Labissoniere v. Gaylord Hospital, Inc. ( 2020 )

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GEORGE LABISSONIERE, COEXECUTOR (ESTATE
OF ROBERT LABISSONIERE) ET AL. v.
GAYLORD HOSPITAL, INC., ET AL.
(AC 42581)
Lavine, Moll and Sheldon, Js.
Syllabus
The plaintiffs, coexecutors of the estate of R, sought to recover damages
for the alleged medical malpractice of the defendants, a hospital, a
physician practice group, and several individual physicians. The plain-
tiffs, pursuant to statute (§ 52-190a), appended to their complaint an
opinion letter authored by M, a physician and general surgeon who was
board certified in surgery; the individual physicians were board certified
in internal medicine. The plaintiffs alleged in their complaint that the
physicians’ diagnosis and postsurgical treatment of R was within the
medical specialty of surgery, that the physicians were acting outside
the scope of their specialty and, therefore, M could be considered a
‘‘similar health care provider’’ as defined by statute (§ 52-184c (c)). The
defendants filed motions to dismiss in which they claimed, inter alia,
that the trial court lacked personal jurisdiction over them because M
was not a ‘‘similar health care provider’’ to them as defined by § 52-
184c (c). The physician practice group also claimed that the trial court
lacked subject matter jurisdiction because it was not a legal entity at
the time R received treatment. The trial court granted the motions
to dismiss on the ground that it lacked personal jurisdiction over the
defendants and rendered judgment thereon, from which the plaintiffs
appealed to this court. Held:
1. The trial court did not lack subject matter jurisdiction over the claim
against the physician practice group; it was irrelevant that the physician
practice group was not a legal entity at the time that R was treated, as
it was a legal entity at the time the action was brought against it and,
therefore, the court had subject matter jurisdiction.
2. The trial court properly dismissed the plaintiffs’ action for lack of personal
jurisdiction; the plaintiffs’ unsupported conclusory allegation that the
individual physicians were acting outside the scope of their specialty
of internal medicine was insufficient to establish that they were acting
as surgeons when they treated R and, therefore, the letter authored by
M, a surgeon, was not authored by a ‘‘similar health care provider.’’
Argued March 9—officially released July 21, 2020
Procedural History
Action to recover damages for the defendants’ alleged
medical malpractice, and for other relief, brought to
the Superior Court in the judicial district of Hartford,
where the court, Dubay, J., granted the defendants’
motions to dismiss and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Affirmed.
Keith Yagaloff, for the appellants (plaintiffs).
Thomas Anderson, with whom, on the brief, was
Cristin E. Sheehan, for the appellees (defendant Eileen
Ramos et al.).
Michael G. Rigg, for the appellee (named defendant).
Laura E. Waltman, with whom, on the brief, was R.
Cornelius Danaher, Jr., for the appellee (defendant
Sound Physicians of Connecticut, LLC).
Opinion
LAVINE, J. This appeal arises out of a medical mal-
practice action brought by the plaintiffs, George Labis-
soniere and Helen Civale, coexecutors of the estate of
Robert Labissoniere (decedent), against the defendants,
internal medicine physicians, Moe Kyaw, Madhuri Gadi-
yaram, and Eileen Ramos (collectively, physicians), and
their employers, Gaylord Hospital, Inc. (hospital), and
Sound Physicians of Connecticut, LLC (Sound Physi-
cians). The plaintiffs appeal from the judgment of the
trial court dismissing their claims for lack of personal
jurisdiction pursuant to General Statutes § 52-190a.1 The
plaintiffs’ central claim on appeal is that the court erred
in concluding that the physicians were internists acting
within their specialty when they treated the decedent.
The plaintiffs therefore assert that the trial court erred
in concluding that the opinion letter attached to their
complaint, which was written by a surgeon, failed to
meet the personal jurisdictional requirement of § 52-
190a and the allegations of the complaint did not satisfy
the personal jurisdictional exception provided by Gen-
eral Statutes § 52-184c (c).2 We reject the plaintiffs’
claim. Sound Physicians argues on appeal, as an alterna-
tive ground for affirmance, that the trial court lacked
subject matter jurisdiction over the claim against it
because it was not a legal entity at the time that the
decedent was treated at the hospital. We disagree that
the trial court lacked subject matter jurisdiction. We
therefore affirm the judgment dismissing the action for
lack of personal jurisdiction over the defendants.
