Gonzales v. Langdon
| Decision Date | 01 December 2015 |
| Docket Number | No. 37090.,37090. |
| Citation | 128 A.3d 562,161 Conn.App. 497 |
| Court | Connecticut Court of Appeals |
| Parties | Luz Marina GONZALES v. Robert LANGDON et al. |
161 Conn.App. 497
128 A.3d 562
Luz Marina GONZALES
v.
Robert LANGDON et al.
No. 37090.
Appellate Court of Connecticut.
Argued Sept. 24, 2015.
Decided Dec. 1, 2015.
Stephen M. Reck, North Stonington, for the appellant (plaintiff).
Michael R. McPherson, Hartford, for the appellees (defendants).
DiPENTIMA, C.J., and GRUENDEL and PRESCOTT, Js.
PRESCOTT, J.
This appeal arises out of a medical malpractice action brought by the plaintiff, Luz Marina Gonzales, against the defendants, Robert Langdon and Shoreline Dermatology, P.C., after a neck and jowl "S" facelift procedure performed by Langdon allegedly left the plaintiff permanently injured. The plaintiff appeals from the judgment of the trial court dismissing her complaint against the defendants for failure to include a legally sufficient opinion letter authored by a similar health care provider as required by General Statutes § 52–190a (a). The plaintiff claims that the court improperly granted the defendants' motion to dismiss because (1) the original opinion letter was legally sufficient, or, in the alternative, (2)(A) the court should have granted the plaintiff leave to amend her complaint, and (B) furthermore, if leave had been appropriately granted, the proposed amended opinion letter and the proposed new opinion letter attached to the amended complaint were legally sufficient.1 We reverse the judgment of the court.
The plaintiff's original complaint, filed on January 21, 2014,2 contained the following allegations. The plaintiff was a patient of Langdon, "a dermatologist who holds himself out as a specialist in cosmetic surgery...."3
On December 15, 2011, the plaintiff underwent a neck and jowl "S" facelift procedure, performed by Langdon at Shoreline Dermatology, P.C. During the procedure, Langdon cut the plaintiff's left facial nerves, buccal branch nerves, and zygomatic branch nerves, resulting in the plaintiff suffering facial neuropathy and deformity. The plaintiff's complaint alleged
that Langdon negligently conducted the surgery and also that he departed from the standard of care by performing a procedure in which he was not properly skilled or trained.
Attached to the plaintiff's complaint was her attorney's good faith certificate of reasonable inquiry and an opinion letter. The opinion letter (original opinion letter) was authored by a board certified dermatologist, who stated that Langdon departed from the standard of care when performing the neck and jowl "S" facelift procedure by cutting the plaintiff's left buccal nerve.
On February 26, 2014, in response to the plaintiff's complaint, the defendants filed a motion to dismiss for lack of personal jurisdiction, alleging that the opinion letter was legally insufficient and contained inadequate details regarding the author's qualifications as a similar health care provider. Although the plaintiff maintained that the original opinion letter was legally sufficient, on March 11, 2014, she filed a request for leave to amend her complaint along with an exact copy of her initial complaint, an amended version of the original opinion letter (proposed amended opinion letter), and a new opinion letter authored by a board certified plastic surgeon (proposed new opinion letter). Although the plaintiff's request for leave to amend her complaint was filed more than thirty days from the return day, and thus, past the time to amend as of right; see General Statutes § 52–128 ; Practice Book § 10–59 ; it was filed within the
applicable statute of limitations. General Statutes §§ 52–190a (b) and 52–584.
The proposed amended opinion letter authored by the board certified dermatologist stated in relevant part that the author was "board-certified by the American Board of Dermatology and perform[s] cosmetic surgical procedures. The American Board of Medical Specialties ... does not recognize ‘Cosmetic Surgery’ as a board specialty. The skills needed for cosmetic surgical procedures are certified by the American Board of Dermatology."
The proposed new opinion letter, authored by a plastic surgeon certified by the American Board of Plastic Surgery, set forth the author's credentials and stated that "Langdon departed from the standard of care by cutting the [plaintiff's] buccal nerve and by performing a surgery which should not be performed by a dermatologist. This surgery is not within [Langdon's] medical specialty and should be performed by a plastic surgeon."
On May 5, 2014, the plaintiff's request for leave to amend and the defendants' motion to dismiss were argued on short calendar before Judge Brian T. Fischer.4 During oral argument, the parties disagreed as to whether the original opinion letter, the proposed amended opinion letter, or the proposed new opinion letter should be the operative letter, and whether any of the letters were legally sufficient under § 52–190a (a). In a written memorandum of decision filed July 2, 2014, the court granted the defendants' motion to dismiss for
lack of personal jurisdiction on the ground that the original opinion letter was not authored by a similar health care provider. At no point in the court's memorandum of decision did the court rule
on or otherwise discuss the plaintiff's request for leave to amend her complaint, or mention the proposed amended opinion letter or the proposed new opinion letter.
On July 9, 2014, the plaintiff filed a motion to reargue, for reconsideration, and for an articulation concerning the plaintiff's request for leave to amend her complaint. The court denied the plaintiff's motion without discussion. On August 12, 2014, the plaintiff filed a motion for order regarding her request for leave to amend her complaint, to which the court never responded. This appeal followed.
I
The plaintiff first claims that the trial court improperly granted the defendants' motion to dismiss because the original opinion letter was legally sufficient pursuant to § 52–190a (a). The plaintiff argues that she was only required to obtain an opinion letter authored by a board certified dermatologist because that was the only certification that was listed on Langdon's profile on the Department of Public Health's website. The defendants argue that the original opinion letter was insufficient because, on the basis of the allegations in the complaint, the plaintiff was required to obtain an opinion letter authored by a health care provider who was board certified in cosmetic surgery. We agree with the defendants that the original opinion letter was legally insufficient.
The court granted the defendants' motion to dismiss for lack of personal jurisdiction on the ground that the original opinion letter was not legally sufficient. Because the court's ultimate conclusion that it lacked personal jurisdiction is a legal conclusion, our review
is plenary. 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).
We begin our analysis by setting forth the relevant statutory provisions. Section 52–190a (a) provides in relevant part that, prior to filing a personal injury action against a health care provider, "the attorney or party filing the action or apportionment complaint [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 the claimant's attorney ... shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes] 52–184c... that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion...." Failure to attach to the complaint a legally sufficient opinion letter authored by a similar health care provider mandates dismissal because the court lacks personal jurisdiction over the defendant. General Statutes 52–190a (c) ; see also Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011).
Section 52–184c defines "similar health care provider." Pursuant to that provision, the precise definition of similar health care provider depends on whether the defendant health care provider "is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist...." General Statutes 52–184c (c). Our Supreme Court has "construe[d] § 52–184c (b) as establishing the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and § 52–184c (c) as establishing those qualifications when the defendant is board
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