Opinion
No. CV07 5001815 S
December 18, 2007
MEMORANDUM OF DECISION
The defendant, Dr. Sultan Quraishi, moves to dismiss the medical malpractice claim against him because the pro se plaintiff, Eva Griffith, failed to fulfill the requirement of General Statutes § 52-190a(a) that the complaint include a certificate and a copy of a signed opinion from a similar health care provider supporting a good faith belief that Dr. Quraishi rendered substandard medical care.
The plaintiff commenced this action on August 6, 2007. The complaint was returned to court on August 13, 2007. The plaintiff failed to submit a good faith certificate and copy of the opinion of a similar health care provider as mandated by § 52-190a(a). Subsection (c) of § 52-190a provides that 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.)
The plaintiff argues that she should be permitted to submit the missing certificate and signed opinion belatedly. The court rejects the notion that this omission is curable once raised by the defendant.
In LeConche v. Elligers, 215 Conn. 701 (1990), our Supreme Court held that, with respect to a former version of § 52-190a, the absence of a good faith certificate was a mere insufficiency of the complaint rather than grounds for dismissal. Id., 711. Consequently, the defect was subject to a motion to strike and correctable through an appropriate amendment. Id. The Supreme Court based its ruling on the fact that the version of § 52-190a(a) in effect at the time of that decision did not "address the consequences of a failure to file a certificate." Id., 712. Applying "the established principle that every presumption is to be indulged in favor of jurisdiction," the Supreme Court regarded the omission as non-jurisdictional. Id., 709-10.
However, in 2005 the legislature amended § 52-190a by adding the requirement that the signed opinion of a similar health care provider be submitted along with the good faith certificate and by stating explicitly in a new subsection (c) that the failure to obtain and file such document "shall be grounds for the dismissal of the action." P.A. 05-275, S.2. Clearly, specifying dismissal of the action was a response to LeConche v. Elligers, supra, and its progeny.
The 2005 amendment, requiring the procuring of a signed opinion regarding malpractice from a similar health care provider and the filing of that opinion with the complaint, must be viewed as mandating both the obtaining of that opinion and filing of it as necessary antecedents to commencing a medical malpractice case. The amendment clarifies that the purpose of § 52-190a(a) is not the erection of inconvenient procedural pitfalls for the pleader, but rather is to protect health care providers from even the mere exposure to suit unless the good faith belief that malpractice has occurred is documented by the submission of a signed opinion by a similar health care provider. No longer is the obtaining of the opinion by the plaintiff or plaintiff's counsel sufficient to initiate the action. Unless and until such investigation and report are documented by filing the same with the complaint the defendant has no obligation, under this statute, to defend against a malpractice claim.
To permit a plaintiff to overcome this violation of § 52-190a(a) by amendment of a pending complaint thwarts the obvious purpose of § 52-190a(a) as explicated by P.A. 05-275, S.2. Such an interpretation reads out of the statute the language contained in subsection (a) that "[n]o civil action . . . shall be filed," and the language of subsection (c) that "failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." (Emphasis added.)
The phrases "shall be filed" and "obtain and file" are strong and unambiguous. In order to commence a medical malpractice action, the plaintiff must beforehand conduct the investigation required by subsection (a), obtain the written, signed opinion of a similar health care provider, and simultaneously file the good faith certificate and opinion with the original complaint.
The legislative hearings and debate surrounding adoption of the 2005 amendment make this purpose clear. On June 6, 2005, Senator McDonald stated, "The failure to attach such an opinion would require the court to dismiss the case." 48 S. Proc., Pt. 14, 2005 Sess. P. 4411. (emphasis added). At Judiciary Committee hearings on the proposed amendment, Attorney Michael Neubert testified that the pending change would provide "that failure to obtain and file the written opinion would be grounds for an immediate dismissal of the action." Conn. Joint Standing Committee Hearings, Judiciary Pt. 18, 2005 Sess. p. 5539. (emphasis added). On June 8, 2005, Representative Lawlor remarked that "[the amendment to § 52-190a] is making it a considerably more significant a hurdle to overcome in order to file a medical malpractice case." 48 A.R. Proc., Pt. 31, 2005 Sess., p. 9501. He added, "But this is for the initial benchmark of actually, filing the claim . . ." Id., p. 9502. Significantly, Senator Kissel characterized the purpose of the new amendments to § 52-190a as "[t]hat [which] will help the defense counsel and their clients . . . right at the inception of the medical malpractice case." 48 S. Proc., Pt 14, 2005 Sess. p. 4428. He further noted, "We get right out of the chute, because we're trying to speed it up. We're trying to expedite it." Id., p. 4429.
The court is cognizant that there is a split among the trial court decisions concerning whether subsection (c) demands dismissal or merely allows for dismissal. The court holds that the decisions requiring dismissal for failure to comply with the dictates of § 52-190a(a) are more persuasive, and more in line with the legislative purpose voiced above, see Matkin v. Schoenfeld, Superior Court, Waterbury J.D. d.n. CV 07-5005165 (November 14, 2007), Upson, J; and Landry v. Zborowski, Superior Court, Tolland J.D., CV 07 6000211 (October 26, 2007), Voechelli, J.
Therefore, the motion to dismiss is granted.