199 Conn.App. 367
Conn. App. Ct.2020Background
- Carpenter sued Daar and Shoreline for dental malpractice after a 2015 root canal; plaintiff attached a good-faith certificate and an opinion letter by Dr. Charles S. Solomon (an endodontist).
- Carpenter's first malpractice case (filed June 2017) was dismissed Oct. 11, 2017 for a deficient opinion letter that failed to show the author was a “similar health care provider” under Conn. Gen. Stat. § 52-184c.
- Carpenter filed a second action Feb. 21, 2018 under the accidental-failure-of-suit statute (§ 52-592), attaching the same opinion letter and supplemental correspondence; Solomon later executed a supplemental affidavit (May 30, 2018) expanding on his qualifications.
- Daar submitted an affidavit that he is a general dentist (not board-certified or practicing as an endodontic specialist) and that the root canal was performed in his capacity as a general dentist.
- Defendants moved to dismiss, arguing Solomon is not a “similar health care provider” (because Daar is a nonspecialist) and that the supplemental affidavit could not cure a defective opinion letter without an amendment or repleading.
- The trial court dismissed, finding the applicable similar-provider definition was the nonspecialist provision (§ 52-184c(b)) and that the opinion letter (with or without Solomon’s supplemental affidavit, which the court considered) failed to show Solomon taught or practiced general dentistry within the five-year window. The Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) May the court consider Solomon’s supplemental affidavit filed after the first action’s dismissal under § 52-592? | Carpenter: the second suit was timely under § 52-592 and the affidavit is therefore timely; court could consider it. | Daar: trial court erred in considering the affidavit without factual findings that § 52-592 applied; affidavit obtained after limitations should not cure process. | Appellate Ct.: declined to grant defendants relief on this ground (no cross‑appeal; remand would effectively require reversal); but noted the trial court failed to make the factual findings Plante requires. |
| 2) Was Daar a specialist (so § 52-184c(c) applies) or a nonspecialist (so § 52-184c(b) applies)? | Carpenter: alleges Daar held himself out as an endodontic specialist. | Daar: affidavit and website show he is a general dentist; website language does not establish he held himself out as a board-certified specialist. | Appellate Ct.: Daar is a nonspecialist; § 52-184c(b) governs. |
| 3) Does Solomon satisfy the specialist definition (§ 52-184c(c))? | Carpenter: Solomon is an endodontic specialist, so his opinion qualifies if Daar were a specialist. | Defendants: (c) is inapplicable because Daar is not a specialist; (c) therefore cannot validate the letter. | Held: (c) inapplicable because Daar is a nonspecialist. |
| 4) Can the opinion letter (alone or supplemented by Solomon’s affidavit) establish Solomon as a "similar health care provider" under the nonspecialist definition (§ 52-184c(b)), or must Carpenter amend the complaint? | Carpenter: Solomon’s supplemental affidavit shows he taught clinical material to undergraduates and that standards overlap, thus qualifying him under § 52-184c(b). | Defendants: teaching endodontics to dental students is not equivalent to teaching or actively practicing general dentistry within the five-year window; a plaintiff must amend the complaint to change the theory rather than rely on a post‑filing affidavit. | Appellate Ct.: affidavit could not substitute for an amendment to correct process; the opinion letter did not show Solomon had active involvement in teaching/practicing general dentistry within five years, so dismissal was proper. |
Key Cases Cited
- Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011) (§ 52-592 savings statute applies only where prior dismissal for defective opinion letter resulted from mistake, inadvertence, or excusable neglect).
- Morgan v. Hartford Hospital, 301 Conn. 388 (2011) (opinion letter is part of process/pleading and a challenge to a deficient letter attacks personal jurisdiction).
- Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011) (courts should not permit free amendment of challenged opinion letters; dismissal is proper remedy for noncompliance).
- Gonzales v. Langdon, 161 Conn. App. 497 (2015) (a defective opinion letter may be cured by amending the complaint if done within the statute of limitations).
- Peters v. United Community & Family Services, Inc., 182 Conn. App. 688 (2018) (left open whether a timely affidavit may cure a defective opinion letter; cautioned plaintiffs to follow amendment procedures).
- Labissoniere v. Gaylord Hospital, Inc., 182 Conn. App. 445 (2018) (affidavits accompanying a motion to dismiss may be considered where they contain undisputed facts about the defendant’s practice).