NORCOTT, J.
In this certified appeal, we consider two significant issues that have arisen under General Statutes (Rev. to 2005) § 52-190a, as amended by Public Acts 2005, No. 05-275, § 2 (P.A. 05-275),
The opinion of the Appellate Court aptly sets forth the following relevant facts, as alleged in the plaintiff's complaint, and procedural history. "On November 28, 2006, the decedent suffered a diabetic seizure while operating his motor vehicle. Consequently, his vehicle left the road and collided with a concrete wall. He was extracted from his vehicle and transported to [the hospital]. He was treated in the emergency department by [the defendant], who stabilized the decedent's blood sugar and medicated him for back pain. He was discharged and advised to follow up with his primary care physician. Thereafter, the decedent's primary care physician directed him to return to the hospital for further testing where it was discovered that the decedent had sustained a compression fracture of his lumbar spine, an impact fracture of the proximal tibia and right knee effusion. As a consequence of the significant pain that he suffered due to the untreated fractures of the spine and leg, the decedent sustained myocardial ischemia, which resulted in his death on January 9, 2007.
"The first two counts of the plaintiff's complaint were against [the defendant], and the remaining two counts were against the hospital. Pursuant to § 52-190a (a), the plaintiff attached a good faith certificate from his attorney and a written opinion from a physician. On March 27, 2008, [the defendant] moved to dismiss counts one and two of the plaintiff's complaint pursuant to § 52-190a (c) on the basis that the plaintiff did not comply with § 52-190a (a). Specifically, [the defendant] claimed that the author of the opinion letter attached to the plaintiff's good faith certificate was not a similar health care provider and that the opinion failed to provide a `detailed basis' for its formation; see General Statutes [Rev. to 2005] § 52-190a (a) [as amended by P.A. 05-275]; as it failed to refer specifically to [the defendant]. According to the plaintiff's complaint, [the defendant] specializes in emergency medicine.
The plaintiff appealed from the judgment of dismissal to the Appellate Court. In a unanimous opinion, a three judge panel of the Appellate Court first determined that an opinion letter that fails to comply with § 52-190a (a) subjects the action to "potential dismissal" under § 52-190a (c). Id., at 545, 979 A.2d 1066. The Appellate Court then concluded that, under the plain language of §§ 52-190a (a) and 52-184c, "a similar health care provider with respect to [the defendant] would be one who is trained and experienced in emergency medicine and is certified in emergency medicine. Accordingly, before bringing an action alleging medical negligence on [the defendant's] part, the plaintiff or his attorney must obtain and file a written and signed opinion from such a physician that there appears to be evidence of such negligence. Because the plaintiff's expert is not certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c (c)."
On appeal, the plaintiff and the amicus curiae Connecticut Trial Lawyers Association (trial lawyers) claim that: (1) to provide the opinion letter required by § 52-190a (a), a health care provider need not be a similar health care provider under § 52-184c (b) or (c) but, rather, must only qualify to testify as an expert witness under § 52-184c (d); (2) § 52-190a (c) did not obligate the trial court to dismiss the case on the basis of the submission of an opinion letter from a physician who was not a similar health care provider; and (3) a construction of § 52-190a to the contrary would violate the separation of powers provision of article second of the Connecticut constitution, as amended by article eighteen of the amendments.
Before addressing the plaintiff's claims on appeal, we address the applicable standard of review, which is well settled. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010).
Moreover, when the legal issue presented in connection with a motion to dismiss is one of statutory construction, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider 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
We begin with the plaintiff's claim that the Appellate Court improperly concluded that § 52-190a (a) clearly and unambiguously permits only a similar health care provider, as defined by subsections (b) or (c) of § 52-184c, rather than an otherwise qualified expert under § 52-184c (d), to provide an opinion letter. The plaintiff posits that § 52-190a (a) is ambiguous, but clarified by legislative history that indicates that the legislature contemplated that the same expert witness could and would both author the opinion letter and testify at the subsequent trial. The plaintiff also argues that, by precluding otherwise qualified experts from authoring opinion letters, the Appellate Court's construction of § 52-190a (a) does not further the purpose of the statute, which is to protect health care providers from the filing of frivolous medical malpractice actions.
In response, the defendant contends that the Appellate Court properly concluded that, under § 52-190a (a), the author of the opinion letter had to be a similar health care provider as defined by § 52-184c (c), because the plaintiff asserted in his complaint that the defendant held himself out as a specialist in the field of emergency medicine. Relying on the plain language of § 52-190a, as well as its legislative history, the defendant acknowledges that the qualifications for the author of the opinion letter are narrower than those for an expert to testify at trial pursuant to § 52-184c (d), but emphasizes that this restriction is intended to ensure the validity of the proffered opinion as to the legitimacy of the action, given the defendant's lack of an opportunity to test the author's qualifications at the pleading stage. We agree with the defendant and conclude that, because the plaintiff alleged in his complaint that the defendant was a specialist in emergency medicine, the author of the opinion letter pursuant to § 52-190a (a) had to be a similar health care provider as that term is defined by § 52-184c (c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c (d).
