161 Conn.App. 497
Conn. App. Ct.2015Background
- Gonzales sued dermatologist Robert Langdon and Shoreline Dermatology after a 2011 "S" facelift allegedly severed facial nerves, causing permanent injury.
- Her January 2014 complaint included a good-faith certificate and an opinion letter from a board-certified dermatologist stating Langdon breached the standard of care.
- Defendants moved to dismiss under Conn. Gen. Stat. § 52-190a for lack of a legally sufficient opinion letter (arguing the author was not a “similar health care provider”).
- Gonzales sought leave to amend within the statute of limitations to attach an amended dermatologist opinion and a new opinion by a board-certified plastic surgeon.
- Trial court dismissed the complaint as the original opinion letter was insufficient and did not rule on the leave-to-amend request; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of original opinion letter under § 52-190a/§ 52-184c | Original dermatologist opinion was sufficient because Langdon’s DPH profile listed dermatology certification | Original letter insufficient because complaint alleged Langdon held himself out as a cosmetic surgery specialist, so opinion needed from provider certified in cosmetic surgery or equivalent specialty | Held: Original letter was insufficient—complaint’s allegation that defendant held himself out as a cosmetic surgery specialist triggered § 52-184c(c) requirements |
| Whether plaintiff could amend to cure a defective opinion letter after filing but before statute of limitations expired | Leave to amend should be allowed; statute and practice rules permit curing defects and protecting nonfrivolous claims | Defendants: defective opinion is a process/jurisdictional defect that cannot be cured by amendment; a new opinion obtained after commencement may be impermissible | Held: Court abused its discretion by denying leave to amend; plaintiff may amend to cure a defective opinion letter if amendment is within the statute of limitations (as of right within 30 days; discretionary after 30 days) |
| Sufficiency of proposed amended dermatologist opinion | Amended dermatologist letter (stating cosmetic procedure experience) would cure defect | Insufficient because author lacked board certification in cosmetic surgery or equivalent specialty | Held: Proposed amended dermatologist opinion insufficient because it did not show board certification in cosmetic surgery or an equivalent specialty |
| Sufficiency of proposed new plastic-surgeon opinion | New opinion from board-certified plastic surgeon would satisfy § 52-184c(c) because plastic surgery training equals/exceeds cosmetic surgery | Defendants disputed equivalence of plastic vs. cosmetic surgery board certifications; argued plaintiff needed cosmetic-surgery-certified author | Held: Record inadequate to decide equivalence; remanded for trial court to determine whether the plastic-surgeon letter satisfies § 52-184c(c) |
Key Cases Cited
- Morgan v. Hartford Hosp., 301 Conn. 388 (2011) (failure to attach a proper § 52-190a opinion implicates personal jurisdiction)
- Bennett v. New Milford Hosp., Inc., 300 Conn. 1 (2011) (allegations in complaint define the specialty for selecting a similar health care provider under § 52-184c)
- Wilkins v. Conn. Childbirth & Women’s Ctr., 314 Conn. 213 (2014) (opinion author must be trained/experienced and board certified in same specialty or equivalent)
- Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569 (2009) (discusses limits on post-commencement substitution of opinion letters; dicta on inadvertent omissions)
- Torres v. Carrese, 149 Conn. App. 596 (2014) (opinion on requirements for similar health care provider and timing limits on new letters)
- Plante v. Charlotte Hungerford Hosp., 300 Conn. 33 (2011) (distinguishes form vs. jurisdictional defects under accidental-failure-of-suit context)
- New England Rd., Inc. v. Planning & Zoning Comm'n, 308 Conn. 180 (2013) (§ 52-72 applies primarily to technical defects in process; strict compliance required in administrative appeals)