Justia.com Opinion Summary: Plaintiffs, the administrators of Decedent's estate, brought a medical malpractice action against Defendants, a thoracic surgeon and the surgeon's employer. Plaintiffs attached to their original complaint an opinion letter from a physician who was board certified in internal medicine with a subspecialty in cardiovascular disease. Plaintiffs subsequently filed an amended complaint. Defendants moved to dismiss Plaintiffs' original complaint on the grounds that Plaintiffs failed to comply with the requirements of filing a medical malpractice lawsuit mandated by Conn. Gen. Stat. 52-109a(a) as a result of their failure to attach to their complaint an opinion letter from a similar health care provider. The trial court granted the motion. The Supreme Court reversed, concluding that Defendants waived their right to challenge the sufficiency of the original complaint and its attachment by failing to timely file a motion to dismiss. Remanded.
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WINSTON MORGAN ET AL., ADMINISTRATORS
(ESTATE OF UNA B. MORGAN) v.
HARTFORD HOSPITAL ET AL.
(SC 18469)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and
Vertefeuille, Js.
Argued March 17—officially released July 12, 2011
David J. Wenc, for the appellants (plaintiffs).
Augustus R. Southworth III, with whom was Lauren
J. Taylor, for the appellees (defendants).
Opinion
EVELEIGH, J. This appeal1 arises from a medical
malpractice action brought by the plaintiffs, Winston
Morgan and Edna Morgan, the administrators of the
estate of Una B. Morgan (decedent), against the defendants Robert Lowe, a thoracic surgeon with a subspecialty in vascular surgery, and Lowe’s employer,
Connecticut Surgical Group, P.C. (Connecticut Surgical
Group).2 On appeal to this court, the plaintiffs assert
that the trial court improperly dismissed their complaint
on the ground that the written opinion letter that they
attached to their original complaint did not satisfy the
requirements of General Statutes § 52-190a (a),3 despite
the defendants’ failure to move to dismiss the original
complaint until more than nineteen months after the
plaintiffs had commenced this action. Because we conclude that the defendants waived their right to challenge
the sufficiency of the original complaint and its attachment by failing to timely file a motion to dismiss, we
reverse the judgment of the trial court.
The following undisputed facts and procedural history are relevant to our disposition of this appeal. The
plaintiffs commenced this action against the defendants
by way of service of process on March 29, 2007. In
the complaint, the plaintiffs alleged that the decedent
received medical care and treatment at Hartford Hospital between January 1, 2005, and January 5, 2005, when
she died. The plaintiffs alleged that, on January 3, 2005,
Jeffrey Hirst, a physician, performed a left heart catheterization via the decedent’s right femoral artery, after
which ongoing bleeding was observed. The decedent
had what was interpreted as a vasovagal episode, with
a right abdominal hematoma. On the morning of January 4, 2005, Lowe, the attending vascular surgeon, noted
that the decedent was exhibiting signs of ongoing bleeding and recommended an interventional approach.
Later that day, an arteriography demonstrated a false
aneurysm of the inferior epigastric artery with active
bleeding, and coils were placed. Thereafter, the decedent developed multiorgan system failure and passed
away on January 5, 2005. The plaintiffs alleged that
Lowe’s negligence in failing to timely diagnose and treat
the decedent caused her death. The defendants further
alleged that Connecticut Surgical Group was liable
under a theory of respondeat superior.
In an attempt to comply with § 52-190a (a), which
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, the plaintiffs attached to their original
complaint an opinion letter from Michael A. Fifer, a
physician who was board certified in internal medicine
with a subspecialty in cardiovascular disease.4
On April 15, 2008, the plaintiffs filed a request for
leave to file an amended complaint, and an amended
complaint. The defendants did not file an objection to
the request for leave within fifteen days. Attached to
the amended complaint was a copy of the original certificate of good faith, dated March 23, 2007. In addition to
the written opinion previously attached to the original
complaint, the plaintiffs also attached a written opinion
letter from Richard S. Nitzberg, a vascular surgeon,
which was dated April 26, 2007.
On November 5, 2008, the defendants moved to dismiss the original complaint that had been filed on March
29, 2007. The basis for their motion was that ‘‘the plaintiffs have failed to comply with the requirements for
filing a medical malpractice lawsuit mandated by [§]
52-190a as a result of their failure to attach to the complaint an opinion letter from a similar health care provider.’’ The trial court granted the defendants’ motion
to dismiss on that ground.