We begin with the relevant statutory language. General Statutes (Rev. to 2005) § 52-190a (a), as amended by P.A. 05-275, provides in relevant part: "No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted 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. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis
Section 52-190a (a) refers to similar health care providers under § 52-184c, which utilizes that term as one of art, both to establish the standard of care that the plaintiff alleges was breached in a malpractice action; see General Statutes § 52-184c (a); as well as in part to establish a health care provider's qualifications to testify as an expert witness. See General Statutes § 52-184c (d). With respect to those health care providers who are board certified or trained and experienced as specialists, or who, like the defendant in the present case, hold themselves out as specialists,
Citing various trial courts' differing interpretations of § 52-190a (a) as evidence of its ambiguity,
Given the explicit cross-reference in the relevant statutes, we must read § 52-190a (a) in conjunction with § 52-184c, which clearly is a related statute. We first note
Thus, the legislature's use of the term similar health care provider in § 52-190a, with a cross-reference to § 52-184c, is significant, because, as the Appellate Court aptly noted, had the legislature desired to broaden the pool of physicians permitted to provide an opinion letter, it "could have allowed opinion letters to be authored by a `qualified health care provider,' thereby allowing either similar or nonsimilar health care providers to author opinion letters in compliance with § 52-190a (a). Rather, when establishing the guidelines for the opinion letter, the legislature clearly and unambiguously referred to a `similar health care provider.'"
The plaintiff contends, however, that adhering to the plain language of the statute and the narrow definition of similar health care provider yields the absurd result of potentially precluding highly qualified expert witnesses from participating in the prelitigation inquiry by authoring opinion letters. Given that this absurdity argument is reasonable, we turn to the relevant extra-textual sources and conclude that hewing closely to the term similar health care provider, rather than expansively reading § 52-190a (a) to allow any physician who might qualify as an expert under § 52-184c (d) to author an opinion letter, best effectuates the purpose of § 52-190a (a), which originally was enacted as part of the Tort Reform Act of 1986; see Public Acts 1986, No. 86-338, § 12; and "required the plaintiff in any medical malpractice action to conduct `a reasonable inquiry as permitted 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 [plaintiff]' and to file a certificate `that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.' . . . The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence, but permitted the plaintiff to rely on such an opinion to support his good faith belief. The . . . purpose of the original version of § 52-190a was to prevent frivolous medical malpractice actions." (Citation omitted.) Dias v. Grady, 292 Conn. 350, 357, 972 A.2d 715 (2009).
Nearly twenty years later, the legislature enacted P.A. 05-275 as a comprehensive effort to control significant and continued increases in malpractice insurance premiums by reforming aspects of tort law, the insurance system and the public health regulatory system. See, e.g., 48 S. Proc., Pt. 14, 2005 Sess., p. 4407, remarks of Senator Andrew J. McDonald; 48 H.R. Proc., Pt. 31, 2005 Sess., p. 9440, remarks of Representative Michael P. Lawlor. Section 2 of P.A. 05-275 "amended § 52-190a (a) to include a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that `there appears to be evidence of medical negligence' and to attach the opinion to the certificate of good faith to be filed with the complaint. . . . In addition, the amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint." (Citation omitted.) Dias v. Grady, supra, 292 Conn. at 357, 972 A.2d 715; see also id., at 359, 972 A.2d 715 (concluding that
"The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts."
Along with the trial lawyers, the plaintiff argues, however, in his reply brief, that the defendant is not board certified and the opinion letter is, therefore, sufficient because it was authored by a similar health care provider as defined in § 52-184c (b), which applies to a defendant health care provider who is "not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist. . . ." For these health care providers, § 52-184c (b) defines a similar health care provider as "one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." The plaintiff and the trial lawyers claim that the legislature's use of the disjunctive word "or" in § 52-184c (b) means that the legislature intended its various terms to apply as alternative choices; that is, since the defendant is not board certified, the similar health care provider definition set forth in § 52-184c (b) should apply to him, regardless of the fact that the plaintiff alleged in his complaint that the defendant holds himself out as a specialist in emergency medicine.
