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*********************************************** 
SHANE J. CARPENTER v. BRADLEY J.

DAAR ET AL.

(AC 42145)

Keller, Elgo and Pellegrino, Js.

Syllabus

The plaintiff sought to recover damages from the defendant dentist, D, and

his business entity M Co., for medical malpractice in connection with

a dental procedure performed on the plaintiff by D. The plaintiff alleged

in his complaint that D held himself out as a specialist in endodontics

and attached to his complaint a good faith certificate from what he

alleged was a similar health care provider, S, an endodontist. The defendants moved to dismiss on the ground that the opinion letter did not

comply with the requirements of the statute (§ 52-190a) because S was

not a similar health care provider as defined by statute (§ 52-184c). The

defendants attached an affidavit of D, in which he attested that he is a

general dentist. The plaintiff objected to the motion to dismiss and

attached a supplemental affidavit of S, which further elaborated on S’s

qualifications as a similar health care provider. The trial court granted

the defendants’ motion to dismiss on the ground that the plaintiff had

failed to provide an opinion letter from a similar health care provider

as required by §§ 52-190a and 52-184c. Specifically, because the plaintiff

had attached an opinion letter authored by S, a specialist in endodontics,

and D was a general dentist, the trial court determined that S’s opinion

letter was not that of a similar health care provider because D was not

a specialist as defined by § 52-184c (c) and, thus, the opinion letter

was required to be authored by a general dentist. Moreover, the court

concluded that there was no information to establish that S had been

involved in the teaching or practice of general dentistry in the five year

period before the procedure so as to be a similar health care provider

as defined by § 52-184c (b). The court rendered judgment in favor of

the defendants and the plaintiff appealed to this court. Held:

1. The defendants could not prevail on their unpreserved claim that the trial

court should not have considered the supplemental affidavit submitted

by the plaintiff because it was obtained after the statute of limitations

had expired and the court failed to state a factual basis for its application

of the accidental failure of suit statute (§ 52-592), which would have

extended the statute of limitations for an additional year from the date

judgment of dismissal was rendered in the plaintiff’s prior action;

although the defendants labeled their claim as an alternative ground for

affirmance, they were seeking to alter the court’s judgment to an extent

that would actually require reversal and the defendants failed to file a

cross appeal and likely could not have done so, given the fact that they

prevailed and that they failed to seek reconsideration or articulation of

the court’s ruling that § 52-592 applied; moreover, to afford the defendants relief with respect to this claim would be prejudicial to the plaintiff,

who has repeatedly briefed and argued his claim that the opinion letter is

compliant with § 52-190a (a), with or without the supplemental affidavit.

2. The trial court properly determined that D was a nonspecialist practicing

general dentistry; it was undisputed that D was not certified by the

appropriate American board as a specialist and that he was not trained

or experienced in a specialty, as the plaintiff failed to allege this in his

complaint, and D attested in an affidavit that he was general dentist

and that the dental procedure was performed in that capacity, and the

plaintiff did not submit any counteraffidavits.

3. The judgment of the trial court was affirmed on the alternative ground

that the trial court should not have considered the supplemental affidavit

and the opinion letter was legally insufficient because it did not establish

that S was a similar health care provider pursuant to the statutory

nonspecialist definition in § 52-184c (b); the plaintiff was required to

properly amend his complaint to make the allegations in the supplemental affidavit a part of the pleading process, as correcting deficiencies in

process requires more than the filing of an affidavit, and, in failing to

do so, the opinion letter that was attached to the plaintiff’s complaint
was insufficient to establish that S was someone teaching in the nonspecialty field of general dentistry, so as to qualify as a similar health care

provider under § 52-184c (b).

Argued January 6—officially released August 4, 2020

Procedural History

Action to recover damages for the defendants’ alleged

medical malpractice, brought to the Superior Court in

the judicial district of Middlesex, where the court,

Domnarski, J., granted the defendants’ motion to dismiss and rendered judgment thereon, from which the

plaintiff appealed to this court. Affirmed.

Kyle J. Zrenda, with whom was Theodore W. Heiser,

for the appellant (plaintiff).

Beverly Knapp Anderson, for the appellees

(defendants).
Opinion

KELLER, J. The plaintiff, Shane J. Carpenter, appeals

from the judgment rendered by the trial court dismissing his medical malpractice action against the defendants, Dr. Bradley J. Daar (Daar), a dentist, and his

business entity, Shoreline Modern Dental, LLC (Shoreline). The plaintiff claims that the court erred in

determining that his certificate of good faith, specifically, the accompanying opinion letter, as supplemented by an affidavit filed with the plaintiff’s objection

to the motion to dismiss, (supplemental affidavit) failed

to meet the requirements of General Statutes § 52-190a

because the author of the opinion letter and supplemental affidavit, Dr. Charles S. Solomon1

(Solomon), was

not a ‘‘similar health care provider’’ as defined in General Statutes § 52-184c.

The defendants counter that the certificate of good

faith and its accompanying opinion letter did not demonstrate that Solomon was a similar health care provider under the definitions set forth in § 52-184c. They

further assert, as alternative grounds for affirmance of

the trial court’s judgment, that the supplemental affidavit should not have been considered by the trial court

because (1) it was procedurally improper for the plaintiff to have attempted to cure a § 52-190a (a) defect in

an opinion letter attached to the complaint with information contained in a supplemental affidavit of the

author of the opinion without amending the complaint;

(2) it was obtained and submitted by the plaintiff after

the two year statute of limitations in General Statutes

§ 52-584 had expired, and the court failed to state a

factual basis to support the applicability of the accidental failure of suit statute, General Statutes § 52-592,

which would have extended the statute of limitations

for an additional year from the date the judgment of

dismissal was entered in the first action; see General

Statutes § 52-190a (a); and (3) without the supplemental

affidavit, the opinion letter attached to the complaint

did not contain sufficient information to demonstrate

that Solomon is a similar health care provider to Daar

under either definition of a similar health care provider

set forth in § 52-184c. We affirm the judgment of the

trial court.

The following relevant facts, alleged as the factual

predicate for the plaintiff’s cause of action or as found

by the court, and procedural history are relevant to our

disposition of this appeal. On June 1, 2017, in the judicial

district of Middlesex, the plaintiff commenced a prior

medical malpractice action against the defendants,

based on the same alleged conduct as in the present

case. See Carpenter v. Daar, Superior Court, judicial

district of Middlesex, Docket No. CV-17-6017957-S.2 On

October 11, 2017, the court dismissed the plaintiff’s

first medical malpractice action against the defendants

because the opinion letter attached to the complaint,
which also was authored by Solomon, did not comply

with § 52-190a (a). Although the letter contained an

opinion as to whether there was evidence that medical

negligence had occurred, it did not contain, pursuant to

§ 52-184c, any information regarding Solomon’s training

and experience to establish that he was a similar health

care provider to Daar. Although the plaintiff filed a

request to amend his complaint, it was undisputed that

his request was filed after the applicable two year statute of limitations in § 52-584 had expired.

On February 21, 2018, the plaintiff commenced the

present action against the defendants pursuant to the

accidental failure of suit statute. See General Statutes

§ 52-592. As to dental malpractice, the plaintiff alleged

that on June 16, 2015, during root canal surgery, Daar

negligently failed to diagnose and treat an infection in

the plaintiff’s tooth and that, as a result, the plaintiff

suffered an infection in his mouth, throat, face and

neck that required additional emergency medical care,

hospitalization, oral and neck surgery and continuing

dental treatment. The plaintiff named Shoreline as a

defendant on the basis of vicarious liability for Daar’s

negligent treatment.

Pursuant to § 52-184c (c), the plaintiff further alleged

that Daar held himself out as a specialist in endodontics

on Shoreline’s website by indicating that he had completed hundreds of hours of training in endodontics and

by providing a general explanation of the nature of that

dental specialty.