In May, 2015, the plaintiffs instituted a prior action
against the physicians and the hospital on the basis of
allegations that are substantially similar to those in the
present case. In September, 2016, the trial court, Cobb,
J., dismissed that action for lack of personal jurisdiction
because the opinion letter attached to the plaintiffs’
complaint was not authored by a ‘‘similar health care
provider,’’ as required by § 52-190a. This court affirmed
the judgment of dismissal on direct appeal. See Labisso-
niere v. Gaylord Hospital, Inc., 182 Conn. App. 445,
185 A.3d 680 (2018) (Labissoniere I).
In Labissoniere I, the plaintiffs alleged that the dece-
dent was admitted to the hospital on February 14, 2013,
for medical care and rehabilitation following a hip
replacement surgery performed at St. Francis Hospital
and Medical Center (St. Francis Hospital). Id., 448. The
plaintiffs further alleged that, while under the care of
the physicians at the hospital, the decedent suffered
from ‘‘a retroperitoneal hematoma, a postoperative con-
dition that resulted in irreversible nerve damage, as
well as hemorrhagic shock and multiorgan failure,
requiring the decedent to be transferred back to St.
Francis Hospital as an emergency admission on March
11, 2013.’’3 Id. The plaintiffs alleged that the physicians
were board certified in internal medicine and that they
‘‘provided the decedent with treatment and diagnosis
for a postoperative condition which was within the
specialty of surgery.’’ In an attempt to comply with § 52-
190a (a), the plaintiffs appended to their complaint an
opinion letter authored by David A. Mayer, a physician
and board certified general surgeon. Labissoniere v.
Gaylord Hospital, Inc., supra, 182 Conn. App. 448–49.
The physicians and the hospital moved to dismiss
the plaintiffs’ claims against them for lack of personal
jurisdiction on the ground that Mayer was not an inter-
nist and, therefore, was not a ‘‘similar health care pro-
vider,’’ as defined in § 52-184c. Id., 449. The plaintiffs
countered that Mayer was a ‘‘similar health care pro-
vider’’ pursuant to § 52-184c (c) because the physicians
were acting as surgeons during their diagnosis and treat-
ment of the decedent’s retroperitoneal hematoma. In
ruling on the motion to dismiss, Judge Cobb reasoned
that ‘‘neither the . . . complaint . . . nor the sur-
geon’s written opinion letter allege[s] or state[s] that
the [physicians and the hospital] were acting outside
their specialty of internal medicine in treating the [dece-
dent] or that they undertook the diagnosis and treat-
ment of a condition outside of their specialty such that
their conduct should be judged against the standards
of care applicable to that specialty. Such an allegation
and expert opinion is necessary to fall within the excep-
tion contained in [§ 52-184c (c)].’’ (Internal quotation
marks omitted.) Id., 451. Accordingly, Judge Cobb dis-
missed the plaintiffs’ complaint for lack of personal
jurisdiction.
On appeal in Labissoniere I, the plaintiffs claimed,
inter alia, that the court erred in determining that the
opinion letter did not comply with § 52-190a, and that
the exception set forth in § 52-184c (c) was inapplicable.
Id., 454. Specifically, the plaintiffs argued that ‘‘the
exception in § 52-184c (c) applie[d] because they
alleged that the treatment and care the physicians ren-
dered to the decedent fell ‘within the specialty of sur-
gery’ and, therefore, the physicians were acting outside
of their specialty of internal medicine.’’ Id., 456. The
physicians and the hospital argued in response that
‘‘because the plaintiffs did not allege that the physicians
were acting outside the scope of their medical specialty
of internal medicine, the exception under § 52-184c (c)
did not apply, and the plaintiffs were thus obligated to
obtain an opinion letter authored by a physician board
certified in internal medicine.’’ Id. This court agreed
with the physicians and the hospital, determining that
Mayer was not a ‘‘similar health care provider’’ because
he was not board certified in internal medicine. Id., 455.