Although we ordinarily decline to address claims made for the first time in a reply brief; see, e.g., State v. Lopez, 280 Conn. 779, 816 n. 25, 911 A.2d 1099
We now turn to the second significant issue in this case, namely, whether the Appellate Court properly determined that, under § 52-190a (c), the trial court was required to dismiss the action upon determining that a similar health care provider did not author the opinion letter. The plaintiff, relying on the Appellate Court's opinion in Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008), claims that dismissal was not appropriate because that remedy is limited to the situation wherein a plaintiff fails to attach any opinion letter at all, and that, under § 52-190a (c), any challenges to the sufficiency of that opinion letter should be addressed only after the
In response, the defendant contends that dismissal is appropriate when the plaintiff's letter is from a physician who is not a similar health care provider under § 52-184c and, therefore, not qualified to opine under § 52-190a (a), because that defective letter is tantamount to no letter at all for purposes of evaluating the merit of a medical malpractice action. For their part, the defense lawyers and risk management society rely on Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. at 569, 966 A.2d 813, and Rios v. CCMC Corp., supra, 106 Conn. App. at 810, 943 A.2d 544, and argue that § 52-190a (c) clearly and unambiguously requires the dismissal of actions not supported by letters written by similar health care providers; they contend further that the legislative history of the statute bears out what is evident from its plain language. Finally, the defendant emphasizes that this reading need not be fatal to procedurally flawed, yet meritorious, actions; the defendant posits that, when he moved to dismiss, the plaintiff could have either sought to amend the complaint to include an appropriate opinion letter, or, because the statute of limitations had not yet run at the time of dismissal, refiled the action after dismissal with an appropriate opinion letter. We agree with the defendant and conclude that § 52-190a (c) requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers.
As is required by § 1-2z, we begin with the language of General Statutes (Rev. to 2005) § 52-190a (c), as amended by P.A. 05-275, which provides: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." The crux of the parties' dispute in this appeal is whether the legislature's use of the phrase "grounds for the dismissal of the action" renders dismissal a mandatory remedy when the opinion letter required by § 52-190a (a) is inadequate, or whether dismissal is just one of several remedies available to the court, including treating the challenge as a motion to strike, which would allow repleading as a matter of right. Beginning with the common meaning of the word "ground," we note that the dictionary defines it, in relevant part, as a noun for "a basis for a belief, action, or argument . . . often used in [the plural]." Merriam-Webster's Collegiate Dictionary (10th Ed. 2001). Thus, the dictionary definition of the word ground does not by itself indicate that dismissal of the action is mandatory. We next note, however, the legislature's use of the word "shall" before "grounds for the dismissal. . . ." This indicates that dismissal may well be mandatory, particularly given its role as an enumerated consequence under the statute, because the legislature otherwise could have used the word "may." See, e.g., Weems v. Citigroup, Inc., 289 Conn. 769, 790-91, 961 A.2d 349 (2008). On the basis
Like the amendment to § 52-190a (a) requiring the filing of an opinion letter along with the complaint and good faith certificate, § 52-190a (c) was enacted in conjunction with the tort reform aspect of P.A. 05-275, § 2. Given that the legislature is presumed to be aware of the interpretations that the courts have placed on its enactments; see, e.g., State v. Courchesne, 296 Conn. 622, 717, 998 A.2d 1(2010); we must view the legislative history of the amendment of § 52-190a (c) through the prism of this court's discussion of the former § 52-190a in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990). In LeConche v. Elligers, supra, at 702-703, 579 A.2d 1, this court addressed the consequences, under the former § 52-190a, of the plaintiff's failure to include a certificate of good faith with his medical malpractice complaint. This court concluded that the good faith certificate requirement was not subject matter jurisdictional in nature because "traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action," and there was no indication in the language or legislative history of § 52-190a that the certificate was intended to be a subject matter jurisdictional barrier. Id., at 709-10, 579 A.2d 1. Noting "that the general purpose of § 52-190a is to discourage the filing of baseless lawsuits against health care providers"; id., at 710, 579 A.2d 1; the court concluded that "the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court. The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support a cause of action." Id., at 711, 579 A.2d 1. Accordingly, the court further concluded that "the absence from the complaint of the statutorily required good faith certificate renders the complaint subject to motion to strike . . . for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment.. . ." Id.
Indeed, this court noted in LeConche that § 52-190a did "not address the consequences of a failure to file a certificate," and addressed only "the consequences of filing of what is later deemed to be a false certificate," by authorizing the court to impose "`an appropriate sanction,'" including disciplinary referral or the payment of costs, including reasonable attorney's fees. Id., at 712, 579 A.2d 1. The court stated that, even "[a]ssuming without deciding that `an appropriate sanction' for filing a false certificate includes dismissal, it is clear that such a dismissal would be discretionary, rather than required due to lack of subject matter jurisdiction. . . . The filing of a false certificate that represents that a reasonable precomplaint inquiry was made, where in fact it was not, presents a more compelling scenario for dismissal than the present case. Here, the plaintiffs have merely failed to file a certificate but are prepared to do so and to establish that they have in fact made a sufficient precomplaint inquiry. It would be incongruous to read § 52-190a as providing subject matter jurisdiction in the former case but depriving the court of such jurisdiction in the latter. Statutes are to be read as contemplating sensible, not bizarre, results."
