Carpenter v. Daar, 080420 CTCA, AC 42145

Docket Nº:AC 42145
Opinion Judge:KELLER, J.
Party Name:SHANE J. CARPENTER v. BRADLEY J. DAAR ET AL.
Attorney:Kyle J. Zrenda, with whom was Theodore W. Heiser, for the appellant (plaintiff). Beverly Knapp Anderson, for the appellees (defendants).
Judge Panel:Keller, Elgo and Pellegrino, Js.
Case Date:August 04, 2020
Court:Appellate Court of Connecticut
 
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SHANE J. CARPENTER

v.

BRADLEY J. DAAR ET AL.

No. AC 42145

Court of Appeals of Connecticut

August 4, 2020

Argued January 6, 2020.

Procedural History

Action to recover damages for the defendants' alleged medical malpractice, brought to the Superior Court in the judicial district of Middlesex, where the court, Domnarski, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

Kyle J. Zrenda, with whom was Theodore W. Heiser, for the appellant (plaintiff).

Beverly Knapp Anderson, for the appellees (defendants).

Keller, Elgo and Pellegrino, Js.

OPINION

KELLER, J.

The plaintiff, Shane J. Carpenter, appeals from the judgment rendered by the trial court dismissing his medical malpractice action against the defendants, Dr. Bradley J. Daar (Daar), a dentist, and his business entity, Shoreline Modern Dental, LLC (Shoreline). The plaintiff claims that the court erred in determining that his certificate of good faith, specifically, the accompanying opinion letter, as supplemented by an affidavit filed with the plaintiff's objection to the motion to dismiss, (supplemental affidavit) failed to meet the requirements of General Statutes § 52-190a because the author of the opinion letter and supplemental affidavit, Dr. Charles S. Solomon[1] (Solomon), was not a ‘‘similar health care provider'' as defined in General Statutes § 52-184c.

The defendants counter that the certificate of good faith and its accompanying opinion letter did not demonstrate that Solomon was a similar health care provider under the definitions set forth in § 52-184c. They further assert, as alternative grounds for affirmance of the trial court's judgment, that the supplemental affidavit should not have been considered by the trial court because (1) it was procedurally improper for the plaintiff to have attempted to cure a § 52-190a (a) defect in an opinion letter attached to the complaint with information contained in a supplemental affidavit of the author of the opinion without amending the complaint; (2) it was obtained and submitted by the plaintiff after the two year statute of limitations in General Statutes § 52-584 had expired, and the court failed to state a factual basis to support the applicability of the accidental failure of suit statute, General Statutes § 52-592, which would have extended the statute of limitations for an additional year from the date the judgment of dismissal was entered in the first action; see General Statutes § 52-190a (a); and (3) without the supplemental affidavit, the opinion letter attached to the complaint did not contain sufficient information to demonstrate that Solomon is a similar health care provider to Daar under either definition of a similar health care provider set forth in § 52-184c. We affirm the judgment of the trial court.

The following relevant facts, alleged as the factual predicate for the plaintiff's cause of action or as found by the court, and procedural history are relevant to our disposition of this appeal. On June 1, 2017, in the judicial district of Middlesex, the plaintiff commenced a prior medical malpractice action against the defendants, based on the same alleged conduct as in the present case. See Carpenter v. Daar, Superior Court, judicial district of Middlesex, Docket No. CV-17-6017957-S.[2] On October 11, 2017, the court dismissed the plaintiff's first medical malpractice action against the defendants because the opinion letter attached to the complaint, which also was authored by Solomon, did not comply with § 52-190a (a). Although the letter contained an opinion as to whether there was evidence that medical negligence had occurred, it did not contain, pursuant to § 52-184c, any information regarding Solomon's training and experience to establish that he was a similar health care provider to Daar. Although the plaintiff filed a request to amend his complaint, it was undisputed that his request was filed after the applicable two year statute of limitations in § 52-584 had expired.

On February 21, 2018, the plaintiff commenced the present action against the defendants pursuant to the accidental failure of suit statute. See General Statutes § 52-592. As to dental malpractice, the plaintiff alleged that on June 16, 2015, during root canal surgery, Daar negligently failed to diagnose and treat an infection in the plaintiff's tooth and that, as a result, the plaintiff suffered an infection in his mouth, throat, face and neck that required additional emergency medical care, hospitalization, oral and neck surgery and continuing dental treatment. The plaintiff named Shoreline as a defendant on the basis of vicarious liability for Daar's negligent treatment.