The plaintiff attached to his complaint a good faith

certificate and what he alleged in the complaint to be

a ‘‘written and signed opinion from a similar health care

provider stating that there appears to be evidence of

negligence by the defendants, a violation of the standard

of care, and providing detailed basis for the formation

of that opinion, along with a supplemental correspondence outlining that similar health care provider’s qualifications.’’ The ‘‘written and signed opinion letter’’

attached to the complaint is the same letter from Solomon that was deemed noncompliant with § 52-190a (a)

in the prior action. The ‘‘supplemental correspondence’’

attached to the complaint, dated August 10, 2017, contained information regarding Solomon’s qualifications

to establish that he was a similar health care provider

to Daar.3 The supplemental correspondence, also

authored by Solomon, indicated that he is a graduate

of Columbia University College of Dental Medicine

(Columbia), had been licensed to practice dentistry in

the state of New York, ‘‘with credentials that would

satisfy the requirement of any other state,’’ and received

his ‘‘specialty [b]oards in [e]ndodontics’’ in 1970. It also

stated that Solomon practiced endodontics in New York

for more than forty years, and that for the past eight

years he has been a full-time clinical professor of endodontics at Columbia, ‘‘teaching clinical and didactic
[e]ndodontics.’’

On April 5, 2018, the defendants moved to dismiss

the present action on the ground that the opinion letter

did not comply with §§ 52-190a (a) and 52-184c because

it failed to demonstrate that Solomon is a similar health

care provider to Daar, who is a general dentist, not

a specialist in endodontics. They argued that, as an

endodontist, Solomon is not a similar health care provider under § 52-184c (b) because Daar is not a specialist in endodontics and was not holding himself out to

be one. They further argued that Solomon also was

not a similar health care provider under § 52-184c (c)

because Daar is a practitioner of general dentistry and

Solomon had not practiced or taught general dentistry

within the five years preceding June 16, 2017.4

In addition to submitting a memorandum of law in support

of the motion to dismiss, the defendants attached an

affidavit from Daar with other related exhibits.

In his affidavit, Daar attested that he is a general

dentist and has been licensed by the state of Connecticut to practice dentistry since November, 1982. He indicated that, as a general dentist, he provides such services as fillings, inlay and onlays, crowns and bridges,

dentures, veneers, root canal treatments, simple extractions, teeth whitening, certain types of orthodontics,

mouth guards, and some periodontal treatments. Daar

stated that he performed the root canal treatment on

the plaintiff’s tooth in 2015 in his capacity as a general

dentist. He further indicated that a quotation from

Shoreline’s website, on which the plaintiff relied in his

complaint to support his allegations that Daar was holding himself out as a specialist in endodontics, was only

a partial excerpt of a sentence, which stated in full:

‘‘[Daar] has completed hundreds of hours of training in

[e]ndodontics, [o]rthodontics, [p]eriodontics, [d]ental

[i]mplants, [s]leep [a]pnea and more.’’

In support of his allegation that Daar held himself

out to be a specialist in endodontics, the plaintiff also

relied on information found on the website related to

Daar’s practice, in particular, information related to

endodontics that was accessed in a portion of the website related to ‘‘Patient Education’’ and ‘‘Services.’’ In

his affidavit, Daar attested that, in the same portion of

the website, eleven additional links appeared. These

included links to the following subjects: educational

videos, cosmetic and general dentistry, emergency care,

implant dentistry, oral health, oral hygiene, oral surgery,

orthodontics, pediatric dentistry, periodontal therapy

and technology.

The plaintiff filed an objection to the motion to dismiss on June 5, 2018.5 The plaintiff continued to argue

that, as alleged in his complaint and on the basis of

the statements on Shoreline’s website, Daar had held

himself out to be a specialist in endodontics and, thus,

Solomon, a specialist in endodontics, was a similar
health care provider to Daar pursuant to § 52-184c (c).

The plaintiff did not submit any evidence to dispute

the facts set forth in Daar’s affidavit, which sought to

establish that, at the time of the root canal procedure,

Daar was a general dentist, not a specialist in endodontics or someone holding himself out to be a specialist

in endodontics. The plaintiff did not request leave to

amend his complaint to attach a new or amended opinion letter.6

Instead, the plaintiff attempted to cure the

alleged defects in the opinion letter, which the defendants claimed mandated a dismissal, by submitting, as

an exhibit to his objection to the motion to dismiss, a

supplemental affidavit, executed by Solomon on May

30, 2018, which further elaborated on his qualifications

as a similar health care provider. In his supplemental

affidavit, Solomon attested in relevant part that he is a

clinical professor of dentistry at Columbia, served as

the Director of the Division of Endodontics from 2009

and continued in that position to 2017, is a Diplomate

of the American Board of Endodontics,7 past President

of the New York Section of the American College of

Dentists and past President of the New York Academy

of Dentistry. He further attested that (1) he teaches

both undergraduate and postgraduate students in endodontics at Columbia and that his ‘‘lectures to undergraduate students involve general dentistry and the performance of endodontic procedures, including root

canals, by general dentists; (2) ‘‘[t]he present case

involves an endodontic procedure performed by a general dentist’’; (3) ‘‘the proper standards, procedures,

and care to be followed is the subject of my teaching

to undergraduate dental students and has been for more

than the last five years’’; and (4) ‘‘[t]he standard of care

with respect to the treatment provided by a general

dentist in the scenario presented in this case and an

endodontist is the same.’’

The plaintiff did not withdraw the allegation in his

complaint that, he maintained, alleged that Daar held

himself out to be a specialist. On the basis of the opinion

letter, alone or together with the supplemental affidavit,

the plaintiff argued that, even if Daar is a nonspecialist,

Solomon is a similar health care provider to Daar

because, pursuant to § 52-184c (b), Solomon’s teaching

involved instruction in endodontics as it pertains to the

practice of general dentistry, specifically relevant to

root canals, during the requisite five year period.

Following oral argument on the motion to dismiss

on July 30, 2018, the trial court issued a memorandum

of decision dated September 7, 2018. The court first

rejected the defendants’ argument, first set forth in the

defendants’ reply to the plaintiff’s objection to the

motion to dismiss, that the plaintiff could not cure any

deficiencies in the opinion letter attached to his complaint with Solomon’s supplemental affidavit because

it was filed after the statute of limitations had expired.

The court, citing this court’s decision in Gonzales v.
Langdon, 161 Conn. App. 497, 510, 128 A.3d 562 (2015),8

noted that the defendants had argued that the plaintiff

could not evade the clear limits set forth in Gonzales

by submitting his opinion letter and Solomon’s supplemental affidavit after the limitation period had expired.

The court stated: ‘‘The defendant[s] [argue] that under

the holding of [Gonzales], the court cannot consider the

information contained in the [supplemental] affidavit

because it has been filed after the expiration of the two

year statute of limitations contained in . . . § 52-584.

Gonzales established that amendments to legally insufficient opinion letters are permitted only if they are

filed within the applicable statute of limitations. . . .

The action in Gonzales was brought within the two year

statute of limitations contained in § 52-584. . . . The

present case is distinguishable from Gonzales since it

was brought under the accidental failure of suit statute,

§ 52-592. Based upon Supreme Court precedent, this

court concludes that the accidental failure of suit statute effectively modifies and extends the time limitations

period imposed by § 52-584 by the period of time the

plaintiff is allowed to bring a second action under § 52-

592. . . . In this case, the statute of limitations contained in § 52-584 does not bar the filing of the affidavit

by the author of an opinion letter. The original action

was dismissed on October 11, 2017. This action, and

the affidavit from the opinion author, have been filed

within the time allowed under § 52-592.’’9

(Citations

omitted.) The court did not find any facts or provide

any analysis as to why, under the circumstances of this

case, the plaintiff was entitled to the benefit of the

saving provisions of the accidental failure of suit statute, § 52-592.

The court next analyzed the sufficiency of the opinion

letter as amended by the filing of the supplemental

affidavit. It first concluded that the applicable definition

of a similar health care provider was the nonspecialist

definition in subsection (b) of § 52-184c, rather than

the specialist definition in subsection (c), as alleged by

the plaintiff in his complaint.10 The court found that,

‘‘[i]n the present case, in connection with his claim that

the defendant is a specialist, the plaintiff has not utilized

the specific language contained in § 52-184c (c) and has

not alleged that the defendant is ‘trained and experienced in a medical specialty, or holds himself out as a

specialist’ in endodontics. The plaintiff only alleged that

the defendant ‘held himself out as a practitioner of

endodontics’ and ‘has completed hundreds of hours of

training in endodontics.’ ’’ (Emphasis in original). The

court, citing Labissoniere v. Gaylord Hospital, Inc.,

182 Conn. App. 445, 453, 185 A.3d 680 (2018), noted

that the plaintiff had not provided an affidavit disputing

the facts contained in the defendants’ affidavit in support of their motion to dismiss and, that under such

circumstances, the court ‘‘need not conclusively presume the validity of the allegations in the complaint.’’
The court concluded that Daar was not a specialist as

that term is defined in § 52-184c (c), and therefore any

opinion from a similar health care provider must come

from a general dentist.

