Opinion
No. CV 07 5004367
March 11, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS, MOTION TO AMEND
In this medical malpractice case, the defendants, VNA of Southeastern Connecticut and Gina Liquore, have moved to dismiss on the grounds that the plaintiffs failed to file a good faith certificate and opinions of similar health care providers with the plaintiff's complaint as required by General Statutes § 52-190a. In response to the motion to dismiss, the plaintiff filed a request for leave to file an amended complaint accompanied by a good faith certificate and two opinions of similar health care providers along with an affidavit of counsel stating that although he obtained the opinions of similar health care providers before filing suit, he neglected to attach them along with a good faith certificate to the initial complaint. The defendants assert that the failure of the plaintiff to file these statutorily mandated documents with the initial pleading deprives the court of subject matter jurisdiction.
The sequence of relevant pleadings for purposes of this motion is as follows: Initial pleading filed September 10, 2007; Answer, Special Defense and Jury Claim filed November 2, 2007; Reply to special defense filed November 7, 2007; Motion to Dismiss filed January 14, 2008; Request for Leave to File an Amended Complaint, good faith certificate; opinions of similar health care providers, November 26, 2007; objection to request for leave to file amended complaint, December 19, 2008.
Section 52-190a(a) provides, in significant part, that in a negligence action against a health care provider claiming personal injury or wrongful death, the initial pleading must contain a certificate of the attorney or party filing the action stating that a reasonable inquiry has been made to determine that there are grounds for a good faith belief that there has been negligence in the care and treatment of the plaintiff. Effective October 1, 2005, § 52-190a was amended to include the following language: "[t]he failure to obtain and file the written opinion as required by subsection (a) of this section shall be grounds for the dismissal of the action." General Statutes § 52-190a(c). The oft-stated public policy underlying this requirement is to apprise the defendant(s) of the specifics of the claimed acts of negligence and avoid frivolous lawsuits against health care providers. In the instant case, the plaintiff claims that the public policy was served because her attorney made a reasonable inquiry and obtained opinions supporting claims of professional negligence before the initial pleading from similar health care providers but failed to attach them. The plaintiff's counsel seeks to remedy his omission by now amending the complaint to append a good faith certificate along with the requisite opinions which are dated prior to the filing of the lawsuit.
It is an established principle of our law that "every presumption is to be indulged in favor of jurisdiction." LeConche v. Elligers, 215 Conn. 701, 709-11, 715, 579 A.2d 1 (1990) (certificate of good faith does not implicate subject matter jurisdiction thus its absence from the complaint renders the complaint subject to a motion to strike). The 2005 amendment to § 52-190a does nothing to alter this legal principle. Rather, the amendment makes the failure to obtain and file the certificate within the discretion of the court as a potential ground for dismissal. See Doe v. Priority Care, 50 Conn.Sup. 385, 388, 933 A.2d 755 (2007); Green v. Norbert, Superior Court, judicial district of Hartford, Docket No. 5004859 (February 7, 2007, Rittenband, J.T.R.) (42 Conn. L. Rptr 806). See also Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No. 5000857 (October 29, 2000, Roche, J.,) ( 44 Conn. L. Rptr. 337) (allowing the plaintiff to amend the complaint to satisfy the requirements of § 52-190a does not contradict the 2005 amendment to the statute).
As the Supreme Court has elsewhere stated: "[w]e . . . require a clear showing of legislative intent that a failure to comply with a particular statutory requirement deprives the court of subject matter jurisdiction . . . [A]lthough mandatory language may be an indication that the legislature intended for the requirement to be jurisdictional, 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." (Citations omitted; internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 779; 900 A.2d 1 (2006); Doe v. Priority Care, supra, 50 Conn.Sup. 389-90. The decision in Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008), does not modify this principle. In Rios, the appellate court simply found that the trial court "properly considered and granted the defendant's motion to dismiss," when the plaintiff failed to comply with § 52-190a, as amended effective October 1, 2005. Id., at 822.
The court agrees with the thoughtful analysis of Judge Corradino in this decision particularly his suggestion that dismissal, as contemplated by § 52-190a, is more akin to the sanction of dismissal provided in Practice Book § 13-14 for a failure to comply with discovery.
"The principal issue before us in this appeal is whether a complaint delivered to the serving marshal one day prior to the effective date of the public act [ P.A. 05-275], but not filed with the clerk of the Superior Court until after its October 1, 2005 effective date, was properly dismissed." Rios v. CCMC Corp., 106 Conn.App. 811.
For all the foregoing reasons, the court finds that the underlying policy of the 2005 amendment is served by denying the motion to dismiss and allowing the amendment.
Accordingly, the motion to dismiss is hereby denied and the objection to motion to amend is hereby overruled.
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