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In Donovan v. Sowell, No. CV 06-5000596 5 (June 21, 2006), the court (Matasavage, J.) [ 41 Conn. L. Rptr. 609] again addressed the issue of whether to grant a Motion to Dismiss when the plaintiff failed to file a written opinion of a similar healthcare professional.
Summary of this case from Santorso v. Bristol HospitalOpinion
No. CV 06-5000596 S
June 21, 2006
MEMORANDUM OF DECISION
This is a decision on a motion to dismiss filed by the defendant, Julie M. Sowell. Specifically, the defendant argues that the plaintiffs failed to file a written opinion from a similar healthcare provider as required by § 52-190a, and as such, is grounds for dismissal. Further, the defendant also claims that the return date on the writ is a Friday which deprives the court of jurisdiction.
On December 19, 2005, the plaintiffs, Kathleen Donovan and Ashley Bossert, a minor, by her next friends Claudia Buick and Robert Buick, filed a two-count medical malpractice action against the defendant, Julie M. Sowell, a licensed marriage and family therapist. As required by General Statutes § 52-190a, the plaintiffs attached a certificate of good faith to the complaint. The plaintiffs allege the following facts in the complaint. Donovan is the administrator of the estate of Lynn Bossert, who is deceased. For more than eleven years prior to her death, Lynn Bossert cohabitated with Gregg Madigosky, and Ashley Bossert is their daughter. Madigosky had a history of complaining that he suffered from paranoid and delusional symptoms and severe depression for which he received both inpatient and outpatient treatment. Beginning in April 2003 after Madigosky was discharged from outpatient treatment, he and Lynn Bossert entered into therapy with the defendant. In September 2003, Madigosky's psychological symptoms intensified. The defendant saw Madigosky on September 11, 2003, and, at the conclusion of the session, she told him that she was very concerned about his condition, and that she would telephone him that night. The defendant telephoned Madigosky and spoke with him at approximately 9 p.m. that night. Shortly thereafter, Madigosky strangled Lynn Bossert to death.
The plaintiffs allege that the defendant was negligent and careless in her care of Lynn Bossert and Madigosky because, CT Page 11307 inter alia, she failed to use the care and skill ordinarily used by a family and marriage therapist engaged in the practice of marriage and family therapy in Connecticut. The plaintiffs further allege that as a result of the defendant's negligence, Madigosky caused Lynn Bossert's death.
On February 8, 2006, the defendant filed a motion to dismiss the complaint and a memorandum of law in support of the motion. According to the defendant, the court lacks both subject matter jurisdiction over the action, and personal jurisdiction over her. On March 15, 2006, the plaintiffs filed a memorandum in opposition to the defendant's motion to dismiss and a motion to amend the writ. On March 24, 2006, the defendant filed a reply to the plaintiffs' memorandum in opposition and a memorandum in opposition to the plaintiff's motion to amend. The matter was heard by the court at short calendar on March 27, 2006.
The plaintiffs seek to amend the writ in order to change the return date on the writ of summons to January 10, 2006, which is the return date on the complaint.
I.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8. "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). CT Page 11308
II.
The defendant first argues that the action should be dismissed because the court lacks subject matter jurisdiction. The defendant notes that the plaintiffs failed to file a written opinion of a similar healthcare provider as evidence of their good faith belief that the defendant was medically negligent, as required by General Statutes § 52-190a, as amended by No. 05-275 of the 2005 Public Acts ( P.A. 05-275). She argues that the plaintiffs' failure to file such an opinion deprives the court of subject matter jurisdiction and requires the court to dismiss the action.The plaintiffs concede that they did not file the written opinion, and contend that they are not required to do so. They rely on the portion of § 52-190a that provides that the written opinion is not subject to discovery and is to be retained by complainants. Specifically, they argue that this suggests that they are not required to file the written opinion with the complaint, because if they did file it, the document would become part of the public record, subject to discovery by all, which would be contrary to the express mandate of the statute. They point out, however, that they did file a good faith certificate and that they did obtain a written opinion from a similar healthcare provider and forwarded a copy of it to opposing counsel. Alternatively, the plaintiffs argue that § 52-190a does not state that dismissal is mandatory if a plaintiff fails to file a written opinion, and they state that they will amend their complaint to include the written opinion if the court determines that they are required to file the document.