On appeal to this court, the plaintiffs assert that the
trial court improperly dismissed the complaint because
the original written opinion letter satisfied the requirements of § 52-190a. The plaintiffs further claim that,
even if the original written opinion letter was insufficient, the amended complaint and the attached written
opinion letter cured any deficiency in the original complaint and that the trial court improperly found that
§ 52-190a barred them from amending their complaint.
The plaintiffs also claim that § 52-190a is unconstitutional. In response, the defendants assert that the trial
court properly dismissed the plaintiffs’ action for failure
to comply with § 52-190a by failing to attach a written
opinion letter of a similar health care provider. The
defendants further contend that the trial court properly
concluded that the written opinion letter attached to
the amended complaint did not comply with § 52-190a
because it was not obtained prior to filing the action.
Finally, the defendants claim that § 52-190a is not
unconstitutional.
Following oral argument in this court, we ordered
the parties to file simultaneous supplemental briefs
addressing the following question: ‘‘Whether the defendant[s] [have] waived pursuant to Practice Book § 10325 the right to file in the time prescribed in Practice
Book § 10-306 for filing a motion to dismiss challenging
the sufficiency of the opinion attached to the original
complaint?’’7 In their supplemental brief, the plaintiffs
claim that the good faith certificate and written opinion
letter required by § 52-190a are requirements of process,
which the defendants waived by failing to file a motion
to dismiss within the thirty day time period provided
in Practice Book § 10-30. The defendants assert, in their
supplemental brief, that the time and waiver rules of
Practice Book §§ 10-30 and 10-32 do not apply to the
statutory remedy of dismissal under § 52-190a, and that,
therefore, they did not waive their right to file a motion
to dismiss challenging the sufficiency of the opinion
letter attached to the original complaint. We agree with
the plaintiffs.
The interpretation of § 52-190a is a question of law
over which this court exercises plenary review. Dias
v. Grady, 292 Conn. 350, 354, 972 A.2d 715 (2009). Moreover, ‘‘review of the trial court’s ultimate legal conclusion and resulting [decision to] grant [a] motion to
dismiss will be de novo.’’ (Internal quotation marks
omitted.) Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d
524 (2007). In any consideration of the trial court’s
dismissal, we take the facts as alleged in the complaint
as true and ‘‘[construe] them in a manner most favorable
to the pleader.’’ (Internal quotation marks omitted.)
Rioux v. Barry, 283 Conn. 338, 341, 927 A.2d 304 (2007).
The defendants concede that they did not comply
with the time requirements established in Practice Book
§ 10-30, but assert, however, that they were not required
to comply with either Practice Book § 10-30 or § 10-32
because, they argue, those provisions of the Practice
Book do not apply to motions to dismiss filed pursuant
to § 52-190a (c). In response, the plaintiffs claim that a
defective written opinion letter attached to a complaint
implicates the service of process and, thus, in personam
jurisdiction. The plaintiffs contend that the attachment
of the written opinion letter is a precondition of the
action and, therefore, concerns a matter of form regarding the service of the complaint. We agree with the
plaintiffs and, accordingly, reverse the judgment of the
trial court dismissing the complaint and remand the
case for further proceedings.8
We begin our analysis with the pertinent Practice
Book and statutory provisions. Practice Book § 10-30
provides in relevant part that ‘‘[a]ny defendant, wishing
to contest the court’s jurisdiction, may do so even after
having entered a general appearance, but must do so
by filing a motion to dismiss within thirty days of the
filing of an appearance. . . .’’ Practice Book § 10-31 (a)
provides in relevant part that ‘‘[t]he motion to dismiss
shall be used to assert (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person,
(3) improper venue, (4) insufficiency of process, and
(5) insufficiency of service of process. . . .’’
Section 52-190a (a) provides in relevant part that, in
any medical malpractice action, ‘‘[n]o 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. . . . [T]he claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of
a similar health care provider, as defined in [General
Statutes §] 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. . . .’’
Section 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. Section 52190a (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.’’
It is the failure to obtain and file the opinion letter
which serves as a basis for the dismissal. Clearly, the
legislature unambiguously contemplated a dismissal at
the beginning of the action by its usage of the phrase
‘‘obtain and file . . . .’’ General Statutes § 52-190a (c).