The court next rejected the plaintiff’s alternative

argument that Solomon was qualified as a similar health

care provider under the nonspecialist definition in § 52-

184c (b), which requires a similar health care provider

to be ‘‘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 [general dentistry]

within the five-year period before the incident giving

rise to the claim.’’ The court found that ‘‘[t]here is a lack

of information to establish that [Solomon] has practiced

general dentistry within the requisite five year period.

Furthermore, there is a paucity of facts from which it

can be found he has been teaching general dentistry

during that period. From the information provided, the

court finds that [Solomon] is a specialist in endodontics

and he has training and experience as a result of the

active teaching of endodontics. He is not, however, a

similar health care provider to the defendant, who is a

general dentist. The fact that [Solomon] teaches endodontics to undergraduate dental students does not

equate to the teaching of general dentistry. If such were

the case, any teaching specialist at a dental school or

medical school would automatically be a similar health

care provider to any nonspecialist dentist or medical

doctor. Such an interpretation would vitiate the provisions of § 52-184c which requires different qualifications for a specialist and a nonspecialist health care

provider.’’11 (Emphasis in original.)

As a result, the court granted the motion to dismiss

as to Daar. Because the alleged liability of Shoreline

was derivative of the cause of action brought against

Daar, the court also granted the motion as to that defendant as well, and rendered judgment in favor of both

defendants. This appeal followed.

Before we turn to the claims raised by the plaintiff,

we set forth relevant statutory provisions and legal principles pertaining to opinion letters in medical malpractice actions. Section 52-190a provides in relevant part:

‘‘(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death

. . . whether in tort or 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 for

the formation of such opinion. Such written opinion

shall not be subject to discovery by any party except

for questioning the validity of the certificate. The claimant or the claimant’s attorney . . . shall retain the original written opinion and shall attach a copy of such

written opinion, with the name and signature of the

similar health care provider expunged, to such certificate. . . .

‘‘(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.’’

As this court has explained, ‘‘[t]he purpose of [§ 52-

190a (a)] is to discourage frivolous lawsuits against

health care providers. . . . One of the mechanisms

introduced in the amendments to the statute of 2005

was the written opinion requirement. The ultimate purpose of this requirement is to demonstrate the existence

of the claimant’s good faith in bringing the complaint

by having a witness, qualified under . . . § 52-184c,

state in written form that there appears to be evidence

of a breach of the applicable standard of care. . . .

The person rendering this opinion is not required by

§ 52-190a (a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff.’’

(Citation omitted.) Wilcox v. Schwartz, 119 Conn. App.

808, 816, 990 A.2d 366 (2010), aff’d, 303 Conn. 630, 37

A.3d 133 (2012). The statutory condition that an opinion

letter written by a similar health care provider be

appended to the complaint was ‘‘implemented to prevent frivolous medical malpractice actions by requiring

a medical professional with expertise in the particular

medical field involved in the claim to offer his or her

professional opinion that the standard of care was

breached in a particular instance.’’ (Emphasis added.)

Wilkins v. Connecticut Childbirth & Women’s Center,

314 Conn. 709, 730, 104 A.3d 671 (2014).

Section 52-184c provides in relevant part: ‘‘(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.’ ’’

Next, we set forth the standard of review applicable

to a judgment rendered following the granting of a

motion to dismiss. ‘‘[A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially

asserting that the plaintiff cannot as a matter of law

and fact state a cause of action that should be heard

by the court.’’ (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d

940 (2013). ‘‘A motion to dismiss admits all facts well

pleaded and invokes any record that accompanies the

motion, including supporting affidavits that contain

undisputed facts.’’ (Internal quotation marks omitted.)

Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d

1142 (2002). In a medical malpractice action, despite

the allegations in the plaintiff’s complaint, it is proper to

consider undisputed facts contained in affidavits when

deciding a motion to dismiss if the affidavits provide

independent evidence of the nature of a defendant’s

medical practice. See Labissoniere v. Gaylord Hospital, Inc., supra, 182 Conn. App. 453–54. ‘‘Where . . .

the motion [to dismiss] is accompanied by supporting

affidavits containing undisputed facts, the court may

look to their content for determination of the jurisdictional issue and need not conclusively presume the

validity of the allegations of the complaint.’’ (Footnote

omitted; internal quotation marks omitted.) Ferreira v.

Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).

Generally, ‘‘[i]f affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the

plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may

dismiss the action without further proceedings. . . .

If, however, the defendant submits either no proof to

rebut the plaintiff’s jurisdictional allegations . . . or

only evidence that fails to call those allegations into

question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but

may rest on the jurisdictional allegations therein. . . .

‘‘Finally, where a jurisdictional determination is

dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the

absence of an evidentiary hearing to establish jurisdictional facts.’’ (Citations omitted; internal quotation

marks omitted.) Conboy v. State, 292 Conn. 642, 652,

974 A.2d 669 (2009). ‘‘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.) Lucisano v. Bisson, 132 Conn. App. 459, 463–64, 34 A.3d

983 (2011). ‘‘As a general matter, the burden is placed

on the defendant to disprove personal jurisdiction.’’

Cogswell v. American Transit Ins. Co., 282 Conn. 505,

515, 923 A.2d 638 (2007).

As the foregoing cases reflect, generally, in ruling on

a motion to dismiss, it may be appropriate for a court

to consider more than the factual allegations of a complaint, including undisputed facts submitted for the

court’s consideration by way of affidavits and counteraffidavits. See, e.g., Cuozzo v. Orange, 315 Conn. 606,

615–16, 109 A.3d 903 (2015). Because, however, of the

distinctive nature of opinion letters, which are part of

process, it is imperative that they are not merely added

to the record, but that they are properly made part of

the pleadings, thus rectifying any defects in process.

Thus, opinion letters necessarily are treated differently

than affidavits and counteraffidavits submitted in support of and in opposition to a motion to dismiss in other

types of civil actions.

When evaluating whether the author of the written

opinion letter is a ‘‘similar health care provider,’’ the

court must examine the allegations of the complaint,

keeping in mind that ‘‘the actual board certification

of the defendant is not what matters; the appropriate

similar health care provider is defined by the allegations

of the complaint.’’ Gonzales v. Langdon, supra, 161

Conn. App. 506.

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). ‘‘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. . . . 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.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d

451 (2011).

I

We begin by addressing the defendants’ first claim,

which they label as an alternative ground for

affirmance. The defendants claim, for the first time on

appeal, that the court should not have considered the
supplemental affidavit prepared by Solomon because

it was obtained and submitted by the plaintiff after the

two-year statute of limitations in § 52-584 had expired,

and the court failed to state a factual basis to support

the applicability of the accidental failure of suit statute,

§ 52-592, which would have extended the statute of

limitations for an additional year from the date the

judgment of dismissal was entered in the first action.

See General Statutes § 52-592 (a). For the reasons that

follow, we decline to afford the defendants relief with

respect to this alternative ground for affirmance.

First, for the reasons that follow, if the court erred

in failing to state a factual basis to support the applicability of § 52-592 before it addressed the sufficiency of

the opinion letter and the affidavit, this would not be

an alternative ground for affirmance but, rather, a

ground for reversal, a remedy that the defendants do

not seek, as they have filed no cross appeal. This court

does not find facts, and this matter would have to be

remanded for the court to hear evidence and make a

factual determination on whether the accidental failure

of suit statute may apply in this case. As a general rule,

‘‘[i]f an appellee wishes to change the judgment in any

way, the party must file a cross appeal.’’ (Internal quotation marks omitted.) East Windsor v. East Windsor

Housing, Ltd., LLC, 150 Conn. App. 268, 270 n.1, 92 A.3d

955 (2014); id. (refusing appellee’s request ‘‘to direct

the trial court to remove costs of seven title searches

and seven filing fees from the fees awarded to the plaintiff’’ because of failure to file cross appeal); see also

River Dock & Pile, Inc. v. O & G Industries, Inc., 219

Conn. 787, 792 n.5, 595 A.2d 839 (1991) (declining to

reach alternative claims for relief raised by appellee

because appellee failed to file cross appeal); Farmers &

Mechanics Savings Bank v. First Federal Savings &

Loan Assn. of Meriden, 167 Conn. 294, 303 n.4, 355

A.2d 260 (1974) (declining to consider briefed issue

concerning validity of restrictive covenants because,

although appellees ‘‘raised this issue at the trial level,

the trial court did not find it necessary to rule thereon,’’

and appellee did not ‘‘file a cross appeal assigning error

in the court’s failure to treat this issue’’); East Windsor

v. East Windsor Housing, Ltd., LLC, supra, 270 n.1.

