Riccio v. Bristol Hospital, Inc.

• Decision Date: 13 January 2022
• Docket Number: SC 20529
• Citation: 341 Conn. 772,267 A.3d 799
• Parties: Joann RICCIO, Executrix (Estate of Theresa Riccio) v. The BRISTOL HOSPITAL, INC.
• Court: Connecticut Supreme Court

341 Conn. 772

267 A.3d 799

Joann RICCIO, Executrix (Estate of Theresa Riccio)

v.The BRISTOL HOSPITAL, INC.

SC 20529

Supreme Court of Connecticut.

Argued February 19, 2021

Officially released January 13, 2022^*

Joseph Peter Zeppieri, with whom, on the brief, was Kevin Ferry, for the appellant (plaintiff).

Michael G. Rigg, for the appellee (defendant).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

McDONALD, J.

The appeal in this medical malpractice action requires us to determine whether the trial court correctly concluded that the accidental failure of suit statute, General Statutes § 52-592,¹ did not save the otherwise time barred action of the plaintiff, Joann Riccio, executrix of the estate of Theresa Riccio, because her first medical malpractice action was dismissed due to her attorney's gross negligence for failing to file with her complaint legally sufficient medical opinion letters, as required by General Statutes § 52-190a (a) and two Appellate Court decisions interpreting that statute. Specifically, we must determine whether the plaintiff met her burden of proving that her attorney's admitted failure to know of two Appellate Court decisions, issued six years before she initiated the first action, was a mistake, inadvertence, or excusable neglect rather than egregious conduct or gross negligence. We agree with the trial court that the plaintiff has not met her burden and, therefore, affirm its judgment.

The record reveals the following relevant facts and procedural history. On May 3, 2018, the plaintiff filed a medical malpractice action (Riccio I ) against the defendant, The Bristol Hospital, Inc., alleging that various doctors and nurses negligently caused the death of the decedent. The trial court dismissed Riccio I for lack of personal jurisdiction because the plaintiff failed to file with her complaint legally sufficient medical opinion letters as required by § 52-190a (a) and General Statutes § 52-184c. Specifically, the court in Riccio I held that, under Lucisano v. Bisson , 132 Conn. App. 459, 466, 34 A.3d 983 (2011), and Bell v. Hospital of Saint Raphael , 133 Conn. App. 548, 560–61, 36 A.3d 297 (2012), the submitted opinion letters were legally insufficient because neither disclosed the author's professional qualifications. The plaintiff did not appeal the court's dismissal of Riccio I .

On October 9, 2018, the plaintiff commenced this action (Riccio II ) under the accidental failure of suit statute, § 52-592. In her complaint, the plaintiff alleged, among other things, that Riccio I was dismissed due to the plaintiff's "mere mistake or inadvertence" in failing to include the credentials of the experts in the opinion letters attached to the original complaint. The defendant moved to dismiss Riccio II for lack of subject matter jurisdiction, claiming, among other things, that the dismissal of Riccio I was not a "matter of form" within the meaning of § 52-592, and, thus, Riccio II could not be saved under the accidental failure of suit statute.

The trial court noted that the two year statute of limitations for a wrongful death action, having been extended ninety days pursuant to § 52-190a (b), expired on May 11, 2018, and Riccio II was commenced approximately five months after the statute of limitations had expired. Thus, the court concluded that the action was time barred unless § 52-592 applied.

The trial court held an evidentiary hearing on the issue of whether § 52-592 applied to this action. During the hearing, the sole witness was one of the plaintiff's attorneys, Joseph Zeppieri. The court found that Zeppieri has been practicing law since 2006 and that, prior to attending law school, he practiced medicine for more than thirty years. Zeppieri has been involved in medical malpractice cases since his admission to the bar, and, since 2012, after Lucisano and Bell were decided, he has represented clients in five medical malpractice actions and has joined with other counsel in a sixth action.² The court also found that, prior to filing Riccio I , Zeppieri, by his own admission, had not read the Appellate Court's decisions in Lucisano or Bell . He only became aware of those decisions when the defendant filed its motion to dismiss in Riccio I . During the hearing, Zeppieri acknowledged that it was a mistake not to have been aware of controlling case law before commencing Riccio I but contended that his error was an "insubstantial technical mistake." No other evidence was introduced at the hearing.