Inasmuch as the legislative history indicates that a motion to dismiss pursuant to § 52-190a (c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and that dismissal of a letter that does not comply with § 52-190a (c) is mandatory, we agree with the Appellate Court's reasoning in its recent decisions in Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. at 582-83, 966 A.2d 813, and Rios v. CCMC Corp., supra, 106 Conn.App. at 820-21, 943 A.2d 544, both of which concluded that the grant of a motion to dismiss, rather than a motion to strike, is the proper statutory remedy for deficiencies under § 52-190a, notwithstanding the lack of any indication that P.A. 05-275 has rendered the certificate and opinion letter subject matter jurisdictional in nature.
We note, however, that both the trial lawyers and the defendant acknowledge the potential severity of the statutory dismissal remedy, and, along with an academic commentator; see B. Blank, note, "Medical Malpractice/Civil Procedure— Trap for the Unwary: The 2005 Amendments to Connecticut's Certificate of Merit Statute," 31 W. New Eng. L.Rev. 453,489 (2009); identify the free amendment of challenged opinion letters as a way to ensure compliance with § 52-190a (a) while protecting nonfrivolous, but procedurally flawed, actions from dismissal.
Finally, we turn to the plaintiff's claim that § 52-190a violates the separation of powers provision of article second of the Connecticut constitution, as amended by article eighteen of the amendments. See footnote 8 of this opinion. Specifically, the plaintiff contends that § 52-190a, by establishing a prelitigation procedure and depriving trial courts of "the discretion to determine which experts and evidence may be utilized to establish a prima facie case," constitutes impermissible legislative interference with the judicial branch's inherent and exclusive power to regulate court proceedings. In response, the defendant contends that: (1) we should decline to review this claim because it is being raised before this court for the first time in this certified appeal; and (2) § 52-190a is a constitutional measure for preventing frivolous medical malpractice actions, and does not deprive the trial court of discretion in this regard. We decline to review this claim because it was neither preserved at trial nor raised in the plaintiff's petition for certification.
At the outset, we note that the plaintiff concedes in his reply brief that this constitutional claim was not preserved before the trial court or Appellate Court. The plaintiff asks us, however, to review his claim pursuant to the bypass doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the Golding doctrine is applicable in civil cases; see, e.g., Perricone v. Perricone, 292 Conn. 187, 212 n. 24, 972 A.2d 666 (2009); the plaintiff's request, made for the first time in his reply brief, runs afoul of the well settled rule that a party may not seek Golding review for the first time in a reply brief. See, e.g., Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005).
Moreover, even if we were inclined to overlook the plaintiff's failure properly to request Golding review, his constitutional claim suffers from a second procedural defect, namely, his failure to raise it in his petition for certification to appeal from the judgment of the Appellate Court. "If a party appeals to this court in a petition for certification, we will ordinarily consider only those questions squarely raised in that petition." (Internal quotation marks omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 139, 712 A.2d 947 (1998); see also Gibson v. Capano, 241 Conn. 725, 729, 699 A.2d 68 (1997) (noting that issues beyond those raised in petition for certification may be
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
"(b) 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. This period shall be in addition to other tolling periods.
"(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
We note that the current revision of § 52-190a also includes certain technical changes enacted into law in 2007 through Public Acts 2007, No. 07-61, § 1.
"(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a `similar health care provider' is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
"(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a `similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider'.
"(d) Any health care provider may testify as an expert in any action if he: (1) Is a `similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
We note that the plaintiff amended his appeal to the Appellate Court to challenge the trial court's dismissal of count four against the hospital. The Appellate Court dismissed that portion of the appeal for lack of a final judgment, given that count three remained pending against the hospital. See Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 540 n. 5, 979 A.2d 1066 (2009). Because the plaintiff has not challenged the Appellate Court's dismissal of this portion of the appeal, and the hospital is, therefore, no longer a party to this certified appeal, all references herein to the defendant are to Lohse.
"Very often you hear what you want to hear as an attorney, or interpret what's been told to you as you want to interpret it. The fact of the matter is that [the defendant is unaware whether] a letter's been provided or he/ she can't get a letter.
"In other words, if the doctor's not willing to sign on the dotted line, maybe that's a good indication that this isn't a good case to bring. We don't have that hammer, so to speak, over the plaintiff's counsel's head at this point.
"If part of what we're trying to do here is eliminate those cases which should not be in the system then I think this serves to do it." Conn. Joint Standing Committee Hearings, Judiciary, 2005 Sess., Pt. 18, p. 5553.
"I guess clearly he could have another bite at the apple and submit another complaint with another letter or possibly respond by attaching the letter that met the requirements of the [s]tatute.
"I guess my answer is that it doesn't say with prejudice so I assume it is not drafted with prejudice in mind." Id., at pp. 5552-53.