Section 52-190a, as amended by P.A. 05-275, states in relevant part: "(a) No civil action . . . shall be filed to recover damages resulting from personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a healthcare provider, unless the attorney . . . 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 . . . 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 healthcare provider, as defined in section CT Page 11309 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. 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 healthcare provider expunged, to such certificate . . .
Public Act 05-275 became effective on October 1, 2005, and is applicable to actions, such as this one, that were filed on or after that date.
"(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 Connecticut appellate courts have not yet addressed the issues of whether a plaintiff is required to file a written opinion with the good faith certificate required by § 52-190a, and, if so, whether the failure to do so deprives the trial court of subject matter jurisdiction and thus mandates that the court dismiss the action. Accordingly, this court is required to interpret the statute. "It is well settled that in construing statutes, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . and that `[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. It after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.' General Statutes § 1-2z." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 604-05, 887 A.2d 872 (2006).
As this court stated recently in discussing § 52-190a in a related context: "The requirements of . . . § 52-190a, as stated in subsection (a) do not appear to be ambiguous. Subsection (a) of the statute imposes the following requirements on medical malpractice complaints: (1) it must contain a certificate avowing that the plaintiff conducted a reasonable inquiry to determine that the plaintiff has grounds for a good faith belief that the plaintiff's cause of action exists; (2) to show good faith, the plaintiff must obtain a signed, written opinion in which a healthcare provider postulates that there appears to be evidence of medical negligence; and (3) the author must include a detailed basis for the formation of such opinion." Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No. CV 055000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 222). Subsection (a) also clearly requires that the plaintiff file a copy of the written opinion with the court, in that it states that the complaint "shall contain a certificate [of good faith] and that the plaintiff "shall attach a copy of such written opinion . . . to [the good faith] certificate." General Statutes § 52-190a.
The plaintiffs' contention that the filing requirement would be contrary to the portion of the statute that limits the discoverability of the written opinion misconstrues the effect of the statutory requirements. That portion of the statute is intended to place limits on the discoverability of the name of the heath care provider that authored the written opinion. It is not contrary to the filing requirement because the statute specifically provides that the name and signature of the author of the written opinion shall be expunged from the copy of the written opinion that the plaintiff files with the court.
The language that the legislature used in subsection (a) suggests that the legislature intended the filing of the written opinion to serve as a sort of "jurisdictional" hurdle that a plaintiff must pass in order to maintain a medical malpractice action. The type of jurisdiction that the legislature had in mind, however, is not obvious from a preliminary reading of the text of the statute. As this court previously stated, "[s]ubsection (c), the remedy portion of the statute, is clear, as far as it provides that the plaintiff's failure `to obtain and file the written opinion shall be grounds for dismissal.' General Statutes § 52-190a(c)." Andrikis v. Phoenix Internal Medicine, supra, Superior Court, Docket No. CV 05 5000482. It does not state, however, that a plaintiff's failure to comply with these requirements deprives the court of subject matter jurisdiction, or, as the plaintiffs point out, that dismissal is mandatory. In other words, the language the legislature used in subsection (c) is not the type of mandatory language that can only be read as implicating the court's subject matter jurisdiction. As our Supreme Court has stated in discussing whether statutory time limitations pertain to subject matter jurisdiction, "we have stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that [a statutory] time limit is jurisdictional." Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001). Even when mandatory language is used in such statutes, the court noted, "such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar." Id., 269-70. Accordingly, the language of subsection (c), does not, in itself, prove that the legislature intended that the failure to file a written opinion would implicate the court's subject matter jurisdiction.
An examination of the language of the statute in light of certain other principles that pertain to subject matter jurisdiction also fails to indicate that the legislature had such an intention. As our Supreme Court has explained, "[j]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . [Thus,] [a] court does not truly lack subject-matter jurisdiction if it has competence to entertain the action before it." (Citations omitted; internal quotation marks omitted.) Demar v. Open Space Conservation Commission, supra, 211 Conn. 424.
