Peters v. United Community & Family Services, Inc.

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STEVEN V. PETERS, JR. v. UNITED COMMUNITY
AND FAMILY SERVICES, INC., ET AL.
(AC 39559)
DiPentima, C. J., and Prescott and Norcott, Js.
Syllabus
The plaintiff sought to recover damages from the defendant dental surgeon,
R, arising out of the allegedly negligent performance of maxillofacial
surgery. The plaintiff, pursuant to statute (§ 52-190a), appended to his
complaint an opinion letter authored by a maxillofacial surgeon stating
that there appeared to be evidence of medical negligence. The letter
did not indicate whether the author was board certified. R filed a motion
to dismiss the allegations directed toward him, claiming that the trial
court lacked personal jurisdiction over him because the author was not
a ‘‘similar health care provider’’ as defined by statute (§ 52-184c [c]).
The plaintiff claimed that, although the letter was defective, he fully
complied with § 52-190a because the author met all necessary qualifica-
tions at the time he wrote the letter. The plaintiff filed with his opposition
to the motion to dismiss an affidavit from the author attesting to his
board certification. The trial court declined to consider the affidavit,
which was filed outside the relevant statute of limitations period, granted
the motion to dismiss and rendered judgment thereon, from which the
plaintiff appealed to this court. Held that the trial court properly granted
R’s motion to dismiss: although 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, the plaintiff here did not attempt to cure the defective
opinion letter by way of amendment of the pleadings and, instead,
submitted the explanatory affidavit with his opposition to the motion
to dismiss, after the expiration of the applicable statutes of limitations,
because the opinion letter was defective in that it failed to indicate that
the author was board certified in the same specialty as R, there was an
adequate ground to dismiss the action pursuant to § 52-190a (c), and
even if the affidavit submitted with the plaintiff’s opposition to the
motion to dismiss was functionally equivalent to a request for leave to
file an amended opinion letter, that effort to cure the defect was made
well after the statute of limitations had run; moreover, although the
plaintiff factually distinguished the affidavit procedure that he employed
from the procedure of filing amended pleadings, he failed to provide
any legal analysis as to why the procedures should be treated differently
for statute of limitations purposes, and it would have been illogical to
conclude that the plaintiff could avoid dismissal by submitting an affida-
vit in lieu of an amendment, both of which would have been untimely.
Argued January 11—officially released June 19, 2018
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 New London,
where the court, Vacchelli, J., granted the motion to
dismiss filed by the defendant Edward Reynolds, Jr.,
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
Cody A. Layton, for the appellant (plaintiff).
Beverly Knapp Anderson, for the appellee (defendant
Edward Reynolds, Jr.).
Opinion
PRESCOTT, J. With the intent to deter the filing of
frivolous medical malpractice actions, our legislature in
1986 adopted General Statutes § 52-190a, which makes
malpractice actions subject to dismissal unless the
plaintiff obtains and attaches to the complaint an opin-
ion letter written and signed by a similar health care
provider indicating that there appears to be evidence
of medical negligence. The meaning and application of
this requirement itself has spawned extensive litigation
since its enactment.1 This appeal is the latest iteration
of this judicial journey.
The plaintiff, Steven V. Peters, Jr., commenced the
underlying action for monetary damages arising out
of the alleged negligent performance of maxillofacial
surgery. He appeals from the judgment of the trial court
dismissing, pursuant to § 52-190a (c),2 count three of
his action directed against the defendant, Edward Rey-
nolds, Jr., DDS, because the opinion letter that the plain-
tiff attached to the complaint failed to provide that its
author is board certified by the appropriate American
board in the same specialty as the defendant.3 The plain-
tiff claims on appeal that the trial court improperly
relied on this court’s decision in Gonzales v. Langdon,
161 Conn. App. 497, 128 A.3d 562 (2015), as the basis
for its decision to reject the affidavit that he attached
to his response to the motion to dismiss, in which he
sought to clarify the credentials of the opinion letter’s
author. We conclude that, because the plaintiff’s
attempt to cure the defect in the opinion letter came
after the relevant statute of limitations had run, the trial
court properly granted the motion to dismiss on the
basis of an inadequate opinion letter. Accordingly, we
affirm the judgment of the trial court.
