Souza v. Zbrowoski

Christine SOUZA v. Robert G. ZBROWOSKI

No. HHDCV176080978S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

September 17, 2018

UNPUBLISHED OPINION

OPINION

ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE

This matter is before the court concerning the defendant Robert G Zbrowoski’s motion to dismiss for lack of personal jurisdiction, due to noncompliance with General Statutes § 52-190a.^[1] The court heard oral argument on July 9, 2018. After considering the parties’ written submissions and oral arguments, the court issues this memorandum of decision.

Background

The plaintiff, Christine Souza, alleges the following facts in her complaint. The defendant, Robert G. Zbrowoski, is a licensed dentist. Around March 28, 2016, the plaintiff employed the defendant for dental care and treatment. Thereafter, the defendant performed a full mouth extraction of the plaintiff’s twenty remaining teeth. During the extraction procedure (procedure), the plaintiff coughed and showed signs of choking and pain. Nevertheless, the defendant ignored and/or failed to respond to these signs in an appropriate manner. As a result, the "plaintiff was caused and/or allowed to aspirate a tooth root which became lodged in her left lower lung, and which [led] to injuries, losses, and damages ..." Following the procedure, the plaintiff had a chest x-ray that revealed a tooth in her left lower lung.

The plaintiff further alleges that, because of the defendant’s negligence, the plaintiff sustained personal injuries, a painful and severe aspiration of a tooth fragment, and multiple failed attempts to remove the tooth fragment. The tooth fragment was discovered sixteen days after the procedure, and the plaintiff underwent surgery, was hospitalized in intensive care, suffered the insertion of chest tubes, shortness of breath, chest pain, sneezing, coughing and wheezing.

On August 4, 2017, the plaintiff filed her complaint against the defendant. On September 28, 2017, the defendant filed a motion to dismiss the plaintiff’s complaint, based on lack of personal jurisdiction, for failure to attach a letter authored by a similar health care provider. On October 2, 2017, the plaintiff filed a request to amend her complaint in addition to an objection to the defendant’s motion to dismiss. The defendant filed a reply on May 16, 2018, and the plaintiff responded on June 11, 2018. On June 29, 2018, the defendant supplemented his memorandum to support his motion to dismiss.

II

Standard Of Review

"The standard of review for a court’s decision on 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 ..." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).

"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 ... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ...; other types of undisputed evidence; ... and/or public records of which judicial notice may be taken; ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ...; the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ... Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ..." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).

"[A] challenge to the jurisdiction of the court presents a question of law ..." Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).

"[A] motion to dismiss pursuant to § 52-190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and ... dismissal of a letter that does not comply with § 52-190a(c) is mandatory ..." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011). "[A]n action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion." Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 545, 979 A.2d 1066 (2009), aff’d, 300 Conn. 1, 12 A.3d 865 (2011).

III

Discussion

A

General Statutes § 52-190a(a) requires that a medical malpractice complaint "shall contain a certificate of the attorney or party filing the action ... that ... reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ..." Section 52-190a(a) also "requires a plaintiff in a medical malpractice action to attach to the complaint a written ‘opinion of a similar health care provider’ attesting to a good faith basis for the action ..." Morgan v Hartford Hospital, 301 Conn. 388, 392, 21 A.3d 451 (2011). The good faith certificate and written opinion letter "must be attached to the complaint in order to commence properly the action." Id., 398.

"[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written 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." Id., 401. The court "conclude[d] that the absence of a proper written opinion letter is a matter of form, [which] implicates personal jurisdiction. It is in the nature of a pleading that must be attached to the complaint." Id., 402.

"[T]he grant[ing] of a motion to dismiss ... is the proper statutory remedy for deficiencies under § 52-190a." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). "[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., supra, 300 Conn. 28.

The defendant first argues that, although not specifically mentioned in the complaint, the plaintiff’s claim alleges malpractice of a health care provider, and it should be analyzed as such. As noted above, in response, the plaintiff seeks to amend the complaint to add a medical opinion letter. In her request for leave to amend (# 105), page 1, the plaintiff characterizes this matter as a dental malpractice action. It is undisputed that her claim sounds in malpractice and that compliance with § 52-190a is required.

On September 28, 2017, the defendant filed his motion to dismiss on the ground that the plaintiff failed to attach the required opinion letter authored by a similar health care provider. Four days later, on October 2, 2017, the plaintiff filed a request to amend her complaint, and an objection to the defendant’s motion to dismiss. The plaintiff contends that the opinion letter was inadvertently omitted from the original complaint.

The defendant argues that because the plaintiff failed to attach the required written opinion letter authored by a similar health care provider, dismissal of her claim is the mandatory remedy. In response, the plaintiff argues that there is no need to dismiss the present action, requiring the plaintiff to commence a new one, when the defect can be cured by attaching the opinion letter in a relatively short time by amendment.

In particular, the plaintiff relies on Gonzales v Langdon, 161 Conn.App. 497, 520-21, 128 A.3d 562 (2015) (Gonzales ), where the Appellate Court stated, "there is no need to require a plaintiff to file an entirely new action if an amendment can cure a defect in the initial opinion letter within a relatively short span of time after the filing of the initial complaint." (Footnote...