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Ugalde v. Saint Mary's Hospital, Inc.

Court of Appeals of Connecticut

May 15, 2018

MARIA UGALDE, ADMINISTRATRIX (ESTATE OF RICHARD UGALDE)
v.
SAINT MARY'S HOSPITAL, INC., ET AL.

          Argued February 8, 2018

         Procedural History

         Action to recover damages for the defendants' alleged medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the court, Shapiro, J., granted the motion for a nonsuit filed by the defendant Shady Macaron and rendered judgment thereon; thereafter, the court denied the plaintiff's motion to set aside the judgment of nonsuit; subsequently, the court denied the plaintiff's motions for leave to amend the complaint and to reargue the denial of the motion to set aside the judgment of nonsuit, and granted the named defendant's motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court; thereafter, this court dismissed the appeal as to the defendant Shady Macaron. Affirmed.

          Jeffrey M. Cooper, for the appellant (plaintiff).

          Michael R. McPherson, with whom, on the brief, were Sally O. Hagerty and Ilyssa H. Kelson, for the appellee (named defendant).

          David J. Robertson, with whom were Christopher H. Blau and, on the brief, Madonna A. Sacco and Matthew M. Sconziano, for the appellee (defendant Shady Macaron).

          Sheldon, Bright and Harper, Js.

          OPINION

          SHELDON, J.

         In this medical malpractice action, the plaintiff, Maria Ugalde, administratrix of the estate of Richard Ugalde (decedent), appeals from the judgments of the trial court rendered in favor of the defendants, Saint Mary's Hospital, Inc. (hospital), and Shady Macaron, M.D. On appeal, the plaintiff claims that the trial court erred (1) in dismissing her claim against the hospital for failure to file a legally sufficient opinion letter authored by a similar health care provider, as required by General Statutes § 52-190a (a); and (2) in denying her motion to reargue the denial of her motion to set aside the judgment of nonsuit that had been rendered against her in favor of Macaron for her failure to comply with discovery requests.[1] We affirm the judgments of the trial court.

         In her complaint dated August 6, 2015, the plaintiff alleged that, in May, 2013, her decedent was treated at the hospital by Macaron, a general surgeon, who performed a robot-assisted sleeve gastrectomy upon him, after which, while he was still hospitalized, he suffered a postoperative gastric leak that caused his death. After counsel appeared for both defendants, they filed the motions which led ultimately to the judgments that have been challenged on this appeal. We set forth the procedural history leading to each challenged judgment in turn.

         I

         The plaintiff first challenges the dismissal of her claim against the hospital for failure to comply with the requirements of § 52-190a (a). The plaintiff argues that the trial court should have permitted her to amend her complaint-specifically, the opinion letter attached to her complaint-to add the professional qualifications of the author of that letter, and thus to cure the defect contained therein.

         The following procedural history is relevant to the plaintiff's claim. The plaintiff's decedent died on May 13, 2013. The plaintiff obtained a ninety day extension of the statute of limitations to bring this action pursuant to § 52-190a (b).[2] Both defendants were timely served with the plaintiff's writ of summons and complaint on August 7, 2015. The return date in this matter was September 15, 2015.

         Attached to the plaintiff's complaint was a certificate signed by the plaintiff's attorney, attesting that he had a good faith belief that grounds existed for the bringing of this action on the basis of the defendants' medical negligence in their care and treatment of the decedent. Also accompanying the complaint was an opinion letter, which stated, inter alia: ‘‘It is my professional medical opinion based upon my education, training, and 35 years of surgical experience and surgical critical care, and my review of the medical records that the care provided to the [decedent] by general surgeon . . . Macaron and the surgical team under his direction grossly departed and deviated from the accepted standard of care one would expect from a general surgeon providing postoperative care for a patient undergoing a previous gastrointestinal surgical procedure.''

         On October 14, 2015, the hospital filed a motion to dismiss the plaintiff's claim against it on the ground that the court lacked personal jurisdiction over it because the opinion letter attached to the plaintiff's complaint failed to set forth the professional qualifications of the author of the opinion letter as required by § 52-190a (a), and thus that it was legally insufficient.[3]

         On October 20, 2015, in response to the defendants' motions to dismiss, the plaintiff filed a request for leave to amend her complaint, seeking to add to the opinion letter the professional qualifications of its author. Attached to the proposed amended complaint was an amended opinion letter, which stated, inter alia, that the writer's professional medical opinion was based ‘‘upon my education, training, and 35 years of surgical experience with surgical critical care, and as a board certified general, board certified cardiovascular surgeon and with previous board certification in surgical critical care . . . .''

         The hospital objected to the plaintiff's request for leave to amend on the ground that it was untimely and improper in light of its outstanding challenge to the court's jurisdiction over it.

         On January 19, 2016, the plaintiff filed an objection[4]to the hospital's motion to dismiss on the ground that her proposed amended opinion letter satisfied the requirements of § 52-190a (a) and was filed within the applicable statute of limitations.

         By way of a memorandum of decision filed on June 8, 2016, the court denied the plaintiff's request for leave to amend her complaint, sustained the hospital's objection thereto, and granted the hospital's motion to dismiss due to her failure to comply with the requirements of § 52-190a (a). The court denied the plaintiff's request for leave to amend her complaint because it was untimely. The court explained that her decedent died on May 13, 2013, that the statute of limitations for a wrongful death claim is two years, and that the plaintiff had obtained a ninety day extension of the statute of limitations pursuant to § 52-190a (b). Thus, the statute of limitations on the plaintiff's claims expired two years and ninety days from May 13, 2013, which fell on August 11, 2015. The plaintiff filed her request for leave to amend on October 20, 2015. The court reasoned that because the plaintiff's request for leave to amend was filed beyond the statute of limitations, it could not grant that request. And because the opinion letter filed with the plaintiff's complaint was legally insufficient, the court lacked personal jurisdiction over the hospital and, thus, dismissed the plaintiff's claim against it. This appeal followed.

         We begin by setting forth the following relevant legal principles. Section 52-190a (a) provides in relevant part that, in any medical malpractice action, ‘‘[n]o civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, 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, unless the attorney or party filing the action or apportionment complaint 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. . . . [T]he claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes §] 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. . . .'' Section 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52-190a (c) provides: ‘‘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.''

         ‘‘[T]he written opinion letter, prepared in accordance with the dictates of § 52-190a, like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence . . . the action [properly]. . . . Accordingly . . . [t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process, which implicates personal jurisdiction over the defendant. . . . [Dismissal on the basis of an inadequate opinion letter is] without prejudice . . . and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute . . . .'' (Citations omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350-51, 63 A.3d 940 (2013). ‘‘[W]hen a medical malpractice action has been dismissed pursuant to § 52-190a (c) for failure to supply [a legally sufficient] . . . opinion letter by a similar health care provider required by § 52-190a (a), a plaintiff may commence an otherwise time barred new action pursuant to the matter of form provision of [the accidental failure of suit statute, General Statutes] § 52-592 (a) only if that failure was caused by a simple mistake or omission, rather than egregious conduct or gross negligence attributable to the plaintiff or his attorney.'' Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 46-47, 12 A.3d 885 (2011).

         The plaintiff does not claim on appeal, nor did she before the trial court, that the opinion letter that she filed with her initial complaint complied with the requirements of § 52-190a (a). She argues, as she did before the trial court, that she should have been permitted to amend her opinion letter to bring it into compliance ...


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