Santorso v. Bristol Hosp.

• Decision Date: 23 April 2013
• Docket Number: No. 18798.,18798.
• Citation: 63 A.3d 940,308 Conn. 338
• Court: Connecticut Supreme Court
• Parties: Patricia SANTORSO, Administratrix (Estate Of Lawrence Santorso), et al. v. BRISTOL HOSPITAL et al.

308 Conn. 338

63 A.3d 940

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

v.BRISTOL HOSPITAL et al.

No. 18798.

Supreme Court of Connecticut.

Argued Feb. 15, 2013.

Decided April 23, 2013.

Bruce E. Newman, Bristol, for the appellants (plaintiffs).

Michael G. Rigg, Hartford, with whom were Lorinda S. Coon, Hartford, and Richard A. O'Connor, Middlebury, for the appellees (defendants).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and McDONALD, Js.

ZARELLA, J.

The plaintiff Patricia Santorso ¹ appeals from the judgment of the Appellate Court, which reversed the trial court's denial of the motions for summary judgment filed by the defendants, Bristol Hospital (hospital), Jeffrey Goldberg and Rainer Bagdasarian. The plaintiff claims that the Appellate Court incorrectly concluded that the present action was barred by the doctrine of res judicata. We affirm the judgment of the Appellate Court on the alternative ground that the present action was time barred and was not saved by General Statutes § 52–592,² the accidental failure of suit statute.

The Appellate Court set forth the following facts and procedural history, which are relevant to our resolution of the present appeal. “On June 1, 2006, [the plaintiff's decedent] Lawrence Santorso ... commenced an action against the defendants ... (first action).... [The decedent alleged] ... that the defendants were negligent in that, for two years, they failed to treat [him] for a lesion in his lung that had been detected by the hospital's radiology department on three separate occasions. By the time [the decedent] 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 [from] similar health care providers ... both [of which are] required by General Statutes § 52–190a (a).³ The defendants filed motions to dismiss the first action pursuant to ... § 52–190a (c), ⁴ 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, and ordered [the decedent], within thirty days, to file an amended complaint containing a good faith certificate and opinion letters.”

“[The decedent's] counsel ... filed an amended complaint containing [a] good faith certificate and opinion letters purportedly from similar health care providers. The defendants again filed motions to dismiss ... because the ... opinion letters ... 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.”

“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 ... 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 [the decedent] 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.’ ... [The decedent] failed to plead over, and, on June 25, 2008, Judge Pittman granted the defendants' motions for judgment pursuant to Practice Book § 10–44. [No appeal was taken] from the judgment rendered in the first action.”

“Approximately six weeks later, the plaintiff commenced the present action (present action). 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 [the decedent's] estate and loss of consortium on her own behalf. The complaint in the present action contained a good faith certificate signed by [the plaintiff's attorney] and the same opinion letters from a generalsurgeon and medical oncologist that had been attached to the second amended complaint in the first action. The [plaintiff] also alleged [in her complaint] that ... [she] brought [the present action] pursuant to ... § 52–592(a), the accidental failure of suit statute.”

“The [defendants] 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 [the] failure [of the plaintiff's attorney] to comply with § 52–190a (a) precluded the plaintiff from taking advantage of the accidental failure of suit statute. [The defendants argued that] [w]ithout the benefit of the accidental failure of suit statute ... the present action was not commenced within the two year statute of limitations and the three year statute of repose for medical malpractice actions [see General Statutes § 52–584], and, therefore, they were entitled to summary judgment. The defendants also claimed that the present action was barred by the doctrine of res judicata. [The court, Shortall, J.] denied the defendants' motions for summary judgment on March 17, 2010.”

“The defendants appealed [to the Appellate Court] from the [trial court's] 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.” (Citation omitted; emphasis in original.) Santorso v. Bristol Hospital, 127 Conn.App. 606, 608–13, 15 A.3d 1131 (2011). After determining that the denial of the motions for summary judgment constituted a final judgment for purposes of appeal because those motions were predicated on the doctrine of res judicata; id., at 607 n. 1, 15 A.3d 1131; the Appellate Court agreed with the defendants, concluding that the first action was decided on its merits because the trial court granted the motions to strike in the first action, and “a judgment rendered pursuant to a motion to strike is a judgment on the merits....” Id., at 617, 15 A.3d 1131. The Appellate Court therefore reversed the trial court's decision and remanded the case with direction to grant the defendants' motions for summary judgment. Id., at 619, 15 A.3d 1131.

Thereafter, the plaintiff sought certification to appeal to this court, which we granted, limited to the following question: “Did the Appellate Court properly reverse the trial court's denial of summary judgment based on res judicata where a prior action was stricken for failure to comply with ... § 52–190a?” Santorso v. Bristol Hospital, 301 Conn. 918, 21 A.3d 464 (2011). We then granted the defendants' motion, filed pursuant to Practice Book § 84–11(c),⁵ for permission to present an alternative ground for affirmance of the judgment of the Appellate Court, namely, that the present action was time barred. Specifically, the defendants claimed that, under this court's decision in Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 12 A.3d 885 (2011), the present action could not be saved under the accidental failure of suit statute; General Statutes § 52–592; because it was not dismissed “for [a] matter of form....” ⁶ (Internal quotation marks omitted.) We address each claim in turn.

I

We begin with the plaintiff's claim that the Appellate Court incorrectly concluded that the present action was barred by the doctrine of res judicata in reversing the trial court's denial of the defendants' motions for summary judgment because the trial court's granting of the motions to strike in the first action was not a decision on the merits. In support of this claim, the plaintiff maintains that the first action should have been challenged by way of motions to dismiss, rather than motions to strike, in accordance with the language of § 52–190a (c). Accordingly, the plaintiff maintains that the motions to strike should be treated as if they had been motions to dismiss, which would not constitute a decision on the merits and, therefore, would not cause the present action to be precluded under the doctrine of res judicata.

The defendants, by contrast, assert that the Appellate Court properly reversed the trial court's denial of their motions for summary judgment because the Appellate Court correctly concluded that the present action is barred by the doctrine of res judicata. Specifically, the defendants maintain that the first action was a judgment on the merits because it was resolved by virtue of the trial court's granting of the defendants' motions to strike on the ground that the complaint was legally insufficient. Although the defendants concede that a motion to dismiss, rather than a motion to strike, is presently recognized as the proper procedural device to address defects under § 52–190a (a), they primarily assert that the Appellate Court properly treated the trial court's granting...