The following facts, as set forth in the complaint, and
procedural history are relevant to our consideration
of the plaintiff’s claim. Beginning in August, 2012, the
plaintiff sought dental treatment from United Commu-
nity and Family Services, Inc. (UCFS) for a ‘‘full maxil-
lary denture over a partial mandibular denture.’’ The
defendant was a ‘‘servant, agent, apparent agent . . .
or employee’’ of UCFS, who ‘‘held himself out to the
general public as a physician and surgeon duly licensed
to practice medicine in the state of Connecticut, practic-
ing in Norwich and specializing in oral and maxillo-
facial surgery.’’ (Emphasis added.) On September 19,
2012, the plaintiff underwent a procedure known as a
decompression of a maxillary cyst. That procedure was
performed by the defendant or by someone under his
supervision. The plaintiff continued to receive treat-
ment related to the cyst through October 11, 2013, at
which time the plaintiff ‘‘became aware that there may
have been a breach of the standard of care.’’
The plaintiff commenced the underlying action
against the defendant on January 7, 2016, within the
applicable limitation period.4 The complaint had a
return date of February 9, 2016. In his complaint, the
plaintiff alleges that, while under the defendant’s treat-
ment and care, he suffered serious, painful, and perma-
nent injuries that required additional medical treatment,
and that the defendant had failed ‘‘to exercise that
degree of care and skill ordinarily and customarily used
by physicians and surgeons specializing in oral and
maxillofacial surgery . . . .’’
Attached to the complaint was the requisite good
faith certificate signed by the plaintiff’s attorney and
an opinion letter from a physician who asserts that he
had reviewed the plaintiff’s medical records and had
conducted a clinical exam of the plaintiff. The opinion
letter sets forth the author’s educational and profes-
sional background, including that he graduated cum
laude from the Harvard School of Dental Medicine in
1988, and currently is a craniofacial trauma surgeon at
Hartford Hospital and the oral and maxillofacial sur-
geon for the Connecticut Children’s Medical Center Cra-
niofacial Team. The letter contains the author’s opinion
that the plaintiff’s diagnosis and overall treatment
involved ‘‘an extreme departure from the standard of
care’’ and sets forth in some detail the factual underpin-
ning for that opinion. The letter does not provide, how-
ever, whether the author is certified as a specialist by
any American board.
On March 8, 2016, the defendant filed a motion to
dismiss all allegations in the complaint directed against
him on the ground that the opinion letter attached to
the complaint did not fully comply with § 52-190a. The
defendant claimed that the opinion letter was defective
in two ways.
First, the defendant argued that the opinion letter
failed to demonstrate that its author is a ‘‘similar health
care provider’’ as that term is defined in General Stat-
utes § 52-184c (c).5 Specifically, the defendant argued
that because the plaintiff brought the action against
the defendant as a specialist in oral and maxillofacial
surgery, the opinion letter’s author needed to be
‘‘trained and experienced in the same [medical] spe-
cialty’’ as the defendant and had to be ‘‘certified by the
appropriate American [b]oard in the same specialty.’’
General Statutes § 52-184c (c). Because the opinion let-
ter attached to the plaintiff’s complaint did not provide
whether the author was certified by the American board
responsible for certifying oral and maxillofacial sur-
geons, the defendant argued that it was insufficient to
demonstrate that the opinion provided was by a similar
health care provider.
Second, the defendant argued that the letter con-
tained no opinion of medical negligence with respect
to the defendant because there was no express indica-
tion by the author that the defendant had provided any
treatment in violation of the standard of care. According
to the defendant, the letter mentions him only in con-
nection with his supervision of another physician, Jose
Rivero; see footnote 3 of this opinion; but does not
claim that the defendant’s supervision was negligent or
breached the standard of care.
