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Gonzales v. Langdon

Appellate Court of Connecticut

December 1, 2015

LUZ MARINA GONZALES
v.
ROBERT LANGDON ET AL

Argued September 24, 2015.

Page 563

[Copyrighted Material Omitted]

Page 564

Action to recover damages as a result of the defendants' alleged medical malpractice, brought to the Superior Court in the judicial district of New Haven, where the plaintiff filed a request for leave to amend the complaint; thereafter, the court, B. Fischer, J., granted the defendants' motion to dismiss, denied the plaintiff's request for leave to amend, and rendered judgment thereon; subsequently, the court denied the plaintiff's motion to reargue and for an articulation, and the plaintiff appealed to this court.

Reversed; further proceedings.

SYLLABUS

The plaintiff, seeking to recover damages for medical malpractice, requested leave to amend her complaint after the defendant physician, R, and his defendant medical practice had filed a motion to dismiss for lack of personal jurisdiction on the ground that the opinion letter attached to the complaint was insufficient under the statute (§ 52-190a [a]) pertaining to medical malpractice actions. The plaintiff had submitted an opinion letter authored by a board certified dermatologist who stated that R, who was also a board certified dermatologist, departed from the standard of care when performing the plaintiff's surgery. The defendants filed a motion to dismiss, arguing that the opinion letter was insufficient because, on the basis of the allegations in the complaint stating that R was a specialist in cosmetic surgery, the plaintiff had not obtained an opinion letter authored by a similar health care provider as defined by statute (§ 52-184c). The plaintiff maintained that the opinion letter was sufficient because the Department of Public Health's website indicated that R is only board certified in dermatology. The trial court granted the motion to dismiss for lack of personal jurisdiction and, without expressly referencing it, implicitly denied the plaintiff's request for leave to amend her complaint, in which she had requested permission to file a proposed amended opinion letter authored by the board certified dermatologist and a proposed new opinion letter authored by a board certified plastic surgeon. On appeal to this court, the plaintiff claimed that the trial court erred by granting the defendants' motion to dismiss because the original opinion letter was legally sufficient, or, in the alternative, that the trial court improperly denied her leave to amend her complaint. The plaintiff further claimed that the proposed amended opinion letter and proposed new opinion letter were legally sufficient. Held :

1. The plaintiff could not prevail on her claim that the original opinion letter was sufficient because R was only certified as a dermatologist according to the Department of Public Health and his certification in cosmetic surgery was by an inappropriate board, the American Board of Cosmetic Surgeons: the original opinion letter was not legally sufficient pursuant to § 52-184c (c) because it was not authored by a similar health care provider, which is defined by the allegations in the plaintiff's complaint and not by R's actual board certifications; furthermore, on the basis of the plaintiff's complaint alleging that R held himself out as a specialist in cosmetic surgery, the plaintiff was required to obtain an opinion letter authored by a health care provider that was trained and experienced in cosmetic surgery, and either certified by the appropriate American board in cosmetic surgery or board certified in a medical specialty that includes equivalent or greater training and experience than cosmetic surgery, and, therefore, the original opinion letter authored by a board certified dermatologist, who did not claim to have any training or experience in cosmetic surgery, was not legally sufficient.

2. Contrary to the defendants' claim, the trial court was not prohibited from considering whether to grant the plaintiff leave to amend the complaint to attach both the proposed amended opinion letter and the proposed new opinion letter, as § 52-190a (a) contains no express language prohibiting a plaintiff from amending an opinion letter after the action is commenced, and this court could not divine any legislative intent to override the general applicability of the relevant statute (§ 52-128), rules of practice (§ § 10-59 and 10-60), or prior case law indicating that courts have traditionally denied leave to amend only if the amendment would prejudice the defendant by causing undue delay, or when the amendment does not relate back to the original complaint; accordingly, this court concluded that, if a plaintiff alleging medical malpractice seeks to amend the complaint in order to amend the original opinion letter or to substitute a new opinion letter, the trial court must permit such an amendment if the plaintiff seeks to amend as of right pursuant to § 52-128 and Practice Book § 10-59 and the action was brought within the statute of limitations, and, furthermore, the trial court has discretion to permit such an amendment if the plaintiff otherwise seeks to amend within the applicable statute of limitations.

3. Under the circumstances of this case, the trial court abused its discretion by not permitting the plaintiff leave to amend her complaint, as the request was made within the statute of limitations, there were no circumstances that would justify denying leave to amend, such as undue delay or prejudice to the defendants, and the defendants never argued that the amendment did not relate back to the original complaint.