It also bears noting that the legislature contemplated the
potential imposition of sanctions, including reasonable
attorney’s fees, if it was determined, after discovery,
that the person who filed the complaint did not have
a good faith belief that there had been negligence in
the care or treatment of the claimant. General Statutes
§ 52-190a (a). Indeed, if the legislature had contemplated a dismissal later in the proceedings after discovery was completed, it surely would have inserted the
term ‘‘dismissal’’ either in lieu of, or in addition to, the
language relating to sanctions. The plain language of
the statute clearly provides that the legislature contemplated a dismissal being filed early in the proceedings.
We now turn to our case law to determine the precise
nature of the jurisdiction which is to be challenged
pursuant to the dismissal language of § 52-190a (a). In
order to analyze properly the nature of the statutory
requirement of a written opinion letter of a similar
health care provider, it is necessary to review past decisions of this court in this area. In LeConche v. Elligers,
215 Conn. 701, 579 A.2d 1 (1990), we examined the
predecessor statute to § 52-190a, which required the
claimant’s attorney to attach a good faith certificate to
the complaint. In that case, this court concluded that
the absence of a good faith certificate did not raise a
question as to the court’s subject matter jurisdiction.
Id., 702–703. We reasoned that traditionally the Superior
Court had had subject matter jurisdiction over commonlaw medical malpractice actions. Id., 709. Further, we
concluded that the legislature did not intend § 52-190a
to create an additional subject matter jurisdictional
requirement of a good faith certificate in such a case.
Id., 714. ‘‘The purpose of the certificate is to evidence
a plaintiff’s good faith derived from the precomplaint
inquiry. It serves as an assurance to a defendant that
a plaintiff has in fact made a reasonable precomplaint
inquiry giving him a good faith belief in the defendant’s
negligence. . . . The purpose is just as well served by
viewing the statutory requirement that the complaint
contain a good faith certificate as a pleading necessity
akin to an essential allegation to support a cause of
action.’’ Id., 711. Today, we recognize that the written
opinion letter, prepared in accordance with the dictates
of § 52-190a, like the good faith certificate, is akin to a
pleading that must be attached to the complaint in order
to commence properly the action.
In Bennett v. New Milford Hospital, Inc., 300 Conn.
1, 31, 12 A.3d 865 (2011), we noted that the purpose of
§ 52-190a and its requirement of a good faith certificate
was to prevent the filing of frivolous medical malpractice actions. We also concluded that the purpose of
requiring a written opinion letter, in an amendment
to the statute; see Public Acts 2005, No. 05-275; ‘‘was
intended to address the problem that some attorneys,
either intentionally or innocently, were misrepresenting
in the certificate of good faith the information that
they had obtained from the experts.’’ (Internal quotation
marks omitted.) Bennett v. New Milford Hospital, Inc.,
supra, 19. Thus, we held that § 52-190a dictated that a
dismissal was the proper form of remedy for any party
who did not comply with the statute. We held further,
however, that ‘‘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 . . . .’’ (Citation
omitted.) Id., 31. In Bennett, we also cited favorably
Votre v. County Obstetrics & Gynecology Group, P.C.,
113 Conn. App. 569, 583–84, 966 A.2d 813, cert. denied,
292 Conn. 911, 973 A.2d 661 (2009), in which the Appellate Court held that the failure to follow the statutory
attachment requirements does not implicate a plaintiff’s
right to bring a medical malpractice action, nor does it
affect the court’s power to hear such actions. Thus, the
court in Votre concluded that such a failure does not
implicate the subject matter jurisdiction of the court.
Id., 583. In Votre, the Appellate Court also held that a
defendant may waive the statutory requirements of § 52190a. Id., 586. Votre supports the proposition that the
failure to attach a sufficient written opinion letter of
a similar health care provider involves in personam
jurisdiction. ‘‘It is fundamental that jurisdiction over a
person can be obtained by waiver. United States Trust
Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985)
(‘[u]nlike subject matter jurisdiction . . . personal
jurisdiction may be created through consent or waiver’).
