Opinion
No. CV 06 5001159
August 11, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS [366]
This case, now an immense file [close to 290 file entries] and rife with confusion, began with a writ of summons and a Complaint dated June 1, 2006. The Complaint was signed by the pro se plaintiffs here Sylvester Traylor, individually, and as Administrator of the Estate of Roberta Mae Traylor. The writ of summons was signed by the clerk of the court on June 1, 2006. The Return Date on the writ is July 3, 2006.
In the main, this case is a medical (psychiatric) malpractice wrongful death action. It arises from the psychiatric treatment and eventual death of the late Roberta Mae Traylor. It is claimed she committed suicide on March 1, 2004.
When the original June 1, 2006 Complaint was returned to court and filed with the court clerk, the Complaint had attached to it a copy of a document entitled "PETITION TO THE CLERK OF THIS COURT FOR AN AUTOMATIC 90-DAY EXTENSION OF THE STATUTE OF LIMITATIONS" dated February 23, 2006. The copy of the "Petition" indicated the original bore file stamps showing the "Petition" had been filed with the court clerk on February 23, 2006. This "Petition" was signed on behalf of the plaintiffs by Attorney Andrew J. Pianka of the law firm of Grady Riley LLP. The clerk had granted the "Petition" on February 23, 2006. The authority for the Petition and the time extension sought is contained in C.G.S. § 52-190a(b).
The original June 1, 2006 Complaint did not have attached to it a copy of a signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion as required by § 52-190a.
On July 12, 2010 with new counsel, the plaintiffs filed their "Second Amended Complaint" dated July 12, 2010 [362]. It is now the operative complaint.
The use of "Second" in the title of this version of the complaint is puzzling. This new "Second" Amended Complaint is at least the sixth complaint the plaintiffs have filed or attempted to file.
In their Objection to the Motion to Dismiss [371], plaintiffs say their new July 12, 2010, "Second Amended Complaint" [362] was "pursuant to the court's direction." This is misleading. The court met with counsel on June 15, 2010 to work on scheduling for this much delayed case. A fact issue arose so the court scheduled an evidentiary hearing for June 17th. Apparently, counsel further conferred on June 15. The court was informed: "The parties have agreed that the plaintiff will amend the Complaint in its entirety" thereby mooting the fact dispute which was to be heard on June 17th. See e-mails between Hall Johnson, LLC and Linda Grelotti, case flow coordinator. Court Exhibits 1 and Defendant's Exhibit 1, Transcript of Proceedings, July 28, 2010, p. 26-28. The court cancelled the June 17 hearing. The court subsequently issued a scheduling order setting July 12, 2010 as the time by which the plaintiffs' amended complaint was to be filed. Thus, it is hardly correct to say the plaintiffs amended their complaint "pursuant to the court's direction."
Now before the court is the defendants' Motion to Dismiss dated July 16, 2010 [366]. The defendants seek dismissal of Counts 1-6 (the medical malpractice Counts) of the Second Amended Complaint dated and filed July 12, 2010 [362]. The principal grounds for dismissal are the plaintiffs' "failure to comply with Connecticut General Statutes Section 52-190a's requirement that prior to filing suit a plaintiff obtain a written and signed opinion of a similar health care provider that there appears to be evidence of medical malpractice and attach the opinion to the complaint." Motion to Dismiss, July 16, 2010 [366]. A comprehensive memorandum of law accompanied the motion. Memorandum of Law, July 16, 2010 [366.01].
The bracketed numbers, e.g., [362], indicate the number of the file entry herein.
The issues raised by the Motion to Dismiss and determinative thereof are centered on C.G.S. § 52-190a. Its pertinent parts are set forth here:
Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider. Ninety-day extension of statute of limitations.
(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . . 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 . . . 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 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 and includes a detailed basis for the formation of such opinion . . . 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 health care provider expunged, to such certificate.
(b) . . .
(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.
C.G.S. § 52-190a.
The hard, unassailable facts are straight forward. This action began on June 1, 2006 by a Complaint dated June 1, 2006. The Complaint did not have a certificate of good faith or a medical opinion attached to it. The medical opinion dated October 18, 2006 upon which plaintiffs rely was not obtained by plaintiffs until October 18, 2006.