The trial court ultimately rejected the plaintiff's contention that the failure to articulate the experts’ credentials in their opinion letters was simply a matter of form due to mistake, inadvertence, or excusable neglect.³

The court explained that, if Zeppieri had read Lucisano or Bell , he would have known that the opinion letters he solicited and obtained for Riccio I were legally insufficient and would render the action subject to dismissal. The court also noted that Zeppieri offered no explanation for his "misconduct." It reasoned: "The adequacy of a ‘similar health care provider’ opinion letter is one of the most frequently litigated pretrial issues in medical malpractice actions. Given the law in Connecticut at the time Riccio I was commenced, the plaintiff's counsel reasonably could not have believed that the opinion letters they supplied complied with § 52-190a. Counsel's admitted failure to read and comply with controlling appellate precedent, decided more than six years before Riccio I was filed, is egregious, inexplicable, and inexcusable conduct." The court then concluded: "[T]he court finds on the facts before it that the plaintiff's counsel's lack of diligence in knowing and complying with Appellate Court precedent is blatant and egregious conduct that was not intended to be condoned and sanctioned by the ‘matter of form’ provision of § 52-592. Simply put, the plaintiff's counsel's ignorance of the law in this case does not constitute excusable neglect. ‘The familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one, are founded [on] public policy and in necessity, and the idea [behind] them is that one's acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men's [and women's] minds.’ " The court explained that, because the plaintiff "failed to meet her burden of demonstrating that the dismissal of Riccio I was a matter of form, the plaintiff [could not] avail herself of the accidental failure of suit statute." Accordingly, the court dismissed Riccio II , concluding that the action was time barred.

On appeal, the plaintiff claims that the trial court incorrectly determined that the omission of the experts’ qualifications in their letters was egregious conduct rather than a matter of form or a mistake. Specifically, the plaintiff argues that the court did not place Zeppieri's actions on the continuum of mistake, inadvertence, or excusable neglect, on the one hand, and dismissal for egregious conduct or gross negligence, on the other, as required by Plante v. Charlotte Hungerford Hospital , 300 Conn. 33, 50–51, 56, 12 A.3d 885 (2011). Rather, the plaintiff contends, the trial court improperly applied the legal maxims " ‘that everyone is presumed to know the law, and that ignorance of the law excuses no one ....’ " As a result, the plaintiff argues, the trial court essentially created a rule that the failure to know the law is per se gross negligence and could never be considered mistake, inadvertence, or excusable neglect.⁴

The defendant notes that "[t]he plaintiff bears the burden of proving that her failure to comply with § 52-190a was the result of ‘mistake, inadvertence or excusable neglect,’ which is a factual question." The defendant contends that the trial court's finding that Zeppieri's ignorance of law was inexcusable was not clearly erroneous because (1) Zeppieri has been involved in medical malpractice actions since his admission to the bar in 2006, (2) Lucisano and Bell were issued more than six years before Riccio I was commenced, (3) in the six year period after Lucisano and Bell were decided, Zeppieri testified that he filed five medical malpractice actions in which he failed to comply with the requirements in Lucisano and Bell , and (4) prior to filing Riccio I , Zeppieri had not read Lucisano and Bell .⁵

We begin with the standard of review and relevant legal principles. "A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved. ... This requires the court to make factual findings, and [a] finding of fact will not be disturbed unless it is clearly erroneous. ... [T]he question of whether the court properly applied § 52-592 presents an issue of law over which our review is plenary." (Citations omitted; internal quotation marks omitted.)

Estela v. Bristol Hospital, Inc. , 179 Conn. App. 196, 215, 180 A.3d 595 (2018).

As we have explained, "the accidental failure of suit statute can be traced as far back as 1862 ... and is a savings statute that is intended to promote the strong policy favoring the adjudication of cases on their merits rather than the disposal of them on the grounds enumerated in § 52-592 (a).... We note, however, that this policy is not without limits. If it were, there would be no statutes of limitations. Even the saving[s] statute does not guarantee that all plaintiffs have the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain period of time." (Citations omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital , 308 Conn. 338, 355, 63 A.3d 940 (2013). We have previously explained that § 52-592 (a) is ambiguous regarding what constitutes a "matter of form"; Plante v....