Although the filing of an appearance on behalf of a
party, in and of itself, does not waive that party’s personal jurisdiction claims, ‘[a]ny defendant, wishing to
contest the court’s jurisdiction, may do so even after
having entered a general appearance, but must do so
by filing a motion to dismiss within thirty days of the
filing of an appearance.’ Practice Book § 10-30; see Pit-
chell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999)
(‘[t]he rule specifically and unambiguously provides
that any claim of lack of jurisdiction over the person
as a result of an insufficiency of service of process is
waived unless it is raised by a motion to dismiss filed
within thirty days in the sequence required by Practice
Book § 10-6’).’’ Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002).
In Plante v. Charlotte Hungerford Hospital, 300
Conn. 33, 46–47, 12 A.3d 885 (2011), we held that ‘‘when
a medical malpractice action has been dismissed pursuant to § 52-190a (c) for failure to supply an opinion
letter by a similar health care provider required by § 52190a (a), a plaintiff may commence an otherwise time
barred new action pursuant to the matter of form provisions of [General Statutes] § 52-592 (a) only if that failure was caused by a simple mistake or omission, rather
than egregious conduct or gross negligence attributable
to the plaintiff or his attorney.’’ Consequently, we recognized that the written opinion letter, much like the good
faith certificate in LeConche, involved a matter of form
whose deficiencies, at least in the case of simple mistake or omission, could be remedied by the failure of
form provisions of the accidental failure of suit statute.
Finally, in Lostritto v. Community Action Agency of
New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004),
this court considered whether General Statutes § 52102b (a), which requires service of an apportionment
complaint within 120 days after the return date of the
original complaint, is mandatory or directory in nature.
The court concluded that the 120 day limitation was
mandatory and that noncompliance with § 52-102b
implicates a court’s personal jurisdiction, not subject
matter jurisdiction. In the discussion, we noted that
‘‘[a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than
subject matter jurisdiction. . . . [W]hen a particular
method of serving process is set forth by statute, that
method must be followed. . . . Unless service of process is made as the statute prescribes, the court to
which it is returnable does not acquire jurisdiction.
. . . The jurisdiction that is found lacking, however, is
jurisdiction over the person, not the subject matter.’’
(Citation omitted; internal quotation marks omitted.)
Id., 31. We note that the legislature did not establish a
mandatory time limit in § 52-190a for the filing of a
motion to dismiss. It did, however, establish a mandatory attachment to the complaint in the form of a written
opinion letter from a similar health care provider. This
certificate, therefore, serves as a precondition to effective service of process for the initiation of a medical
malpractice action.
Failure to comply with the statutory requirements
of service renders a complaint subject to a motion to
dismiss on the ground of lack of personal jurisdiction.
‘‘[J]urisdiction over the person, jurisdiction over the
[subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. . . . Facts showing the service of
process in time, form, and manner sufficient to satisfy
the requirements of mandatory statutes in that regard
are essential to jurisdiction over the person.’’ (Internal
quotation marks omitted.) Bridgeport v. Debek, 210
Conn. 175, 179–80, 554 A.2d 728 (1989); see also Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99
(1991) (A writ of summons is a statutory prerequisite
to the commencement of a civil action. It is an essential
element to the validity of the jurisdiction of the court.
‘‘Because the plaintiff in this case failed to comply in
any fashion with these basic requirements [attaching
the writ of summons to the complaint], we conclude
that the trial court should have granted the defendant’s
motion to dismiss the complaint . . . for lack of personal jurisdiction over the defendant.’’). ‘‘The defendant’s claims concerning service of the summons and
complaint implicate personal, rather than subject matter, jurisdiction.’’ Rock Rimmon Grange # 142, Inc. v.
The Bible Speaks Ministries, Inc., 92 Conn. App. 410,
415, 885 A.2d 768 (2005). Likewise, the 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. As this court held in Connor v. Statewide
Grievance Committee, supra, 260 Conn. 442, ‘‘[u]nless
service of process is made as the statute prescribes,
the court to which it is returnable does not acquire
jurisdiction. . . . The jurisdiction that is found lacking,
however, is jurisdiction over the person, not the subject
matter.’’ (Citations omitted.)
Accordingly, we conclude that, because the written
opinion letter of a similar health care provider must be
attached to the complaint in proper form, the failure
to attach a proper written opinion letter pursuant to
§ 52-190a constitutes insufficient service of process
and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies by its very terms.9
Because we conclude that the absence of a proper written opinion letter is a matter of form, it implicates
personal jurisdiction. It is in the nature of a pleading
that must be attached to the complaint. Thus, we construe the term ‘‘process’’ to include both the summons,
the complaint and any requisite attachments thereto.