The statute, C.G.S. § 52-190a, is clear. Its purpose
is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider. Section 52-190a requires a certificate of good faith that the health care provider had been negligent in the care and treatment of the plaintiff. Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc. 242 Conn. 1, 15-16 (1997).
It is plainly evident that the purpose of the statute was not met here.
Ten years later, the Appellate Court wrote:
In 2005, the General Assembly, by enacting Public Acts 2005, No. 05-275, § 2 ( P.A. 05-275), required that persons filing legal actions claiming medical negligence, filed on or after October 1, 2005, must annex to the complaint a written and signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence. Rios v. CCMC Corporation et al., 106 Conn.App. 810-11 (2008).
In Rios, plaintiffs "had not obtained an opinion of a similar health-care provider prior to filing the action in court." 106 Conn.App. @ 814.
The Appellate Court is quoted extensively from Rios:
[T]he defendants filed a motion to dismiss the plaintiffs' complaint due to the plaintiffs' failure to include the opinion of a similar heath care provider with the complaint, as required by § 52-190a. The plaintiffs objected to the motion to dismiss, and oral argument was heard by the court on January 3, 2006. The plaintiffs' attorney informed the court that he had not obtained an opinion of a similar health care provider prior to filing the action in court. Rios, 106 Conn.App. @ 814.
The trial court dismissed the plaintiffs' action concluding plaintiffs "had not complied with the requirements of [§ 52-190a]." Rios, 106 Conn.App. @ 815.
On appeal of Rios, the Appellate Court spelled out in some detail the importance of the medical opinion and the necessity that it be obtained prior to filing of the suit papers with the court.
Section 52-190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make "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 . . ." In order to show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating 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 2005) § 52-190a(a), as amended by P.A. 05-275, § 2. Prior to the 2005 amendments, the statute provided that good faith may be shown if the plaintiffs or their counsel obtained a written opinion, not subject to discovery, from a similar health care provider that there appeared to be evidence of medical negligence. General Statutes (Rev. to 2005) § 52-190a (a). Prior to the amendment, the statute did not require plaintiffs to include with the complaint an opinion of a similar health care provider attesting to a good faith basis for an action.
The certified question is: "Did the Appellate Court properly reverse the trial court's dismissal of the present case for failure to comply with the `detailed basis' requirement of General Statutes § 52-190a(a)?"
Effective October 1, 2005, the statute was amended to require that in order to show the existence of good faith, claimants or their counsel, prior to filing suit, `shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . .' General Statutes § 52-190a(a). The amended statute also provides that claimants or their counsel "shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate . . ." General Statutes § 52-190a(a). Subsection (c), which was added by P.A. 05-275, § 2, provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." P.A. 05-275 was "[e]ffective October 1, 2005, and applicable to actions filed on or after said date . . ."
In this case, the complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by the 2005 amendment to § 52-190a(a). The writ of summons and complaint were delivered to a marshal for service of process on September 30, 2005, and were filed with the clerk of the Superior Court on November 4, 2005. The plaintiffs claim that the 2005 amendment to § 52-190a, as set forth in P.A. 05-275, does not apply to the present case because the action was filed before October 1, 2005, the effective date of the public act. Specifically, the plaintiffs contend that the action was "filed" within the meaning of P.A. 05-275 when the writ of summons and complaint were delivered to a marshal for service of process on September 30, 2005; one day before the effective date of the 2005 amendment to § 52-190a. We disagree. Rios, 106 Conn.App. @ 815-18.
The Appellate Court affirmed, summarizing its holding:
Because the plaintiffs failed to comply with the provision of the public act, requiring that an opinion of a similar health care provider attesting to a good faith basis for the action be included with the complaint, we conclude that the defendants' motion to dismiss properly was granted. Rios v. CCMC Corporation et al., 106 Conn.App. 810, 820 (2008).
The teaching of Rios is clear. Plaintiffs' failure to obtain the medical opinion prior to filing the original complaint and not attaching such a medical opinion to the original complaint when filing the complaint with the court clerk requires dismissal.
More recently, the Appellate Court confirmed what it had held in Rios. Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569 (2009).
