Doyle v. Aspen Dental of S. CT, PC

179 Conn.App. 485

179 A.3d 249

Kate L. DOYLE, et al.

v.ASPEN DENTAL OF SOUTHERN CT, PC, et al.

AC 39325

Appellate Court of Connecticut.

Argued October 17, 2017

Officially released January 30, 2018

Scott D. Camassar, for the appellants (plaintiffs).

Beverly Knapp Anderson, with whom was Craig A. Fontaine, for the appellee (defendant Brandon Kang).

Sheldon, Keller and Bishop, Js.

BISHOP, J.

This appeal arises out of a dental malpractice action brought by the plaintiffs, Kate L. Doyle and Brendan Doyle,¹ against the defendants, Aspen Dental of Southern CT, PC, and Aspen Dental Management, Inc. (Aspen Dental), and Brandon Kang, DDS,² in connection with a dental implant procedure performed by Kang. The plaintiff appeals from the judgment rendered by the trial court dismissing her action against the defendant on the basis of her failure to comply with General Statutes § 52–190a(a),³ which required the plaintiff to attach to her complaint an opinion letter authored by a "similar health care provider," as defined in General Statutes § 52–184c(c).⁴ On appeal, the plaintiff argues that the court erred in concluding that the opinion letter written by a general dentist was not authored by a "similar health care provider" and that an opinion letter from an oral and maxillofacial surgeon was required instead. In support of this claim, the plaintiff alleges that she had no method of discovering or verifying that the defendant was an oral and maxillofacial surgeon in addition to being a licensed general dentist because there was no authentic public record from which the plaintiff could have determined that the defendant had training and experience as an oral and maxillofacial surgeon. We conclude that the court properly determined that because the defendant did, in fact, have training and experience in the specialty of oral and maxillofacial surgery, the opinion letter submitted by the plaintiff was not authored by a "similar health care provider."⁵ Accordingly, we affirm the judgment of the trial court.

The plaintiff's complaint, filed on August 19, 2015, contained the following factual allegations, the truth of which the court was required to assume for purposes of deciding the defendant's motion to dismiss. On March 15, 2011, the plaintiff underwent an examination and treatment at Aspen Dental for a broken crown on one of her front teeth. The tooth was removed on March 29, 2011, after which the plaintiff, under sedation, received a dental implant for the missing tooth on July 29, 2011. By December 21, 2012, however, the plaintiff's implant was failing, allegedly because it had been placed at an improper angle. It penetrated the nasal floor, resulting in bone loss along the sides of the implant. The plaintiff alleged that the defendant knew or should have known that the implant was failing, but failed to inform her of this circumstance. On August 4, 2013, the defendant performed a bone grafting procedure. At that time, the defendant informed the plaintiff that the implant might have to be removed at a later date.

The plaintiff commenced the present dental malpractice action, alleging medical negligence by the defendant, by complaint dated August 19, 2015. As required by §§ 52–190a and 52–184c, the plaintiff attached to the complaint a certificate of reasonable inquiry by the plaintiff's attorney and an opinion letter prepared by Andrew Mogelof, a general dentist, who the plaintiff claimed to be a "similar health care provider" to the defendant.

On October 27, 2015, the defendant filed a motion to dismiss the action against him for lack of personal jurisdiction on the basis of the plaintiff's failure to provide a proper opinion letter, as required by § 52–190a(a), authored by a similar health care provider, as defined in § 52–184c(c). Specifically, the defendant claimed that "the author of the opinion letter must be a board certified, trained and experienced oral and maxillofacial surgeon because the defendant is trained and experienced in the specialty of oral and maxillofacial surgery and holds himself out as an oral and maxillofacial surgeon.... [Because] the [plaintiff] attached an opinion letter authored by a general dentist ... [she has] failed to comply with ... [ § 52–190a(a) ]." In support of his motion to dismiss, the defendant submitted an affidavit dated October 22, 2015, in which he averred that: "After obtaining my dental degree in 2004, I completed a four year residency program in [o]ral [and] [m]axillofacial [s]urgery, which is one of the dental specialties recognized by the American Dental Association. This four year training certificate program covered the full scope of [o]ral and [m]axillofacial [s]urgery. Rotations included ... [thirty-six] months on service with [o]ral and [m]axillofacial [s]urgery.... At all times while working at Aspen Dental, I represented myself to patients as an oral and maxillofacial surgeon. ... All of the treatment that I rendered to [the] plaintiff ... was in my capacity as an oral and maxillofacial surgeon. The consent form signed by [the] plaintiff was entitled ‘Consent for Oral Surgery and Anesthesia.’ "