On May 9, 2016, the plaintiff filed a memorandum of
law in opposition to the defendant’s motion to dismiss.
The plaintiff argued that the opinion letter he attached
to his complaint complies with the requirements set
forth in § 52-190a. The plaintiff acknowledged that, due
to the allegations in his complaint, he was required
to secure an opinion letter from a similar health care
provider that was both trained and experienced in the
same specialty as the defendant and certified by the
appropriate American board in the same specialty. The
plaintiff, however, asserted that he fully complied with
those requirements because the author of his opinion
letter, in fact, met all necessary qualifications at the
time he wrote his letter. According to the plaintiff, the
author, in setting forth his credentials, inadvertently
left out the fact that he was board certified.
The plaintiff argued that the Superior Court has, in
other cases, allowed parties to cure similar defects by
submitting an affidavit from the letter’s author to sup-
plement or clarify the original letter. The plaintiff
attached to his opposition memorandum an affidavit
executed on May 4, 2016, by the author of the opinion
letter. In that affidavit, the author avers as follows:
‘‘I am certified by the American Board of Oral and
Maxillofacial Surgery and have been continuously since
October 1, 2008, through the present date, including
November 25, 2015, the date I authored said opinion
letter.’’ A photocopy of his board certificate is attached
to the affidavit. At no time, however, did the plaintiff
seek permission to amend the complaint or to file an
amended opinion letter.
The court heard argument on the motion to dismiss
on July 25, 2016. The defendant argued, in relevant part,
that in deciding whether the plaintiff had complied with
§ 52-190a, the court lacked the discretion to consider
the affidavit that the plaintiff submitted with his opposi-
tion to the motion to dismiss because the plaintiff’s
attempt to cure the defect in the opinion letter came
more than thirty days after the return date of the original
complaint and, more importantly, after the statute of
limitations had expired. The defendant cited this court’s
decision in Gonzales v. Langdon, supra, 161 Conn. App.
497, as supporting that proposition, relying on the fol-
lowing language: ‘‘[I]f a plaintiff alleging medical mal-
practice 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 per-
mit such an amendment if the plaintiff seeks to amend
within the applicable statute of limitations but more
than thirty days after the return day. The court may
abuse its discretion if it denies the plaintiff’s request
to amend despite the fact that the amendment would
cure any and all defects in the original opinion letter
and there is an absence of other independent reasons
to deny permission for leave to amend.’’ Id., 510.
The plaintiff responded that, at the time this action
was commenced, the author of the opinion letter
attached to the complaint met all of the statutory qualifi-
cations necessary to render an opinion as a similar
health care provider. He admitted that the author inad-
vertently had failed to include in the letter that he was
certified by the appropriate American board, but never-
theless took the position that this was not a fatal defect.
The plaintiff argued that, pursuant to Practice Book
§ 10-31, which governs the filing of oppositions to
motions to dismiss, courts may consider affidavits sub-
mitted with an opposition to resolve factual ambiguities
in the record.6 Thus, according to the plaintiff, the court
properly could consider the affidavit that the plaintiff
submitted to resolve in his favor the issue raised in the
motion to dismiss with respect to the opinion letter.
Moreover, the plaintiff argued that the Superior Court
had, in other cases, permitted plaintiffs in medical mal-
practice actions to cure defects in an opinion letter by
way of an affidavit rather than by formal amendment
of the pleadings. The plaintiff attempted to distinguish
our decision in Gonzales, arguing that its application
was limited to if and when the court may allow amend-
ments to the complaint or accept the submission of
an entirely new opinion letter, and did not address or
resolve whether, even after the statute of limitations
had run, an affidavit might be sufficient to rectify a
deficient opinion letter.
