Harger v. Odlum

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DONALD HARGER v. BRIAN H. ODLUM
(AC 37046)
DiPentima, C. J., and Gruendel, Beach, and Mullins, Js.
Considered September 17—officially released November 25, 2014
(Appeal from Superior Court, judicial district of New
Britain, Hon. Joseph M. Shortall, judge trial referee.)
James J. Healy and Brennan Maki, in support of
the motion.
Beverly Knapp Anderson, in opposition to the
motion.
Opinion
MULLINS, J. The defendant, Brian H. Odlum, a den-
tist, appeals from the decision of the trial court denying
his motion to dismiss the action, in which he asserted
that the plaintiff, Donald Harger, failed to comply with
the requirements of General Statutes § 52-190a.1 The
plaintiff filed a motion to dismiss the defendant’s appeal
for lack of a final judgment. The defendant filed an
objection to the motion. We conclude that the defen-
dant’s appeal was not taken from a final judgment, and,
as a result, the motion to dismiss the appeal is granted,
and the appeal is dismissed.
The procedural history of this case is not in dispute.
The plaintiff filed a dental malpractice action against
the defendant. Pursuant to § 52-190a, the plaintiff
attached to his complaint a good faith certificate of
his attorney and a written and signed opinion from a
‘‘similar health care provider.’’2 The defendant filed a
motion to dismiss on the following grounds: (1) the
plaintiff’s opinion letter was not written by a ‘‘similar
health care provider’’ because the defendant was a gen-
eral dentist, and the opinion letter was authored by a
periodontist; and (2) the opinion letter did not contain
sufficient information to establish the author’s qualifica-
tions as a ‘‘similar health care provider,’’ as defined by
General Statutes § 52-184c. In response, the plaintiff
filed a request for leave to amend his complaint by
attaching to it an amended opinion letter, which clari-
fied that it had been authored by a general dentist.
On May 22, 2014, the court, Hon. Joseph M. Shortall,
judge trial referee, issued a memorandum of decision
in which it denied the defendant’s motion to dismiss.
The court first determined that the original opinion
letter did not comply with § 52-190a because ‘‘[t]here
is no information in the letter from which the court or
the defendant can determine that the opinion author
was actively involved in the practice or teaching of
general dentistry within the five year period before the
incident giving rise to the claim of malpractice.’’ The
court, nevertheless, ruled that it had the discretion to
consider the amended opinion letter in determining
whether the plaintiff had complied with § 52-190a, and
it granted the plaintiff’s request for leave to amend
his complaint. The court concluded that the amended
opinion letter satisfied the requirements of § 52-190a,
and, consequently, it denied the defendant’s motion
to dismiss.
The defendant filed a motion to reargue the denial
of his motion to dismiss, which the court denied. The
defendant then filed a petition for certification to appeal
with our Supreme Court, pursuant to General Statutes
§ 52-265a, which was denied.
Thereafter, the defendant filed this appeal from the
trial court’s denial of his motion to dismiss. The plaintiff
moved to dismiss the appeal on the ground that the
denial of a motion to dismiss, which is based on a
plaintiff’s purported failure to comply with the require-
ments of § 52-190a (a), is not an appealable final judg-
ment. We agree with the plaintiff.
‘‘The subject matter jurisdiction of this court and our
Supreme Court is limited by statute to final judgments.
. . . Our appellate courts lack jurisdiction to hear an
appeal that is not brought from a final judgment. . . .
The lack of a final judgment is a jurisdictional defect
that mandates dismissal. [General Statutes § 52-263].
. . . Because our jurisdiction over appeals . . . is pre-
scribed by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim.’’ (Citation omitted; internal quotation marks
omitted.) Lakeside Estates, LLC v. Zoning Commis-
sion, 100 Conn. App. 695, 697–98, 919 A.2d 1044 (2007).
