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Simmons v. Weiss

Court of Appeals of Connecticut

September 5, 2017

DAVID SIMMONS
v.
SCOTT WEISS ET AL.

          Argued April 20, 2017

          Liam M. West, for the appellant (named defendant).

          Michael G. Rigg, for the appellants (defendant Scott Brown et al.).

          Alvord, Mullins and Bear, Js.

         Syllabus

         The plaintiff sought to recover damages for, inter alia, medical malpractice from the defendants, W, a podiatrist, B, a physician's assistant, and a hospital, in connection with a surgery in which two of the plaintiff's toes were amputated, allegedly without the plaintiff's informed consent. Thereafter, the hospital and B filed a motion to dismiss the action as against them on the ground that the plaintiff had failed to obtain and file a written opinion of a similar health care provider as required by statute (§ 52-190a) in medical malpractice actions. W subsequently filed a motion to dismiss the action as against him on the same ground. The trial court granted the defendants' motions to dismiss and rendered judgment dismissing the action, from which the plaintiff did not appeal. The plaintiff thereafter filed an untimely motion to open the judgment of dismissal. The trial court granted in part the motion to open, concluding that the first trial court had improperly granted the defendants' motions to dismiss with respect to the entire complaint because the complaint included a claim of lack of informed consent, which fell outside the scope of § 52-190a, and, therefore, the motions were applicable only to the medical malpractice claims. The court also concluded that compelling equitable circumstances required the court to rectify an injustice by opening the judgment of dismissal because the defendants had misled the first trial court by misstating the law in arguing that the entire complaint asserted claims governed by § 52-190a. Thereafter, W filed an appeal, and B and the hospital filed a separate appeal, with this court. On appeal, the defendants claimed that the trial court improperly had opened the judgment of dismissal more than four months after it was rendered when no exception to the statutory (§ 52-212a) four month limitation period for opening judgments was applicable, and, therefore, that court lacked the authority to open the judgment.

         Held:

1. This court had jurisdiction over the defendants' appeals; although the granting of a motion to open a judgment generally is not immediately appealable, an exception to that general rule is applicable when, as in the present case, an appellant asserts a colorable claim that the trial court lacked the authority to open the judgment.
2. This court concluded that the trial court improperly granted the plaintiff's motion to open the judgment of dismissal and remanded the case with direction to dismiss the motion to open, the trial court having lacked authority to open the judgment because the plaintiff filed his motion to open more than four months after the judgment of dismissal was rendered and no exception to the statutory four month limitation period was applicable: the plaintiff neither claimed nor attempted to prove that the exceptions to the four month limitation period, namely, fraud, duress, and mutual mistake, applied in the present case, and the trial court did not make such a finding but, rather, opened the judgment of dismissal on the ground that it was erroneous as a matter of law; moreover, contrary to the trial court's conclusion that compelling equitable circumstances required the court to rectify an injustice by opening the judgment of dismissal, the defendants did not present the case in a manner that was deceptive or inconsistent with the complaint, because the plaintiff had failed to file a written opinion of a similar health care provider as required by 52-190a, neither the filing nor the granting of the motions to dismiss on that ground was a violation of the law or an injustice, even if there may have been lack of consent or lack of informed consent claims included in the complaint, the first trial court dismissed the complaint because it failed to comply with § 52-190a, and the existence of these other claims did not make the dismissal of the action manifestly unjust, and opening a judgment after the four month limitation period on the ground that a court improperly dismissed an action in full rather than in part was beyond the authority of the court.

         Procedural History

         Action to recover damages for, inter alia, the defendants' alleged medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Lee, J., granted the defendants' motions to dismiss and rendered judgment for the defendants; thereafter, the court, Povodator, J., granted in part the plaintiff's motion to open the judgment, from which the named defendant and the defendant Scott Brown et al. filed separate appeals with this court. Improper form of judgment; judgment directed.

          OPINION

          MULLINS, J.

         The defendants, Scott Weiss, Norwalk Hospital (hospital), and Scott Brown, appeal following the trial court's granting in part of the motion filed by the plaintiff, David Simmons, to open a prior judgment that had been rendered against him. On appeal, the defendants claim that the trial court improperly opened the judgment more than four months after it was rendered when no exception to the timeliness requirement existed. We conclude that the trial court did not have the authority to open the judgment. Accordingly, we reverse the trial court's ruling on the motion to open and remand the case with direction to dismiss the motion to open.

         The following facts and procedural history are relevant to our review of the defendants' claim. This medical malpractice action arose from a surgery in which Weiss, apodiatrist, amputated two of the plaintiff's toes. According to the plaintiff, Weiss, without ‘‘any real examination, '' recommended the amputation of the plaintiff's right foot, to which the plaintiff responded that amputation was unnecessary. Instead, the plaintiff underwent two surgeries at the hospital to open, scrape, and flush his right foot, both of which were performed by Weiss. During the second surgery, Weiss ‘‘amputated [two] noninfected perfectly normal toes.'' Brown is a physician's assistant who was an employee of the ...


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