Barnes v. Greenwich Hosp.

207 Conn.App. 512

262 A.3d 1008

Lori BARNES et al.

v.GREENWICH HOSPITAL et al.

AC 44055

Appellate Court of Connecticut.

Argued May 20, 2021

Officially released September 14, 2021

Paul Ciarcia, with whom, on the brief, was Frank N. Peluso, Stamford, for the appellants (plaintiffs).

Megan E. Bryson, with whom, on the brief, was Carol S. Doty, Stamford, for the appellee (named defendant).

Diana M. Carlino, for the appellees (defendant Felice Zwas et al.).

Prescott, Suarez and Bear, Js.

PRESCOTT, J.

This appeal arises out of a medical malpractice action brought by the plaintiffs, Lori Barnes (Barnes) and Ray Barnes,¹ against the defendants, Felice Zwas, Greenwich Hospital, and the Center for Gastrointestinal Medicine of Fairfield and Westchester, P.C. (Center for Gastrointestinal Medicine),² for an injury Barnes sustained during a colonoscopy procedure. The plaintiffs appeal from the judgment of the trial court dismissing their complaint for failure to attach a written opinion letter authored by a similar health care provider as required by General Statutes § 52-190a (a). On appeal, the plaintiffs claim that the trial court improperly granted the defendants’ motions to dismiss for failure to comply with § 52-190a because the amended complaint filed by the plaintiffs as of right pursuant to Practice Book § 10-59,³ to remedy their prior failure to attach a written opinion letter, was filed after the statute of limitations had expired and sought to attach an opinion letter that did not exist at the time the action was commenced.⁴ We disagree with the plaintiffs’ claim and affirm the judgment of the court.

On or about August 27, 2019,⁵ the plaintiffs commenced the present action⁶ against the defendants. The return date was September 10, 2019. The plaintiffs’ complaint contained the following allegations. On June 14, 2017, Barnes underwent a colonoscopy procedure at the Center for Gastrointestinal Medicine. During the procedure, the physician, Zwas, punctured Barnes’ colon. An ambulance took Barnes to Greenwich Hospital where she underwent emergency surgery, and she then remained in the intensive care unit for three days. Barnes continued to experience ongoing medical issues as a result of the puncture and underwent an additional surgical procedure in April, 2019, to address those issues.

In counts one and two of the complaint, the plaintiffs alleged that Barnes’ injuries were caused by the defendants’ failure to exercise reasonable care and that the medical treatment Barnes received was a deviation from the standard of care ordinarily required by such medical professionals. Ray Barnes further alleged, in count three, a loss of consortium claim. Although the plaintiffs attached to their complaint their attorney's good faith certificate of reasonable inquiry, they failed to attach an opinion letter written and signed by a similar health care provider as required by § 52-190a (a).

On September 20, 2019, Zwas and the Center for Gastrointestinal Medicine filed a motion to dismiss the complaint, pursuant to § 52-190a (c), for the failure to attach a written opinion letter of a similar health care provider. That same day, Greenwich Hospital also filed a motion to dismiss on identical grounds. The two motions primarily rely on the same substantive arguments.⁷

On October 8, 2019, the plaintiffs responded by filing an amended complaint as of right, pursuant to Practice Book § 10-59, along with an opinion letter with an attached curriculum vitae.⁸ The opinion letter is dated October 6, 2019. On October 21, 2019, Zwas and the Center for Gastrointestinal Medicine filed an objection to the amended complaint. On December 9, 2019, the plaintiffs filed a memorandum in opposition to the defendants’ motions. The defendants filed replies. Oral argument on the motions to dismiss was heard at short calendar on January 27, 2020.

In a written memorandum of decision filed March 10, 2020, the court granted the defendants’ motions to dismiss for lack of personal jurisdiction on the ground that the plaintiffs had failed to attach to the original complaint a written opinion letter of a similar health care provider as required by § 52-190a. The court further reasoned that the plaintiffs’ attempt to cure the defect by amending the complaint pursuant to Practice Book § 10-59 and attaching an opinion letter dated October 6, 2019, was unavailing because the letter was obtained after the action commenced, after the defendants had filed their motions to dismiss, and after the applicable statute of limitations⁹ had expired on September 12, 2019. In calculating the expiration of the statute of limitations, the court relied on the plaintiffs’ allegation in their complaint that they received a ninety day extension pursuant to § 52-190a (b).¹⁰ The court explained that, in the present case, the limitation period expired two years and ninety days after the date of the alleged injury.¹¹ This appeal followed.

The plaintiffs claim that the court improperly granted the defendants’ motions to dismiss because the plaintiffs filed an amended complaint, as of right pursuant to Practice Book § 10-59, to which they attached the requisite opinion letter authored by a similar health care provider. Specifically, the plaintiffs maintain that, under Gonzales v. Langdon , 161 Conn. App. 497, 128 A.3d 562 (2015), when a plaintiff in a medical malpractice action seeks to amend his or her complaint as of right in order to attach the first and only opinion letter the plaintiff has obtained, such amendment can be sought after the statute of limitations has expired, and the letter itself need not have been in existence at the time the action was commenced nor prior to the expiration of the statute of limitations. We disagree.

The following legal principles guide our review. "Our standard of review in an appeal challenging the granting of a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. ... When a ... court decides a ... question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Peters v. United Community & Family Services, Inc. , 182 Conn. App. 688, 699–700, 191 A.3d 195 (2018).¹²

Section 52-190a (a) provides in relevant part: "No civil action ... shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action ... has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. ... [T]he 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 ... that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ..." Moreover, § 52-190a (c) provides: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."

Our Supreme Court has recognized that "[§] 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences." (Emphasis added.) Morgan v. Hartford Hospital , 301 Conn. 388, 396, 21 A.3d 451 (2011). "[T]he written opinion letter, prepared in accordance with the dictates of § 52-190a ... is akin to a pleading that must be attached to the complaint in order to commence properly the action." Id., at 398, 21 A.3d 451. "Our legislature ... specifically authorized the dismissal of a medical malpractice action for the failure to attach an opinion letter to the complaint." Kissel v. Center for Women's Health, P.C. , 205 Conn. App. 394, 431, 258 A.3d 677 (2021).

"Because the purpose of § 52-190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires." Votre v. County Obstetrics & Gynecology Group, P.C. , 113 Conn. App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) ; id., at 585–86, 966 A.2d 813 (The trial court properly dismissed a medical malpractice action where the plaintiff failed to attach a written opinion of a similar health care provider to the complaint "because it is clear that no opinion existed at the time the action was commenced .... The plaintiff could not turn back the clock and attach by amendment an opinion of a similar health care provider that did not exist at the commencement of the action. ... [Thus] the plaintiff did not and could not comply with the statutory mandate requiring that the written opinion letter be filed with the complaint when the action was commenced ...."); see also Torres v. Carrese , 149 Conn. App. 596, 611 n.14, 90 A.3d 256 ("[a]lthough the plaintiff may have obtained opinion letters from [similar health care providers] after the action commenced, after the defendants had filed their motions to dismiss, and after the statute of limitations had expired, the court may not consider those documents"), cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).

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