Plaintiff Votre brought an action sounding in medical malpractice. "The compliant did not include a good-faith certificate and written opinion of a similar health care provider. . ." Votre, 113 Conn.App. @ 574. The defendants moved for dismissal based on the absence of a medical opinion with the complaint. Accordingly, the trial court dismissed. On appeal, the Appellate Court stated:
We conclude that the action was dismissed properly by the court pursuant to the specific authorization of the governing statute due to the plaintiff's failure to file a written opinion of a similar heath care provider. See General Statutes § 52a-190a(c). Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 581 (2009).
The Appellate Court construed section § 52-190a stating:
The plaintiff must attach to her initial pleading both "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" and a "written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . ." General Statutes § 52-190a(a). Subsection (c) provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 581 (2009).
The plaintiffs here "fail[ed] to obtain and file the written opinion required by subsection (a) of this section [§ 52-190a(a)]." This is "grounds for the dismissal of the action." Votre, 113 Conn.App. 581.
Plaintiffs have objected to this Motion to Dismiss. Plaintiff's Objection to the Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint, July 26, 2010 [371]. The Objection was accompanied by a Memorandum of Law [372] and an affidavit of the plaintiff, Sylvester Traylor [373].
The primary and principal bases for the objection are "collateral estoppel" and "law of the case." An understanding of the fact basis for these contentions is important.
On December 26, 2006, the plaintiffs filed a REQUEST FOR LEAVE TO AMEND COMPLAINT dated December 22, 2006 [143]. An AMENDED COMPLAINT dated December 22, 2006 was filed at the same time [143.50].
The defendants filed an OBJECTION TO PLAINTIFF'S REQUEST FOR LEAVE TO AMEND COMPLAINT dated December 29, 2006 also December 29, 2006 [144]. The Objection was mainly because the proposed Amended Complaint "seeks to include a good faith certificate and medical opinion." In the Objection, defendants pointed out that the medical opinion was dated October 18, 2006, over five months after the original Complaint. Defendants' Objection stated: "The original complaint dated June 1, 2006 as well as the an amended complaint dated August 2, 2006 do not contain a good faith certificate or medical opinion of a similar health care provider as required by Connecticut General Statutes § 52-190a." Defendants also stated: "The defendants intend to file a Motion to Dismiss to address this issue" [144].
Defendants' Objection was sustained on January 16, 2007.
No elaboration of the reasons for the court's sustaining the objection appears. The order page for the Objection has the word "Sustained" circled and "By the Court" "Hurley 1/16/07" [144]. The court infers the Objection was sustained for the reasons advanced in the Objection, especially the fact that the complaints to date did "not contain a good faith certificate or medical opinion of a similar health care provider, as required by Connecticut General Statutes § 52-190a."
This left the Amended Complaint dated July 31, 2006, which was filed August 2, 2006, as the operative complaint [109].
On January 8, 2007, the defendants filed a Motion to Dismiss dated January 4, 2007 moving "that the plaintiffs' claims be dismissed" [146]. The specific grounds for the motion was that "plaintiff's complaint [dated June 1, 2006] and amended complaint [dated July 31, 2006 {filed August 2, 2006}] fail to contain a good faith certificate and written opinion of a similar health care provider as required by Connecticut General Statutes 52-190a, as amended by Public Act 05-275." Motion to Dismiss, January 4, 2007, p. 1 [146]. The Motion to Dismiss was denied [146]. The Order page on the Motion contained the handwritten notation: "6-1-07 Order Denied see memo of Decision filed this date. By the Court, Hurley, J. /s/ Jeffrey Feldman Clerk" [146].
The June 1, 2007 denial [157] of the Motion to Dismiss gave plaintiffs a dispensation from the requirements of § 52-190a mainly because plaintiffs were pro se.
Judge Hurley's June 1, 2007 Memorandum of Decision denying defendants' Motion to Dismiss [157] and his earlier January 16, 2007 order sustaining defendants' objection to plaintiffs' REQUEST FOR LEAVE TO AMEND COMPLAINT dated December 22, 2006 [143] are inconsistent.
