Lohnes v. Hosp. of Saint Raphael, 32170.

Decision Date15 November 2011
Docket NumberNo. 32170.,32170.
Citation31 A.3d 810,132 Conn.App. 68
PartiesEdmund H. LOHNES v. HOSPITAL OF SAINT RAPHAEL et al.
CourtConnecticut Court of Appeals

OPINION TEXT STARTS HERE

Albert J. Oneto IV, with whom, on the brief, was Peter E. Ricciardi, Hamden, for the appellant (plaintiff).

Eric J. Stockman, with whom, on the brief, was Vimala B. Ruszkowski, New Haven, for the appellee (named defendant).

Frederick J. Trotta, New Haven, with whom, on the brief, was Janine W. Hodgson, for the appellee (defendant Vinu Verghese).

BEAR, ESPINOSA and BORDEN, Js.

BORDEN, J.

The plaintiff, Edmund H. Lohnes, appeals from the judgment of the trial court granting the motions to dismiss his complaint filed by the defendants, Vinu Verghese, an emergency room physician, and the Hospital of Saint Raphael (hospital), in connection with medical care rendered by Verghese. The court granted the defendants' motions to dismiss on the ground that the written opinion accompanying the plaintiff's complaint did not satisfy General Statutes § 52–190a. On appeal, the plaintiff claims that the court improperly: (1) concluded that the plaintiff's expert was not a “similar health care provider” within the meaning of General Statutes §§ 52–190a and 52–184c; 1 (2) interpreted §§ 52–190a and 52–184c in a manner that (a) unreasonably restricted the plaintiff's common-law right to pursue a judicial remedy for medical negligence, in violation of the open courts provision of article first, § 10, of the constitution of Connecticut and (b) resulted in an arbitrary and irrational dismissal of the plaintiff's medical negligence action, without due process of law, in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut; and (3) dismissed the plaintiff's action on the basis of a perceived circumstantial defect in the plaintiff's pleadings, in violation of General Statutes § 52–123. We disagree with the plaintiff on all of his claims and, therefore, affirm the judgment of the trial court.

The plaintiff brought this action claiming medical malpractice by Verghese and liability of the hospital pursuant to the doctrine of respondeat superior. The defendants each moved to dismiss the complaint. The trial court granted the motions and dismissed the action. This appeal followed.

In his complaint, the plaintiff alleged the following facts, the truth of which we assume for purposes of his appeal. See Gold v. Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010). On June 22, 2007, the plaintiff was admitted to the emergency department at the hospital, complaining of shortness of breath associated with pain and tightness in his chest. Upon being admitted to the hospital, the plaintiff advised the hospital that he had a prior history of nonsteroidal anti-inflammatory drug (NSAID) sensitive asthma, which, in the past, had caused him to suffer shortness of breath, loss of consciousness and vomiting as a result of ingesting the NSAID aspirin. The plaintiff subsequently was put under the care of Verghese for treatment of his pulmonary symptoms. At that time, the plaintiff reiterated to Verghese that he was highly allergic to NSAIDs and, despite having notice of that allergy, Verghese administered several pills to the plaintiff, one of which was the NSAID Motrin. As a result of ingesting the NSAID, the plaintiff required intubation and mechanical ventilation for acute, hypercapnic respiratory failure. Over the next four days, the plaintiff required cardioversion post-extubation for atrial fibrillation.

Following that treatment, the plaintiff commenced this medical negligence action against the defendants. In an attempt to comply with §§ 52–190a and 52–184c,2 the plaintiff attached to his complaint an opinion letter from a pulmonologist from National Jewish Health in Denver, Colorado. The defendants each moved to dismiss on the ground that the author of the plaintiff's opinion letter was not a similar health care provider within the meaning of §§ 52–190a and 52–184c. In response to the plaintiff's objection to the motions to dismiss, Verghese submitted an affidavit stating: “I am a physician licensed to practice emergency medicine by the [s]tate of Connecticut,” and, “I am Board Certified in Emergency Medicine and have been a Diplomate of the American Board of Emergency Medicine since December of 2005.” Thereafter, the court granted the defendants' motions to dismiss.