The trial court issued a decision on August 8, 2016,
granting the defendant’s motion and dismissing the
third count of the complaint, without prejudice, on the
ground that the required opinion letter was deficient
because, as admitted by the plaintiff, it failed to state
whether the author was board certified in the same
specialty as the defendant.7 The court first rejected the
plaintiff’s attempt to ‘‘stave off dismissal by arguing
that it is questionable whether [§ 52-190a] requires that
the author [of an opinion letter] describe how he pur-
ports to be a similar health care provider in the letter.’’
The court concluded that that issue had been resolved
by the Appellate Court in Lucisano v. Bisson, 132 Conn.
App. 459, 466, 34 A.3d 983 (2011) (‘‘[t]he only plausible
application of the plain language of §§ 52-190a and 52-
184c requires the disclosure of qualifications in the opin-
ion letter’’). The court then turned to whether it had
authority to rely on the affidavit that the plaintiff had
attached to his opposition to the motion to dismiss as
a means of curing a defect in the opinion letter. The
court acknowledged the plaintiff’s argument that ‘‘a
long line of Superior Court decisions’’ have sanctioned
the use of an explanatory affidavit under similar circum-
stances, ‘‘favorably comparing the affidavit procedure
to Appellate Court language sanctioning the curing of
such defects by amendment practice, available under
Practice Book § 10-60.’’8
The court concluded, however, that it was unneces-
sary for it to resolve whether the defective opinion
letter was amenable to correction through the filing of
an affidavit as opposed to the filing of an amended
pleading. The court determined that, because the stat-
ute of limitations had run, neither procedure was a
viable option. It reasoned as follows: ‘‘The court is not
persuaded that the plaintiff’s affidavit should be exempt
from the Gonzales v. Langdon rule. The reason why
affidavits have been allowed is because they are com-
pared favorably to Appellate Court authority allowing
amendments. [Because] any amendment that sought to
supply this missing necessary information would be
too late, so too would be an affidavit that sought to
accomplish the same thing.’’
The court also rejected the plaintiff’s argument that
the defect in his opinion letter was merely circumstan-
tial in nature and, thus, excusable. See General Statutes
§ 52-123 (‘‘[n]o writ, pleading, judgment or any kind of
proceeding in court or course of justice shall be abated,
suspended, set aside or reversed for any kind of circum-
stantial errors, mistakes or defects, if the person and
the cause may be rightly understood and intended by
the court’’). The court explained that ‘‘[t]he designation
of circumstantial defect is reserved for defects that are
not substantive or jurisdiction[al] in nature,’’ and that
the failure to provide an opinion letter that complies
with statutory requirements constitutes insufficient
process, thus implicating the court’s personal jurisdic-
tion. See Morgan v. Hartford Hospital, 301 Conn. 388,
402, 21 A.3d 451 (2011). The court concluded that,
because the defect at issue was jurisdictional in nature,
it was not circumstantial. Accordingly, the court
granted the defendant’s motion to dismiss. This
appeal followed.
The sole issue raised by the plaintiff on appeal is
whether the trial court, in ruling on the motion to dis-
miss, correctly determined that our decision in Gonza-
les v. Langdon, supra, 161 Conn. App. 497, barred it
from considering the affidavit that he had attached to
his opposition to the motion to dismiss in an effort to
cure the defect in the opinion letter attached to his
complaint. The plaintiff concedes, as he did before the
trial court, that, on the basis of the allegations alleged
in his complaint, he was required by statute to provide
an opinion letter from a doctor who not only is trained
in oral and maxillofacial surgery, but also is board certi-
fied in that specialty. He further concedes that, although
the author of the opinion letter had all the necessary
bona fides, they were not set forth in the opinion letter
attached to his complaint. Nevertheless, the plaintiff
argues that the court should have permitted him to
avoid dismissal of his action by accepting an affidavit
from the author clarifying his credentials. We are not
persuaded and agree with the trial court that, regardless
of the procedure the plaintiff elected to employ to cor-
rect the admittedly defective opinion letter, the plain-
tiff’s efforts came after the statute of limitations had
expired. Accordingly, the court was obligated to grant
the defendant’s motion and dismiss the action.
