Rios v. CCMC CORPORATION

Opinion

In 2005, the General Assembly, by enacting Public Acts 2005, No. 05-275, § 2 (P.A. 05-275), required that persons filing legal actions claiming medical negligence, filed on or after October 1, 2005, must annex to the complaint a written and signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence. The principal issue before us in this appeal is whether a complaint delivered to the serving marshal one day prior to the effective date of the public act, but not filed with the clerk of the Superior Court until after its October 1, 2005 effective date, was properly dismissed. We conclude that it was properly dismissed and, accordingly, affirm the judgment of the trial court.

*812In this medical malpractice action, the plaintiffs Betzabel Flores and her minor daughter, Aramis Rios, appeal from the judgment of the court granting the motion of the defendants, CCMC Corporation, doing business as Connecticut Children’s Medical Center, and CCMC Faculty Practice Plan, Inc., to dismiss the complaint for failure to include the opinion of a similar health care provider as required by General Statutes (Rev. to 2005) § 52-190a, as amended by P.A. 05-275, § 21 On appeal, the plaintiffs claim that the court *813improperly (1) granted the defendants’ motion to dismiss and (2) failed to find that a motion to dismiss was not the proper vehicle to address the defendants’ claim.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. In this medical malpractice case, the plaintiffs claimed that the defendants were negligent in failing to diagnose appendicitis on October 18, 2003. On July 1, 2005, the plaintiffs, pursuant to General Statutes § 52-190a (b),2 petitioned the court for an automatic ninety day extension of the applicable three year statute of limitations.3 A clerk of the Superior Court granted the extension on the same day. The plaintiffs delivered a complaint and return of service to a marshal on September 30, 2005. A marshal served the defendants on October 28, 2005. The complaint was filed with the clerk of the Superior Court on November 4, 2005. Attached to the complaint was the plaintiffs’ petition pursuant to § 52-190a (b) and *814a certificate of good faith submitted by the plaintiffs’ attorney. The complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by § 52-190a (a) of all cases filed on or after October 1, 2005.

On November 21, 2005, the defendants filed a motion to dismiss the plaintiffs’ complaint due to the plaintiffs’ failure to include the opinion of a similar heath care provider with the complaint, as required by § 52-190a. The plaintiffs objected to the motion to dismiss, and oral argument was heard by the court on January 3, 2006. The plaintiffs’ attorney informed the court that he had not obtained an opinion of a similar health care provider prior to filing the action in court. At the conclusion of the hearing, the court indicated that it would “hold off ruling on this motion” and encouraged the plaintiffs to figure out a way to get an opinion of a similar health care provider submitted to the court. The plaintiffs, however, did not attempt to file an amended complaint with a health care provider’s written opinion or in any other way attempt to supplement their complaint with such an opinion. The court, however, did not issue a ruling on the defendants’ motion within 120 days; see Practice Book § 11-19 (a); and, on May 5,2006, the defendants moved to have the case reassigned to another judge.

The matter subsequently was reassigned, and, after hearing oral argument, the court, Stengel, J., granted the defendants’ motion to dismiss the plaintiffs’ complaint on August 15, 2006. The court found that the plaintiffs’ complaint was dated September 30,2005, and was filed November 4, 2005.4 The court reasoned that because the plaintiffs’ action was filed after October 1, 2005, the effective date of P.A. 05-275, § 2, the amended *815statute applied. The court, therefore, dismissed the plaintiffs’ action concluding that they had not complied with the requirements of the public act. The plaintiffs thereafter filed this appeal.

I

The plaintiffs first claim that the court improperly granted the defendants’ motion to dismiss. We disagree.

We first set forth our standard of review on a challenge to a ruling on a motion to dismiss. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn. App. 426, 430, 863 A.2d 211 (2004), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005). Because there is no dispute regarding the basic material facts, this case presents an issue of law and our review is plenary. Id.

The plaintiffs’ claim, with respect to § 52-190a, presents an issue of statutory construction. “Statutory construction is a question of law and, therefore, our review is plenary. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 154, 908 A.2d 13 (2006).

Section 52-190a (a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make “a reasonable inquiry as *816permitted 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. . . .’’In order to show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that “such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. ...” General Statutes (Rev. to 2005) § 52-190a (a), as amended by P.A. 05-275, § 2. Prior to the 2005 amendments, the statute provided that good faith may be shown if the plaintiffs or their counsel obtained a written opinion, not subject to discovery, from a similar health care provider that there appeared to be evidence of medical negligence. General Statutes (Rev. to 2005) § 52-190a (a).5 Prior to the amendment, *817the statute did not require plaintiffs to include with the complaint an opinion of a similar health care provider attesting to a good faith basis for an action.

Effective October 1, 2005, the statute was amended to require that in order to show the existence of good faith, claimants or their counsel, prior to filing suit, “shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ...” General Statutes § 52-190a (a). The amended statute also provides that claimants or their counsel “shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. . . .” General Statutes § 52-190a (a). Subsection (c), which was added by P.A. 05-275, § 2, provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.” P.A. 05-275 was “[e]ffective October 1, 2005, and applicable to actions filed on or after said date . . .