This rule is not, however, absolute, and the court may

consider such a claim otherwise improperly raised in

the appellee’s brief in the absence of prejudice to the

appellant. See Akin v. Norwalk, 163 Conn. 68, 70–71,

301 A.2d 258 (1972); Rizzo v. Price, 162 Conn. 504,

512–13, 294 A.2d 541 (1972); DiSesa v. Hickey, 160

Conn. 250, 262–63, 278 A.2d 785 (1971).

The following procedural history pertains to this

claim. During oral argument before the trial court, the

court inquired of counsel for the defendants how she

could claim the opinion letter and the supplemental

affidavit, dated May 30, 2018, had been submitted

beyond the statute of limitations. As previously noted,
the prior action was dismissed on October 11, 2017,

and, pursuant to the accidental failure of suit statute,

§ 52-592, the plaintiff would have been entitled to commence the present action for up to one year following

the dismissal of the prior action. Counsel for the defendants responded that the issue of whether this suit was

brought properly under the accidental failure of suit

statute was not an issue for a motion to dismiss, but

that it could be an issue for a summary judgment motion

‘‘someday down the line.’’ Counsel for the defendants

indicated that, for purposes of the motion to dismiss,

the court only had to consider § 52-190a (a) and whether

the information in the opinion letter attached to the

complaint was sufficient. The defendants argued that,

if it was not, the court needed to determine whether the

subsequently filed supplemental affidavit could even

be considered and, if it could, whether it sufficiently

amended the opinion letter.

We begin with the law pertaining to the applicability

of the accidental failure of suit statute to medical malpractice actions dismissed for failure to supply an

appropriate opinion letter from a similar health care

provider. The accidental failure of suit statute is a saving

statute that is intended to promote ‘‘the strong policy

favoring the adjudication of cases on their merits rather

than the disposal of them on the grounds enumerated

in § 52-592 (a).’’ Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 127, 735 A.2d 782 (1999). Nevertheless, that ‘‘policy is not without limits. If it were,

there would be no statutes of limitations. Even the

saving statute does not guarantee that all plaintiffs have

the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain

period of time.’’ Id., 127–28.

In Plante v. Charlotte Hungerford Hospital, 300

Conn. 33, 12 A.3d 885 (2011), our Supreme Court 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 § 52-592 (a) only if that failure

was caused by a simple mistake or omission, rather

than egregious conduct or gross negligence . . . .’’ Id.,

46–47. The issue of whether § 52-592 (a) applies cannot

be decided in a factual vacuum. ‘‘[T]o enable a plaintiff

to meet the burden of establishing the right to avail

himself or herself of the statute, a plaintiff must be

afforded an opportunity to make a factual showing that

the prior dismissal was a matter of form in the sense

that the plaintiff’s noncompliance with a court order

occurred in circumstances such as mistake, inadvertence or excusable neglect.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 50.
The plaintiff’s complaint does not allege any factual

basis as to why, pursuant to § 52-592 (a), the circumstances leading to the dismissal of his first malpractice

action constituted a matter of form and, therefore, warranted application of the saving statute. Thus, there

was no basis on which the court, in hearing the motion

to dismiss, could have found facts that supported

applying § 52-592 on the basis of allegations in the complaint. We note, as well, that there was no discussion

whatsoever in the record as to the reasons for the plaintiff’s production of a noncompliant opinion letter in the

first action.

The court, without providing either party the opportunity to present evidence as to whether the plaintiff’s

noncompliance with § 52-190a (a) in his first action

was the result of a mistake, inadvertence, or excusable

neglect, concluded that the plaintiff could avail himself

of the accidental failure of suit statute’s saving provisions. The question raised by the defendants for the

first time on appeal is whether the court should have

made such a ruling in the absence of any factual findings

to support it, because Plante requires that ‘‘a plaintiff

may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592 (a)

only when the trial court finds as a matter of fact that

the failure in the first action to provide an opinion letter

that satisfied § 52-190a (a) was the result of mistake,

inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the

plaintiff or his attorney.’’ Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 56; see also Santorso

v. Bristol Hospital, supra, 308 Conn. 358 (after plaintiff’s counsel declined court’s invitation to explain failure to comply with requirements of § 52-190a (a), no

record existed to establish that failure to file good faith

certificate and opinion letters in first action was result

of mistake, inadvertence, or excusable neglect and

therefore second action not saved by accidental failure

of suit statute).12 As a result, no allegations in the complaint, evidentiary facts or argument being presented

to suggest otherwise, the court overlooked the directive

in Plante that requires it to find a factual basis for

allowing a plaintiff the benefit of the saving statute.13

This claim raises issues of fact, particularly with

respect to the reasons the plaintiff or counsel for the

plaintiff provided a deficient opinion letter in his first

action against the defendants that would have been

more properly considered by the trial judge in the first

instance, particularly since this same trial judge ordered

the dismissal of the plaintiff’s first action. See Gianetti

v. Norwalk Hospital, 266 Conn. 544, 560, 833 A.2d 891

(2003) (‘‘[o]rdinarily it is not the function of this court

or the Appellate Court to make factual findings, but

rather to decide whether the decision of the trial court

was clearly erroneous in light of the evidence . . . in
the whole record’’ (internal quotation marks omitted));

Rizzo v. Price, supra, 162 Conn. 513 (declining to review

appellee’s challenge, raised for first time in brief, to

trial court’s failure to make certain factual conclusions

as ‘‘clearly prejudicial to the appellant’’).

The defendants are not presently seeking to affirm

the trial court’s judgment, but are seeking to alter it to

an extent that would require reversal. We decline to

afford the defendants, who prevailed in the trial court

and have not filed a cross appeal, relief with respect

to this claim. Generally, a party who prevails in the

lower court is unable to file a cross appeal. See, e.g.,

Skakel v. Commissioner of Correction, 325 Conn. 426,

528 n.35, 159 A.3d 109 (2016); Sekor v. Board of Education, 240 Conn. 119, 121 n.2, 689 A.2d 1112 (1997);

Greene v. Keating, 197 Conn. App. 447, 449 n.2, A.3d

(2020); Brown v. Villano, 49 Conn. App. 365, 372

n.6, 716 A.2d 111, cert. denied, 247 Conn. 904, 720 A.2d

513 (1998). We also believe such a course of action

would be prejudicial to the plaintiff who already has

repeatedly briefed and argued the merits of his claim

that the opinion letter, with or without the supplemental

affidavit, is compliant with § 52-190a (a), an issue he

would not have been able to address had the court

determined facts that would not have permitted him to

avail himself of the accidental failure of suit statute.

Not only did counsel for the defendants advise the court

not to reach this issue, the defendants never sought

reconsideration or articulation of the court’s ruling that

§ 52-592 applied. Were we to reverse and remand this

case for an evidentiary hearing on the applicability of

§ 52-592 pursuant to Plante, the parties might find themselves in the same position in which they both stand

before us now should the court, on remand, make the

not unlikely factual determination that the plaintiff

could avail himself of the accidental failure of suit statute. Even with the extended time provided by the saving

statute, the time limitation already has expired as of

October 11, 2018, and, pursuant to the ruling in Gonzales, the plaintiff could not amend or supplement his

opinion letter further during any reconsideration of the

defendants’ motion to dismiss on remand. Consequently, on remand, the trial court possibly would be

faced with the same issue we have decided to address

in this appeal—whether the plaintiff complied with the

requirements of § 52-190a (a) based on the existing documentation the trial court reviewed during the hearing

on the motion to dismiss on July 30, 2018. Thus, it is

appropriate for us to turn our focus, instead, to the

opinion letter and supplemental affidavit that are the

primary subjects of this appeal.