This court further concluded that ‘‘the decedent was
admitted to the hospital for ‘medical care and rehabilita-
tion’ following a hip replacement, the actual surgical
procedure having been performed at another hospital,
by an independent surgeon. While under the . . . care
[of the physicians and the hospital], the decedent devel-
oped complications, which required treatment and diag-
nosis by the physicians. Although the physicians appear
initially to have misdiagnosed the decedent’s postopera-
tive condition, nothing contained in the plaintiffs’ com-
plaint or opinion letter suggests that the physicians
were not acting as internists. In fact, the crux of the
plaintiffs’ complaint was that the physicians were negli-
gent in their initial assessment of the decedent’s condi-
tion, not that the physicians were negligent in per-
forming a surgical procedure.’’ Id., 457. This court thus
concluded that ‘‘[b]ecause the plaintiffs here have not
alleged that the physicians acted outside the scope of
their specialty of internal medicine, the exception to
the definition of similar health care provider in § 52-
184c (c) does not apply. Accordingly, the plaintiffs were
required to obtain an opinion letter from an expert who
(1) had training and experience in internal medicine,
and (2) was board certified in internal medicine.’’ Id.,
459. This court, therefore, affirmed the judgment dis-
missing the action in Labissoniere I. Id.
In January, 2017, while Labissoniere I was pending in
this court, the plaintiffs commenced the present action
against the hospital, the physicians, and Sound Physi-
cians. As previously noted, the plaintiffs’ complaint con-
tains allegations that are substantially similar to those
set forth in Labissoniere I. The plaintiffs also appended
the same opinion letter authored by Mayer to the com-
plaint, in which Mayer opined that the conduct of the
hospital and the physicians fell below the applicable
standard of care by failing to timely diagnose a retroper-
itoneal bleed in the decedent, conduct a CT scan of the
decedent, and transfer the decedent back to St. Francis
Hospital. The plaintiffs also named Sound Physicians as
a defendant and pleaded a count of negligence against
it. The plaintiffs further alleged that the physicians were
employed by both the hospital and Sound Physicians.
The plaintiffs again alleged that, on February 14, 2013,
the decedent was admitted to the hospital for medical
care following a previous hip replacement surgery per-
formed at St. Francis Hospital. They further alleged that,
while under the care of the defendants, the decedent
developed a retroperitoneal hematoma, which resulted
in irreversible nerve damage. The plaintiffs alleged that
the diagnosis and treatment of that hematoma and the
decedent’s postsurgical condition were within the spe-
cialty of surgery, and not within the specialty of internal
medicine. They also alleged that ‘‘[t]he defendants
lacked the specialized training to determine whether
the decedent needed intervention for treating the dece-
dent’s condition, a retroperitoneal hematoma. The spe-
cialized training required was in the area of general
surgery.’’ Moreover, the plaintiffs alleged that neither
the hospital nor Sound Physicians had a surgeon avail-
able for consultation by the physicians.
The plaintiffs alleged that the decedent’s injuries
were caused by the negligence of the physicians in
failing, inter alia, to timely obtain a consultation with a
surgeon, to perform diagnostic imaging, and to diagnose
and treat the decedent’s condition. The plaintiffs further
alleged that the hospital and Sound Physicians were
negligent in failing to ensure that the physicians did
not commit the alleged negligence.
The hospital filed a motion to dismiss for lack of
personal jurisdiction on the ground that the plaintiffs
failed to comply with § 52-190a because (1) a board
certified surgeon is not a similar healthcare provider,
(2) merely alleging that the defendants were acting out-
side the scope of their specialty did not satisfy the
statutory requirements of §§ 52-190a and 52-184c (c),
(3) the opinion letter failed to detail Mayer’s qualifica-
tions and, therefore, failed to show that he was qualified
to opine as to the care and treatment rendered by inter-
nists, and (4) the plaintiffs were engaging in impermissi-
ble forum shopping because Labissoniere I was filed
in the judicial district of Tolland and the present case
was filed in the judicial district of Hartford. The hospital
subsequently filed a motion to ‘‘preclude [the] plaintiffs
from contesting [its] motion to dismiss,’’ arguing that
the action was barred by the doctrine of collateral estop-
pel because the plaintiffs had been afforded a full and
fair opportunity to litigate the adequacy of Mayer’s opin-
ion letter in Labissoniere I.4 The physicians also filed
a motion to dismiss and memorandum of law in support
thereof, arguing, among other things, that the plaintiffs
had failed to offer an expert opinion authored by a
similar health care provider, thus warranting dismissal.