"The New York Court of Appeals, in discussing subject matter jurisdiction, said cryptically: `In other words, "subject matter" does not mean "this case" but "this kind of case."' Matter of Rougeron, 17 N.Y.2d 264, 271, 217 N.E.2d 639, 270 Y.Y.S.2d 578, cert. denied, 385 U.S. 899, 87 S.Ct. 204, 17 L.Ed.2d 131 (1966)." Demar v. Open Space Conservation Commission, supra, 211 Conn. 424-25.
"The source of a court's [subject matter] jurisdiction is the constitutional and statutory provisions by which it is created . . . The Superior Court of this state `shall be the sole court of original jurisdiction for all causes of action [except such actions over which the courts of probate have original jurisdiction, as provided by statute].' General Statutes § 51-164s." Demar v. Open Space Conservation Commission, supra, 211 Conn. 425. Indeed our Supreme Court has specifically noted, "traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action." LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990). These principles suggest that the plaintiff's failure to file the written opinion does not divest this court of subject matter jurisdiction over this medical malpractice action.
This suggestion is confirmed when the language of the statute is examined in light of these principles. Indeed, the Supreme Court engaged in such an analysis in LeConche v. Elligers, supra, 215 Conn. 709, in which the court held that the plaintiffs' failure to file the certificate of good faith required by § 52-190a with their medical malpractice complaint did not deprive the court of subject matter jurisdiction over the action. Although the decision is premised on a different version of the statute, it is instructive on the issue presently before the court.
At that time, § 52-190a provided that "[n]o action . . . shall be filed to recover damages for personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a healthcare provider unless the attorney . . . has made a reasonable inquiry . . . 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 . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . ." General Statutes (Rev. to 1987) § 52-190a(a). The main differences between the prior and the present version of the statute is that the prior version did not require the plaintiff to obtain a written opinion from a similar healthcare provider prior to filing the action, or to attach a written opinion to the certificate, nor, of course, did it contain a remedy for a plaintiff's failure to do so.
In LeConche v. Elligers, supra, 215 Conn. 709, the court began with the previously stated premise that, traditionally, the Superior Court has subject matter jurisdiction of common law medical malpractice actions, and stated that the issue was "whether the legislature intended § 52-190a to create an additional subject matter jurisdictional requirement of a good faith certificate in such a case." The court then reasoned that "the language of § 52-190a, considered in light of its purposes, does not suggest that such a certificate is jurisdictional . . . Although the operative sentence of § 52-190a provides that the `complaint or initial pleading shall contain' (emphasis added) a good faith certificate, and although `shall' has often been held to be mandatory . . . its use in this section does not mandate that such a certificate is jurisdictional. The test for determining whether the use of the word `shall' is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished . . . We agree with the defendants that the general purpose of § 52-190a is to discourage the filing of baseless lawsuits against healthcare providers. We disagree, however, that the good faith certificate is so central to that purpose that it is of the essence of the thing to be accomplished . . ."
"The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence. In light of that purpose, the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court. The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support a cause of action. Viewed through that prism, the absence from the complaint of the statutorily required good faith certificate renders the complaint subject to a motion to strike pursuant to Practice Book § [10-39] for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment pursuant to Practice Book §§ [10-44 and 10-59]." (Citations omitted; internal quotation marks omitted.) LeConche v. Elligers, supra, 215 Conn. 710-11.
The portion of § 52-190a(a) that was amended by P.A. 05-275 added that, "to show the existence of such good faith, the claimant . . . shall obtain a written and signed opinion of a similar healthcare provider," and "[t]he claimant shall attach a copy of such written opinion . . . to such certificate." Whether the legislature's use of the word shall when referring to the requirement of attaching the written opinion to the certificate is mandatory must also be considered in light of the test of whether it "is of the essence of the thing to be accomplished" by § 52-190a, i.e., "to discourage the filing of baseless lawsuits against healthcare providers." LeConche v. Elligers, supra, 215 Conn. 710.
