Santorso v. Bristol Hosp.

• Decision Date: 05 April 2011
• Docket Number: No. 32136.,32136.
• Citation: 15 A.3d 1131,127 Conn.App. 606
• Parties: Patricia SANTORSO, Administratrix (Estate of Lawrence Santorso) et al.v.BRISTOL HOSPITAL et al.
• Court: Connecticut Court of Appeals

127 Conn.App. 606

15 A.3d 1131

Patricia SANTORSO, Administratrix (Estate of Lawrence Santorso) et al.

v.BRISTOL HOSPITAL et al.

No. 32136.

Appellate Court of Connecticut.

Argued Dec. 1, 2010.Decided April 5, 2011.

Michael G. Rigg, Hartford, with whom was Nancy P. Tyler, for the appellant (defendant Bristol Hospital).Jason T. Prueher, for the appellant (defendant Jeffrey Goldberg).Lorinda S. Coon, Hartford, for the appellant (defendant Rainer Bagdasarian).Bruce E. Newman, Bristol, for the appellee (plaintiff).LAVINE, ALVORD and BORDEN, Js.LAVINE, J.

The defendants, Bristol Hospital (hospital) and physicians Jeffrey Goldberg and Rainer Bagdasarian, appeal from the denial of their motions for summary judgment ¹ in this medical malpractice action. They claim that the trial court, Hon. Joseph M. Shortall, judge trial referee, improperly denied their motions for summary judgment rejecting their claim that the action is barred by the doctrine of res judicata. We agree and therefore reverse the judgment of the trial court.

The following procedural history is relevant to our resolution of this appeal. On June 1, 2006, Lawrence Santorso (Santorso), the now deceased spouse of the plaintiff, Patricia Santorso, administratrix of the estate of Lawrence Santorso, commenced an action against the defendants in Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV–06–5001663–S, 2008 WL 1822786 (first action). The complaint in the first action alleged, in part, that the defendants were negligent in that, for two years, they failed to treat Santorso for a lesion in his lung that had been detected by the hospital's radiology department on three separate occasions. By the time Santorso was diagnosed with lung cancer, the cancer had metastasized, and he was not a candidate for surgical intervention. He died while the first action was pending.

When the complaint in the first action was served on the defendants, it contained neither an attorney's good faith certificate nor opinion letters of similar health care providers (opinion letters), both required by General Statutes § 52–190a (a).² The defendants filed motions to dismiss the first action pursuant to General Statutes § 52–190a (c),³ claiming that the court lacked subject matter jurisdiction due to the absence of a good faith certificate and opinion letters. The court, Prestley, J., denied the motions to dismiss on January 25, 2007, concluding that the defect was curable ⁴ and ordered Santorso, within thirty days, to file an amended complaint containing a good faith certificate and opinion letters.

Kevin E. Creed, Santorso's counsel, filed an amended complaint containing his good faith certificate and opinion letters purportedly from similar health care providers. The defendants again filed motions to dismiss, claiming that the court lacked subject matter jurisdiction because the opinions were not from similar health care providers. The only opinion letters that conceivably could have been from similar health care providers, however, were dated after the first action had been commenced. On July 31, 2007, Judge Prestley again denied the defendants' motions to dismiss, concluding that the claimed insufficiencies were to be tested by means of a motion to strike. ⁵

Thereafter the defendants filed motions to strike the respective counts of the amended complaint alleged against them. The court, Pittman, J., granted the motions to strike the second amended complaint on April 3, 2008. Judge Pittman concluded that “a fair reading of the complaint together with the good faith certificate and the opinion letters yields the conclusion that [Santorso] sued first and conducted the required ‘reasonable inquiry’ later. This is the exact sequence of events that [§ 52–190a (a) ] was enacted to prohibit.... The complaint, without any appended opinion letter that demonstrates a pre-suit opinion from a similar health care provider, is legally insufficient.” (Emphasis in original.) Santorso failed to plead over, and, on June 25, 2008, Judge Pittman granted the defendants' motions for judgment pursuant to Practice Book § 10–44. The plaintiff did not appeal from the judgment rendered in the first action.