II

We next address the defendants’ first and third alternative grounds for affirmance because they are interrelated and, considered together, they are dispositive of
this appeal.14 We agree with the defendants’ first alternative ground for affirmance that the plaintiff, in lieu of

amending his complaint, cannot cure a § 52-190a (a)

defect in the opinion letter attached to the complaint

with information contained in a subsequently filed supplemental affidavit of the opinion author where the

plaintiff continues to maintain that his complaint properly alleged that Daar was ‘‘holding himself out as a

specialist,’’ and the supplemental affidavit attempted to

provide information that allegedly qualified Solomon

as a ‘‘similar health care provider’’ pursuant to the nonspecialist definition set forth in § 52-184c (b). We conclude that such a material turnabout in what the plaintiff

maintains his opinion letter purports to demonstrate as

to the professional similarities between the defendant

and the author of an opinion letter should be accomplished only by the filing of an amendment to the complaint. In other words, in order to potentially rely on

the supplemental affidavit to avoid dismissal, the plaintiff first had to amend his complaint to allege that Daar

was either a nonspecialist engaged in the practice of

general dentistry or, alternatively, that he was holding

himself out to be a specialist.

Furthermore, in addressing the defendants’ third

alternative ground for affirmance that the opinion letter

attached to the complaint did not contain sufficient

information to demonstrate that Solomon is a similar

health care provider to Daar under the specialist definition of a similar health care provider in § 52-184c (c),

we necessarily address and disagree with the plaintiff’s

claim that the court erred in determining that the author

of the opinion letter was not a similar health care provider as defined in § 52-184c (c).15 First, we disagree

with the plaintiff’s claim that the specialist definition

in subsection § 52-184c (c) should apply in this case.

Second, because we conclude it was error to consider

the supplemental affidavit, we agree with the defendants that the opinion letter attached to the complaint

was insufficient to establish that Solomon is a similar

health care provider to Daar pursuant to § 52-184c (b).16

‘‘The interpretation of § 52-190a is a question of law

over which this court exercises plenary review. . . .

Moreover, review of the trial court’s ultimate legal conclusion and resulting [decision to] grant [a] motion to

dismiss will be de novo.’’’’ (Citation omitted; internal

quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 395. Our Supreme Court has ‘‘hewn

very closely’’ to the legislature’s specific articulation of

a similar health care provider under subsections (b)

and (c) of § 52-184c, expressly declining to expand or

modify it in any way. See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15–16, 12 A.3d 865 (2011). As we

observed previously, ‘‘[w]hen 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 logi-
cally correct.’’ (Internal quotation marks omitted.) Lucisano v. Bisson, supra, 132 Conn. App. 463–64.

We begin by determining whether the court properly

found that Daar, at the time of the alleged negligent

root canal procedure, was a nonspecialist practicing

general dentistry rather than a specialist in endodontics

because, as the plaintiff purports to have alleged, Daar

was holding himself out as a specialist. This is necessary

because such a determination makes either subsection

(b) or subsection (c) of § 52-184c applicable to the type

of health care provider who properly should have

authored the opinion letter.

It is not disputed that Daar is not certified by the

appropriate American board as a specialist, and he is

not trained and experienced in a medical specialty.17

The plaintiff’s complaint failed to allege that Daar was

‘‘trained and experienced in a medical specialty, or

holds himself out as a specialist’’ in endodontics, the

specific language set forth in § 52-184c (b) for determining whether or not a defendant provider should be considered a specialist. The plaintiff only alleged that the

defendant ‘‘held himself out as a practitioner of endodontics’’ and ‘‘has completed hundreds of hours of

training in endodontics.’’ The plaintiff also did not allege

that in performing the root canal, Daar provided treatment for a condition not within his specialty, in which

case, pursuant to an exception contained in § 52-184c

(c), a specialist trained in the treatment or diagnosis

for that condition shall be considered a similar health

care provider. Indeed, both the plaintiff and the defendants acknowledge that dentists practicing general dentistry do perform root canals and other procedures also

performed by specialists in dentistry, despite their lack

of board certification in any specialty.

As the court found, the affidavit of Daar submitted

in connection with the defendants’ motion to dismiss

supported the conclusion that he is a general dentist

and that the root canal treatment he performed on the

plaintiff was performed in his capacity as a general

dentist. The ‘‘hundreds of hours’’ training alleged to be

stated on Daar’s website by the plaintiff, in the statement in which it is contained, did not modify only the

word, ‘‘[e]ndodontics,’’ it also modified ‘‘[o]rthodontics,

[p]eriodontics, [d]ental [i]mplants, [s]leep [a]pnea,’’ and

more. It thus could not be read as any indication that

Daar had hundreds of hours of training in endodontics

and it cannot be specifically determined from this promotional website the exact amount of hours of training

he may have had in endodontics. The allegation that

there is a statement on the website that Daar completed

hundreds of hours of training in endodontics, does not

support a finding that Daar held himself out as an endodontic specialist. The website actually states that Daar

‘‘has completed hundreds of hours of training’’ in many

subjects. There is a distinction between a general den-
tist’s training and experience, including continuing education and a postdoctoral specialty resident program

required to become a specialist in a recognized dental

specialty. General Statutes § 20-106a prohibits any

licensed or registered dentist from designating that his

practice is limited to a specialty recognized by the American Dental Association unless the dentist has completed two or more years of advanced or postgraduate

education in the area of the specialty. The completion

of hours of continuing education over the years when

Daar has been practicing as a general dentist in Connecticut since 1982, is not synonymous with being a

specialist. Dentists in Connecticut are prohibited from

renewing their practice licenses unless they take a requisite number of continuing education credits. See General Statutes § 20-126c (b) (requiring all licensed dentists to have minimum of twenty-four contact hours of

continuing education within twenty-four months preceding their application for renewal). The plaintiff’s

theory that hours of continuing education contributes

to holding oneself out as a specialist would result in

treating all physicians and dentists, regardless of

whether they are trained and experienced in a specialty,

as health providers holding themselves out as specialists merely because they have completed required continuing education. ‘‘This construction would run afoul

of the basic tenet of statutory construction that the

legislature [does] not intend to enact meaningless provisions.’’ (Internal quotation marks omitted.) Bennett v.

New Milford Hospital, supra, 300 Conn. 23. We conclude that the defendants’ informative and promotional

website references did not equate to Daar’s holding

himself out as a specialist in endodontics.18

Moreover, the plaintiff took no steps to counter the

contents of Daar’s affidavit, which indicated that he has

been engaged in the practice of general dentistry since

1982 and refuted the plaintiff’s mischaracterization of

the content of his website.

As we recently explained in Labissoniere v. Gaylord

Hospital, Inc., supra, 182 Conn. App. 445, Practice Book

§ 10-3 (c) allows either party to submit affidavits and/

or other evidence in support of a motion to dismiss.

‘‘If affidavits and/or other evidence submitted in support

of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to

undermine this conclusion with counteraffidavits . . .

or other evidence, the trial court may dismiss the action

without further proceedings.’’ (Internal quotation

marks omitted.) Id., 453.

The court was not bound to presume the validity of

only the facts alleged in the complaint. Furthermore,

it noted that the complaint itself failed to sufficiently

allege Daar was holding himself out as a specialist.

The indeterminate complaint, as well as the undisputed

facts alleged in Daar’s affidavit, justified the court’s
conclusion that Daar was neither a specialist, nor holding himself out to be one, and thus, pursuant to § 52-

184c (b), any opinion from a similar health care provider

must come from ‘‘someone 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.’’19

Next, we must determine whether the opinion letter,

consisting of the two letters from Solomon attached to

the plaintiff’s complaint as an exhibit in the present

action, sufficiently established that Solomon qualified

as a similar health care provider pursuant to §§ 52-190a

(a) and 52-184c (b). The first letter is the same one that

was attached to the plaintiff’s complaint as the opinion

letter in his first action, which the court dismissed

because that letter, in and of itself, did not reflect Solomon’s qualifications. The supplemental correspondence attached to the complaint, first produced in the

present action, describes its author, Solomon, as a graduate of Columbia, licensed to practice dentistry in New

York, with credentials that would satisfy the requirements of any other state. It further indicates that Solomon ‘‘received specialty [b]oards in [e]ndodontics in

1970 and practiced [e]ndodontics in New York City for

over [forty] years [and that in] [t]he last [eight] years,

[Solomon] [had] been a full-time clinical professor of

[e]ndodontics at Columbia . . . teaching clinical and

didactic [e]ndodontics.’’