In his June 1, 2007 Memorandum of Decision, Judge Hurley was clearly smitten by plaintiffs' being pro se. While Judge Hurley found the "plaintiffs did not attach to the complaint either a good faith certificate or a written opinion of a similar health-care provider as required by § 52-190a," Judge Hurley held he needn't "take a position on the split of authority that currently exists in the Superior Court on the issue of whether failure comply with § 52-190a implicates the courts subject matter jurisdiction." Memorandum of Decision, June 1, 2007, p. 3 [157].
Judge Hurley held: "Given the plaintiff's pro se status at the time, this court finds it in the interests of justice to overlook the plaintiff's noncompliance" and found "that the plaintiff has satisfied the requirements § 52-190a." Id., 4, 5.
There is no need to tarry on Judge Hurley' decisions. There is compelling authority decided since Judge Hurley's renderings which show conclusively Judge Hurley's June 1, 2007 decision cannot stand. See e.g., Rios and Votre.
With this fact basis in mind, plaintiffs' arguments based on collateral estoppel and law of the case principles are not persuasive.
Plaintiffs say Judge Hurley's June 1, 2007 denial of a previous Motion to Dismiss dated January 4, 2007 [146] collaterally estops defendants' present dismissal effort [157].
Collateral estoppel, or issue preclusion, principles are well established. "Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . ." Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 534 (2006). "[I]ssue preclusion [collateral estoppel] prevents a party from the relitigating an issue that has been determined in a prior suit." Id.
For the doctrine to be applied, there must have been a judgment in a previous action. Judge Hurley's June 1, 2007 decision was not a final judgment in a previous lawsuit. Judge Hurley's June 1, 2007 decision was an interlocutory order in this very same action. It was not a final judgment. Collateral estoppel cannot be invoked here.
Judge Hurley's June 1, 2007 denial of defendants' Motion to Dismiss [157] "was not final, but was merely interlocutory, [therefore] it falls within the doctrine of the law of the case." CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 403 (1996).
The general rule is that the "law of the case" does not apply where there have been "new or overriding circumstances." Breen v. Phelps, 186 Conn. 86, 99 (1982). Superior Courts have noted, without citing appellate authority, that new development in the law constitutes a "new or overriding circumstance." See, e.g., Estate of Larry Robishaw v. New England Central Railroad, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 99 0071617 (September 20, 2001, Bishop, J.).
Of greater impression, the Supreme Court has stated:
[W]here views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, `the important question is not whether there was a difference but which view was right.' Breen v. Phelps, 186 Conn. 86, 100 (1982).
Binding appellate authority is discussed above. In short, these cases and the procedural posture of this case militate strongly against the invocation of the claims of collateral estoppel and law of the case. The Court holds that in the face of these cases application of collateral estoppel and law of the case claims are totally undermined and have no vitality here.
Plaintiffs rely to some extent on Ward v. Ramsey, Superior Court, Judicial District of New Haven, Docket No. CV 09 5028840, (April 12, 2010, Corradino, J.T.R.).
Plaintiffs contend "[t]here is Connecticut precedent [for the situation presented in this Traylor case] in keeping with the spirit of 52-190(a)." Memorandum in Support of Plaintiff's Objection, July 26, 2010, p. 11 [372]. Plaintiffs read Ward to say Ward "had made a proper substantiation of a malpractice claim by obtaining [an] opinion but inadvertently failed to attach it" to his complaint. Memorandum in Support of Plaintiff's Objection, July 26, 2010, p. 11 [372]. But this is incorrect. In Ward, a medical opinion letter had been obtained before suit and a copy of it was attached to the original complaint. Therefore, plaintiffs' contentions based on Ward v. Ramsey are fallacious and must be disregarded.
Totally germane to this case where plaintiffs belatedly filed a good faith certificate and medical opinion of a similar health care provider written long after the date of the original complaint are these observations of the Appellate Court:
[I]t is clear that no opinion existed at the time the action was commenced, and, therefore, there was no room for discretion to be employed . . . The plaintiff could not turn back the clock and attach by amendment an opinion of a similar health care provider that did not exist at the commencement of the action. Votre v. County Obstetrics Gynecology Group, 113 Conn.App. 569, 585-86 (2009).
Since the Votre decision, our appellate courts have decided four cases on the merits involving § 52-190a and its opinion of a similar health care provider requirement.
