant health
care provider’s credentials.
The plaintiff’s argument that she had no way of dis-
covering or verifying the defendant’s training and expe-
rience as an oral and maxillofacial surgeon is further
undercut by Mogelof’s identification, in his opinion let-
ter, of notations in the medical file referring to the
plaintiff’s treatment by an ‘‘oral surgeon.’’ Even if the
plaintiff was unaware up to that point that the defendant
had training as an oral and maxillofacial surgeon, she
was put on notice once Mogelof identified the refer-
ences in the medical file to treatment by an ‘‘oral sur-
geon.’’ Moreover, if the plaintiff had become aware of
the defect in the opinion letter before the statute of
limitations had expired, she could have requested leave
to amend the complaint and cured the defect. See Gon-
zales v. Langdon, supra, 161 Conn. App. 510 (‘‘if a plain-
tiff 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 . . . the
trial court . . . 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’’). On the basis of the forego-
ing, we reject the plaintiff’s argument that she had no
way of discovering or verifying the defendant’s creden-
tials in order to obtain an opinion letter authored by a
similar health care provider.
In sum, it is undisputed that the defendant is trained
and experienced in oral and maxillofacial surgery. It is
also undisputed that Mogelof is not trained and experi-
enced in, or board certified in, the defendant’s specialty
of oral and maxillofacial surgery. Because Mogelof was
not a ‘‘similar health care provider’’ as defined in § 52-
184c (c), the opinion letter attached to the plaintiff’s
complaint was legally insufficient under § 52-190a (a),
requiring dismissal of the case. See Bennett v. New
Milford Hospital, Inc., supra, 300 Conn. 28; General
Statutes § 52-190a (c). Accordingly, the trial court prop-
erly granted the defendant’s motion to dismiss for lack
of personal jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Brendan Doyle’s claim for loss of consortium is a derivative claim of
Kate L. Doyle’s claims. Therefore, we refer in this opinion to Kate L. Doyle
as the plaintiff.
2
On February 17, 2017, the plaintiff withdrew her appeal as to Aspen
Dental of Southern CT, PC, and Aspen Dental Management, Inc. Accordingly,
references herein to the defendant are to Kang.
3
General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action
. . . shall be filed to recover damages resulting from personal injury . . .
in which it is alleged that such injury . . . 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 deter-
mine 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 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.’’
4
General Statutes § 52-184c (c) provides: ‘‘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) [i]s 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.’ ’’
5
The plaintiff additionally claims on appeal that the court erred in conclud-
ing that the requirement in § 52-184c (c) to obtain an opinion letter from
an oral and maxillofacial surgeon also was triggered because the defendant
‘‘held himself out’’ as an oral and maxillofacial surgeon. Specifically, the
plaintiff claims that there was insufficient evidence that the defendant was
‘‘held out’’ as a specialist trained and experienced in oral and maxillofacial
surgery at the time of her treatment. Because our resolution of the plaintiff’s
first claim is dispositive of this appeal, we do not address this claim.
We also do not address the plaintiff’s argument on appeal that ‘‘dismissal
notwithstanding, the plaintiff still has a remedy under the accidental failure
of suit statute, General Statutes § 52-592.’’ As the plaintiff’s counsel conceded
at oral argument, this claim is not one that this court can address on appeal,
as the plaintiff has not commenced an action pursuant to § 52-592.
6
Attached to the defendant’s supplemental memorandum of law in further
support of his motion to dismiss was a supplemental affidavit, dated Decem-
ber 18, 2015, in which the defendant stated in relevant part: ‘‘Extractions,
bone grafting procedures and implant placements are among the procedures
that I was trained to perform during my post-graduate residency training
program in oral and maxillofacial surgery. Extractions, bone grafting and
implant placements are within the scope of practice of oral and maxillo-
facial surgery.’’
7
To the extent that the plaintiff suggests that a plaintiff should not need
to conduct an inquiry in order to ascertain a defendant health care provider’s
credentials prior to bringing an action, this may be a worthy issue for our
legislature to address, but our role is not to contort legislation and is to
apply its clear and unambiguous requirements and limitations. See Bennett v.
New Milford Hospital, Inc., supra, 300 Conn. 15–16 (‘‘[g]iven the legislature’s
specific articulations of who is a similar health care provider under § 52-
184c [b] and [c], we have hewn very closely to that language and declined
to modify or expand it in any way’’).
8
More generally, we also reject the plaintiff’s argument that reliance on the
information in a defendant health care provider’s profile on the department’s
website is sufficient because such an interpretation would render meaning-
less the other two potential triggers of the requirements under § 52-184c
(c)—trained and experienced in a medical specialty, or held out as a special-
ist—that our legislature has clearly defined. See Bennett v. New Milford
Hospital, Inc., supra, 300 Conn. 15–16. In other words, if we were to agree
with the plaintiff, only board certification would trigger the requirements
of § 52-184c (c), since it is alleged that only board certification is available
on that website.