In this case, the complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by the 2005 amendment to § 52-190a (a). The writ of summons and complaint were delivered to a marshal for service of process on September 30, 2005, and were filed with the clerk of the Superior Court on November 4, 2005. The plaintiffs claim that the 2005 amendment to § 52-190a, as set forth in P.A. 05-275, does not apply to the present case because the action was filed before October 1, 2005, the effective date of the public act. Specifically, the plaintiffs contend that the action was “filed” within the meaning of P.A. 05-275 when the writ of summons and *818complaint were delivered to a marshal for service of process on September 30, 2005, one day before the effective date of the 2005 amendment to § 52-190a. We disagree.

The word “filed” is not defined expressly in P.A. 05-275. Nevertheless, statutes governing filing in the context of other court activities define the word “filed.” These provisions of the General Statutes indicate that the term refers to bringing a complaint or other pleading to the clerk of the court. See General Statutes § 52-121 (a) (“[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending”); General Statutes § 51-343 (b) (“ ‘[f]iled’ means filed at the court location where there is a clerk designated to receive and maintain the record of the action regardless of the court location to which the writ is made returnable”).

The usage of the term “filed” in these statutory provisions to refer to the act of bringing a complaint or other pleading to the clerk of the court comports with the usage of the term in subsection (b) of the statute at issue. General Statutes § 52-190a (b) provides in relevant part: “Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.....” (Emphasis added.) “It is a familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 123, 830 A.2d 1121 (2003).

*819The plaintiffs’ argument that “filing,” for purposes of the effective date of the statute, refers to the delivery of the writ of summons and complaint to a state marshal for service, therefore, is unavailing. Our review of the text of the statute and its relationship to other statutes reveals that this reading is inappropriate. An action is not filed until the complaint is returned to court.6

The plaintiffs argue, citing Rosenberg v. Planning Board, 155 Conn. 636, 236 A.2d 895 (1967), that delivery of a writ of summons and complaint to a proper serving officer constitutes “filing” of the thing to be filed. Rosenberg, however, did not concern a requirement of filing with the clerk of the Superior Court, nor did it deal with delivery of process to a serving officer. Instead, it concerned a claim that a proposed amendment to the master zoning plan had not been delivered timely to the town clerk. The Rosenberg court held that the trial court had found actual delivery to the town clerk by the defendant planning board. Id., 643. The court held that “[f]iling is accomplished by an actual delivery to the proper officer of the thing to be filed,” referring to a municipal officer, namely, the town clerk. Id. In employing that term, it did not refer to a process server. We, therefore, reject this argument.

Nowhere in their brief do the plaintiffs invoke General Statutes § 52-593a (a), which provides that a cause of action “shall not be lost” by virtue of the passage of a statute of limitations “if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided *820by law, within thirty days of the delivery.”7 This statute, had it been invoked, would not benefit the plaintiffs, in any event. Legal actions in Connecticut are “commenced” by service of process. See, e.g., Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). There is a separate legal requirement for the return of the process so commenced to the clerk of the court after service of it by a marshal or other proper officer. See General Statutes § 52-46a. That statute deals with the filing of the process with the clerk after the action has been commenced.

The plain and unambiguous meaning of the term “filed” refers to the bringing of a complaint or other pleading to the clerk of the court. Accordingly, as correctly determined by the trial court, the plaintiffs filed their action on November 4, 2005, when the writ of summons and complaint were filed with the clerk of the Superior Court. As a result, P.A. 05-275, with its effective date of October 1, 2005, applied to the plaintiffs’ complaint. Because the plaintiffs failed to comply with the provision of the public act, requiring that an opinion of a similar health care provider attesting to a good faith basis for the action be included with the complaint, we conclude that the defendants’ motion to dismiss properly was granted.

II

The plaintiffs next claim that the court improperly failed to find that a motion to dismiss was not the proper *821vehicle to address the defendants’ claim. Specifically, the plaintiffs argue that the defendants’ motion to dismiss should have been denied, and the defendants should have been directed to file a motion to strike. We disagree.

This claim presents an issue of statutory construction over which our review is plenary. See Wilson v. Jefferson, supra, 98 Conn. App. 154.

The plaintiffs, citing LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), and Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994), argue that a motion to dismiss is not the proper method of attacking the sufficiency of a good faith certificate in a medical malpractice case because the lack of a good faith certifícate is not a jurisdictional defect depriving the court of subject matter jurisdiction over the case.8 The plaintiffs reliance on Gabrielle and LeConche is misplaced because these cases interpret a prior version of the relevant statute. See LeConche v. Elligers, supra, 701 (holding that neither language of § 52-190a [Rev. to 1987] nor legislative history suggest that lack of good faith basis for action was ground for dismissal on jurisdictional grounds, thus absence of statutorily required good faith certificate from complaint renders complaint subject to motion to strike); Gabrielle v. Hospital of St. Raphael, supra, 378 (failure to attach certificate of good faith pursuant to § 52-190a [Rev. to 1987] subjects case to motion to strike complaint because failure to so attach not jurisdictional defect).

*822The 2005 amendment to the statute, however, rendered the line of cases which the plaintiffs cite inapplicable. Unlike the preceding revisions of the statute, the current revision of § 52-190a includes an additional subsection, (c), which was added by P.A. 05-275, and states that “[t]he failure to obtain and file the written opinion as required by subsection (a) of this section shall be grounds for the dismissal of the action.” (Emphasis added.) General Statutes § 52-190a (c). The plain language of this new statutory subsection, which was not in effect at the time of LeConche and Gabrielle, expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a (a).9 Accordingly, the court properly considered and granted the defendants’ motion to dismiss.

The judgment is affirmed.

In this opinion BISHOP, J., concurred.