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. . . . 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 Hos-
pital, Inc., 300 Conn. 1, 10–11, 12 A.3d 865 (2011).
As previously indicated, § 52-190a was enacted by
the legislature as part of tort reform efforts in 1986 and
was intended to help screen out frivolous malpractice
actions. See Plante v. Charlotte Hungerford Hospital,
300 Conn. 33, 53, 12 A.3d 885 (2011). Subsection (a) of
§ 52-190a provides in relevant part: ‘‘No civil action
or apportionment complaint shall be filed to recover
damages resulting from personal injury or wrongful
death occurring on or after October 1, 1987, whether
in tort or in contract, in which it is alleged that such
injury or death resulted from the negligence of a health
care provider, unless the attorney or party filing the
action or apportionment complaint has made a reason-
able 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. . . . [T]he 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. . . .’’
Furthermore, ‘‘§ 52-190a (c) requires the dismissal of
medical malpractice complaints that are not supported
by opinion letters authored by similar health care pro-
viders.’’ Bennett v. New Milford Hospital, Inc., supra,
300 Conn. 25; see also Morgan v. Hartford Hospital,
supra, 301 Conn. 401–402 (‘‘[T]he attachment of a writ-
ten opinion letter that does not comply with § 52-190a
constitutes insufficient process and, thus, service of
that insufficient process does not subject the defendant
to the jurisdiction of the court. . . . The jurisdiction
that is found lacking, however, is jurisdiction over the
person, not the subject matter.’’ [Citation omitted; inter-
nal quotation marks omitted.]).
In Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 21, our Supreme Court indicated that in any case
in which the plaintiff alleges in his complaint that a
defendant is board certified in a particular specialty or
holds himself out as a specialist, ‘‘the author of an
opinion letter pursuant to § 52-190a (a) must be a similar
health care provider as that term is defined by § 52-
184c (c), regardless of his or her potential qualifications
to testify at trial pursuant to § 52-184c (d).’’ It also
indicated that, although dismissal of an action for rela-
tively insignificant defects in an opinion letter might,
at first blush, appear to be a harsh result for plaintiffs;
id., 30–31; ‘‘plaintiffs are not without recourse when
facing dismissal occasioned by an otherwise minor pro-
cedural lapse’’ because ‘‘the legislature envisioned the
dismissal as being without prejudice . . . and even if
the statute of limitations has run, relief may well be
available under the accidental failure of suit statute,
General Statutes § 52-592.’’ (Citation omitted.) Id., 31.
In Gonzales v. Langdon, supra, 161 Conn. App. 510,
this court recognized an additional avenue of recourse
available to plaintiffs to correct defects in an existing
opinion 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 opin-
ion 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. The court may abuse its dis-
cretion if it denies the plaintiff’s request to amend
despite the fact that the amendment would cure any
and all defects in the original opinion letter and there
is an absence of other independent reasons to deny
permission for leave to amend.’’ (Emphasis added.) Id.
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.’’ (Emphasis added.) Id., 519.
Furthermore, the court explained that allowing the cor-
rection of a defective opinion letter under the circum-
stances prescribed favors judicial economy. Id.
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 limitations. Logically, it follows
that a plaintiff who fails to seek to correct a defective
opinion letter within the statute of limitations period
will be limited to the remedy previously identified by
our Supreme Court in Bennett, namely, seeking to file
a new action pursuant to § 52-592, the accidental failure
of suit statute.
In Ugalde v. Saint Mary’s Hospital, Inc., 182 Conn.
