Kissel v. Ctr. for Women's Health, P.C.

• Decision Date: 29 June 2021
• Docket Number: AC 42469,AC 42505,AC 42493
• Court: Connecticut Court of Appeals
• Parties: JUDITH KISSEL v. CENTER FOR WOMEN'S HEALTH, P.C., ET AL.

JUDITH KISSEL
v.
CENTER FOR WOMEN'S HEALTH, P.C., ET AL.

AC 42469
AC 42493
AC 42505

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 5, 2020
June 29, 2021

Moll, Alexander and Norcott, Js.

Syllabus

The plaintiff sought to recover damages from the defendant acupuncturist, W, and his employer, C Co., for injuries she suffered when a heat lamp used during an acupuncture treatment burned her left foot and toes due to W's alleged medical malpractice. The plaintiff attached to her complaint a good faith certificate from her attorney but did not attach a written and signed opinion letter from a similar health care provider. C Co. filed a motion to dismiss the action on the ground that the plaintiff failed to attach a written opinion letter from a similar health care provider as required by statute (§ 52-190a). Thereafter, W joined C Co.'s motion to dismiss. Subsequently, the plaintiff filed a request to amend her complaint to attach an opinion letter that she indicated had existed at the time the complaint was originally filed but inadvertently was not attached. The plaintiff also objected to the motions to dismiss and claimed that the trial court had discretion to allow the amendment and to deny the motions to dismiss because the opinion letter existed at the time the action was commenced and was only inadvertently not attached to the original complaint. The trial court denied the motions to dismiss and overruled the objections to the plaintiff's request to amend. Thereafter, the court granted W's motion to implead H Co., the distributor of the heat lamp, as a third-party defendant. Subsequently, the plaintiff filed an amended complaint to allege a product liability claim against H Co. Following a trial, the jury returned a verdict in favor of the plaintiff on the medical malpractice and product liability counts. Thereafter, the court granted W's and C Co.'s motions for permission to file a second motion for reconsideration of the denial of their motions to dismiss but denied the requested relief, denied H Co.'s motions for a directed verdict and to set aside the verdict, and rendered judgment in accordance with the verdict. On separate appeals brought to this court by W, C Co., and H Co., held:

1. The trial court improperly denied the motions to dismiss filed by W and C Co., the plaintiff having failed to attach a written opinion letter to her complaint as required by § 52-190a and having failed to cure that defect before the statute of limitations expired: this court's decision in Peters v. United Community & Family Services, Inc. (182 Conn. App. 688), made clear that a plaintiff's efforts to cure a defective opinion letter must be initiated prior to the expiration of the statute of limitations, and the plaintiff did not seek to remedy her failure to attach the written opinion letter to her original complaint before the two year statute of limitations had expired, and, contrary to the plaintiff's argument, W and C Co. did not waive argument on the statute of limitations because they did not raise it in their 2012 motions to dismiss, as that argument was raised in their motions to reargue based on new, controlling case law; moreover, a jury verdict in a medical malpractice action does not insulate a defect in the required opinion letter from appellate review; furthermore, because the plaintiff had knowledge on the date of the incident of the nature and extent of her injuries, she could not rely on the three year statute (§ 52-584) of repose, and, thus, pursuant to § 52-584, the action was subject to a two year statute of limitations.

2. The trial court properly denied H Co.'s motions for a directed verdict and to set aside the verdict; the plaintiff presented alternative bases of causation for her injuries, and, because there was a lack of jury interrogatories to specify which basis of causation the jury used to reach its verdict, H Co. was required to establish that the evidence was insufficient to support any of the specifications of causation pursued by the plaintiff, however, H Co. argued on appeal only that the plaintiff failed to establish how or why the heat lamp came into contact with

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her foot and its failure to challenge the alternative bases of causation was fatal to its appeal.

Procedural History

Action to recover damages for medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Edward R. Karazin, Jr., judge trial referee, denied the defendants' motions to dismiss; thereafter, the court, Mottolese, J., granted the motion of the defendant Reed Wang to implead Health Body World Supply, Inc., as a third-party defendant; subsequently, the plaintiff filed an amended complaint; thereafter, the matter was tried to the jury before Hon. Kenneth B. Povodator, judge trial referee; verdict for the plaintiff; subsequently, the court, Hon. Kenneth B. Povodator, judge trial referee, denied the defendants' postverdict motions and rendered judgment in accordance with the verdict, from which the defendants filed separate appeals to this court; thereafter, this court consolidated the appeals. Affirmed in part; reversed in part; judgment directed.

