LeConche v. Elligers

• Citation: 579 A.2d 1,215 Conn. 701
• Decision Date: 24 July 1990
• Docket Number: Nos. 13925,13926,s. 13925
• Court: Connecticut Supreme Court
• Parties: Mary LeCONCHE et al. v. Kenneth W. ELLIGERS et al.

Page 1

579 A.2d 1

215 Conn. 701

Mary LeCONCHE et al. v. Kenneth W. ELLIGERS et al.

Nos. 13925, 13926.

Supreme Court of Connecticut.

Argued May 8, 1990.

Decided July 24, 1990.

Patrick Tomasiewicz, with whom, on the brief, were Benjamin M. Massa, Joseph E. Fazzano and David A. Dee, Hartford, for appellants (plaintiffs).

Lois Tanzer, with whom, on the brief, was Tracey C. Kammerer, Hartford, for appellees in the first case (named defendant et al.).

Louis B. Blumenfeld, with whom, was William J. Scully, Hartford, for appellee in the first case (defendant St. Francis Hosp. and Medical Center).

Cynthia A. Jaworski and Michael D. Neubert, with whom was Elizabeth K. McLaughlin, Hartford, for appellees in the second case (defendant John T. DeMaio et al.).

William F. Gallagher and Cynthia C. Bott, New Haven, filed a brief for Connecticut Trial Lawyers Ass'n as amicus curiae.

Before PETERS, C.J., and GLASS, COVELLO, HULL and BORDEN, JJ.

BORDEN, Associate Justice.

In these consolidated appeals, the plaintiffs ¹ appeal from the judgment of the trial court dismissing for lack of subject matter jurisdiction their medical malpractice complaint against the defendants, Kenneth W. Elligers, Carey Ann Reber, John T. DeMaio, Brendan M. Fox, Hartford Urology Group (urology group), and St. Francis Hospital and Medical Center (hospital). The dispositive issue is whether a certificate of good faith belief of negligence, as required by General Statutes (Rev. to 1987) § 52-190a ² is a subject matter jurisdictional requirement for a malpractice action against a health provider. We conclude that it is not, and we reverse the judgment of the trial court.

In July, 1988, the plaintiffs brought an action against the defendants, claiming negligence and breach of contract arising out of a course of medical treatment that occurred between October 16, 1986, and November 1, 1986. Their complaint failed to contain a certificate stating that they or their attorney had made a reasonable inquiry giving rise to a good faith belief that grounds existed for such an action against each defendant. Each defendant moved to dismiss the complaint for lack of subject matter jurisdiction, on the sole ground that the plaintiffs had failed to file such a certificate of good faith. In response to the motions to dismiss, the plaintiffs moved to amend their complaint to include a certificate by their attorney that he had made a reasonable inquiry to determine whether there were grounds for a good faith belief of negligence in the named plaintiff's treatment, and that he had such a good faith belief. ³

The motions to dismiss addressed only the plaintiffs' failure to file a good faith certificate with or as part of their complaint and not the sufficiency of the plaintiffs' inquiry preceding the filing of their action. The court, however, addressed both issues. In its memorandum of decision, the court held that the statutory requirements of both a precomplaint inquiry and a certificate of good faith were subject matter jurisdictional requirements. Accordingly, the court denied the motion to amend ⁴ and granted the motions to dismiss. The plaintiffs filed two separate appeals ⁵ to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023.

The plaintiffs claim that the trial court should not have dismissed their complaint because: (1) General Statutes (Rev. to 1987) § 52-190a(a), in effect at the time of the named plaintiff's course of treatment, was repealed by Public Acts 1987, No. 87-227, § 9, and that the effect of that legislation was to postpone until October 1, 1987, the statutory requirements of a reasonable precomplaint inquiry and good faith certificate; (2) the lack of a good faith certificate contained in the complaint did not deprive the court of subject matter jurisdiction; and (3) the court should have permitted the plaintiffs' proposed amendment. We disagree with the plaintiffs' first claim, but agree with their latter two claims.

I

The plaintiffs first claim that the trial court improperly dismissed their complaint because General Statutes (Rev. to 1987) § 52-190a was repealed in 1987 and replaced by Public Acts 1987, No. 87-227, § 9, and that this legislation eliminated the requirements of a precomplaint inquiry and good faith certificate for actions based on injuries occurring prior to October 1, 1987. This claim is without merit.