Sound Physicians moved to dismiss the count against
it by incorporating the same arguments set forth by
the hospital and by asserting that the claim against it
‘‘should be dismissed because [it] was not a legal entity
at the time of the [allegedly negligent treatment of the
decedent].’’ The plaintiffs objected to the defendants’
motions on the basis that Labissoniere I had been dis-
missed without prejudice, and, therefore, the present
case was not barred by collateral estoppel. The plain-
tiffs further argued that they had complied with the
requirements of § 52-190a, but they did not provide any
analytical support for that argument, aside from sum-
marizing case law. The motions were argued before the
court, Dubay, J., on October 4, 2018. The plaintiffs
asserted at the hearing on the motions that ‘‘[t]he issue
in the [Labissoniere I] complaint was resolved by modi-
fying the pleading to specifically state that it was outside
of the medical specialty of the internists.’’
Subsequently, prompted by Judge Dubay’s inquiries
at the hearing, both Sound Physicians and the plaintiffs
filed supplemental memoranda on the question of sub-
ject matter jurisdiction. Sound Physicians argued that
‘‘the plaintiffs do not, and cannot, dispute that Sound
Physicians was not a business entity at the time of [the
decedent’s] treatment at [the hospital]’’ and, therefore,
the trial court lacked subject matter jurisdiction over
the action asserted against it. (Emphasis in original.)
The plaintiffs filed a reply, in which they contested
Sound Physicians’ argument.
On December 7, 2017, Judge Dubay issued a memo-
randum of decision, in which he sua sponte imposed a
stay pending the outcome of the appeal in Labissoniere
I. While the stay was in effect, this court affirmed the
judgment dismissing Labissoniere I. The physicians
and the hospital thereafter filed supplemental briefs
in support of their motions, arguing that this court’s
decision in Labissoniere I required dismissal of the
present action, in which the plaintiffs assert virtually
identical allegations as those made in Labissoniere I.
On January 23, 2019, Judge Dubay dismissed the
plaintiffs’ action and issued a memorandum of decision
that set forth the following reasoning: ‘‘ ‘[A] broad spe-
cialty such as internal medicine often overlaps with
other medical specialties. . . . [P]hysicians who are
board certified in that specialty are often called upon
to diagnose and treat a variety of conditions that could
fall within a variety of medical specialties.’ [Labisso-
niere I, supra, 182 Conn. App. 458]. For this reason,
courts have often declined to create scenarios in which
health care providers in broad specialties such as inter-
nal medicine or emergency medicine may be considered
to be working outside their specialty. . . . This is not
to say, however, that physicians with broad specialties
can never act outside their scope. But given a primary
responsibility of an internist or emergency room doctor
is to initially diagnose and treat on a wide array of
injuries and illnesses, courts will not place negligence
in doing so outside their scope, regardless of the type
of injury or illness in question.
‘‘In the present case, it is undisputed that the defen-
dant physicians are board certified specialists in inter-
nal medicine. Accompanying the plaintiffs’ complaint
is an opinion letter authored and signed by a board
certified general surgeon. To fit the opinion letter
[required by] § 52-190a, the plaintiffs rely on the § 52-
184c (c) exception.
‘‘The complaint alleges the diagnosis and treatment
of the decedent’s postsurgical complication was . . .
within the specialty of surgery. The complaint also
alleges that [the] defendants failed to exercise care and
diligence by, among other claims, failing to timely
obtain a consult or perform a CT scan. In sum, the
defendant [physicians] allegedly failed to appreciate the
decedent’s injury for what it was and therefore failed
to appropriately diagnose and treat him. Importantly,
however, the alleged actions (or inactions), regardless
of how negligent, fall within the generally accepted
practice of internal medicine and are therefore insuffi-
cient to place the defendants outside the scope of
their specialty.
‘‘Therefore, given that the defendant physicians are
internists who acted within their specialty, the § 52-
184c (c) exception does not apply and the plaintiffs are
required to present an opinion letter from a physician
specializing in internal medicine. Under these circum-
stances, the court agrees with the defendants that the
opinion letter is deficient [pursuant] to § 52-190a, and
the motions to dismiss are granted.’’ (Citations omit-
ted.) This appeal followed.