App. 1, A.3d (2018), this court recently had an
opportunity to discuss the scope of the remedy recog-
nized in Gonzales, stating that ‘‘[t]he holding in Gonza-
les permits amendments to legally insufficient opinion
letters only if they are sought prior to the expiration
of the statute of limitations.’’ (Emphasis added.) Id.,
12. This court, in Ugalde, determined that an amend-
ment filed after the limitations period had run did not
comply with the Gonzales rule and could not be saved
by invoking the relation back doctrine. Id., 9–12. ‘‘To
hold that an amendment can be permitted after the
expiration of the statute of limitations on the theory
that the amended pleading relates back to the date of
the filing of the improperly pleaded action would render
all references to the statute of limitations and the acci-
dental failure of suit statute in Gonzales irrelevant, for
under that analysis, every amendment, however unsea-
sonable, would relate back to the date of the original
complaint without need for invoking, or thus complying
with, the requirements of the accidental failure of suit
statute.’’ Id., 12.
The plaintiff in the present case takes the position
that Gonzales applies only in those cases in which a
plaintiff has sought to cure a defective opinion letter
by way of an amendment of the pleadings, and suggests
that a plaintiff can evade the clear limits set forth in
Gonzales by submitting an explanatory or clarifying
affidavit in lieu of amendment, even after the limitations
period has expired. Just as this court rejected the plain-
tiff’s attempt in Ugalde to evade the statute of limita-
tions problem that existed in that case by invoking the
relation back doctrine, we reject the plaintiff’s attempt
to limit or distinguish Gonzales in the present case.
As an initial matter, we recognize that certain Supe-
rior Court decisions provide some authority for permit-
ting a plaintiff to cure a defective opinion letter by
supplemental affidavit rather than by following the
amendment procedures set forth in Practice Book
§§ 10-59 and 10-60.9 See footnote 8 of this opinion. The
Superior Court decisions that have permitted affidavits,
however, have done so largely upon a theory that if a
plaintiff is permitted to correct a defective opinion letter
by amending the pleadings, it would be equally reason-
able for a court to permit and consider an affidavit
that clarifies a defect in an existing opinion letter. No
appellate court to date has sanctioned the use of an
affidavit to cure a defective opinion letter. The plaintiff,
in his brief to this court, seeks to establish that the use
of an explanatory or supplemental affidavit to cure a
defect in an opinion letter in response to a motion to
dismiss comports with language in Practice Book § 10-
31 (a) permitting supporting affidavits to establish facts
necessary for the adjudication of the motion to dismiss.
Because our resolution of the present appeal does not
turn on whether we agree with that analysis, we leave
that issue for another day.10
On the basis of our plenary review, we agree with
the trial court’s decision to grant the defendant’s motion
to dismiss. There is no question that the opinion letter
attached to the plaintiff’s complaint was defective. The
letter did not establish on its face that its author was
a similar health care provider as that term is defined
in § 52-184c (c) because the author never indicated that
he was board certified in the same specialty as the
defendant. Because the opinion letter was defective,
this provided an adequate ground to dismiss the action
pursuant to § 52-190a (c). Furthermore, the statute of
limitations for bringing a medical malpractice action
against the defendant expired, at the latest, on January
9, 2016. See footnote 4 of this opinion. The plaintiff
took no action to cure the defect in the opinion letter
until May 9, 2016, when, in response to a motion to
dismiss filed by the defendant, he offered a supplemen-
tal affidavit from the letter’s author. Even if we assume,
for the sake of argument, that the affidavit submitted
by the plaintiff was functionally equivalent to a request
for leave to file an amended opinion letter, this effort
to cure the defect was made well after the statute of
limitations had run. Although the plaintiff factually dis-
tinguishes the affidavit procedure that he employed
from the amendment procedure discussed in Gonzales,
he has failed to provide any legal analysis why the two
procedures should be treated differently for statute of
limitations purposes. It simply would be illogical and
an unwarranted circumvention of our decision in Gon-
zales to conclude that a plaintiff could avoid dismissal
by submitting an affidavit in lieu of an amendment. As
the trial court aptly indicated, because ‘‘any amendment
that sought to supply [the] missing necessary informa-
tion would be too late, so too would be an affidavit
that sought to accomplish the same thing.’’