Approximately six weeks later, the plaintiff commenced the present action (present action).⁶ In the present action, the plaintiff alleged the same causes of action alleged against the defendants in the first action and sought damages for wrongful death on behalf of Santorso's estate and loss of consortium on her own behalf. The complaint in the present action contained a good faith certificate signed by Creed and the same opinion letters from a general surgeon and medical oncologist that had been attached to the second amended complaint in the first action. The present action also alleged that it was brought pursuant to General Statutes § 52–592(a), the accidental failure of suit statute.⁷

The hospital and Goldberg filed motions to dismiss the present action on the ground that the opinions were not written by similar health care providers. Judge Pittman denied the motions to dismiss, reasoning that the opinions offered by a general surgeon and an oncologist were physicians with sufficient training, experience and knowledge to be qualified to offer medical opinions concerning the standard of care. At that stage of the proceedings, Judge Pittman declined “the invitation to begin a detailed and wide ranging comparison of the subspecialties and particularized background of each health care provider in this case.” Following the filing of revisions and amendments to the complaint and certain discovery, the defendants filed their motions for summary judgment in July, 2009.

In their motions for summary judgment, the defendants argued that the first action was not defeated for any “matter of form” and that Creed's failure to comply with § 52–190a (a) precluded the plaintiff from taking advantage of the accidental failure of suit statute. Without the benefit of the accidental failure of suit statute, the defendants argued that the present action was not commenced within the two year statute of limitations and the three year statute of repose for medical malpractice actions, and, therefore, they were entitled to summary judgment. The defendants also claimed that the present action was barred by the doctrine of res judicata. Judge Shortall denied the defendants' motions for summary judgment on March 17, 2010.⁸

The defendants appealed from the denial of their motions for summary judgment, claiming that a judgment against a plaintiff on a motion to strike for failure to comply with § 52–190a (a) is a judgment on the merits subject to the doctrine of res judicata. We agree.

I

Before reaching the defendants' claim on appeal, we must resolve the plaintiff's jurisdictional claim. The plaintiff claims that this court lacks subject matter jurisdiction to consider the defendants' appeal, arguing that it was not taken from a final judgment. In Singhaviroj v. Board of Education, 124 Conn.App. 228, 232–33, 4 A.3d 851 (2010), this court held that the denial of a motion for summary judgment, predicated on the doctrine of res judicata, is a final judgment for purposes of an appeal pursuant to our Supreme Court's decision in Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 195, 544 A.2d 604 (1988), which held that “[a] judgment denying [a] claim of collateral estoppel is a final judgment.” “[T]he defense of collateral estoppel is a civil law analogue to the criminal law's defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant's colorable double jeopardy claim, where immediate appealability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment.... That precept applies to the doctrine of res judicata with equal force.” (Citations omitted; internal quotation marks omitted.) Singhaviroj v. Board of Education, supra, at 232, 4 A.3d 851; see also Cayer v. Komertz, 91 Conn.App. 202, 203 n. 2, 881 A.2d 368 (2005); Milford v. Andresakis, 52 Conn.App. 454, 455 n. 1, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999). We conclude that the defendants' appeal is properly before this court.

II

On the merits of the appeal, the defendants claim that the denial of their motions for summary judgment was improper because the claims alleged in the present action are barred by the doctrine of res judicata due to the fact that the judgment rendered in the first action was on the merits. We agree.⁹

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant [or to deny a party's] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Id.

“A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn.App. 680, 684, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998). Summary judgment is appropriate to determine whether a claim is barred by the doctrine of res judicata. See Singhaviroj v. Board of Education, supra, 124 Conn.App. at 236.

“[T]he doctrine of res judicata ... [provides that] a former judgment on...