Like the certificate of good faith, the purpose of the written opinion is, as stated by § 52-190a, "[t]o show the existence of such good faith." The written opinion, like the certificate, provides the defendant with some evidence that the plaintiff conducted an inquiry prior to filing the complaint, and that the inquiry gave the plaintiff a good faith belief that the defendant was negligent. Because this purpose is not so central to the purpose of § 52-190a that it is "the essence of the thing to be accomplished" thereby, the plaintiffs' failure to file the written opinion should not defeat the court's subject matter jurisdiction over this action. As the court stated in regard to the certificate of good faith, the purpose of the written opinion would be adequately served by viewing it "as a pleading necessity akin to an essential allegation to support a cause of action." LeConche v. Elligers, supra, 215 Conn. 711. As such, the plaintiffs' failure to file a written opinion is, like the failure to file the certificate of good faith, a curable deficiency.
In addition, as the court noted in LeConche v. Elligers, this interpretation is consistent with the statute's provisions regarding the consequences of filing a false certificate, which remain unchanged in the present version of the statute. As the court noted, in such cases, the statute states that "`the court . . . shall impose . . . an appropriate sanction' . . . Assuming without deciding that `an appropriate sanction' for filing a false certificate includes dismissal, it is clear that such a dismissal would be discretionary, rather than required due to lack of subject matter jurisdiction . . . Here, the plaintiffs have merely failed to file a certificate but are prepared to do so and are prepared to establish that they have in fact made a sufficient precomplaint inquiry. It would be incongruous to read § 52-190a as providing subject matter jurisdiction in the former case but depriving the court of such jurisdiction in the latter. Statutes are to be read as contemplating sensible, not bizarre, results." (Citations omitted.) Id., 712-13. Similarly, it would be incongruous to read § 52-190a providing the trial court with subject matter jurisdiction over cases in which the plaintiff failed to file a certificate, or filed a false one, but as depriving the court of jurisdiction in cases, such as the present one, in which the plaintiff filed the certificate, obtained a written opinion and sent a copy of it to opposing counsel, but failed to file a copy of the written opinion with the certificate.
For the foregoing reasons, the court does not lack subject matter jurisdiction over this action due to the plaintiffs' failure to file the written opinion. Therefore, the court denies the defendants motion to dismiss on the ground of lack of subject matter jurisdiction.
In her reply memorandum, the defendant also argues that the court must dismiss the action because the written opinion that the plaintiffs sent to her is inadequate. Because the plaintiffs have not yet filed a written opinion, the issue of its adequacy is premature. Moreover, in Andrikis v. Phoenix Internal Medicine, supra, Superior Court, Docket No. CV 05 5000482, this court explained that "[n]othing in the plain language of the statute or its legislative history indicates . . . that an insufficient opinion is grounds for dismissal of an action."
In addition, it is noted that in LeConche v. Elligers, after the court concluded that it had subject matter jurisdiction, the court then concluded that "the trial court should have permitted the plaintiffs to amend their complaint by filing a [good faith] certificate, because the court had subject matter jurisdiction and because its denial of the motion to amend was based on a perceived lack thereof." Id., 715. As the court pointed out, "the plaintiffs were entitled to amend their complaint, as they sought to do . . ." Id., 716.
Our Supreme Court recently released Fedus v. Planning Zoning Commission, 278 Conn. (2006), a decision regarding subject matter jurisdiction and a defective citation in a zoning appeal. In the decision, the court observed: "Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state . . . [H]owever, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm . . . [that] result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw . . . [o]ver-technical formal requirements have ever been a problem of the common law, leading [the legislature] at periodic intervals to enact statutes . . . which, in substance, told the courts to be reasonable in their search for technical perfection . . . For example, General Statutes § 52-72 requires the trial court to allow a proper amendment to defective process . . . Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . [Thus] [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy whe[n] that can be brought about with due regard to necessary rules of procedure . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it . . ." Id.
Although the plaintiffs in this case have not filed a written motion to amend the complaint in order to attach the written opinion, in their objection to the motion to dismiss, they have indicated their intent to do so. Moreover, pursuant to General Statutes § 52-128 and Practice Book § 10-60(a), the court has the authority to order them to do so. Therefore, the court orders the plaintiffs to amend their complaint and attach a copy of such written opinion of a similar healthcare provider, as prescribed by § 52-190a(a), within fifteen days.