‘‘Civil process’’ is defined as ‘‘[a] process that issues in
a civil lawsuit.’’ Black’s Law Dictionary (8th Ed. 2004).
This interpretation is also consistent with the previous
definition of civil process in Black’s Law Dictionary,
which referred to it as a ‘‘summons, or summons and
complaint, and, less commonly, to a writ.’’ Black’s Law
Dictionary (5th Ed. 1979); see also General Statutes
§ 52-63 (b) and (c) (civil process may be made by leaving
‘‘writ, summons and complaint’’ with commissioner of
motor vehicles); and General Statutes § 52-102b (a)
(‘‘[a]ny such writ, summons and complaint, hereinafter
called the apportionment complaint’’).
The defendants contend that the statutory remedy of
dismissal does not invoke the court’s jurisdiction in any
manner and that any conclusion to the contrary would
lead to bizarre, unworkable results. The defendants
claim that to interpret § 52-190a so as to require a defendant to comply with the requirements of Practice Book
§§ 10-32 and 10-30 would be inconsistent with this
intended purpose because it would allow a plaintiff
to proceed with a potentially frivolous action without
obtaining or attaching an opinion letter, in the event
that a defendant did not file a motion to dismiss within
thirty days of its appearance. This result, they contend,
is contrary to the intent of the legislature. We reject this
proposition. First, the foundation for the proposition
presumes that an attorney defending a malpractice
action, many of whom are the most experienced attorneys in the state, would ever miss the thirty day period
to file a motion to dismiss. We disagree. Second, we
conclude that affirming the trial court’s judgment in the
present case would lead to absurd and unworkable
results. In this case, the complaint was filed on March
29, 2007, while the motion to dismiss was filed on
November 5, 2008. It is obvious from the record that
in the interim approximate nineteen months, numerous
motions were filed that required the attention of the
attorneys. We are uncertain as to the number of depositions that were taken, but the possibility exists that
there were many depositions at a substantial cost to
the parties. Contrary to the argument of the defendants,
this is the absurd result that should be avoided. Instead
of allowing a defendant to wait until the last minute to
file a motion to dismiss after much time and effort has
been expended, it is certainly preferable that the issue
be determined early in the proceedings before the parties have expended substantial sums of money. The
Practice Book requirement that motions to dismiss be
filed within thirty days of the filing of an appearance
ensures that the parties will have an early resolution
of the matter and will not have to expend large sums
of money before being informed that the case is deficient, in some aspect, at the nineteenth hour.10 Thus,
we reject the notion submitted by the defendants that
our decision will lead to absurd and unworkable results.
To the contrary, we maintain that it will lead to a fairer,
more orderly administration of justice.
Practice Book § 10-32 provides: ‘‘Any claim of lack
of jurisdiction over the person or improper venue or
insufficiency of process or insufficiency of service of
process is waived if not raised by a motion to dismiss
filed in the sequence provided in Sections 10-6 and
10-7 and within the time provided by Section 10-30.’’
Practice Book § 10-6 provides in relevant part that ‘‘[t]he
order of pleading shall be as follows: (1) The plaintiff’s
complaint. (2) The defendant’s motion to dismiss the
complaint. . . .’’ Practice Book § 10-7 provides: ‘‘In all
cases, when the judicial authority does not otherwise
order, the filing of any pleading provided for by the
preceding section will waive the right to file any pleading which might have been filed in due order and which
precedes it in the order of pleading provided in that
section.’’ The defendants have admitted that they did
not file the motion to dismiss within thirty days of
filing their appearance. Further, they filed numerous
pleadings before filing their motion to dismiss. Therefore, we hold that they waived their right to file a motion
to dismiss pursuant to the terms of the rules of practice.
Accordingly, we conclude that the trial court improperly granted the defendants’ motion to dismiss.
The judgment is reversed and the case is remanded
with direction to deny the defendants’ motion to dismiss
and for further proceedings according to law.
In this opinion the other justices concurred.
1
The plaintiffs appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
The plaintiffs also named as defendants in their complaint Hartford
Hospital, Jeffrey A. Hirst, Anthony F. LaSala, Cardiac Care Associates, P.C.,
and Hartford Cardiac Laboratory, P.C. Those defendants are not involved
in this appeal. Accordingly, we refer herein to Lowe and Connecticut Surgical
Group collectively as the defendants, and individually by name where necessary.
