Peters v. United Cmty. & Family Servs., Inc.

• Decision Date: 19 June 2018
• Docket Number: AC 39559
• Citation: 182 Conn.App. 688,191 A.3d 195
• Court: Connecticut Court of Appeals
• Parties: Steven V. PETERS, Jr. v. UNITED COMMUNITY AND FAMILY SERVICES, INC., et al.

182 Conn.App. 688

191 A.3d 195

Steven V. PETERS, Jr.

v.UNITED COMMUNITY AND FAMILY SERVICES, INC., et al.

AC 39559

Appellate Court of Connecticut.

Argued January 11, 2018

Officially released June 19, 2018

Cody A. Layton, for the appellant (plaintiff).

Beverly Knapp Anderson, for the appellee (defendant Edward Reynolds, Jr.).

DiPentima, C.J., and Prescott and Norcott, Js.

PRESCOTT, J.

With the intent to deter the filing of frivolous medical malpractice actions, our legislature in 1986 adopted General Statutes § 52–190a, which makes malpractice actions subject to dismissal unless the plaintiff obtains and attaches to the complaint an opinion letter written and signed by a similar health care provider indicating that there appears to be evidence of medical negligence. The meaning and application of this requirement itself has spawned extensive litigation since its enactment.¹ This appeal is the latest iteration of this judicial journey.

The plaintiff, Steven V. Peters, Jr., commenced the underlying action for monetary damages arising out of the alleged negligent performance of maxillofacial surgery. He appeals from the judgment of the trial court dismissing, pursuant to § 52–190a (c),² count three of his action directed against the defendant, Edward Reynolds, Jr., DDS, because the opinion letter that the plaintiff attached to the complaint failed to provide that its author is board certified by the appropriate American board in the same specialty as the defendant.³ The plaintiff claims on appeal that the trial court improperly relied on this court's decision in Gonzales v. Langdon , 161 Conn. App. 497, 128 A.3d 562 (2015), as the basis for its decision to reject the affidavit that he attached to his response to the motion to dismiss, in which he sought to clarify the credentials of the opinion letter's author. We conclude that, because the plaintiff's attempt to cure the defect in the opinion letter came after the relevant statute of limitations had run, the trial court properly granted the motion to dismiss on the basis of an inadequate opinion letter. Accordingly, we affirm the judgment of the trial court.

The following facts, as set forth in the complaint, and procedural history are relevant to our consideration of the plaintiff's claim. Beginning in August, 2012, the plaintiff sought dental treatment from United Community and Family Services, Inc. (UCFS) for a "full maxillary denture

over a partial mandibular denture." The defendant was a "servant, agent, apparent agent ... or employee" of UCFS, who "held himself out to the general public as a physician and surgeon duly licensed to practice medicine in the state of Connecticut, practicing in Norwich and specializing in oral and maxillofacial surgery ." (Emphasis added.) On September 19, 2012, the plaintiff underwent a procedure known as a decompression of a maxillary cyst. That procedure was performed by the defendant or by someone under his supervision. The plaintiff continued to receive treatment related to the cyst through October 11, 2013, at which time the plaintiff "became aware that there may have been a breach of the standard of care."

The plaintiff commenced the underlying action against the defendant on January 7, 2016, within the applicable limitation period.⁴ The complaint had a return date of February 9, 2016. In his complaint, the plaintiff alleges that, while under the defendant's treatment and care, he suffered serious, painful, and permanent injuries that required additional medical treatment, and that the defendant had failed "to exercise that degree of care and skill ordinarily and customarily used by physicians and surgeons specializing in oral and maxillofacial surgery ...."

Attached to the complaint was the requisite good faith certificate signed by the plaintiff's attorney and an opinion letter from a physician who asserts that he had reviewed the plaintiff's medical records and had conducted a clinical exam of the plaintiff. The opinion letter sets forth the author's educational and professional background, including that he graduated cum laude from the Harvard School of Dental Medicine in 1988, and currently is a craniofacial trauma surgeon at Hartford Hospital and the oral and maxillofacial surgeon for the Connecticut Children's Medical Center Craniofacial Team. The letter contains the author's opinion that the plaintiff's diagnosis and overall treatment involved "an extreme departure from the standard of care" and sets forth in some detail the factual underpinning for that opinion. The letter does not provide, however, whether the author is certified as a specialist by any American board.