General Statutes § 52-128 provides in relevant part: "the plaintiff may amend any defect, mistake or informality in the . . . complaint . . . which might have been originally inserted therein . . . at any time . . . at the discretion of the court . . ."
Practice book § 10-60(a) provides in relevant part: "[A] party may amend his or her pleadings or other parts of the record or proceedings at any time . . . in the following manner: (1) By order of judicial authority . . ."
III.
The defendant also argues that the court should dismiss the action on the ground that the court lacks personal jurisdiction over her. According to the defendant, the return date on the writ of summons, January 20, 1996, is defective because that date fell on a Friday, and not on a Tuesday, as required by General Statutes § 52-48(a). The plaintiffs concede that January 20, 2006 is an improper return date, but contend that they should be allowed to amend the summons in order to correct this error. Indeed, on March 15, 2006, they filed a motion to amend pursuant to, inter alia, General Statutes § 52-72, in which they seek to amend the return date on the writ of summons to January 10, 2006, which is a Tuesday, and which is the return date that is on the complaint. The defendant objects to the motion to amend on the ground that under § 52-48(b), the plaintiffs cannot amend the summons to cure the defect because they did not file their motion to amend within two months of the date of the complaint, which was December 6, 2005.
For purposes of their motion to amend, the plaintiffs also rely on General Statutes §§ 52-123 and 52-128.
The following statutes apply to this issue. General Statutes § 52-48 states in relevant part: "(a) Process in civil actions, including transfers and applications for relief or removal . . . brought to the Superior Court may be made returnable on any Tuesday in any month . . . (b) All process shall be made returnable no later that two months after the date of the process . . ." General Statutes § 52-72(a) provides in relevant part: "Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective upon payment of costs taxable upon sustaining a plea in abatement."
In Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 620, 642 A.2d 1186 (1994), our Supreme Court held that General Statutes § 52-72 permits a plaintiff to amend the return date on a writ of summons that is improper in that it is not a Tuesday even when the plaintiff does not seek to do so until after the correct return date had passed. The defendant acknowledges this decision, but contends that it does not apply to the present action because the Supreme Court subsequently limited its application.
The case that the defendant relies upon is Coppola v. Coppola, 243 Conn. 657, 666, 707 A.2d 281 (1998). In that case, the Supreme Court held that Section § 52-72 also permits a plaintiff to amend a return date on a writ of summons that is defective in that it does not reflect that the process was returned to court at least six days before the return date, as required by General Statutes § 52-46a. In the language that the defendant relies upon, the court added that its ruling would not render § 52-46a meaningless because although "[a] return date may be amended . . . it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that `[a]ll process shall be made returnable not later than two months after the date of the process . . .' Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." Coppola v. Coppola, supra, 243 Conn. 666-67. In a footnote, the court explained that "in the present case, the plaintiff's amended return date does not violate the provisions of § 52-48(b). The writ of summons and complaint were dated June 25, 1995, and the plaintiff's amended return date was August 22, 1995, thus complying with the two month limitation of § 52-48(b)." Coppola v. Coppola, supra, 243 Conn. 667 n. 12.
Thus, according to the Supreme Court, the relevant dates for measuring whether the plaintiffs' proposed amended return date in this case complies with the two month limitation of § 52-48(b) are the date of process, which was December 6, 2005, and the amended return date, which is January 16, 2006. The defendant's contention that the relevant dates are the date of process and the date that the plaintiffs filed their motion to amend is not supported by the language the court used in Coppola. It is also belied by the fact that the plaintiff in Coppola, like the plaintiffs in this case, did not file her motion to amend within two months of the date of process.
For the foregoing reasons, the plaintiffs' amended return date complies with the requirements of § 52-48. Accordingly, the plaintiffs should be allowed to amend the return date pursuant to § 52-72. Therefore, the court grants the plaintiffs' motion to amend the return date and denies the defendant's motion to dismiss the action on the ground that the return date is defective.
IV.
Based on the foregoing, the court orders the plaintiffs to amend their complaint to include a written opinion of a similar healthcare provider within fifteen days, and grants their motion to amend the summons to correct the return date. The defendant's motion to dismiss is denied.