I
We must first address Sound Physicians’ claim that
the trial court lacked subject matter jurisdiction
because it was not a legal entity at the time of the
decedent’s treatment at the hospital. See Park National
Bank v. 3333 Main, LLC, 127 Conn. App. 774, 778, 15
A.3d 1150 (2011) (‘‘Once the question of lack of [subject
matter] jurisdiction of a court is raised, [it] must be
disposed of no matter in what form it is presented. . . .
The court must fully resolve it before proceeding with
the case.’’ (Internal quotation marks omitted.)).
‘‘We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . Moreover,
[i]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any
time. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction. . . . The subject mat-
ter jurisdiction requirement may not be waived by any
party, and also may be raised by a party, or by the court
sua sponte, at any stage of the proceedings, including
on appeal.’’ (Internal quotation marks omitted.) Id.
‘‘[S]ubject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it . . . and a judgment ren-
dered without subject matter jurisdiction is void.’’
(Internal quotation marks omitted.) Bruno v. Travelers
Cos., 172 Conn. App. 717, 724, 161 A.3d 630 (2017).
As stated previously, Sound Physicians moved in the
trial court to dismiss the claim asserted against it on
the basis that it was not a legal entity at the time that
the physicians treated the decedent at the hospital. Fol-
lowing oral argument in the trial court, Sound Physi-
cians filed a supplemental memorandum of law, in
which it argued that ‘‘the plaintiffs do not, and cannot,
dispute that Sound Physicians was not a business entity
at the time of [the decedent’s] treatment at [the hospital]
(February 14, 2013 to March 11, 2013). Sound Physicians
was incorporated and commenced [doing] business in
the state of Connecticut on April 25, 2013. . . . Accord-
ingly, the plaintiffs’ claim against Sound Physicians is
void ab initio and should be dismissed.’’ (Emphasis
in original.) Judge Dubay dismissed the claim against
Sound Physicians for lack of personal jurisdiction but
did not address the issue of subject matter jurisdiction
in his memorandum of decision.
On appeal, Sound Physicians argues that ‘‘to confer
subject matter jurisdiction upon the court, each party
to the dispute must be an actual legal entity. An entity
[without] legal existence can neither sue nor be sued.
It is undisputed that [Sound Physicians] was not a legal
entity at the time of the decedent’s medical treatment
at [the hospital].’’ Sound Physicians cites numerous
cases in support of this argument, including Omerin
USA, LLC v. Infinity Group, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S (May
24, 2018); Prout v. Mukul Luxury Boutique Hotel &
Spa, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (February 28, 2017); Wash-
ington v. Tracey, Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX-S (August 3, 2011);
and State v. Lamar Advertising of Hartford, Superior
Court, judicial district of Hartford, Docket No. CV-08-
5020325-S (April 5, 2011); among others.
There is a critical distinction between those cases
and the present one. In each of the cited cases, the
Superior Court dismissed the action for lack of subject
matter jurisdiction because the plaintiff brought an
action against a defendant in its trade name. In the
matter at hand, however, the plaintiffs did not sue
Sound Physicians in a trade name. The plaintiffs com-
menced their action on January 11, 2017, against Sound
Physicians of Connecticut, LLC, which was and had
been a limited liability company in the state of Connecti-
cut since its registration on April 25, 2013. Sound Physi-
cians’ emphasis on the fact that it was not a registered
legal entity at the time of the decedent’s treatment is
a red herring as it relates to the issue of subject matter
jurisdiction. The relevant question is whether Sound
Physicians was a legal entity at the time that it was sued
by the plaintiffs. Because the plaintiffs sued Sound
Physicians, a limited liability company, not a trade
name, we reject Sound Physician’s alternative ground
for affirmance.5
We now turn to the remaining issue of whether the
trial court correctly concluded that personal jurisdic-
tion over the defendants was lacking.
II
The plaintiffs claim that the trial court erred in dis-
missing the action for lack of personal jurisdiction by
improperly concluding that the defendant physicians
were acting within their specialty of internal medicine
and, therefore, improperly concluding that the plain-
tiffs’ opinion letter written by a surgeon was deficient
pursuant to § 52-190a and did not fall within the excep-
tion created by § 52-184c (c).6 We are not persuaded.