In sum, we conclude that the court properly applied
our decision in Gonzales in granting the motion to dis-
miss. Regardless of the type of procedure a plaintiff
elects to employ to cure a defect in an opinion letter
filed in accordance with § 52-190a, that procedure must
be initiated prior to the running of the statute of limita-
tions. Otherwise the sole remedy available will be to
initiate a new action, if possible, pursuant to § 52-592.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A computer search for Connecticut cases citing § 52-190a yields almost
a thousand results.
2
General Statutes § 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.’’
3
In addition to count three, which alleges negligence against Reynolds,
the operative complaint contained four additional counts alleging negligence
by United Community and Family Services, Inc. (UCFS); and other physi-
cians, namely, Jose Rivero; Graham Garber, and John Doe. Because UCFS,
Rivero, Garber and Doe have not participated in the present appeal, all
references to the defendant in this opinion are to Reynolds, Jr., only. We
note that the partial judgment on the complaint was final for purposes of
appellate jurisdiction because it disposed of all causes of action brought
against the defendant. See Practice Book § 63-1. Both Rivero and Garber
also filed motions to dismiss the counts of the complaint directed at them,
citing defects in the qualifications set forth in the opinion letter. Garber’s
motion, like Reynold’s, was granted by the court, Vacchelli, J., and the
plaintiff filed a separate appeal from the judgment in favor of Garber (AC
40645). Rivero’s motion to dismiss, however, was heard by the court, Cole-
Chu, J., who declined to follow the reasoning of Judge Vacchelli and denied
the motion. Accordingly, the present action remains pending before the
Superior Court with respect to the counts against UCFS and Rivero.
4
General Statutes § 52-584 provides 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 complained of . . . .’’
Here, the two year limitation period began to run on October 11, 2013, the
date the plaintiff alleges he first became aware of the defendant’s negligence.
The plaintiff petitioned the clerk of the court pursuant to § 52-190a (b) for an
automatic ninety day extension of the limitation period, which was granted.
Accordingly, the two year limitation period expired on January 9, 2016. The
defendant was served process on January 7, 2016. Even if we assume,
however, that the act or omission complained of was the decompression
procedure that occurred on September 19, 2012, the action also needed to
be brought within three year from that date. Accounting for the ninety day
extension, the three year limitation period expired on December 18, 2015.
Although the defendant was not served process until January 7, 2016, the
affidavit attached to the marshal’s return indicates that the marshal person-
ally received the writ, summons and complaint on December 18, 2015.
General Statutes § 52-593a provides that a cause of action will not be lost
on statute of limitations ground if ‘‘the process to be served is personally
delivered to a state marshal . . . within [the limitation period] and the
process is served, as provided by law, within thirty days of the delivery.’’
The defendant was served twenty days after the marshal took delivery.
Thus, using either calculation of the limitation period, the present action
was commenced within the applicable period, which expired, at the latest,
on January 9, 2016.
5
Section 52-190a (a) provides that the term, ‘‘similar health care provider,’’
is defined in § 52-184c. Section 52-184c contains the following definitions:
‘‘(b) If the defendant health care provider is not certified by the appropriate
American board as being a specialist, is not trained and experienced in a
medical specialty, or does not hold himself out as a specialist, a ‘similar
health care provider’ is one who: (1) Is licensed by the appropriate regulatory
agency of this state or another state requiring the same or greater qualifica-
tions; and (2) is trained and experienced in the same discipline or school
of practice and such training and experience shall be as a result of the
active involvement in the practice or teaching of medicine within the five-
year period before the incident giving rise to the claim.