3
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 defendant. To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment complainant’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 apportionment 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. The similar health care provider who provides such
written opinion shall not, without a showing of malice, be personally liable
for any damages to the defendant health care provider by reason of having
provided such written opinion. In addition to such written opinion, the court
may consider other factors with regard to the existence of good faith. If
the court determines, after the completion of discovery, that such certificate
was not made in good faith and that no justiciable issue was presented
against a health care provider that fully cooperated in providing informal
discovery, the court upon motion or upon its own initiative shall impose
upon the person who signed such certificate or a represented party, or both,
an appropriate sanction which may include an order to pay to the other
party or parties the amount of the reasonable expenses incurred because
of the filing of the pleading, motion or other paper, including a reasonable
attorney’s fee. The court may also submit the matter to the appropriate
authority for disciplinary review of the attorney if the claimant’s attorney
or the apportionment complainant’s attorney submitted the certificate. . . .
‘‘(c) 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.’’
4
See footnote 3 of this opinion.
5
Practice Book § 10-32 provides: ‘‘Any claim of lack of jurisdiction over
the person or improper venue or insufficiency of process or insufficiency
of service of process is waived if not raised by a motion to dismiss filed in
the sequence provided in Sections 10-6 and 10-7 and within the time provided
by Section 10-30.’’
6
Practice Book § 10-30 provides: ‘‘Any defendant, wishing to contest the
court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the
filing of an appearance. Except in summary process matters, the motion
shall be placed on the short calendar to be held not less than fifteen days
following the filing of the motion, unless the judicial authority otherwise
directs. Any adverse party may, within ten days of the filing of the motion
with the court, file a request for extension of time to respond to the motion.
The clerk shall grant the request and cause the motion to appear on the
short calendar not less than thirty days from the filing of the request.’’
7
The defendants further contend that, since the issue was not raised
before the trial court, we should not consider the matter at this time. We
disagree. At the trial court the defendants filed, and the trial court granted,
a motion to dismiss the plaintiffs’ complaint for failure to comply with § 52190a. On appeal, the plaintiffs assert that the trial court improperly granted
the defendants’ motion to dismiss. We conclude that the issue of whether
the defendants waived their right to file a motion to dismiss challenging
the sufficiency of the opinion letter attached to the original complaint is
properly within the scope of the issue that was raised at the trial court.
See, e.g., Rowe v. Superior Court, 289 Conn. 649, 663, 960 A.2d 256 (2008)
(concluding that defendant had preserved issue for appeal because theories
related to single legal claim even though defendant had not raised each
theory at trial); State v. Mitchell, 169 Conn. 161, 168, 362 A.2d 808 (1975)
(reaching ground not raised at trial because it was related to preserved
claim raised on appeal), overruled in part on other grounds by State v.
Higgins, 201 Conn. 462, 472, 518 A.2d 631 (1986); In re Jason S., 9 Conn.
App. 98, 107–108, 516 A.2d 1352 (1986) (same); cf. Vine v. Zoning Board
of Appeals, 281 Conn. 553, 569, 916 A.2d 5 (2007) (addressing alternative
ground for affirmance not raised at trial because, inter alia, issue was ‘‘closely
intertwined’’ with certified question); State v. Bethea, 24 Conn. App. 13, 17
n.2, 585 A.2d 1235 (reviewing issue not raised at trial but subsumed within
issue raised), cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991).
8
Because our conclusion that the defendants waived their right to file a
motion to dismiss under Practice Book § 10-32 is dispositive of the plaintiffs’
appeal, we do not reach the parties’ other claims.
9
We note that the defendants claim that we have decided other cases
under § 52-190a where motions to dismiss were filed past the thirty day
period allowed by Practice Book §§ 10-30 and 10-32, and have not discussed
in such cases whether the defendants had waived their right to file a motion
to dismiss. See, e.g., Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042
(2011); Dias v. Grady, supra, 292 Conn. 350. We note, however, that the
issue was not properly briefed in those cases. The matter is now ripe for
our review in the present case.
10
We disagree with the defendants’ argument that the legislature intended
to create an independent, statutory ground for dismissal under § 52-190a.
The early filing of a dismissal motion is in line with the grounds enumerated
in the Practice Book.
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