Pursuant to § 52-184c (c), the plaintiff further alleged that Daar held himself out as a specialist in endodontics on Shoreline's website by indicating that he had completed hundreds of hours of training in endodontics and by providing a general explanation of the nature of that dental specialty.

The plaintiff attached to his complaint a good faith certificate and what he alleged in the complaint to be a ‘‘written and signed opinion from a similar health care provider stating that there appears to be evidence of negligence by the defendants, a violation of the standard of care, and providing detailed basis for the formation of that opinion, along with a supplemental correspondence outlining that similar health care provider's qualifications.'' The ‘‘written and signed opinion letter'' attached to the complaint is the same letter from Solomon that was deemed noncompliant with § 52-190a (a) in the prior action. The ‘‘supplemental correspondence'' attached to the complaint, dated August 10, 2017, contained information regarding Solomon's qualifications to establish that he was a similar health care provider to Daar.3 The supplemental correspondence, also authored by Solomon, indicated that he is a graduate of Columbia University College of Dental Medicine (Columbia), had been licensed to practice dentistry in the state of New York, ‘‘with credentials that would satisfy the requirement of any other state, '' and received his ‘‘specialty [b]oards in [e]ndodontics'' in 1970. It also stated that Solomon practiced endodontics in New York for more than forty years, and that for the past eight years he has been a full-time clinical professor of end-odontics at Columbia, ‘‘teaching clinical and didactic [e]ndodontics.''

On April 5, 2018, the defendants moved to dismiss the present action on the ground that the opinion letter did not comply with §§ 52-190a (a) and 52-184c because it failed to demonstrate that Solomon is a similar health care provider to Daar, who is a general dentist, not a specialist in endodontics. They argued that, as an endodontist, Solomon is not a similar health care provider under § 52-184c (b) because Daar is not a specialist in endodontics and was not holding himself out to be one. They further argued that Solomon also was not a similar health care provider under § 52-184c (c) because Daar is a practitioner of general dentistry and Solomon had not practiced or taught general dentistry within the five years preceding June 16, 2017.4 In addition to submitting a memorandum of law in support of the motion to dismiss, the defendants attached an affidavit from Daar with other related exhibits.

In his affidavit, Daar attested that he is a general dentist and has been licensed by the state of Connecticut to practice dentistry since November, 1982. He indicated that, as a general dentist, he provides such services as fillings, inlay and onlays, crowns and bridges, dentures, veneers, root canal treatments, simple extractions, teeth whitening, certain types of orthodontics, mouth guards, and some periodontal treatments. Daar stated that he performed the root canal treatment on the plaintiff's tooth in 2015 in his capacity as a general dentist. He further indicated that a quotation from Shoreline's website, on which the plaintiff relied in his complaint to support his allegations that Daar was holding himself out as a specialist in endodontics, was only a partial excerpt of a sentence, which stated in full: ‘‘[Daar] has completed hundreds of hours of training in [e]ndodontics, [o]rthodontics, [p]eriodontics, [d]ental [i]mplants, [s]leep [a]pnea and more.''

In support of his allegation that Daar held himself out to be a specialist in endodontics, the plaintiff also relied on information found on the website related to Daar's practice, in particular, information related to endodontics that was accessed in a portion of the website related to ‘‘Patient Education'' and ‘‘Services.'' In his affidavit, Daar attested that, in the same portion of the website, eleven additional links appeared. These included links to the following subjects: educational videos, cosmetic and general dentistry, emergency care, implant dentistry, oral health, oral hygiene, oral surgery, orthodontics, pediatric dentistry, periodontal therapy and technology.

The plaintiff filed an objection to the motion to dismiss on June 5, 2018.5 The plaintiff continued to argue that, as alleged in his complaint and on the basis of the statements on Shoreline's website, Daar had held himself out to be a specialist in endodontics and, thus, Solomon, a specialist in endodontics, was a similar health care provider to Daar pursuant to § 52-184c (c). The plaintiff did not submit any evidence to dispute the facts set forth in Daar's affidavit, which sought to establish that, at the time of the root canal procedure, Daar was a general dentist, not a specialist in endodontics or someone holding himself out to be a specialist in endodontics. The plaintiff did not request leave...

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