Nestico v. Weyman

• Decision Date: 20 May 2011
• Docket Number: No. CV–09–6003675.,CV–09–6003675.
• Citation: 59 A.3d 338,52 Conn.Supp. 463
• Court: Connecticut Superior Court
• Parties: Leah NESTICO v. Brett A. WEYMAN et al.

52 Conn.Supp. 463

59 A.3d 338

Leah NESTICO

v.Brett A. WEYMAN et al.^*

No. CV–09–6003675.

Superior Court of Connecticut,

Judicial District of Hartford.

May 20, 2011.

James P. Brennan, for the plaintiff.

William D. Catalina and Craig A. Fontaine, Hartford, for the defendants.

SCHOLL, J.

This is a medical malpractice action in which the defendants, Brett A. Weyman and Connecticut Maxillofacial Surgeons, LLC, have moved to dismiss the action three times. Before the court is the defendants' third motion to dismiss. In the defendants' first motion to dismiss dated May 27, 2009, the defendants claimed that the action should be dismissed because the plaintiff, Leah Nestico, had failed to comply with the requirements of General Statutes § 52–190a in that the opinion attached to the complaint was not authored by a “ ‘similar health care provider’ ” and did not set forth a detailed basis for the conclusion of medical negligence. That motion was denied on June 24, 2009. After the Appellate Court's decision in Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1066 (2009), affd, 300 Conn. 1, 12 A.3d 865 (2011), the defendants filed another motion to dismiss dated December 4, 2009, alleging that the plaintiff had failed to comply with the requirements of § 52–190a in that the opinion attached to the complaint was not authored by a “ ‘similar health care provider’ ....” That motion was denied on January 4, 2010. The court held: “Grounds for dismissal is discretionary. Paragraph 16(h) of complaint involves plastic surgery, which the opinion letter covers, by a plastic surgeon; agree with Judge Langenbach in [ Tutillo v. Day Kimball Hospital, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03–CV–06–5009722, 2007 WL 4358239 ( Langenbach, J.) (November 26, 2007) (44 Conn. L. Rptr. 570) ]. Distinguished from [Bennett v. New Milford Hospital, Inc., supra, at 535, 979 A.2d 1066]. Plaintiff given 60 days to obtain an opinion from an oral maxillofacial surgeon if plaintiff deems it necessary.” In the defendants' third motion to dismiss, dated April 29, 2011, they allege the same grounds as alleged in their previous motions, that is, that the plaintiff had failed to comply with the requirements of § 52–190a in that the opinion attached to the complaint was not authored by a “ ‘similar health care provider’....” The defendants claim that their motion should be granted based on the Supreme Court's recent decision in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (2011).

The plaintiff argues that this court should not reconsider the issue raised in this latest motion to dismiss based on the law of the case doctrine. “In essence [the doctrine] expresses the practice of judges generally to refuse to reopen what [already] has been decided.... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored.... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.... This principle has been frequently applied to an earlier ruling during the pleading stage of a case.... According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.... This court has determined that although a judge should be hesitant to rule contrary to another judge's ruling, he or she may do so [n]evertheless, if the case comes before him [or her] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed.... By way of example, this court has noted that [t]he adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor ... is a common illustration of this principle.... From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.” (Citations omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 249–50, 926 A.2d 656 (2007). Although the law of the case doctrine itself does not prohibit this court from considering an issue already ruled upon by other judges, a review of the recent pronouncements of the Supreme Court in Bennett also reveals why this court should not be bound by the decisions on the previous motions to dismiss.

Section 52–190a provides: “(a) No civil action ... shall be filed to recover damages resulting from personal injury ... whether in tort or in contract, in which it is alleged that such injury ... 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 complaint ... shall contain a certificate 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.... 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 section 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.... The claimant or the claimant's attorney ... shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate .... (c) 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.”

The defendants renew their motion to dismiss based on the Supreme Court's recent decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, 12 A.3d 865, in which the court interpreted the provisions of § 52–190a. There, the court held that “because the plaintiff alleged in his complaint that the defendant was a specialist in emergency medicine, the author of the opinion letter pursuant to § 52–190a (a) had to be a similar health care provider as that term is defined by [General Statutes] § 52–184c (c), regardless of his or her potential qualifications to testify at trial pursuant to § 52–184c (d).” Id., at 12, 12 A.3d 865. The court also held “that § 52–190a (c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers.” Id., at 25, 12 A.3d 865. The court noted that “we agree with the Appellate Court that strictly adhering to the legislature's articulation of who is a similar health care provider may be harsh to would-be plaintiffs, but is not absurd or unworkable.... Specifically, the text of the related statutes and the legislative history support the Appellate Court's determination that, unlike § 52–184c (d), which allows for some subjectivity as it gives the trial court discretion in determining whether an expert may testify, § 52–190a establishes objective criteria, not subject to the exercise of discretion, making the prelitigation requirements more definitive and uniform and, therefore, not as dependent on an attorney or self-represented party's subjective assessment of an expert's opinion and qualifications.... Accordingly, we conclude that, in cases of specialists, the author of an opinion letter pursuant to § 52–190a (a) must be a similar health care provider as that term is defined by § 52–184c (c), regardless of his or her potential qualifications to testify at trial pursuant to § 52–184c (d).” Id., at 21, 12 A.3d 865. Consequently, the Bennett court upheld the dismissal of the case against the defendant physician, a specialist in emergency medicine, since the opinion letter filed with the complaint was authored by a board certified general surgeon who had qualifications in surgical critical care and trauma surgery.

Therefore, contrary to the court's ruling denying the second motion to dismiss, the Supreme Court has now-made it clear that it is not within the court's discretion to deny a motion to dismiss a medical malpractice complaint when it is not supported by the necessary opinion. Consequently, this court may consider the defendants' third motion to dismiss and is not bound by the rulings on the previous motions to dismiss. See also Torres v. Carrese, Superior Court, judicial district of Fairfield, Docket No. 065011368, 2011 WL 1366642 ( Levin, J.) (March 14, 2011) (holding that the court may reconsider the efficacy of an opinion letter, in light of the Supreme Court's decision in Bennett, even during jury selection, and that Bennett may be applied retroactively).

Here, the plaintiff alleges in her complaint that the defendant Weyman “held himself out and still holds himself out to the public as a competent, skillfull oral surgeon....” (Complaint, paragraph 4.) In fact, the parties agree that he is a board certified oral and maxillofacial surgeon. The plaintiff admits that the opinion letter...