On March 8, 2016, the defendant filed a motion to dismiss all allegations in the complaint directed against him on the ground that the opinion letter attached to the complaint did not fully comply with § 52–190a. The defendant claimed that the opinion letter was defective in two ways.

First, the defendant argued that the opinion letter failed to demonstrate that its author is a "similar health care provider" as that term is defined in General Statutes § 52–184c (c).⁵ Specifically, the defendant argued that because the plaintiff brought the action against the defendant as a specialist in oral and maxillofacial surgery, the opinion letter's author needed to be "trained and experienced in the same [medical] specialty" as the defendant and had to be "certified by the appropriate American [b]oard in the same specialty." General Statutes § 52–184c (c). Because the opinion letter attached to the plaintiff's complaint did not provide whether the author was certified by the American board responsible for certifying oral and maxillofacial surgeons, the defendant argued that it was insufficient to demonstrate that the opinion provided was by a similar health care provider.

Second, the defendant argued that the letter contained no opinion of medical negligence with respect to the defendant because there was no express indication by the author that the defendant had provided any treatment in violation of the standard of care. According to the defendant, the letter mentions him only in connection with his supervision of another physician, Jose Rivero; see footnote 3 of this opinion; but does not claim that the defendant's supervision was negligent or breached the standard of care.

On May 9, 2016, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss. The plaintiff argued that the opinion letter he attached to his complaint complies with the requirements set forth in § 52–190a. The plaintiff acknowledged that, due to the allegations in his complaint, he was required to secure an opinion letter from a similar health care provider that was both trained and experienced in the same specialty as the defendant and certified by the appropriate American board in the same specialty. The plaintiff, however, asserted that he fully complied with those requirements because the author of his opinion letter, in fact, met all necessary qualifications at the time he wrote his letter. According to the plaintiff, the author, in setting forth his credentials, inadvertently left out the fact that he was board certified.

The plaintiff argued that the Superior Court has, in other cases, allowed parties to cure similar defects by submitting an affidavit from the letter's author to supplement or clarify the original letter. The plaintiff attached to his opposition memorandum an affidavit executed on May 4, 2016, by the author of the opinion letter. In that affidavit, the author avers as follows: "I am certified by the American Board of Oral and Maxillofacial Surgery and have been continuously since October 1, 2008, through the present date, including November 25, 2015, the date I authored said opinion letter." A photocopy of his board certificate is attached to the affidavit. At no time, however, did the plaintiff seek permission to amend the complaint or to file an amended opinion letter.

The court heard argument on the motion to dismiss on July 25, 2016. The defendant argued, in relevant part, that in deciding whether the plaintiff had complied with § 52–190a, the court lacked the discretion to consider the affidavit that the plaintiff submitted with his opposition to the motion to dismiss because the plaintiff's attempt to cure the defect in the opinion letter came more than thirty days after the return date of the original complaint and, more importantly, after the statute of limitations had expired. The defendant cited this court's decision in Gonzales v. Langdon , supra, 161 Conn. App. 497, 128 A.3d 562, as supporting that proposition, relying on the following language: "[I]f a plaintiff alleging medical malpractice seeks to amend his or her complaint in order to amend the original opinion letter, or to substitute a new opinion letter for the original opinion letter, the trial court (1) must permit such an amendment if the plaintiff seeks to amend as of right within thirty days of the return day and the action was brought within the statute of limitations, and (2) has discretion to permit such an amendment if the plaintiff seeks to amend within the applicable statute of limitations but more than thirty days after the return day. The court may abuse its discretion if it denies the plaintiff's request to amend despite the fact that the amendment would cure any and all defects in the original opinion letter and there is an absence of other independent reasons to deny permission for leave to amend." Id. at 510, 128 A.3d 562.

The plaintiff responded that, at the time this action was commenced, the author of the opinion letter attached to the complaint met all of the statutory qualifications necessary to render an opinion as a similar health care provider. He admitted that the author inadvertently had failed to include in the letter that he was certified by the appropriate American board, but nevertheless took the position that this was not a fatal defect. The...