ITIMELINESS OF MOTION TO DISMISS

As a threshold matter, we address the issue, raised by the plaintiff in a supplemental authorities letter submitted pursuant to Practice Book § 67–10,3 that our Supreme Court's recent decision in Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011), is relevant to the outcome of this case. In response, this court ordered the parties to file simultaneous supplemental briefs addressing the following question: “What effect, if any, does the recent decision of the Supreme Court in Morgan v. Hartford Hospital [supra, at 388, 21 A.3d 451] have on the decision in this appeal?”

The plaintiff claims that the ruling in Morgan is applicable to this appeal and mandates denial of Verghese's motion to dismiss because he did not file it within thirty days of filing his appearance, pursuant to Practice Book § 10–30.4 We disagree.

In Morgan, our Supreme Court concluded 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. Because we conclude that the absence of a proper written opinion is a matter of form, it implicates personal jurisdiction.” Morgan v. Hartford Hospital, supra, 301 Conn. at 402, 21 A.3d 451. The court held that the defendants waived their right to challenge the sufficiency of the written opinion letter through a motion to dismiss because they failed to file the motion within the thirty day time period provided by Practice Book § 10–30 and they filed “numerous pleadings before filing their motion to dismiss.” Id., at 404, 21 A.3d 451. In fact, the motion to dismiss was filed nineteen months after the complaint. Id., at 403, 21 A.3d 451.

In the present case, the return date on the complaint was September 22, 2009. Verghese filed his appearance on August 31, 2009, twenty-two days before the return date. Furthermore, Verghese filed his motion to dismiss, prior to the filing of any other pleadings, on October 21, 2009, which, as the plaintiff stated in his supplemental brief, was fifty-one days after Verghese filed his appearance.

We recognize that Practice Book § 10–30 states in part: “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 ....” (Emphasis added.) We note, however, that Practice Book § 10–8 provides in relevant part: [I]n civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day....” Our rules of practice are designed “to facilitate business and advance justice”; thus, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Practice Book § 1–8. Reading Practice Book §§ 1–8, 10–8 and 10–30 together, therefore, we conclude, that in the present matter, Verghese should not be penalized for filing an appearance prior to the return date, and that in this case, where he did so, the most reasonable way to read these provisions of our rules of practice is to allow thirty days from the return date, not the date of the appearance, to file a motion to dismiss.

Indeed, as Verghese suggests, where a defendant files an early appearance—i.e., before the return date—to credit the plaintiff's literal reading of the rules of practice could encompass a situation where the defendant who files an appearance more than thirty days prior to the return date could be required to file a motion to dismiss even before the case has been officially returned to court. We do not think that our rules of practice require such a bizarre outcome.

These circumstances are different from those in Morgan, in which the plaintiff waited nineteen months to file the motion to dismiss and filed numerous pleadings prior to the motion to dismiss. Thus, in the present case, Verghese had thirty days from September 22, 2009, which would have been October 23, 2009,5 to file his motion to dismiss. Verghese filed his motion to dismiss on October 21, 2009, and therefore his motion was timely.

IISIMILAR HEALTH CARE PROVIDER

The plaintiff next claims that the court improperly granted the defendants' motions to dismiss on the ground that his expert opinion letter was not authored by a “similar health care provider” within the meaning of §§ 52–190a and 52–184c. Specifically, the plaintiff claims that the court improperly found that, at the time Verghese treated the plaintiff, he was board certified in emergency medicine as an emergency medicine specialist and that he was acting within the area of emergency medicine when he treated the plaintiff. We disagree.

We first set forth the appropriate standard of review. [O]ur review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.... Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous.... The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Internal quotation marks omitted.)...

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