153 Conn.App. 764
Conn. App. Ct.2014Background
- Harger sued Odlum (a general dentist) for dental malpractice and attached a §52-190a good-faith certificate and an opinion letter originally authored by a periodontist.
- Odlum moved to dismiss, arguing the opinion letter was not from a “similar health care provider” and failed to show the author’s qualifying information under §52-184c.
- Harger sought and obtained leave to amend, attaching an amended opinion letter clarifying it was authored by a general dentist.
- The trial court denied Odlum’s motion to dismiss, found the original letter inadequate but allowed the amended letter and held the amended letter satisfied §52-190a.
- Odlum filed for reargument and certification to appeal; certification was denied; he then appealed the denial of the motion to dismiss to the Appellate Court.
- The Appellate Court granted Harger’s motion to dismiss the appeal for lack of a final judgment, holding the denial of the §52-190a-based motion to dismiss was interlocutory and not immediately appealable under Curcio.
Issues
| Issue | Harger’s Argument | Odlum’s Argument | Held |
|---|---|---|---|
| Whether denial of a motion to dismiss for failure to comply with §52-190a is an appealable final judgment | Denial is interlocutory and not final; appeal must be from final judgment | Denial is immediately appealable under Curcio’s second prong because §52-190a grants health care providers a right not to litigate when the opinion letter is deficient | Denial is interlocutory; not a final judgment and appeal dismissed |
| Whether §52-190a confers an immunity-like right shielding providers from suit | §52-190a does not create immunity; it permits dismissal but not a protected right against litigation | §52-190a effectively protects providers from litigating when plaintiff fails statutory filing requirements | §52-190a does not create statutory or constitutional immunity; it is not the kind of right protected by Curcio’s second prong |
| Whether denial of dismissal based on §52-190a is equivalent to a personal-jurisdiction ruling and thus immediately appealable | Such denials are interlocutory and may be reviewed on appeal from final judgment | Argued that finding bears on the defendant’s right not to litigate and thus is immediately appealable | Court treated §52-190a failure like jurisdictional defect (akin to insufficient service) — not immediately appealable |
| Whether appellate jurisdiction exists despite denial of certification to appeal | N/A (Harger moved to dismiss appeal) | Sought appellate review regardless of certification denial | No jurisdiction — lack of final judgment is a jurisdictional defect mandating dismissal |
Key Cases Cited
- State v. Curcio, 191 Conn. 27 (sets two-prong test for interlocutory appeals)
- Flanagan v. Blumenthal, 265 Conn. 350 (denial of motion to dismiss generally interlocutory)
- Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474 (Curcio second-prong requires jeopardy to a secured statutory/constitutional right)
- Shay v. Rossi, 253 Conn. 134 (interlocutory review allowed where sovereign immunity would be irretrievably lost)
- Santorso v. Bristol Hospital, 308 Conn. 338 (failure to attach proper opinion letter likened to insufficient service/personal jurisdiction issue)
- Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223 (ruling on personal jurisdiction in motion to dismiss is not immediately appealable)