‘‘The general rule is that the denial of a motion to
dismiss is an interlocutory ruling and, therefore, is not
a final judgment for purposes of appeal.’’ (Internal quo-
tation marks omitted.) Flanagan v. Blumenthal, 265
Conn. 350, 352 n.4, 828 A.2d 572 (2003). Nonetheless,
‘‘certain otherwise interlocutory orders may be final
judgments for appeal purposes, and the courts may
deem interlocutory orders or rulings to have the attri-
butes of a final judgment if they fit within either of the
two prongs of the test set forth in State v. Curcio, [191
Conn. 27, 31, 463 A.2d 566 (1983)]. . . . Under Curcio,
interlocutory orders are immediately appealable if the
order or ruling (1) terminates a separate and distinct
proceeding, or (2) so concludes the rights of the parties
that further proceedings cannot affect them.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Fielding, 296 Conn. 26, 37, 994 A.2d 96 (2010).
The defendant contends that, under the second prong
of Curcio, the court’s denial of his motion to dismiss
is an appealable final judgment because § 52-190a pro-
vides a right for health care providers not to litigate
actions where the plaintiff has not filed a proper written
opinion letter from a similar health care provider as
required by § 52-190a. We are not persuaded.3
The second prong of the Curcio test ‘‘requires the
parties seeking to appeal to establish that the trial
court’s order threatens the preservation of a right
already secured to them and that that right will be
irretrievably lost and the [parties] irreparably harmed
unless they may immediately appeal. . . . An essential
predicate to the applicability of this prong is the identifi-
cation of jeopardy to [either] a statutory or constitu-
tional right that the interlocutory appeal seeks to
vindicate. . . . Unless the appeal is authorized under
the Curcio criteria, absence of a final judgment is a
jurisdictional defect that [necessarily] results in a dis-
missal of the appeal.’’ (Citations omitted; internal quota-
tion marks omitted.) Hartford Steam Boiler
Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos.
Collective, 271 Conn. 474, 497, 857 A.2d 893 (2004), cert.
denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d
723 (2005).
Our Supreme Court has recognized rare circum-
stances where Curcio’s second prong is satisfied, so as
to permit interlocutory review of the denial of a motion
to dismiss. Such review is available when the motion
to dismiss is based on sovereign immunity; Shay v.
Rossi, 253 Conn. 134, 164–65, 749 A.2d 1147 (2000),
overruled in part on other grounds by Miller v. Egan,
265 Conn. 301, 325, 828 A.2d 549 (2003); double jeop-
ardy; State v. Tate, 256 Conn. 262, 276, 773 A.2d 308
(2001); collateral estoppel; Convalescent Center of
Bloomfield, Inc. v. Dept. of Income Maintenance, 208
Conn. 187, 194, 544 A.2d 604 (1988) (noting that collat-
eral estoppel is civil law analogue to criminal law’s
double jeopardy); and ministerial immunity; Dayner v.
Archdiocese of Hartford, 301 Conn. 759, 769–72, 23 A.3d
1192 (2011); see also Chadha v. Charlotte Hungerford
Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005) (par-
tial denial of motion for summary judgment based on
absolute immunity applied to statements made in con-
text of judicial and quasi-judicial proceedings subject
to immediate interlocutory appeal). In each of those
situations, the party seeking dismissal demonstrated
that a statutory or constitutional right not to litigate,
which already was secured to that party, would have
been irretrievably lost if the party were denied the right
to an immediate appeal. See Shay v. Rossi, supra, 165.
This is not such a case.
Here, the defendant has not alleged that health care
professionals have any statutory or constitutional right
already secured to them that shields them from litiga-
tion akin to the right against double jeopardy or the
other types of immunity from suit in the civil context.
Indeed, the right to bring a medical negligence action
against one’s physician exists independently of § 52-
190a and long preceded the enactment of that section.
See Votre v. County Obstetrics & Gynecology Group,
P.C., 113 Conn. App. 569, 583, 966 A.2d 813, cert. denied,
292 Conn. 911, 973 A.2d 661 (2009). Thus, the court’s
decision in this case denying the motion to dismiss
falls outside of the rare circumstances under which
interlocutory review is permitted pursuant to Curcio’s
second prong.