Dias v. Grady, 292 Conn. 350 (July 7, 2009), holds that the written opinion of a similar health care provider need not contain the writer's opinion regarding causation. The opinion does not have to say the injury alleged in the complaint resulted from the breach of the standard of care.
In a case against a physician specializing in emergency medicine, the plaintiff attached to his complaint the medical opinion of a physician who stated in his opinion letter:
`As a practicing and [b]oard certified [g]eneral [s]urgeon with added qualifications in [s]urgical [c]ritical [c]are, and engaged in the practice of trauma surgery, I believe that I am qualified to review the contents of these records for adherence to the existing standard of care. One should note that I regularly evaluate and treat injured patients in the [e]mergency [d]epartment including those who are discharged from the [emergency department] as well as those who require inpatient care. The overwhelming majority of my time at work is spent providing clinical care in the [emergency department], general ward, intensive care unit and operating room over the last [twelve] years.' [Footnote omitted.] Bennett v. New Milford Hospital, Inc., 117 Conn. 535, 539-40 (October 13, 2009); cert granted, 294 Conn. 916 (December 1, 2009).
The certified question is: "Did the Appellate Court properly affirm the trial court's dismissal of the present case for failure to comply with General Statutes § 52-190a?"
The trial court granted the defendant physician's motion to dismiss. That dismissal was affirmed on appeal. The basis for same was that the opining physician was not board certified in emergency medicine and therefore the requirement of the statute was not fulfilled. The Appellate Court relied upon the plain language of the statute.
In Wilcox v. Schwartz, 119 Conn.App. 808 (March 16, 2010) certification granted, 296 Conn. 908 (May 5, 2010), fn5 "the complaint alleges only one specification of negligence . . . That Schwartz `failed to prevent injury to [Wilcox's] biliary structures during the laparoscopic cholecystectomy.'" Id., 817. The medical opinion relied upon by plaintiff recited the standard of care and stated: "Specifically, Daniel S. Schwartz, M.D., failed to prevent injury to Kristy Wilcox's biliary structures during laparoscopic [gallbladder] surgery." Id., 815.
The ultimate purpose of this requirement [the written opinion] is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care. So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint, as this opinion does, the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose. Wilcox v. Schwartz, 119 Conn.App. 808, 816 (March 16, 2010).
Similarly, in an action against a physician, a board certified anesthesiologist, the court dismissed the action where the complaint had attached to it two opinion letters, one by a board certified neurologist and the other by a board certified internist. The action was properly dismissed. The Appellate Court, in a per curiam opinion, affirmed the dismissal on the immediate authority of Bennett v. New Milford Hospital, Inc. See Williams v. Hartford Hospital, 122 Conn.App. 597 (July 20, 2010).
The lesson of these cases collectively is that the plain language of the statute is to be adhered to, there is no wiggle room. No words will be added to the statute and none ignored.
Count Four of the Second Amended Complaint dated July 12, 2010 [362] bears the heading "NEGLIGENCE as to Connecticut Behavioral Health Assoc, PC." See Second Amended Complaint dated July 12, 2010 [362], p. 10. Count Four is solely against Connecticut Behavioral Health Associates, P.C.
Most of Count Four is based upon respondeat superior alleging Connecticut Behavioral is responsible for the delicts of Dr. Awwa.
The defendants have moved to dismiss a part of Count Four because it is barred by the statute of limitations. Specifically, defendants contend that subparagraphs (a)-(f) of paragraph 19 of Count Four are time barred as they are entirely new allegations stating a new cause of action not previously plead.
Count Four is also a wrongful death action. Such an action was unknown to our common law. It is solely a creature of statute.
Ordinarily, the statute of limitations must be raised as a special defense. Practice Book § 1-50. However,
[w]here a statute gives a right of action which did not exist at common law, [however] and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Diamond National Corp. v. Dwelle, 164 Conn. 540, 543. 325 A.2d 259 (1973). "In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite. (Citation omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 22-23 (2004).
As this is a wrongful death action, a cause of action unknown at common law and created by statute, § 52-555(a), which statute provides that such an action must be brought "within two years from the date of death," the statute of limitations is properly raised by a motion to dismiss. See below.
