Challenging the new Good Faith Opinion Letters: Motion to Strike or Motion to Dismiss?
By Mike A. D'Amico, Esquire
D'Amico & Pettinicchi,LLC, Watertown, CT
In 1986 Connecticut adopted by statute, C.G.S. 52-190a, the requirement that a pre-complaint inquiry be conducted in medical negligence claims. The purpose of this requirement was to deter the filing of frivolous claims. The statute created a pleading requirement that the plaintiff attach to the complaint a certificate signed by the plaintiff or his attorney, stating that the pre-complaint inquiry had been conducted and that the inquiry gave rise to a good faith belief that there appeared to be evidence of medical negligence.
The Connecticut Supreme Court later held in LeConche v. Elligers, 215 Conn. 701 (1990) that the failure to attach the required certificate should be challenged by a Motion to Strike and was akin to challenging the legal sufficiency of a cause of action as alleged in a complaint. The Court further held that this pleading requirement did not implicate the court's historical subject matter jurisdiction over medical negligence actions and that the failure to attach the certificate did not mandate dismissal; rather the plaintiff could cure this defect by appropriate amendment of the complaint and attachment of the certificate.
In 2005 with debate raging over medical malpractice reform C.G.S. 52-190a was amended to require that the complaint include not only the certificate but also an opinion letter by a similar healthcare provider setting forth how the defendant was negligent. The amendment includes subsection (c) which states that the failure to obtain and file the required written opinion "shall be grounds for dismissal." This wording has spawned countless Motions to Dismiss which have become knee jerk reactions by defense counsel and a burden to judges. The motions have routinely asked for dismissal for various reasons including the failure to attach the opinion letter; failure to include enough detail about how the defendant was negligent; failure to acquire the opinion letter from a health care provider similar to the defendant; failure to state in the opinion letter that the claimed negligence caused the plaintiff's injuries; and failure to have the opinion letter drafted by the expert (as opposed to plaintiff's attorney) even though the letter is approved, adopted and signed by the expert.
Adding to the confusion was the recent Appellate Court case of Rios v. CCMC Corp., 106 Conn. App. 810 (2008) which held that a Motion to Dismiss was the procedural tool to be used to challenge the opinion letter. Judge Berdon dissented and opined that a Motion to Strike is proper as LeConche had previously held; and correctly so. Nothing in the 2005 amendment says that a Motion to Dismiss is to be used to challenge the opinion letter, or lack thereof; nor does the amendment require dismissal. A fair and workable reading of this amendment allows for the sanction of "dismissal" under appropriate circumstances. An appropriate circumstance would be a plaintiff's failure to file an opinion letter, or an amended opinion letter as the case may be, after the granting of a defense Motion to Strike. Any other reading of this amendment leads to nonsensical results. Take for example the situation where plaintiff has received the oral opinion that medical negligence exists and the expert promises to forward the signed opinion letter immediately amid expiring statute of limitation concerns; but due to a conflicting emergency the expert fails to get the signed opinion to plaintiff timely, an eventuality over which plaintiff has no control. Should plaintiff be penalized by the draconian dismissal of her claim? Or the situation where the opinion letter is attached but a judge rules that further details of the negligent conduct is appropriate? Should plaintiff suffer the fate of draconian dismissal despite good faith attempts to comply with the statute?
Rios presented circumstances where a fair-minded judge would want to impose the sanction of dismissal because the plaintiff failed to amend her complaint to attach the required opinion letter after the trial judge allowed her ample opportunity to do so. Unfortunately the Appellate Court in its desire to uphold a dismissal it felt was fair, hastily agreed that a Motion to Dismiss was appropriate. To its credit the Court noted in footnote 8 that subject matter jurisdiction was not implicated but instead explained that dismissal is appropriate as a sanction under certain circumstances; a footnote which the Supreme Court bolstered in Monti v. Wenkert, 287 Conn. 101 (2008) when it stated at page 133 "current revision of statute includes new subsection, added in 2005, providing that dismissal is appropriate sanction for filing false certificate."
When next given the opportunity the Appellate or Supreme Court should set the record straight and hold that the proper procedural tool for challenging opinion letters is the Motion to Strike; until then trial judges should limit Rios to its facts and deny dismissals except in the rare instances where the draconian sanction of dismissal is appropriate and in all instances the plaintiff should be allowed the opportunity to amend his complaint, or opinion letter, to cure a deficiency.