‘‘(c) If the defendant health care provider is certified by the appropriate
American board as a specialist, is trained and experienced in a medical
specialty, or holds himself out as a specialist, a ‘similar health care provider’
is one who: (1) Is trained and experienced in the same specialty; and (2) is
certified by the appropriate American board in the same specialty; provided
if the defendant health care provider is providing treatment or diagnosis
for a condition which is not within his specialty, a specialist trained in the
treatment or diagnosis for that condition shall be considered a ‘similar health
care provider’.’’
6
Practice Book § 10-31 (a) provides: ‘‘Any adverse party shall have thirty
days from the filing of the motion to dismiss to respond to the motion to
dismiss by filing and serving in accordance with [§§] 10-12 through 10-17
a memorandum of law in opposition and, where appropriate, supporting
affidavits as to facts not apparent on the record.’’
7
At the start of its decision, the court indicated that it had not based its
decision to grant the motion to dismiss on the defendant’s claim that the
letter failed adequately to allege medical negligence by the defendant. The
court nevertheless later analyzed this claim and rejected it, concluding
that the information provided in the letter was sufficient to satisfy the
requirement that the opinion letter set forth a ‘‘detailed basis’’ for the opinion
that there appears to be evidence of medical negligence attributable to the
defendant. On appeal, the defendant argues that the lack of a proper opinion
of medical negligence as to him provides an alternative ground on which
to affirm the court’s decision to grant the motion to dismiss. Because we
affirm the court’s judgment on the basis that the letter failed to demonstrate
that the author was a similar health care provider, we do not address whether
the letter was deficient in other ways or whether the alternative ground
actually was decided and, thus, preserved for appellate review. See Perez-
Dickson v. Bridgeport, 304 Conn. 483, 498–99, 43 A.3d 69 (2012) (rule that
appellate courts generally will not consider claims not actually raised to and
decided by trial court applies equally to alternative grounds for affirmance).
8
By way of example, the court cited to Field v. Lawrence & Memorial
Hospital, Superior Court, judicial district of New London, Docket No. CV-
14-6019542-S (June 10, 2014, Devine, J.) (58 Conn. L. Rptr. 308), and Jaboin
v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket
No. CV-09-5023443-S (September 11, 2009, Bellis, J.) (48 Conn. L. Rptr. 469).
In Jaboin, the court reasoned that ‘‘[i]f the Appellate Court has given a trial
court the authority to allow a plaintiff to amend the complaint to add an
opinion letter, it seems reasonable that the court could consider [an] affidavit
that explains [a]n existing opinion letter.’’ Jaboin v. Bridgeport Hospital,
supra, 473 n.3.
9
Practice Book § 10-59 provides in relevant part: ‘‘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. . . .’’
Practice Book § 10-60 (a) provides in relevant part: ‘‘[A] party may amend
his or her pleadings or other parts of the record or proceedings at any time
subsequent to that stated in [Practice Book § 10-59] in the following manner:
‘‘(1) By order of judicial authority; or
‘‘(2) By written consent of the adverse party; or
‘‘(3) By filing a request for leave to file an amendment together with: (A)
the amended pleading or other parts of the record or proceedings, and (B)
an additional document showing the portion or portions of the original
pleading or other parts of the record or proceedings with the added language
underlined and the deleted language stricken through or bracketed. . . .’’
10
In Gonzales v. Langdon, supra, 161 Conn. App. 510, this court sanctioned
the use of amended pleadings to correct a defect in an existing opinion
letter, largely resolving a split in the Superior Court arising from dicta in
Votre v. Country Obstetrics & Gynecology Group P.C., 113 Conn. App. 569,
585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). See
Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 30–31 n.17; see
also Liu v. Yale Medical Group, Superior Court, judicial district of New
Haven, Docket No. CV-14-6050183-S (February 18, 2015), and cases cited
therein. Although at this juncture it would seem prudent for a plaintiff to
follow the corrective measures approved in Gonzales, we do not decide
at this time whether a trial court has the authority to permit alternative
procedures, such as the use of a clarifying affidavit, to remedy a defective
opinion letter.