Lucisano v. Bisson

• Decision Date: 13 December 2011
• Docket Number: No. 32205.,32205.
• Citation: 34 A.3d 983,132 Conn.App. 459
• Court: Connecticut Court of Appeals
• Parties: Rosanne LUCISANO v. Richard J. BISSON et al.

132 Conn.App. 459

34 A.3d 983

Rosanne LUCISANO

v.Richard J. BISSON et al.

No. 32205.

Appellate Court of Connecticut.

Argued Sept. 16, 2011.Decided Dec. 13, 2011.

James V. Sabatini, Newington, for the appellant (plaintiff).

S. Peter Sachner, with whom, on the brief, was Jason T. Prueher, for the appellants (defendants).

BEACH, ROBINSON and ALVORD, Js.

BEACH, J.

The plaintiff, Rosanne Lucisano, appeals from the judgment of the trial court granting the motion filed by the defendants, Richard J. Bisson, Jeffrey J. Bisson and Cheshire Dental Associates, P.C., to dismiss her action alleging dental malpractice, failure to obtain informed consent to a surgical procedure and vicarious liability. On appeal, the plaintiff claims that the trial court erred by (1) determining that General Statutes § 52–190a requires that a similar health care provider's opinion letter include the author's credentials and qualifications and (2) dismissing her failure to obtain informed consent claim. We affirm the judgment of dismissal of the plaintiff's dental malpractice claims and their derivative vicarious liability claim, and reverse the dismissal of her claim alleging failure to obtain informed consent and its derivative vicarious liability claim.

In her complaint, the plaintiff alleged the following facts, the truth of which we assume for the purposes of her appeal. On or about January 24, 2004, the Bissons, both dentists, began treating the plaintiff for tooth pain. They performed endodontic ¹ treatment on that tooth. The plaintiff, however, continued experiencing pain and developed an infection. The Bissons then performed an apicoectomy ² on a different tooth of the plaintiff, and on or about June 2, 2006, they extracted the tooth that was initially causing her pain. The plaintiff continued to experience pain.

On December 17, 2007, the plaintiff brought an action against the defendants alleging four causes of action: negligence as to Richard Bisson, negligence as to Jeffrey Bisson, failure to obtain informed consent as to the Bissons, and vicarious liability as to Cheshire Dental Associates, P.C., the Bissons' employer. The plaintiff alleged in the first and second counts of her complaint that the Bissons deviated from the requisite standard of care during her treatment and care, resulting in injury. In the third count, she further alleged that the Bissons failed to inform her of the significant risks associated with the apicoectomy, and, as a result of their failure, she suffered injuries and losses. Finally, in the fourth count, the plaintiff asserted vicarious liability against Cheshire Dental Associates, P.C., on the basis that the Bissons were its agents acting within the scope of their employment. Pursuant to § 52–190a, the plaintiff attached a certificate of good faith signed by her counsel verifying that there had been negligence in her care or treatment. The plaintiff also attached a three page opinion letter that concluded that the Bissons failed to satisfy the standard of care as to the endodontic treatment provided to the plaintiff. No credentials, authorship, or qualifications were included in the opinion letter.

The defendants filed a motion to dismiss on the ground that the plaintiff failed to satisfy § 52–190a, namely, that the opinion letter did not set forth the qualifications of the author, so that it was impossible to ascertain whether he or she was a “similar health care provider.” The plaintiff objected to the motion, arguing that such identification and qualifications were not required, that the good faith statement provides assurance that the letter was written by a similar health care provider and that the defendants should have filed a motion to strike rather than a motion to dismiss.

The court granted the defendants' motion to dismiss. The court stated that a motion to dismiss is the proper procedural vehicle by which to challenge the opinion letter and that the author's credentials and qualifications are required in order to provide a basis from which to determine whether the author was a similar health care provider. The plaintiff filed a motion to reargue and a motion for articulation requesting clarification as to whether the motion to dismiss applied to her informed consent claim. The court granted the motion for articulation and denied the motion to reargue. In its order granting the motion for articulation, the court clarified its reasoning for dismissing the third count, which alleged a lack of informed consent. After acknowledging a split among Superior Court decisions as to whether a lack of informed consent claim against a medical professional must be supported with an opinion letter pursuant to § 52–190a, the court concluded that, because two medical professionals were involved, expert testimony was necessary, and, therefore, the failure to comply with the statute was fatal to the plaintiff's claim. This appeal followed.

I

The plaintiff first argues that § 52–190a does not require that an opinion letter contain information showing that its author is a similar health care provider. She advances three grounds for her argument: (1) the text of the statute does not explicitly require the author to identify himself or herself as a similar health care provider; (2) the good faith certificate, written by the plaintiff's attorney, is sufficient to ensure that the author of the opinion letter is a similar health care provider; and (3) the statute does not invoke the court's subject matter jurisdiction, so that dismissal is not appropriate. We disagree.

The standard of review of a court's ruling on a motion to dismiss is well established. “When the facts relevant to an issue are not in dispute, this court's task is limited to a determination of whether, on the basis of those facts, the trial court's conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 249, 969 A.2d 210 (2009). In the present case, there are no material facts in dispute, and thus we are presented with an issue of law. Statutory interpretation issues are questions of law over which our review is plenary. See State v. Gonzalez, 300 Conn. 490, 499, 15 A.3d 1049 (2011).

A

The plaintiff first asserts that the language of § 52–190a does not require that the opinion letter include the identity or qualifications of its author. When interpreting a statute, “[we] first ... consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter....” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650–51, 931 A.2d 142 (2007).

We begin our review with the language of the statute. Section 52–190a (a) provides in relevant part that in a civil action “in which it is alleged that ... injury ... resulted from the negligence of a health care provider ... the attorney or party filing the action ... [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, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion....” Section 52–190a does not define “similar health care provider,” but the text explicitly refers to the definition in § 52–184c. We must, therefore, read § 52–190a together with § 52–184c,³ which defines “similar health care provider.” See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011) (“[g]iven the explicit cross-reference in the relevant statutes, we must read § 52–190a [a] in conjunction with § 52–184c, which clearly is a related statute”). Read in conjunction with one another, §§ 52–190a and 52–184c provide a plain and unambiguous definition of “similar health care provider.”

The plaintiff argues that the language of § 52–190a does not require the author of the opinion letter to identify that he or she is a similar health care provider or to provide any qualifications. We disagree. The only plausible application of the plain language of §§ 52–190a and 52–184c requires disclosure of qualifications in the opinion letter.

Our Supreme Court recently held that § 52–190a (a) requires a plaintiff to provide an opinion letter authored by a similar health care provider, as defined by § 52–184c, in medical malpractice cases against specialists. See id., at 6, 12 A.3d 865. The court acknowledged that “similar health care provider” is a term of art. Id., at 13–14, 12 A.3d 865. In the present case, the three page opinion letter lacks any mention of the author's qualifications, or any indication that he or she is a similar health care provider. Without this information, the trial court was unable to determine whether the letter satisfied the statutory definition of a similar health care provider. The court relied, in part, on Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV–09–5006155–S, 2009 WL 3839005 (October 16, 2009), in which the trial court granted a ...