The defendants claim that the two part opinion letter

was insufficient because it unequivocally does not demonstrate that the author is a similar health care provider

to Daar, a general dentist. The nonspecialist definition,

set forth in § 52-184c (b), requires not only that the

similar health care provider have the appropriate licensure but, also, that such provider have training and

experience in the ‘‘same discipline or school of practice’’ and such training and experience must ‘‘be as a

result of the active involvement in the practice or teaching of [general dentistry] within the five-year period

before the incident giving rise to the claim.’’ Although

the second letter attached to the complaint indicates

that the author taught endodontics for the past eight

years, there plainly is no information in the opinion

letter demonstrating that the author had any active

involvement in the practice or teaching of general dentistry during the requisite five year period. Nowhere

does the plaintiff argue that the opinion letter attached

to his complaint, which makes no mention of the fact

that Solomon had been teaching endodontics to students of general dentistry, is sufficient to qualify its

author as a similar health care provider to Daar pursuant to § 52-184c (b). It is indisputable, therefore, that
unless the supplemental affidavit of Solomon attached

to his objection to the motion to dismiss may be considered, the plaintiff’s cause of action definitely fails for

want of personal jurisdiction because the opinion letter

alone is not compliant with § 52-190a.

The defendants argue that the plaintiff failed to properly amend his complaint to attach an amended or new

opinion letter making the allegations in the supplemental affidavit part of the pleading process and thus failed

to confer personal jurisdiction over the defendants

under § 52-190a. In his reply brief, the plaintiff argues

that the defendants did not preserve in the trial court

the issue of whether he had to amend his complaint

rather than simply file the supplemental affidavit, nor

did they claim this as a proposed alternative ground

for affirmance in their preliminary statement of issues

dated October 15, 2019, and this court should refuse to

consider the issue because the plaintiff was prejudiced

in having been given only twenty days from the filing

of the defendants’ brief to consider the issue.20 We note,

however, that the defendants raised this claim to the

trial court during oral argument on the motion to dismiss, although they did not address it in either their

memorandum of law in support of their motion to dismiss or in their reply to the plaintiff’s objection to the

motion to dismiss. At oral argument on the motion

to dismiss, counsel for the defendants stated: ‘‘This

affidavit from [Solomon], it can’t be considered by the

court in the second action. If it had been attached to

the complaint in the second action, then that would—

I wouldn’t be taking that position.’’ As a result of the

defendants’ lack of emphasis on this point, the court did

not address the precise issue. In the plaintiff’s appellate

brief, however, he anticipates this argument and cites

to Peters v. United Community & Family Services,

Inc., 182 Conn. App 688, 181 A.3d 195 (2018), as authority for his ability to submit an affidavit with his objection

to the motion to dismiss, in lieu of amending the complaint, to cure a deficient opinion letter. The plaintiff

also was able to respond to the defendants’ claim in

his reply brief. If he felt he needed additional time to

do so adequately, he could have sought an extension

of time in which to file the reply brief, but he did not

do so. In the exercise of our plenary review of this

issue, which is one of law, and the fact that it was raised

in the trial court and on appeal, and that both parties

had sufficient opportunity to brief it, we will address

it. See Connecticut Ins. Guaranty Assn. v. Fontaine,

278 Conn. 779, 784 n.4, 900 A.2d 18 (2006) (when alternative ground for affirmance was raised in trial court,

failure to comply with Practice Book § 63-4 (a) (1) did

not render claim unreviewable when all parties briefed

claim); Skuzinski v. Bouchard Fuels, Inc., 240 Conn.

694, 702–703, 694 A.2d 788 (1997) (reviewing alternative

grounds for affirmance that were raised in trial court

even though trial court failed to rule on claims); Chot-
kowski v. State, 240 Conn. 246, 256 and n.17, 690 A.2d

368 (1997) (reviewing alternative grounds for

affirmance that were not included in preliminary statement of issues when claims were raised in trial court).

Both the plaintiff and the defendants correctly assert

that no appellate court has yet decided whether a defective opinion letter may be cured with an affidavit if

submitted with a plaintiff’s objection to a motion to

dismiss within the statute of limitations period. In Peters

v. United Community & Family Services, Inc., supra,

182 Conn. App. 703, this court held that a plaintiff cannot evade the clear limits set forth in Gonzales v. Langdon, supra, 161 Conn. App. 519, by, in lieu of seeking

to amend the complaint, submitting a clarifying or

explanatory affidavit from the author of the opinion

letter after the limitation period has expired. We

declined, however, to decide whether the use of a

timely filed affidavit from the author of the opinion

letter, submitted in lieu of amending the complaint, was

procedurally appropriate. See Peters v. United Community & Family Services, Inc., supra, 704.

In Peters, however, this court did reference two

Supreme Court opinions, Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, and Morgan v. Hartford

Hospital, supra, 301 Conn. 388, that unequivocally state

that an opinion letter is part of civil process. In Morgan,

the court construed the term ‘‘process’’ to include both

the summons, the complaint and any requisite attachments thereto and recognized 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.’’ (Emphasis added.)

Morgan v. Hartford Hospital, supra, 398. In Bennett,

in which our Supreme Court decided that a motion to

dismiss was the proper vehicle to attack a deficient

opinion letter; Bennett v. New Milford Hospital, Inc.,

supra, 29; the court declined to ‘‘permit the free amendment of challenged opinion letters to ensure their compliance with the statute.’’21 Id., 24. The court also

rejected an argument in the amicus brief of the Connecticut Trial Lawyers Association that the appropriate procedural vehicle for challenging an opinion letter that is

not compliant with § 52-190a is the motion to strike, as

that would provide the plaintiff with an opportunity to

plead over and correct the deficiency as a matter of

right, whereas the allowance of an amendment to the

complaint lies in the discretion of the court. Id., 24–25.

Rather, the court agreed with the defendant’s position

that when he filed a motion to dismiss, the plaintiff

could have sought either 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, to refile the action after dismissal with an

appropriate opinion letter. Id., 25.22
Consequently, our Supreme Court has held that failure to comply with the statutory requirements of service, including attaching a proper opinion letter, renders

a complaint in a medical malpractice action subject to

a motion to dismiss on the ground of lack of personal

jurisdiction. See Morgan v. Hartford Hospital, supra,

301 Conn. 401. A challenge to the sufficiency of the

opinion letter, which is required to be attached to the

complaint, is a challenge to in personam jurisdiction,

which a defendant can waive if a motion to dismiss is

not filed within thirty days of the filing of an appearance.

See Practice Book § 10-30; Pitchell v. Hartford, 247

Conn. 422, 433, 722 A.2d 797 (1999) (‘‘[t]he rule specifically and unambiguously provides that any claim of

lack of jurisdiction over the person as a result of an

insufficiency of service of process is waived unless it

is raised by a motion to dismiss filed within thirty days

in the sequence required by Practice Book § 10-6’’

(emphasis in original)). It would not seem fair to deprive

a defendant of the right to raise a claim of lack of

personal jurisdiction based on a noncompliant opinion

letter beyond thirty days from the date of filing his or

her appearance, but afford a plaintiff an unlimited time

period to cure a defective opinion letter by the mere

filing of an affidavit, which in most circumstances

would not require the prior permission of the court.

Thus, our decisional law reflects that an opinion letter

is in the nature of a pleading that must be attached to

the complaint. If an opinion letter is noncompliant with

the statutory prerequisites set forth in §§ 52-190a and

52-184c, the plaintiff is faced with a problem of defective

process because ‘‘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. . . . [U]nless service of process is made as the statute prescribes, the court to

which it is returnable does not acquire . . . jurisdiction over the person . . . .’’ (Citation omitted; internal

quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 401–402.

Although Practice Book § 10-30, which governs

motions to dismiss, provides for the submission of affidavits by either party in some circumstances, correcting

deficiencies in process that lead to a lack of personal

jurisdiction requires more than the filing of an affidavit.

In Gonzales v. Langdon, supra, 161 Conn. App. 514,

this court stated, ‘‘[p]resumably, because Morgan holds

that a legally sufficient opinion letter is part of process,

General Statutes § 52-72 (a) for amending process

applies . . . .’’ Section 52-72 (a) provides: ‘‘Upon payment of taxable costs, any court shall allow a proper

amendment to civil process which is for any reason

defective.’’ Section 52-72 (b) provides: ‘‘Such amended

process shall be served in the same manner as other
civil process and shall have the same effect, from the

date of the service, as if originally proper in form.’’ The

statute provides for ‘‘amendment of otherwise incurable

defects that go to the court’s jurisdiction.’’ Hartford

National Bank & Trust Co. v. Tucker, 178 Conn. 472,

478, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100

S. Ct. 1079, 63 L. Ed. 2d 319 (1980). The statute has

been interpreted to allow for the granting of motions

to amend defective process rather than requiring reservice of civil process. For example, in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642

A.2d 1186 (1994), our Supreme Court reversed the trial

court for failing to grant the plaintiff’s motion to amend

to correct a defective return date. Id., 619–20. In discussing § 52-72, the court noted that ‘‘the legislature

has the power to authorize, by statute, the amendment

of defects in process that would otherwise deprive the

court of jurisdiction.’’ Id., 622.23 Likewise, in Gonzales

v. Langdon, supra, 161 Conn. App. 510, this court sanctioned the use of rules of practice for amending complaints, Practice Book §§ 10-59 and 10-60, to cure a

defective opinion letter pursuant to § 52-72.24 Id.,

517–18.