We begin with the standard of review and the applica-
ble principles of law. ‘‘A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction.’’ (Internal quotation marks omit-
ted.) Bennett v. New Milford Hospital, Inc., 300 Conn.
1, 10, 12 A.3d 865 (2011). ‘‘Our Supreme Court has held
that the failure of a plaintiff to comply with the statutory
requirements of § 52-190a (a) results in a defect in pro-
cess that implicates the personal jurisdiction of the
court. . . . Thus, where such a failure is the stated
basis for the granting [of] a motion to dismiss, our
review is plenary. . . . Further, to the extent that our
review requires us to construe the nature of the cause
of action alleged in the complaint, we note that [t]he
interpretation of pleadings is always a question of law
for the court. . . . Our review of the trial court’s inter-
pretation of the pleadings therefore is plenary.’’ (Cita-
tion omitted; internal quotation marks omitted.) Perry
v. Valerio, 167 Conn. App. 734, 739, 143 A.3d 1202
(2016).
‘‘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, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Internal quotation marks
omitted.) Bennett v. New Milford Hospital, Inc., supra,
300 Conn. 10–11.
‘‘[W]e long have eschewed the notion that pleadings
should be read in a hypertechnical manner. Rather,
[t]he modern trend, which is followed in Connecticut,
is to construe pleadings broadly and realistically, rather
than narrowly and technically . . . . [T]he complaint
must be read in its entirety in such a way as to give
effect to the pleading with reference to the general
theory upon which it proceeded, and to substantial jus-
tice between the parties . . . . Our reading of plead-
ings in a manner that advances substantial justice
means that a pleading must be construed reasonably,
to contain all that it fairly means, but carries with it
the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension . . . . [E]ssential allegations may not
be supplied by conjecture or remote implication . . . .’’
(Internal quotation marks omitted.) Caron v. Connecti-
cut Pathology Group, P.C., 187 Conn. App. 555, 564,
202 A.3d 1024, cert. denied, 331 Conn. 922, 206 A.3d
187 (2019).
The plaintiffs argue that the trial court failed to give
due deference to the factual allegations in their com-
plaint in making its determination that the challenged
actions by the physicians fell within the specialty of
internal medicine. Specifically, they argue that the trial
court was obligated to accept as true their allegations
that the diagnosis and treatment of the decedent’s posts-
urgical complications were within the specialty of gen-
eral surgery and outside the specialty of internal medi-
cine. Accordingly, the plaintiffs contend that their
opinion letter authored by a surgeon was sufficient to
meet the requirements of § 52-190a. The defendants
counter that the plaintiffs’ mere addition of an allegation
that the physicians were acting outside their specialty
of internal medicine is insufficient to cure the deficiency
that was identified in Labissoniere I. The physicians
further argue that the complaint is devoid of any factual
allegation that the physicians actually rendered surgical
care, beyond the conclusory allegation to that effect.
We agree with the defendants.
Our resolution of this claim is controlled by this
court’s decision in Labissoniere I, which addressed the
same jurisdictional question arising out of the allega-
tions of a complaint that are nearly identical to those
in the present case.7 Accordingly, the narrow question
with which we are presented is whether the plaintiffs
cured the jurisdictional defect as identified in Labisso-
niere I.8 The essential allegations in the present com-
plaint are the same as those in Labissoniere I. The
plaintiffs alleged in both cases that the decedent was
admitted to the hospital for medical care following a
hip replacement surgery and that the physicians were
negligent in failing to timely diagnose the hematoma
and consult with a surgeon. The plaintiffs, however,
added a conclusory allegation that the physicians had
provided the decedent with treatment and diagnosis for
a condition that was outside the specialty of internal
medicine and within the specialty of surgery, in an
attempt to comply with the statutory requirements. The
plaintiffs’ argument that we must accept as true that
new conclusory allegation is unavailing. See Caron v.
Connecticut Pathology Group, P.C., supra, 187 Conn.