4. This court concluded that the proposed amended opinion letter was insufficient as a matter of law because it clearly did not meet the requirement under § 52-184c (c) that the plaintiff obtain an opinion letter authored by a health care provider experienced and trained in cosmetic surgery, and board certified in cosmetic surgery or in a medical specialty that incudes equivalent or greater training and experience than cosmetic surgery; this court further concluded that the record here was inadequate to determine whether the proposed new opinion letter met the requirements of § 52-184c (c), and, thus, the case was remanded to the trial court for consideration on whether the proposed new opinion letter was legally sufficient pursuant to § § 52-190a and 52-184c because the trial court did not grant the plaintiff leave to amend her complaint, it did not consider the proposed new opinion letter when it granted the defendants' motion to dismiss, and, therefore, the trial court made no factual findings regarding whether a board certified plastic surgeon has training and experience equivalent to or greater than a board certified cosmetic surgeon.

Stephen M. Reck, for the appellant (plaintiff).

Michael R. McPherson, for the appellees (defendants).

DiPentima, C. J., and Gruendel and Prescott, Js. PRESCOTT, J. In this opinion the other judges concurred.

OPINION

Page 565

[161 Conn.App. 500] PRESCOTT, J.

This appeal arises out of a medical malpractice action brought by the plaintiff, Luz Marina Gonzales, against the defendants, Robert Langdon and Shoreline Dermatology, P.C., after a neck and jowl " S" facelift procedure performed by Langdon allegedly left the plaintiff permanently injured. The plaintiff appeals from the judgment of the trial court dismissing her complaint against the defendants for failure to include a legally sufficient opinion letter authored by a similar health care provider as required by General Statutes § 52-190a (a). The plaintiff claims that the court improperly granted the defendants' motion to dismiss because (1) the original opinion letter was legally sufficient, or, in the alternative, (2) (A) the court should have granted the plaintiff leave to amend her complaint, and (B) furthermore, if leave had been appropriately granted, the proposed amended opinion letter and the proposed new opinion letter attached to the amended complaint were legally sufficient.[1] We reverse the judgment of the court.

The plaintiff's original complaint, filed on January 21, 2014,[2] contained the following allegations. The plaintiff was a patient of Langdon, " a dermatologist who holds himself out as a specialist in cosmetic surgery . . . ." [3] [161 Conn.App. 501] On December 15, 2011, the plaintiff underwent a neck and jowl " S" facelift procedure, performed by Langdon at Shoreline Dermatology, P.C. During the procedure, Langdon cut the plaintiff's left facial nerves, buccal branch nerves, and zygomatic branch nerves, resulting in the plaintiff suffering facial neuropathy and deformity. The plaintiff's complaint alleged

Page 566

that Langdon negligently conducted the surgery and also that he departed from the standard of care by performing a procedure in which he was not properly skilled or trained.

Attached to the plaintiff's complaint was her attorney's good faith certificate of reasonable inquiry and an opinion letter. The opinion letter (original opinion letter) was authored by a board certified dermatologist, who stated that Langdon departed from the standard of care when performing the neck and jowl " S" facelift procedure by cutting the plaintiff's left buccal nerve.

On February 26, 2014, in response to the plaintiff's complaint, the defendants filed a motion to dismiss for lack of personal jurisdiction, alleging that the opinion letter was legally insufficient and contained inadequate details regarding the author's qualifications as a similar health care provider. Although the plaintiff maintained that the original opinion letter was legally sufficient, on March 11, 2014, she filed a request for leave to amend her complaint along with an exact copy of her initial complaint, an amended version of the original opinion letter (proposed amended opinion letter), and a new opinion letter authored by a board certified plastic surgeon (proposed new opinion letter). Although the plaintiff's request for leave to amend her complaint was filed more than thirty days from the return day, and thus, past the time to amend as of right; see General Statutes § 52-128; Practice Book § 10-59; it was filed within the [161 Conn.App. 502] applicable statute of limitations. General Statutes § § 52-190a (b) and 52-584.

The proposed amended opinion letter authored by the board certified dermatologist stated in relevant part that the author was " board-certified by the American Board of Dermatology and perform[s] cosmetic surgical procedures. The American Board of Medical Specialties . . . does not recognize `Cosmetic Surgery' as a board specialty. The skills needed for cosmetic surgical procedures are certified by the American Board of Dermatology."

The proposed new opinion letter, authored by a plastic surgeon certified by the American Board of Plastic Surgery, set forth the author's credentials and stated that " Langdon departed from the standard of care by cutting the [plaintiff's] buccal nerve and by performing a surgery which should not be performed by a dermatologist. This surgery is not within [Langdon's] medical specialty and should be performed by a plastic surgeon."

On May 5, 2014, the plaintiff's request for leave to amend and the defendants' motion to dismiss were argued on short calendar before Judge Brian T. Fischer.[4] During oral argument, the parties disagreed as to whether the original opinion letter, the proposed amended opinion letter, or the proposed new opinion letter should be the operative letter, and whether any of the letters were legally sufficient under § 52-190a (a). In a written memorandum of decision filed July 2, 2014, the court granted the defendants' motion to dismiss for [161 Conn.App. 503] lack of personal jurisdiction on the ground that the original opinion letter was not authored by a similar health care provider. At no point in the court's memorandum of decision did the court rule

Page 567

on or otherwise discuss the plaintiff's request for leave to amend her complaint, or mention the proposed amended opinion letter ...


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