The plaintiff argues that this court’s decision in

Peters, decided subsequent to Gonzales, established

that a plaintiff may use an explanatory affidavit to supplement an opinion letter if the affidavit is filed within

the statute of limitations. After noting that ‘‘[n]o appellate court to date has sanctioned the use of an affidavit

to cure a defective opinion letter,’’ however, the court

in Peters expressly stated that in light of what was

necessary to its analysis in that appeal, it was leaving

that issue ‘‘for another day.’’ Peters v. United Community & Family Services, Inc., supra, 182 Conn. App.

704. Furthermore, the court cautioned in a footnote

that, because it was not deciding whether a trial court

has the authority to permit alternative procedures such

as a clarifying affidavit to remedy a defective opinion

letter, ‘‘it would seem prudent for a plaintiff to follow

the corrective measures approved in Gonzales . . . .’’

Id., 704 n.10. Thus, Peters is not inconsistent with our

present analysis.

We agree with the defendants that the plaintiff’s position that a subsequently filed affidavit should be permitted to cure a defective opinion letter would circumvent

the amendment procedures set forth in Practice Book

§§ 10-59 and 10-60. An affidavit obtained from the

author of the opinion letter after commencement of the

action necessarily would not comply with the procedure

for an amendment as of right in Practice Book § 10-59,

because an affidavit obtained after the commencement

of the action could not have been ‘‘originally inserted

therein. . . .’’ Practice Book § 10-59. In addition, a trial

court’s determination whether to allow an amendment

under Practice Book § 10-60 is discretionary and

depends upon such factors as unreasonable delay, fair-
ness to the opposing party, and negligence of the party

offering the amendment. See Gonzales v. Langdon,

supra, 161 Conn. App. 510. The filing of an affidavit,

accomplished in an essentially unrestricted manner,

avoids the limitations a court must consider before it

allows the filing of an amendment to a complaint.

In enacting § 52-72, the legislature authorized amendments to cure defects in process. ‘‘[I]n the absence of

ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated.’’

(Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn.

622. In enacting § 52-190a, the legislature also expressly

provided in subsection (c) that the failure to obtain and

file the written opinion required under subsection (a),

which must be attached to the attorney’s good faith

certificate, which, in turn, must be part of the complaint,

shall be grounds for dismissal of the action. The legislature did not include any savings clause relative to defective opinion letters, which suggests that the statutory

requirements must be more strictly construed. See, e.g.,

Pratt v. Old Saybrook, 225 Conn. 177, 183, 621 A.2d

1322 (1993) (notice requirement in statute providing for

actions against state for highway defects, unlike statute

providing for similar actions against municipalities,

contains no savings clause and may not be as liberally

construed). However much as courts generally strive

to preserve parties’ access to courts by construing remedial legislation liberally, we nonetheless are bound by

the principle that it remains the province of the legislature, and not the courts, to determine what remedies

other than those already provided by statute could be

used to cure an opinion letter that does not comply

with § 52-190a (a).

The plaintiff’s supplemental affidavit deviated from

the intended allegations in his complaint to establish

that Solomon was a similar health care provider to Daar.

In his complaint, the plaintiff was attempting to allege

that Daar held himself out as a specialist, not that Daar

was a general dentist and a nonspecialist, and the opinion letter was designed to establish that Solomon was

a specialist in the specialty in which Daar purportedly

held himself to be engaged—endodontics. In the face

of the defendants’ motion to dismiss, the supplemental

affidavit was an attempt, in the alternative, to qualify

Solomon as someone teaching in the nonspecialty field

of general dentistry, the type of practitioner Daar

claimed to be in his affidavit. Through Daar’s factual

affidavit, the defendants chose to attack the substance

of the opinion letter as noncompliant with § 52-190a

(a) in that it failed to establish Solomon as a similar

health care provider under §§ 52-184c (b) or (c). The

court’s fair reading of the complaint, however, led to

its conclusion that the complaint did not allege that

Daar was holding himself out to be a specialist but,

rather, that Daar was engaged in the practice of general
dentistry, which includes performing root canal treatment. Accordingly, the opinion letter, in the absence

of the supplemental affidavit, had to establish that Solomon was engaged in the practice of general dentistry

or in the teaching of general dentistry for the five years

preceding the date the alleged malpractice took place.

It did not.

Accordingly, due to a defective opinion letter, there

was a defect in process. As the plaintiff never sought

to amend the allegations in his complaint, including the

opinion letter, from one supporting his initially intended

claim that Daar was holding himself out to be a specialist pursuant to § 52-184c (c) to one supporting a claim

that Daar was engaged in the practice of general dentistry, the additional, alternative credentialing information in the supplemental affidavit could not be used to

correct the deficient opinion letter that was attached

to, and part of, his complaint.25

We conclude that the court’s dismissal of the complaint should be affirmed on the alternative ground that

the court should not have considered the supplemental

affidavit. The opinion letter failed to comply with § 52-

190a (a) because it did not establish that Solomon was

a similar health care provider to Daar pursuant to § 52-

184c (b) or (c).

The judgment is affirmed.

In this opinion the other judges concurred.

1 Although the opinion letter attached to the complaint in the present

action had the name of the author redacted, which is authorized pursuant

to § 52-190a (a), in their briefs, both the plaintiff and the defendants acknowledge that Solomon was the author.

2 This court may take judicial notice of court files in other cases. See

Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003).

3 The opinion letter and the supplemental correspondence that were

attached to the complaint in the present action, hereafter shall be referred

to as the ‘‘opinion letter.’’

4 General Statutes § 52-184c (b) provides in relevant part that where the

defendant health care provider is not a specialist or holding himself as a

specialist, a ‘‘similar health care provider’’ may be ‘‘trained and experienced

in the same discipline or school of practice’’ as the defendant, and actively

practicing in the same discipline or school of practice or engaged in the

‘‘teaching of medicine within the five-year period before the incident giving

rise to the claim.’’ The alleged negligent root canal procedure was performed

on June 16, 2015. Hence, if Solomon’s teaching qualifies him as a health

care provider similar to the defendant, he had to have been teaching general

dentistry at least from June 16, 2010 through June 16, 2015.

5 Although the plaintiff’s objection to the motion to dismiss indicated

that Solomon’s curriculum vitae had been attached to the complaint, the

complaint did not contain anyone’s curriculum vitae. In fact, no curriculum

vitae appears anywhere in the record.

6 Practice Book § 10-60 provides in relevant part: ‘‘[A] party may amend

his or her pleading . . . at any time subsequent [to the first thirty days

after the return date if a complaint is being amended; see Practice Book

§10-59] . . . (3) By filing a request for leave to file an amendment together

with: (A) the amended pleading . . . and (B) an additional document showing the portion or portions of the original pleading . . . with the added

language underlined and the deleted language stricken through or bracketed.

. . . If no party files an objection to the request within fifteen days from

the date it is filed, the amendment shall be deemed to have been filed by

consent of the adverse party. If an opposing party shall have objection . . .

such objection in writing . . . shall . . . be filed with the clerk within the

time specified above and placed upon the next short calendar list.’’
Before the plaintiff’s first action was dismissed, he had filed a request

for leave to amend his complaint, which the court denied because the request

had not been filed within the two year statute of limitations applicable to

that action, General Statutes § 52-584.

7

‘‘It is well established, within the medical profession, that a ‘diplomate’

is a person who has received a diploma and has been certified by a board

within the appropriate profession. See Webster’s Third New International

Dictionary (2002) p. 638 (defining diplomate as ‘[o]ne who holds a diploma;

esp; a physician certified as qualified generally or as a specialist by an agency

recognized as professionally competent to grant such certification’. . .)