Wesley W. Horton, with whom were Kenneth J. Bartschi and, on the brief, Mary Alice Moore Leonhardt, for the appellant in Docket No. AC 42469 (defendant Reed Wang).

David J. Robertson, with whom was Keith M. Blumenstock, for the appellant in Docket No. AC 42493 (named defendant).

Laura Pascale Zaino, with whom were Paul D. Meade and, on the brief, Logan A. Carducci, for the appellant in Docket No. AC 42505 (defendant Health Body World Supply, Inc.).

William M. Bloss, with whom, on the brief, were Alinor C. Sterling, Matthew S. Blumenthal, Sarah Steinfeld, and Sean K. McElligott, for the appellee (plaintiff).

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Opinion

ALEXANDER, J. This trilogy of appeals originated when the plaintiff, Judith Kissel, sustained serious burns to her left foot during the course of an acupuncture treatment. The plaintiff commenced a medical malpractice action against the treating acupuncturist, Reed Wang, and his place of employment, the Center for Women's Health, P.C. (Center). The plaintiff subsequently filed a third-party complaint alleging a product liability claim against Health Body World Supply, Inc., also known as WABBO, the distributor of a device commonly referred to as the Miracle Lamp (heat lamp), which injured her. After a trial on both the medical malpractice and product liability claims, the jury returned a verdict for the plaintiff on all counts, awarding her a total of $1 million in damages. Following the resolution of various postverdict motions, the court rendered judgment in accordance with the jury's verdict.

Wang, the Center, and WABBO each filed a separate appeal, docketed as AC 42469, AC 42493, and AC 42505, respectively. In AC 42469 and AC 42493, Wang and the Center claim that (1) the trial court improperly denied their motions to dismiss the medical malpractice action for failing to comply with General Statutes § 52-190a because the plaintiff failed to attach to her initial complaint an opinion letter from a similar health care provider and her efforts to cure this defect occurred outside of the limitation period, (2) the court improperly denied the request for an evidentiary hearing with respect to the jurisdictional facts related to the opinion letter, (3) the plaintiff failed to present sufficient evidence with respect to causation, and (4) the court improperly instructed the jury regarding expert testimony and causation. In AC 42505, WABBO claims that the court improperly denied its motions for a directed verdict and to set aside the verdict because the plaintiff failed to present sufficient evidence as to the element of causation. The plaintiff maintains that the judgment of the trial court should be affirmed.

In AC 42469 and AC 42493, we agree with Wang and the Center that the court improperly denied their motions to dismiss the plaintiff's medical malpractice complaint as a result of her failure to attach the requisite opinion letter to the complaint and to cure this defect by the expiration of the statute of limitations.¹ In AC 42505, we conclude that the plaintiff presented sufficient evidence with respect to her product liability complaint. The court, therefore, properly denied WABBO's motions for a directed verdict and to set aside the verdict. Accordingly, we reverse the judgment with respect to Wang and the Center on the medical malpractice claims, and affirm the judgment with respect to the product liability claims.

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The following recitation, as set forth by the court in its postverdict memorandum of decision,² summarizes the facts and procedural history and serves as a starting point to address the claims raised in these appeals. The plaintiff, a patient at the Center, went to Wang for her first acupuncture treatment on April 22, 2010. At this visit, Wang inserted needles in the plaintiff's body and placed the heat lamp³ near her foot as part of the treatment. The surface temperature of this device, which was distributed by WABBO,⁴ exceeded 500 degrees. As part of his standard practice, Wang left the plaintiff alone in the treatment room, but remained close by. "When . . . Wang returned to the room several minutes later, the head of the heat lamp was resting against the plaintiff's foot, having caused serious injuries to her foot. He removed the lamp from her foot, and he (and the principal of the Center) transported the plaintiff to a hospital for treatment."⁵

A significant issue at trial was the exact manner in which the head of the heat lamp, which housed the heating element, came into contact with the plaintiff's left foot. No one observed whether the head of the heat lamp had descended or whether the entire lamp assembly had tipped over.⁶ The parties presented extensive evidence regarding the propensity of the head of the lamp to lower on its own or whether...