App. 564 (‘‘[e]ssential allegations may not be supplied
by conjecture or remote implication’’ (internal quota-
tion marks omitted)). Whether the physicians were act-
ing as internists or surgeons is undoubtedly an essential
allegation, and the plaintiffs failed to allege any facts
from which we can infer that the physicians were indeed
acting outside the scope of internal medicine, irrespec-
tive of the label that they attach to their claim. We,
therefore, decline to accept as true the plaintiffs’ unsup-
ported conclusory allegation that the physicians were
acting as surgeons.9
In light of the foregoing, it is still the case that ‘‘noth-
ing contained in the plaintiffs’ complaint or opinion
letter suggests that the physicians were not acting as
internists. In fact, the crux of the plaintiffs’ complaint
was that the physicians were negligent in their initial
assessment of the decedent’s condition, not that the
physicians were negligent in performing a surgical pro-
cedure.’’ Labissoniere I, supra, 182 Conn. App. 457.
Accordingly, we conclude that the trial court properly
dismissed the plaintiffs’ action for lack of personal juris-
diction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-190a provides in relevant part: ‘‘(a) No civil action
. . . shall be filed to recover damages resulting from personal injury or
wrongful death . . . whether in tort or in contract, in which it is alleged
that such injury or death resulted from the negligence of a health care
provider, unless the attorney or party filing the action . . . has made a
reasonable inquiry as permitted by the circumstances to determine that
there are grounds for a good faith belief that there has been negligence in
the care or treatment of the claimant. The complaint . . . shall contain a
certificate of the attorney or party filing the action . . . that such reasonable
inquiry gave rise to a good faith belief that grounds exist for an action
against each named defendant . . . . To show the existence of such good
faith, the claimant or the claimant’s attorney . . . shall obtain a written
and signed opinion of a similar health care provider, as defined in section
52-184c, which similar health care provider shall be selected pursuant to
the provisions of said section, that there appears to be evidence of medical
negligence and includes a detailed basis for the formation of such opinion.
Such written opinion shall not be subject to discovery by any party except
for questioning the validity of the certificate. The claimant or the claimant’s
attorney . . . shall retain the original written opinion and shall attach a
copy of such written opinion, with the name and signature of the similar
health care provider expunged, to such certificate. . . .
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
2
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) Is trained and
experienced in the same specialty; and (2) is certified by the appropriate
American board in the same specialty; provided if the defendant health care
provider is providing treatment or diagnosis for a condition which is not
within his specialty, a specialist trained in the treatment or diagnosis
for that condition shall be considered a ‘similar health care provider.’ ’’
(Emphasis added.)
3
Neither Labissoniere I nor the present action alleges a wrongful death
cause of action.
4
The hospital later amended its motion to dismiss and memorandum of
law in support thereof, asserting collateral estoppel as its primary argument
for dismissal.
5
In light of our conclusion herein, we need not address the question of
whether a trial court lacks subject matter jurisdiction when a defendant is
sued in its trade name only. We leave that question open for another day.
6
Specifically, the plaintiffs claim that the trial court (1) ‘‘impermissibly
created a new statutory definition of the specialty of internal medicine, and
an exception thereto, without the required consideration, deference to the
factual allegations in the complaint and the circumstances surrounding [the]
decedent’s injuries,’’ (2) ‘‘erred in finding that the plaintiffs’ expert was not
a ‘similar health care provider’ within the meaning of [§§] 52-190a and . . .
52-184c (c),’’ and (3) erred in dismissing the plaintiffs’ claim that the hospital
was vicariously and independently liable for the physicians’ conduct.
7
For a more detailed discussion of the jurisdictional question, as it pertains
to the broad specialty of internal medicine, see Labissoniere I, supra, 182
Conn. App. 445.
8
One panel of this court may not overrule the decision of a previous
panel without en banc consideration. See Boccanfuso v. Conner, 89 Conn.
App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668
(2005), and cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).
9
The plaintiffs’ claim brings to mind a story attributed to Abraham Lincoln.
He used to refer to a boy who, when asked how many legs his calf would
have if he called a tail a leg, replied ‘‘five,’’ to which the response was made
that calling a tail a leg does not make it a leg. A. McClure, ‘‘Abe’’ Lincoln’s
Yarns and Stories: A Complete Collection of the Funny and Witty Anecdotes
that Made Lincoln Famous as America’s Greatest Story Teller (1901) p. 409.
Similarly, simply claiming that the physicians were acting as surgeons, and
not as internists, does not make it so in light of the factual allegations in
the complaint.