. . . .’’ (Emphasis in original.) Lohnes v. Hospital of Saint Raphael, 132

Conn. App. 68, 77, 31 A.3d 810 (2011), cert, denied, 303 Conn. 921, 34 A.3d

397 (2012).

8 Gonzales v. Landgon, supra, 161 Conn. App. 497, was a case of first

impression in which this court held that a plaintiff could cure a defective

opinion letter by filing a request for leave to amend the complaint, pursuant

to Practice Book § 10-60, if the request was filed within the applicable

statute of limitations period. Id., 519.

9 As noted previously, the supplemental affidavit was filed with the plaintiff’s objection to the motion to dismiss on June 5, 2018.

10 The plaintiff’s complaint alleged that Daar ‘‘[a]t all times’’ presented

himself as ‘‘duly qualified to render proper and adequate dental services to

the public . . . specifically, with a specialty in dental treatment.’’ He further

alleged that, ‘‘[a]t all times herein, [Daar] held himself out as a practitioner

of endodontics . . . .’’ In terms of whether a similar health care provider

must be a specialist or nonspecialist, we are to be guided by the allegations

of the plaintiff’s complaint. See Bennett v. New Milford Hospital, Inc., 300

Conn. 1, 23–24, 12 A.3d 865 (2011).

11 The court noted that the plaintiff in Samsonenko v. Manchester Family

Dental, LLC, Superior Court, judicial district of Hartford, Docket No. CV17-6078556-S (January 30, 2018) (65 Conn. L. Rptr. 863, 863–64), alleged that

Daar was medically negligent in administering orthodontic treatment to him.

The plaintiff provided the opinion of a general dentist who was also a

specialist in the field of orthodontics. Daar filed a motion to dismiss on the

grounds that the opinion letter was not from a similar health care provider.

The court granted Daar’s motion to dismiss after finding that Daar was a

general dentist and the orthodontic specialist who authored the opinion

was not a similar health care provider.

12 In light of the holding in Plante, any court considering a motion to

dismiss for noncompliance with § 52-190a in a medical malpractice action

that has been filed pursuant to the accidental failure of suit statute should

first determine whether the plaintiff is entitled to the benefit of the saving statute.

13 Although the record is silent with respect to the court’s rationale, we

nonetheless observe that, perhaps the court, after being advised by counsel

for the defendants that it did not need to decide this issue, may have

determined that it could assume, arguendo, that the extension of the time

limitation the saving statute provided could be applied, and considered the

opinion letter and the supplemental affidavit to be timely filed so that it

could reach the defendants’ main contention—their combined insufficiency

under §§ 52-190a (a) and 52-184c. In the alternative, since the court, Domnarski, J., hearing the motion to dismiss in the present action also had dismissed

the first action, it may have impliedly decided that there was a mistake,

inadvertence, or excusable neglect that had led to the dismissal of the

first action.

14 ‘‘[I]t is axiomatic that [we] may affirm a proper result of the trial court

for a different reason.’’ (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 63 n.6, 6 A.3d 213 (2010), cert.

denied, 299 Conn. 926, 11 A.3d 150 (2011).

15 A claim may be so inextricably linked to another that deciding one

necessarily requires a resolution of both. Johnson v. Commissioner of Correction, 330 Conn. 520, 540–42, 198 A.3d 52 (2019).

16 We need not address whether the opinion letter, if properly supplemented by the affidavit, was compliant with § 52-190a (a), although the trial

court held it was not.

17 Connecticut law does not permit a person to obtain some training and

education and hold oneself out as practicing in a limited dental specialty.

General Statutes § 20-106a, which is part of the Connecticut Dental Practice

Act, provides in relevant part: ‘‘No licensed and registered dentist shall

designate in any manner that he has limited his practice to one of the
specialty areas of dentistry expressly approved by the American Dental

Association unless such dentist has completed two years of advance or

postgraduate education in the area of such specialty and has notified the

Dental Commission of such limitation of practice. . . .’’

18 Lohnes v. Hospital of Saint Raphael, 132 Conn. App. 68, 31 A.3d 810

(2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012), is informative on

this point. The plaintiff in Lohnes brought a medical malpractice action

against an emergency medical physician and the hospital at which he

received treatment for pulmonary symptoms. Id., 71. In bringing the action,

the plaintiff submitted an opinion letter from a pulmonologist. Id., 72. The

defendants moved to dismiss the action on the ground that the treating

physician was board certified in emergency medicine and the author of the

opinion letter was not a similar health care provider within the meaning of

§§ 52-190a and 52-184c. This court upheld the judgment dismissing the action

and rejected the argument advanced by the plaintiff on appeal that, at the

time he treated the plaintiff, the treating physician had been practicing

outside of his specialty of emergency medicine. Id., 79. This court noted:

‘‘[I]n light of the fact that emergency medicine physicians are charged with

rendering care to and treating patients with a potentially limitless variety

of symptoms or injuries, the plaintiff’s argument, namely that the defendant

was acting outside his area of specialty, potentially could yield a situation

where no condition or illness would be considered within the scope of

emergency medicine. Accordingly, there is no basis for the claim that, in

treating the plaintiff for his symptoms in the emergency department of the

hospital, [the defendant] was acting outside his specialty of emergency

medicine.’’ Id., 79.

In the present case, it is undisputed that dentists engaged in the practice

of general dentistry similarly treat patients for a variety of conditions that

are also treated by dentists who are board certified in a dental specialty.

There should be no basis, then, for the claim that in treating the plaintiff

with a root canal procedure, a procedure commonly accepted as part of

the practice of general dentistry, the defendant was holding himself out to

be a specialist.

19 We conclude, as did the trial court, that, despite the plaintiff’s contention

that he properly alleged that Daar was holding himself out to be a specialist,

a plain reading of the allegations in his complaint failed to properly invoke

reliance upon the definition of a similar health care provider under the

specialist definition in § 52-184c (c) but, rather, leaves one with the distinct

impression that Daar was engaged only in the practice of general dentistry,

a nonspecialty as defined in § 52-184c (b).

20 Practice Book § 67-3 provides in relevant part: ‘‘The appellant may within

twenty days after the filing of the appellee’s brief file a reply brief which

shall not exceed fifteen pages. . . .’’

21 As noted in Peters v. United Community & Family Services, Inc., supra,

182 Conn. App. 703–704, certain Superior Court decisions have permitted

a plaintiff to cure a defective opinion letter by supplemental affidavit rather

than by following the amendment procedures set forth in Practice Book

§§ 10-59 and 10-60. These lower courts have relied on the theory that, if a

plaintiff is permitted to correct a defective opinion letter by amending his

complaint, it would be equally reasonable for a court to permit and consider

an affidavit that clarifies a defect in an existing opinion letter, especially

when a plaintiff is acting in response to a motion to dismiss, which is

governed by Practice Book § 10-31 (a) and permits affidavits to establish

facts necessary for the adjudication of the motion. Id. The persuasiveness

of the Superior Court cases cited in Peters, however, is greatly discounted

by the fact that they were decided before our Supreme Court issued its

decisions in Bennett and Morgan, both of which emphasize that an insufficient opinion letter constitutes defective process.

22 Bennett also discussed the fact that although the remedy of dismissal

might lead to harsh results for plaintiffs, plaintiffs are not without recourse

when facing dismissal, even in circumstances in which the statute of limitations has run, because they may be able to avail themselves of the relief

available under the accidental failure of suit statute. Bennett v. New Milford

Hospital, Inc., supra, 300 Conn. 30–31.

23 In Hartford National Bank & Trust Co. v. Tucker, supra, 178 Conn.

478–79, our Supreme Court stated: ‘‘The purpose of [§ 52-72] is to provide

for amendment of otherwise incurable defects that go to the court’s jurisdiction. . . . Those defects which are merely voidable may, in the trial court’s

discretion, be cured by amendment, and do not require new service and

return date, so long as the defendant was not prejudiced.’’ (Citation omitted.)
24 The court in Gonzales also relied on General Statutes § 52-128, which

provides in relevant part: ‘‘The plaintiff may amend any defect, mistake or

informality in the writ, complaint declaration or petition . . . within the

first thirty days after the return day and at any time afterwards on the

payment of costs at the discretion of the court. . . .’’

25 As previously noted, the plaintiff, when faced with a motion to dismiss

based on a deficient opinion letter in his first action, attempted to amend

his complaint, but the statute of limitations already had run. Thus, he was

aware of the proper procedural route by which to rectify any defects related

to the opinion letter in the present case.