Defendants contend that Count Four's allegations of corporate negligence "involve negligence based upon the corporation's actions as a business entity, i.e. its failure to employ competent personnel (19a), its failure to properly supervise its employees (19b) its failure to insure proper competent physicians 19c), its failure to insure its staff were reasonably competent to provide care and assistance (19d), its negligence in employing Dr. Awwa (19e), and, finally, its failure to have adequate procedures to review physician credentials (19f)." Defendants' Memorandum of Law, July 16, 2010 [366], pp. 14-15. According to defendants these allegations are brand new to this case as of the Second Amended Complaint dated July 12, 2010 [362].
Section 52-190a provides in part:
No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . 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 . . .
Count Four clearly states a cause of action coming within the foregoing definition. Count Four is, first and foremost, a wrongful death action.
For a wrongful death action, the applicable statute of limitations is § 52-555(a). It provides that such an action "must be brought within two years from the date of death." C.G.S. § 52-555(a).
Section 52-555(a) is the governing statute of limitation.
Mrs. Traylor died on March 1, 2004. Therefore, this action had to be brought within two years thereof, i.e., by no later than March 1, 2006.
However, § 52-190a which applies to actions "to recover damages resulting from injury or death" also provides:
(b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, 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.G.S. § 52-190a(b)
Plaintiffs petitioned for the ninety-day extension and the court clerk granted the petition on February 23, 2006.
Since Mrs. Traylor died on March 1, 2004, the applicable statute of limitation stated, in the first instance, that this action had to be brought "within two years" of March 1, 2004. That would be by March 1, 2006. But plaintiffs were granted a ninety-day extension. This extended the limitation period to May 30, 2006.
The State Marshal's Return states service was made on Connecticut Behavioral Health Associates, LLC on June 2, 2006. "`Legal actions in Connecticut are commenced by service of process.' (Internal quotation marks omitted.) Rios v. CCMC Corp., 106 Conn.App. 810, 820 (2008)." Rosenfield v. David Marder Associates, LLC et al., 110 Conn.App. 679, 692, n. 11 (2008).
There is no legitimate claim here, nor could there be, that the statute of limitations period was extended by the grace of § 52-593a. That statute provides:
(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.
(b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section.
Connecticut General Statutes § 52-593a.
The State Marshal's Return says the Marshal received the writ of summons and the Complaint on June 1, 2006. This was after the time limited by law.
Both parties recognize that the bar of the statute of limitations would not apply if the negligence cause of action in paragraph 19(a)-(f) of Count Four of the July 12, 2010 Second Amended Complaint [362] had been plead in a prior viable complaint. Plaintiffs' Memorandum In Support of Plaintiff's Objection to the Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint, July 26, 2010 [372], pp. 12-13. Defendants' Memorandum of Law, July 16, 2010 [366], pp. 13-14.
Plaintiffs contend: "Count Four of the July 2010 complaint is simply a restatement of the 2009 count five." Plaintiff's Objection Memorandum, July 26, 2010 [372], p. 12.
A comparison of the two does not show the negligence cause of action plead in paragraph 19(a)-(f) of Count Four of the July 12, 2010 Second Amended Complaint [362] was present or even previewed in Count Five of the June 4, 2009 Amended Complaint [310].
But, even if it was, it would not avail the plaintiffs. For "relation back" to overcome the bar of the statute of limitations, the challenged allegations of the complaint must relate back to a complaint which was viable within the statute of limitations.
The Amended Complaint filed on June 4, 2009 [310] certainly was not viable vis-a-vis § 52-555(a) as extended by the 90-day extension afforded by § 52-190a(c). The applicable statute of limitations as extended by 90-days expired on May 29, 2006.
The truth is, no complaint in this action satisfies the statute of limitations period which ended on May 30, 2006; again service was not made on Connecticut Behavioral Health Associates, LLC until June 2, 2006.
Therefore, the cause of action alleged in paragraph 19(a)-(f) of Count Four is barred by the statute limitations, C.G.S. § 52-555(a).
Count Four of the Second Amended Complaint is barred by the statute of limitations.
Count Four is dismissed.
The Motion to Dismiss is granted, Counts 1-6 are dismissed.
On July 29, 2010, the court granted the Motion to Dismiss [366.03]. This Memorandum of Decision sets forth the basis for the July 29, 2010 decision.