EVELEIGH, J.
This appeal
The following undisputed facts and procedural history are relevant to our disposition
In an attempt to comply with § 52-190a (a), which requires a plaintiff in a medical malpractice action to attach to the complaint a written "opinion of a similar health care provider" attesting to a good faith basis for the action, the plaintiffs attached to their original complaint an opinion letter from Michael A. Fifer, a physician who was board certified in internal medicine with a subspecialty in cardiovascular disease.
On April 15, 2008, the plaintiffs filed a request for leave to file an amended complaint, and an amended complaint. The defendants did not file an objection to the request for leave within fifteen days. Attached to the amended complaint was a copy of the original certificate of good faith, dated March 23, 2007. In addition to the written opinion previously attached to the original complaint, the plaintiffs also attached a written opinion letter from Richard S. Nitzberg, a vascular surgeon, which was dated April 26, 2007.
On November 5, 2008, the defendants moved to dismiss the original complaint that had been filed on March 29, 2007. The basis for their motion was that "the plaintiffs have failed to comply with the requirements for filing a medical malpractice lawsuit mandated by [§] 52-190a as a result of their failure to attach to the complaint an opinion letter from a similar health care provider." The trial court granted the defendants' motion to dismiss on that ground.
On appeal to this court, the plaintiffs assert that the trial court improperly dismissed the complaint because the original written opinion letter satisfied the requirements of § 52-190a. The plaintiffs further claim that, even if the original written opinion letter was insufficient, the amended complaint and the attached written opinion letter cured any deficiency in the original complaint and that the trial court improperly found that § 52-190a barred them from amending their complaint. The plaintiffs also claim that § 52-190a is unconstitutional. In response, the defendants assert that the trial court properly dismissed the plaintiffs' action for failure to comply with § 52-190a by failing to attach a written opinion letter of a similar health care provider. The defendants further contend that the trial court properly concluded that the written opinion letter attached to the amended complaint did not
Following oral argument in this court, we ordered the parties to file simultaneous supplemental briefs addressing the following question: "Whether the defendant[s] [have] waived pursuant to Practice Book § 10-32
The interpretation of § 52-190a is a question of law over which this court exercises plenary review. Dias v. Grady, 292 Conn. 350, 354, 972 A.2d 715 (2009). Moreover, "review of the trial court's ultimate legal conclusion and resulting [decision to] grant [a] motion to dismiss will be de novo." (Internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 116,
The defendants concede that they did not comply with the time requirements established in Practice Book § 10-30, but assert, however, that they were not required to comply with either Practice Book § 10-30 or § 10-32 because, they argue, those provisions of the Practice Book do not apply to motions to dismiss filed pursuant to § 52-190a (c). In response, the plaintiffs claim that a defective written opinion letter attached to a complaint implicates the service of process and, thus, in personam jurisdiction. The plaintiffs contend that the attachment of the written opinion letter is a precondition of the action and, therefore, concerns a matter of form regarding the service of the complaint. We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court dismissing the complaint and remand the case for further proceedings.
We begin our analysis with the pertinent Practice Book and statutory provisions. Practice Book § 10-30 provides in relevant part that "[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . ." Practice Book § 10-31(a) provides in relevant part that "[t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. . . ."
Section 52-190a (a) provides in relevant part that, in any medical malpractice action, "[n]o civil action or apportionment complaint 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 or apportionment complaint 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. . . . [T]he claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes §] 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 for the formation of such opinion. . . ."
Section 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52-190a (c) 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." It is the failure to obtain and file the opinion letter which serves as a basis for the dismissal. Clearly, the legislature unambiguously contemplated a dismissal at the beginning of the action by its usage of the phrase "obtain and file. . . ." General
We now turn to our case law to determine the precise nature of the jurisdiction which is to be challenged pursuant to the dismissal language of § 52-190a (a). In order to analyze properly the nature of the statutory requirement of a written opinion letter of a similar health care provider, it is necessary to review past decisions of this court in this area. In LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), we examined the predecessor statute to § 52-190a, which required the claimant's attorney to attach a good faith certificate to the complaint. In that case, this court concluded that the absence of a good faith certificate did not raise a question as to the court's subject matter jurisdiction. Id., at 702-703, 579 A.2d 1. We reasoned that traditionally the Superior Court had had subject matter jurisdiction over common-law medical malpractice actions. Id., at 709, 579 A.2d 1. Further, we concluded that the legislature did not intend § 52-190a to create an additional subject matter jurisdictional requirement of a good faith certificate in such a case. Id., at 714, 579 A.2d 1. "The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence. . . . 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. Today, we recognize that the written opinion letter, prepared in accordance with the dictates of § 52-190a, like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action.
In Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 31, 12 A.3d 865 (2011), we noted that the purpose of § 52-190a and its requirement of a good faith certificate was to prevent the filing of frivolous medical malpractice actions. We also concluded that the purpose of requiring a written opinion letter, in an amendment to the statute; see Public Acts 2005, No. 05-275; "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 the experts." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., supra, at 19, 12 A.3d 865. Thus, we held that § 52-190a dictated that a dismissal was the proper form of remedy for any party who did not comply with the statute. We held further, however, that "the legislature envisioned the dismissal as being without prejudice . . . and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute. . . ." (Citation omitted.) Id., at 31, 12 A.3d 865. In Bennett, we also cited favorably Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569,
In Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 46-47, 12 A.3d 885 (2011), we held that "when a medical malpractice action has been dismissed pursuant to § 52-190a (c) for failure to supply an opinion letter by a similar health care provider required by § 52-190a (a), a plaintiff may commence an otherwise time barred new action pursuant to the matter of form provisions of [General Statutes] § 52-592(a) only if that failure was caused by a simple mistake or omission, rather than egregious conduct or gross negligence attributable to the plaintiff or his attorney." Consequently, we recognized that the written opinion letter, much like the good faith certificate in LeConche, involved a matter of form whose deficiencies, at least in the case of simple mistake or omission, could be remedied by the failure of form provisions of the accidental failure of suit statute.
Finally, in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), this court considered whether General Statutes § 52-102b (a), which requires service of an apportionment complaint within 120 days after the return date of the original complaint, is mandatory or directory in nature. The court concluded that the 120 day limitation was mandatory and that noncompliance with § 52-102b implicates a court's personal jurisdiction, not subject matter jurisdiction. In the discussion, we noted that "[a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.)
Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction. "[J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989); see also Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991) (A writ of summons is a statutory prerequisite to the commencement of a civil action. It is an essential element to the validity of the jurisdiction of the court. "Because the plaintiff in this case failed to comply in any fashion with these basic requirements [attaching the writ of summons to the complaint], we conclude that the trial court should have granted the defendant's motion to dismiss the complaint . . . for lack of personal jurisdiction over the defendant."). "The defendant's claims concerning service of the summons and complaint implicate personal, rather than subject matter, jurisdiction." Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415, 885 A.2d 768 (2005). Likewise, the attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court. As this court held in Connor v. Statewide Grievance Committee, supra, 260 Conn. at 442, 797 A.2d 1081, "[u]nless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citations omitted.)
Accordingly, we conclude that, because the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies by its very terms.
The defendants contend that the statutory remedy of dismissal does not invoke the court's jurisdiction in any manner and that any conclusion to the contrary would lead to bizarre, unworkable results. The defendants claim that to interpret § 52-190a so as to require a defendant to comply with the requirements of Practice Book §§ 10-32 and 10-30 would be inconsistent with this intended purpose because it would allow a plaintiff to proceed with a potentially frivolous action without obtaining or attaching an opinion letter, in the event that a defendant did not file a motion to dismiss within thirty days of its appearance. This result, they contend, is contrary to the intent of the legislature. We reject this proposition. First, the foundation for the proposition presumes that an attorney defending a malpractice action, many of whom are the most experienced attorneys in the state, would ever miss the thirty day period to file a motion to dismiss. We disagree. Second, we conclude that affirming the trial court's judgment in the present case would lead to absurd and unworkable results. In this case, the complaint was filed on March 29, 2007, while the motion to dismiss was filed on November 5, 2008. It is obvious from the record that in the interim approximate nineteen months, numerous motions were filed that required the attention of the attorneys. We are uncertain as to the number of depositions that were taken, but the possibility exists that there were many depositions at a substantial cost to the parties. Contrary to the argument of the defendants, this is the absurd result that should be avoided. Instead of allowing a defendant to wait until the last minute to file a motion to dismiss after much time and effort has been expended, it is certainly preferable that the issue be determined early in the proceedings before the parties have expended substantial sums of money. The Practice Book requirement that motions to dismiss be filed within thirty days of the filing of an appearance ensures that the parties will have an early resolution of the matter and will not have to expend large sums of money before being informed that the case is deficient, in some aspect, at the nineteenth hour.
Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Practice Book
The judgment is reversed and the case is remanded with direction to deny the defendants' motion to dismiss and for further proceedings according to law.
In this opinion the other justices concurred.
"(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."