The precomplaint inquiry and good faith certificate requirements for a medical malpractice action were enacted as part of tort reform legislation in 1986. The first sentence of § 12(a) of Public Acts 1986, No. 86-338, effective October 1, 1986, provided: "No action, accruing on or after the effective date of this act, shall be filed to recover damages for personal injury or wrongful death, 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 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 second sentence provided: "The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant." Section 12 was later codified as General Statutes (Rev. to 1987) § 52-190a.

In 1987, the legislature enacted § 9 of Public Acts 1987, No. 87-227, effective October 1, 1987, which provided in pertinent part: "Section 52-190a of the General Statutes is repealed and the following is substituted in lieu thereof: (a) no CIVIL action[, accruing on or after October 1, 1986,] shall be filed to recover damages [for] RESULTING FROM personal injury or wrongful death OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THIS ACT, whether in tort or in contract," unless such an inquiry has been made. The rest of § 52-190a, including the second sentence, remained unchanged by this public act, which is now codified as General Statutes (Rev. to 1989) § 52-190a.

The plaintiffs argue that the "repeal" of General Statutes (Rev. to 1987) § 52-190a effected by the 1987 public act postponed the application of the precomplaint inquiry and good faith certificate requirements to injuries occurring on or after October 1, 1987. They contend, therefore, that the requirements did not apply to their claim for injuries, which occurred before that date.

The short answer to this claim is that Public Acts 1987, No. 87-227, § 9, did not repeal General Statutes (Rev. to 1987) § 52-190a, but amended it, effective October 1, 1987, by eliminating the bracketed language and adding the capitalized language. See General Statutes § 2-18; State v. Blasko, 202 Conn. 541, 554, 522 A.2d 753 (1987); State v. Kozlowski, 199 Conn. 667, 679 n. 10, 509 A.2d 20 (1986). The use in the 1987 public act of the words "repeal" and "substituted in lieu thereof" simply reflected the legislature's drafting convention of amending statutes by " 'cast[ing] acts which alter language within existing statutory subsections in the form of repeal and substitution.' " State v. Blasko, supra, quoting State v. Kozlowski, supra, 199 Conn. at 675, 509 A.2d 20. The legislative history of the 1987 public act buttresses this conclusion. That history makes clear that the legislature intended to amend the statute with respect to actions for injuries occurring on or after October 1, 1987, and to continue the application of the 1986 public act to actions that occurred on or after October 1, 1986, but before October 1, 1987. See 30 S.Proc., Pt. 6, 1987 Sess., p. 1969, remarks of Senator Thomas F. Upson; 30 H.R.Proc., Pt. 16, 1987 Sess pp. 5686-87, remarks of Representatives Robert Farr and Richard D. Tulisano. Thus, the provisions of No. 86-338, § 12 of the 1986 Public Acts; General Statutes (Rev. to 1987) § 52-190a; continued to apply to the plaintiffs. ⁶

II

The plaintiffs next claim that (1) the trial court had subject matter jurisdiction over the plaintiffs' action, notwithstanding that the complaint did not contain a good faith certificate, and (2) the court, therefore, should not have dismissed their motion to amend the complaint by adding to it their attorney's proposed good faith certificate. They argue that, in enacting § 52-190a, the legislature did not intend to make the good faith certificate a jurisdictional requirement. We agree.

Although the defendants' motions to dismiss relied solely on the lack of a good faith certificate, the trial court held that both the certificate and a reasonable precomplaint inquiry were subject matter jurisdictional requirements under § 52-190a, and the parties have argued this appeal accordingly. ⁷ The trial court's finding that there was no reasonable precomplaint inquiry, however, was based solely on its examination of the plaintiffs' proposed certificate. The court made no further factual inquiry into the extent of the plaintiffs' precomplaint investigation, nor was it requested to do so by the defendants.

The statute, however, clearly requires a factual inquiry by the court regarding the sufficiency of the precomplaint investigation. That inquiry is to be undertaken after the completion of discovery. See footnote 1, supra. The existence of a report by a medical expert may be, but is not necessarily, sufficient to establish the plaintiffs' good faith belief. "For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion ... of a similar health care provider as defined in section 52-184c ... that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good...