On December 14, 2015, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss. In support of her opposition, the plaintiff attached an affidavit from Mogelof, which stated, in relevant part, that he is "experienced in all of the relevant services provided by ... [the defendant] in the case of [the plaintiff]." In this affidavit, Mogelof also acknowledged that he is "not trained as an oral and maxillofacial surgeon." Mogelof further stated that "the failure to properly place and treat [the plaintiff's] dental implant was due to a failure to meet the standards of care of basic general surgery and diagnosis, which standards were required to have been met not only by general dentists but also oral surgeons such as [the defendant]."

Oral argument on the defendant's motion to dismiss took place on December 21, 2015. Subsequently, the parties filed supplemental briefs and affidavits on December 31, 2015.⁶ Oral argument on the defendant's motion to dismiss continued on January 14, 2016. On May 5, 2016, the court, Wenzel, J. , granted the defendant's motion to dismiss. In its memorandum of decision, the court held that "there is significant evidence ... that the treatment afforded to the plaintiff fell into the area of oral and maxillofacial surgery.... [The defendant] began treating the plaintiff immediately after her referral to ‘the oral surgeon.’ Moreover, the records which detailed the treatment of [the] plaintiff were reviewed and quoted by the opinion author, including this very notation [referencing an oral surgeon]. Of the three criteria which can trigger a specialist level of evaluation, the court finds that the evidence submitted in support of this motion by the [defendant] proves that ... [1] [the defendant] was in fact trained and experienced in the area of oral surgery and [2] was referred to and held out as an oral surgeon.... Accordingly, having determined that ... the author of the opinion letter submitted was not a similar health care provider having not been board certified in [the defendant's] specialty, the court grants the [defendant's] motion to dismiss."

On May 18, 2016, the plaintiff filed a motion to reargue or reconsider, which the court denied on June 6, 2016. This appeal followed.

On appeal, the plaintiff argues that the court erred in dismissing her malpractice action for her failure to attach to the complaint an opinion letter authored by a board certified specialist in oral and maxillofacial surgery. Specifically, the plaintiff argues that she "met the requirement of [ § 52–190a(a) ] because counsel made a good faith inquiry into whether or not there was dental malpractice, and found a ‘similar health care provider’ in accordance with the [d]efendant's credentials on file with the public health authorities." We are unpersuaded.

We first set forth our standard of review. "The court granted the [defendant's] motion to dismiss for lack of personal jurisdiction on the ground that the ... opinion letter [attached to the plaintiff's complaint] was not legally sufficient." Gonzales v. Langdon , 161 Conn. App. 497, 503, 128 A.3d 562 (2015). In reviewing "a challenge to a ruling on a motion to dismiss... [w]hen the facts relevant to an issue are not in dispute, this court's task is limited to a determination of whether, on the basis of those facts, the trial court's conclusions of law are legally and logically correct.... Because there is no dispute regarding the basic material facts, this case presents an issue of law, and we exercise plenary review." (Internal quotation marks omitted.) Helfant v. Yale–New Haven Hospital , 168 Conn. App. 47, 56, 145 A.3d 347 (2016) ; see also Torres v. Carrese , 149 Conn. App. 596, 608, 90 A.3d 256 ("[o]ur review of a trial court's ruling on a motion to dismiss pursuant to § 52–190a is plenary"), cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).

"[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52–190a(a)." Bennett v. New Milford Hospital, Inc. , 300 Conn. 1, 28, 12 A.3d 865 (2011) ; see also General Statutes § 52–190a(c) ("[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action"); Morgan v. Hartford Hospital , 301 Conn. 388, 401, 21 A.3d 451 (2011) (failure to attach a proper opinion letter constitutes lack of jurisdiction over the person). " Section 52–190a(a) provides in relevant part that, prior to filing a [malpractice] action against a health care provider, the attorney or party filing the action ... [must make] a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.... To show the existence of such good faith, the claimant or ...