Morgan v. Hartford Hosp.

• Decision Date: 12 July 2011
• Docket Number: No. 18469.,18469.
• Citation: 301 Conn. 388,21 A.3d 451
• Court: Connecticut Supreme Court
• Parties: Winston MORGAN et al., Administrators (Estate of Una B. Morgan)v.HARTFORD HOSPITAL et al.

301 Conn. 388

21 A.3d 451

Winston MORGAN et al., Administrators (Estate of Una B. Morgan)

v.HARTFORD HOSPITAL et al.

No. 18469.

Supreme Court of Connecticut.

Argued March 17, 2011.Decided July 12, 2011.

David J. Wenc, Windsor Locks, for the appellants (plaintiffs).Augustus R. Southworth III, with whom was Lauren J. Taylor, Waterbury, for the appellees (defendants).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.EVELEIGH, J.

This appeal ¹ arises from a medical malpractice action brought by the plaintiffs, Winston Morgan and Edna Morgan, the administrators of the estate of Una B. Morgan (decedent), against the defendants Robert Lowe, a thoracic surgeon with a subspecialty in vascular surgery, and Lowe's employer, Connecticut Surgical Group, P.C. (Connecticut Surgical Group). ² On appeal to this court, the plaintiffs assert that the trial court improperly dismissed their complaint on the ground that the written opinion letter that they attached to their original complaint did not satisfy the requirements of General Statutes § 52–190a (a),³ despite the defendants' failure to move to dismiss the original complaint until more than nineteen months after the plaintiffs had commenced this action. Because we conclude that the defendants waived their right to challenge the sufficiency of the original complaint and its attachment by failing to timely file a motion to dismiss, we reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our disposition of this appeal. The plaintiffs commenced this action against the defendants by way of service of process on March 29, 2007. In the complaint, the plaintiffs alleged that the decedent received medical care and treatment at Hartford Hospital between January 1, 2005, and January 5, 2005, when she died. The plaintiffs alleged that, on January 3, 2005, Jeffrey Hirst, a physician, performed a left heart catheterization via the decedent's right femoral artery, after which ongoing bleeding was observed. The decedent had what was interpreted as a vasovagal episode, with a right abdominal hematoma. On the morning of January 4, 2005, Lowe, the attending vascular surgeon, noted that the decedent was exhibiting signs of ongoing bleeding and recommended an interventional approach. Later that day, an arteriography demonstrated a false aneurysm of the inferior epigastric artery with active bleeding, and coils were placed. Thereafter, the decedent developed multiorgan system failure and passed away on January 5, 2005. The plaintiffs alleged that Lowe's negligence in failing to timely diagnose and treat the decedent caused her death. The defendants further alleged that Connecticut Surgical Group was liable under a theory of respondeat superior.

In an attempt to comply with § 52–190a (a), which requires a plaintiff in a medical malpractice action to attach to the complaint a written “opinion of a similar health care provider” attesting to a good faith basis for the action, the plaintiffs attached to their original complaint an opinion letter from Michael A. Fifer, a physician who was board certified in internal medicine with a subspecialty in cardiovascular disease.⁴

On April 15, 2008, the plaintiffs filed a request for leave to file an amended complaint, and an amended complaint. The defendants did not file an objection to the request for leave within fifteen days. Attached to the amended complaint was a copy of the original certificate of good faith, dated March 23, 2007. In addition to the written opinion previously attached to the original complaint, the plaintiffs also attached a written opinion letter from Richard S. Nitzberg, a vascular surgeon, which was dated April 26, 2007.

On November 5, 2008, the defendants moved to dismiss the original complaint that had been filed on March 29, 2007. The basis for their motion was that “the plaintiffs have failed to comply with the requirements for filing a medical malpractice lawsuit mandated by [§] 52–190a as a result of their failure to attach to the complaint an opinion letter from a similar health care provider.” The trial court granted the defendants' motion to dismiss on that ground.

On appeal to this court, the plaintiffs assert that the trial court improperly dismissed the complaint because the original written opinion letter satisfied the requirements of § 52–190a. The plaintiffs further claim that, even if the original written opinion letter was insufficient, the amended complaint and the attached written opinion letter cured any deficiency in the original complaint and that the trial court improperly found that § 52–190a barred them from amending their complaint. The plaintiffs also claim that § 52–190a is unconstitutional. In response, the defendants assert that the trial court properly dismissed the plaintiffs' action for failure to comply with § 52–190a by failing to attach a written opinion letter of a similar health care provider. The defendants further contend that the trial court properly concluded that the written opinion letter attached to the amended complaint did not comply with § 52–190a because it was not obtained prior to filing the action. Finally, the defendants claim that § 52–190a is not unconstitutional.

Following oral argument in this court, we ordered the parties to file simultaneous supplemental briefs addressing the following question: “Whether the defendant[s] [have] waived pursuant to Practice Book § 10–32 ⁵ the right to file in the time prescribed in Practice Book § 10–30 ⁶ for filing a motion to dismiss challenging the sufficiency of the opinion attached to the original complaint?” ⁷ In their supplemental brief, the plaintiffs claim that the good faith certificate and written opinion letter required by § 52–190a are requirements of process, which the defendants waived by failing to file a motion to dismiss within the thirty day time period provided in Practice Book § 10–30. The defendants assert, in their supplemental brief, that the time and waiver rules of Practice Book §§ 10–30 and 10–32 do not apply to the statutory remedy of dismissal under § 52–190a, and that, therefore, they did not waive their right to file a motion to dismiss challenging the sufficiency of the opinion letter attached to the original complaint. We agree with the plaintiffs.

The interpretation of § 52–190a is a question of law over which this court exercises plenary review. Dias v. Grady, 292 Conn. 350, 354, 972 A.2d 715 (2009). Moreover, “review of the trial court's ultimate legal conclusion and resulting [decision to] grant [a] motion to dismiss will be de novo.” (Internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). In any consideration of the trial court's dismissal, we take the facts as alleged in the complaint as true and “[construe] them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Rioux v. Barry, 283 Conn. 338, 341, 927 A.2d 304 (2007).

The defendants concede that they did not comply with the time requirements established in Practice Book § 10–30, but assert, however, that they were not required to comply with either Practice Book § 10–30 or § 10–32 because, they argue, those provisions of the Practice Book do not apply to motions to dismiss filed pursuant to § 52–190a (c). In response, the plaintiffs claim that a defective written opinion letter attached to a complaint implicates the service of process and, thus, in personam jurisdiction. The plaintiffs contend that the attachment of the written opinion letter is a precondition of the action and, therefore, concerns a matter of form regarding the service of the complaint. We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court dismissing the complaint and remand the case for further proceedings.⁸

We begin our analysis with the pertinent Practice Book and statutory provisions. Practice Book § 10–30 provides in relevant part that “[a]ny 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....” Practice Book § 10–31(a) provides in relevant part that “[t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process....”

Section 52–190a (a) provides in relevant part that, in any medical malpractice action, “[n]o civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, 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 or apportionment complaint 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.... [T]he 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 requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52–190a (c) provides: “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.” It is...