Section 52-190a does not provide health care provid-
ers with immunity from civil actions. Section 52-190a (a)
provides in relevant part that the claimant in a medical
malpractice action ‘‘shall obtain a written and signed
opinion of a similar health care provider, as defined in
[§] 52a-184c . . . that there appears to be evidence of
medical negligence and includes a detailed basis for
the formation of such opinion. . . .’’ Subsection (c) of
§ 52-190a provides that ‘‘[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.’’ (Emphasis added.)
There is nothing in the plain language of § 52-190a
that confers a right on health care providers to be free
from litigating medical malpractice actions. See gener-
ally General Statutes § 1-2z (meaning of statute shall,
in first instance, be ascertained from plain language).
The defendant essentially invites this court to add a
provision to § 52-190a, which is lacking in the statute’s
language, and to extend to health care providers an
immunity from litigation when an opinion letter does
not meet the statute’s requirements. We decline that
invitation. ‘‘It is axiomatic that the court itself cannot
rewrite a statute to accomplish a particular result. That
is a function of the legislature.’’ (Internal quotation
marks omitted.) Costantino v. Skolnick, 294 Conn. 719,
736, 988 A.2d 257 (2010). The fact that the statute pro-
vides a ground for dismissal if a plaintiff fails to obtain
and file the required opinion letter is not the equivalent
of statutory immunity from an action if such a letter is
not filed.
Indeed, our Supreme Court repeatedly has stated that
the failure to attach a proper opinion letter pursuant
to § 52-190a is akin to insufficient service of process,
implicating personal jurisdiction over the defendant.
Santorso v. Bristol Hospital, 308 Conn. 338, 351–52, 63
A.3d 940 (2013); Morgan v. Hartford Hospital, 301
Conn. 388, 400–401, 21 A.3d 451 (2011). We are aware
of no appellate authority in Connecticut that has held
that the denial of a motion to dismiss on the basis of
a claimed lack of personal jurisdiction over the defen-
dant is an appealable final judgment.
To the contrary, our precedent supports the proposi-
tion that such a denial is not a final judgment for pur-
poses of appeal: ‘‘The procedures that govern
adjudication of disputes concerning jurisdiction over
the person . . . are spelled out in our rules of practice.
Such an issue is properly raised . . . by a motion to
dismiss. If decided adversely to the movant, further
consideration of the matter is postponed until adjudica-
tion of the remaining issues in the case in chief. Upon
appeal of the case as a whole, error may be assigned
with respect to the earlier adjudicated jurisdictional
question.’’ (Citations omitted.) Chrysler Credit Corp.
v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223,
226, 429 A.2d 478 (1980); accord Ruisi v. O’Sullivan,
132 Conn. App. 1, 3, 30 A.3d 14 (2013) (‘‘court’s ruling
on the issue of personal jurisdiction is not a final judg-
ment’’). Thus, the denial of a motion to dismiss that is
based on a failure to file the required opinion letter is
not an immediately appealable final judgment.
Consequently, we conclude that the defendant’s
appeal has not been taken from a final judgment and
that he has no right under § 52-190a that would be
irretrievably lost by not allowing him an immediate
appeal of the trial court’s denial of his motion to dismiss.
Therefore, this court lacks jurisdiction to hear the
appeal.
The motion to dismiss the appeal is granted and the
appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 52-190a provides in relevant part: ‘‘(a) 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 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, initial pleading or apportionment
complaint shall contain a certificate of the attorney or party filing the action
or apportionment complaint that such reasonable inquiry gave rise to a good
faith belief that grounds exist for an action against each named defendant
or for an apportionment complaint against each named apportionment defen-
dant. To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment com-
plainant’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, and any apportion-
ment complainant or apportionment complainant’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 (b) provides: ‘‘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 qualifications; 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.’’
3
The defendant makes no claim that the trial court’s decision to deny the
motion to dismiss is a final judgment pursuant to the first prong of Curcio.