Opinion
No. CV06-05004859S
February 7, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS (DATED SEPTEMBER 5, 2006) THE PLAINTIFFS' COMPLAINT DATED JUNE 22, 2006
The central issue in this case is the interpretation of Public Act. 05-275 as it amends Conn. Gen. Stat. § 52-190a. Conn. Gen. Stat. § 52-190a was first enacted in 1986. Under that statute, in a medical malpractice case, the attorney for the plaintiff must, after making a reasonable inquiry, certify in writing that he/she has a good faith belief that grounds exist for an action against each named defendant and to file such a certificate of good faith with the complaint. It also provides that said good faith certificate may be shown to exist if the attorney has received a written opinion of a similar health care provider as defined in Conn. Gen. Stat. § 52-184c. The significant change brought about by Public Act 05-275, effective October 1, 2005 was to require that the attorney obtain such an opinion and attach a copy of it to his certificate of good faith to be filed with the complaint.
Contrary to the claims in defendants' memoranda, the plaintiffs did attach to the complaint the required certificate of good faith signed by their attorney. What the plaintiffs did not do, however, was to file with or attach to the complaint the opinion of the expert witness who claims in his opinion that the defendants were negligent in the surgery performed upon the plaintiff, Stacey M. Greer. Thus, the inquiry becomes whether or not the failure to file such negative opinion with the complaint deprives this Court of jurisdiction.
Defendants filed their motion to dismiss the complaint of June 22, 2006 on September 5, 2006. The plaintiffs filed their objection to said motion to dismiss on December 13, 2006. This Court heard oral argument on the short calendar of January 29, 2007.
Conn. Gen. Stat. § 52-190a reads as follows:
Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against health care provider. (a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action 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 or initial pleading shall contain a certificate of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For the purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complaintant's attorney submitted the certificate.
(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.
(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.
THERE ARE NO APPELLATE OR SUPREME COURT CASES ON THE ISSUE OF THIS AMENDMENT.
However, there is a split of authority among superior court judges on this issue.
For the reasons set forth hereafter, this Court agrees with those judges who have found that failure to file the opinion with the complaint is not a jurisdictional defect, and, accordingly, this Court will deny the defendants' motion to dismiss.
Before addressing the central basis for this Court's opinion, it is instructive to keep certain case law in mind.
There is in Connecticut a "policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." Evans v. General Motors Corp., 277 Conn. 496, 523 (2006). This applies to statutes as well.
ISSUES AND FINDINGS:
The opinion of the expert who found that the defendants were negligent was in writing, and the plaintiff had the opinion which complied with the amended statute at the time of drafting the complaint. The complaint is dated June 22, 2006. The court has reviewed the opinion, and that too is dated June 22, 2006. It became clear from oral argument that the plaintiffs failed to attach the opinion to the certificate and file it with the complaint simply by inadvertence. Plaintiffs' counsel stated in open court that although he had the opinion in writing on June 22, 2006, he forgot to file it.
1. Paragraph (c) of Conn. Gen. Stat. § 52-190a states as follows:
"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." (Emphasis added).
There are two reasons based upon this section that leads to the conclusion that dismissal for failure to file the written opinion is not jurisdictional and does not require the granting of the motion to dismiss.
First, the section says "the failure to obtain and file" the written opinion means that in order for this section to be applicable the plaintiffs have to fail to obtain a written opinion and fail to file it. If one of these requirements is not a failure, then, said section (c) is not applicable because, in this case, there is no question that the plaintiffs had obtained the written opinion. Section (c) doesn't say the failure to obtain or file the written opinion which means, therefore, that there has to be failure to obtain the written opinion and failure to file the written opinion. There was no failure to obtain the written opinion. The evidence shows that the plaintiffs had the written opinion at the time they instituted suit but neglected to file it. They did not fail to obtain one and, therefore, this section of the statute does not apply.
Next is the interpretation of the word "grounds." There are various definitions of "ground" all of which point to this Court's conclusion that it is discretionary in this Court as to whether to dismiss the complaint based upon this section.
(1) Black's Law Dictionary 8th Edition, 2004 defines in pertinent part that ground is "To provide a basis for something (such e.g., a legal claim or argument) the decision was grounded on public policy. Ballentine's Law Dictionary, 3rd Edition, 1969, defines ground in this context as "A point; a reason; support for a cause or action. The basis for taking a step in an action."
Webster's 9th New Collegiate Dictionary 1991 defines in pertinent part "ground" as being "a basis for belief, action, or argument: to provide a reason or justification for."
Note that the statute does not say "the action shall be dismissed" which could make it mandatory.
This Court finds that based upon the definitions, under section (c) the Court has discretion as to whether or not to dismiss the action. The Court exercises its discretion not to dismiss the action.
It should be noted that Conn. Gen. Stat. § 1-2z states in pertinent part "[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. If 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, extra textual evidence of the meaning of the statute shall not be considered."
2. The Court agrees with the reasoning of superior court judges Matasavage and Shortall. The former's opinion is Donovan v. Sowell, Judicial District of Waterbury, June 21, 2006 41 Conn. L. Reporter 609, and the latter's opinion and ruling is Deassis v. The Danbury Hospital et al, dated June 14, 2006 complex litigation docket, Judicial District of Hartford Docket No.: X 09 CV 05-003103. Both declined to dismiss the plaintiffs' complaint even though the written opinion was not filed at the time of filing the complaint.
It is well settled law that "when a court decides a jurisdiction 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." Filippi v. Sullivan, 273 Conn. 18 (2005). Further ". . . Every presumption favoring jurisdiction should be indulged." Demar v. Open Space Conservation Commission, 211 Conn. 416, 425 (1989).
In LeConche v. Elligers, 215 Conn. 701, 708 (1990) the Supreme Court in an opinion written by Justice David Borden stated that "In enacting section 52-190a the legislature did not intend to make the good faith certificate a jurisdictional requirement. The Court also found that "contrary to the defendants' argument, 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." The court went on to say that it agrees that the general purpose of Conn. Gen. Stat. § 52-190a is to discourage the filing of baseless lawsuits against healthcare providers. It also stated that "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.'" Id., 710-11. The court goes onto say at page 711 that "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." In the section of LeConche, supra, discussing the sanction for filing a false certificate, the court said "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." Id., 712. The court also noted that ". . . the plaintiffs have merely failed to file a certificate but are prepared to do so and to establish that they have in fact made a sufficient precomplaint inquiry." Id., 713. That is the case at bar. As to the written opinion, the plaintiffs herein were always ready to file it demonstrating that they in fact had made a sufficient precomplaint inquiry which is the whole purpose of the statute. Judge Matasavage pointed out in his opinion that since failure to file a good faith certificate was held in LeConche, supra, not to be a jurisdictional defect, then it hardly seems that failing to file the formal written opinion which the plaintiffs were ready to file and failed to do so by inadvertence, would be a jurisdictional defect. It is likely that the Appellate Court and Supreme Court would not find it a jurisdictional defect just as they did not find a jurisdictional defect in failing to file a certificate of good faith. This Court agrees with Judge Matasavage and believes that this would likely be the ruling of the Appellate or Supreme Court in comparing the case at bar to LeConche supra.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is denied.
Further, the Court by order, permits the plaintiffs to amend their complaint to attach the required opinion.