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

DAAR ET AL.

(SC 20524)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn and Ecker, Js.

Syllabus

Pursuant to statute (§ 52-190a (a)), a complaint sounding in medical malpractice must be accompanied by a good faith certificate and ‘‘a written and

signed opinion of a similar health care provider, as defined in section

52-184c . . . that there appears to be evidence of medical negligence

and includes a detailed basis for the formation of such opinion.’’

The plaintiff sought to recover damages from the named defendant, D, a

dentist, and D’s practice, P Co., for malpractice in connection with a

root canal surgery D performed on the plaintiff. The plaintiff alleged

that, during the surgery, D negligently failed to diagnose and treat an

infection in the plaintiff’s tooth and that, as a result, the plaintiff suffered

a serious infection that required additional medical care, surgery, and

dental treatment. The plaintiff attached to his complaint a good faith

certificate and an opinion letter from S, an endodontist, along with a

description of S’s credentials in endodontics. In his complaint, the plaintiff alleged that S was a ‘‘similar health care provider,’’ as defined by

statute (§ 52-184c (c)), to D, who the plaintiff alleged had held himself

out as a specialist in endodontics. In support of that allegation, the

plaintiff quoted text from P Co.’s website indicating that D had completed

hundreds of hours in training in endodontics, which the website

described as dealing with tissues and structures inside the tooth. The

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

letter did not comply with §§ 52-190a (a) and 52-184c insofar as it failed

to establish that S was a ‘‘similar health care provider’’ to D, who was

a general dentist and not a specialist in endodontics. The defendants

asserted that S was not a ‘‘similar health care provider’’ under the

definition of that term in § 52-184c (c) because D was not a specialist

in endodontics and did not hold himself out to be one, or the definition

of that term in § 52-184c (b), which applies to nonspecialists, because

D was a practitioner of general dentistry and S had not practiced or

taught general dentistry within the five years preceding the date of the

incident giving rise to the plaintiff’s claim. The defendants attached to

their motion an affidavit from D, in which he attested that he is a general

dentist and not a specialist in endodontics or holding himself out as

such a specialist. The plaintiff objected to the motion to dismiss and

reiterated the claim made in his complaint that D had held himself out

to be a specialist in endodontics and that S was therefore a similar

health care provider under § 52-184c (c). The plaintiff did not dispute

the facts set forth in D’s affidavit, and, rather than request leave to

amend his complaint to attach a new or amended opinion letter, the

plaintiff attempted to cure the allegedly defective opinion letter by submitting, as an exhibit to his objection to the motion to dismiss, a supplemental affidavit in which S further elaborated on his credentials. The

trial court granted the motion to dismiss and rendered judgment for the

defendants. The court concluded that, because the plaintiff had not

disputed the facts in D’s affidavit, the court was not required to conclusively presume the validity of the allegations in the complaint. The trial

court also concluded that D was not a specialist, as that term was

defined in § 52-184c (c), and, therefore, any opinion from a similar health

care provider was required to come from a general dentist. In addition,

the trial court rejected the plaintiff’s alternative argument that S was

qualified as a similar health care provider under the nonspecialist definition in § 52-184c (b). The Appellate Court affirmed the trial court’s

judgment, relying in part on Morgan v. Hartford Hospital (301 Conn.

388), which held that the failure to timely file a motion to dismiss,

pursuant to § 52-190a (c), waives any objection to the adequacy of the

opinion letter and that the opinion letter implicates the court’s personal

jurisdiction for purposes of the procedures governing the motion to
dismiss. The Appellate Court reasoned that, because the opinion letter

is a part of civil process for purposes of obtaining personal jurisdiction,

the plaintiff could not cure any deficiencies in the purportedly defective

opinion letter by way of a supplemental affidavit but, instead, was

required to amend his complaint. The Appellate Court also agreed that

the opinion letter itself did not contain sufficient information to demonstrate that S was a similar health care provider to D under § 52-184c

(c) because D’s affidavit indicated that D was a general dentist and that

he performed the root canal in that capacity, rejecting the plaintiff’s

reliance on the statements on P Co.’s website about D’s training in

endodontics. In addition, the Appellate Court determined that the opinion letter did not establish that S was a similar health care provider to

D under § 52-184c (b) and affirmed the trial court’s judgment, from

which the plaintiff, on the granting of certification, appealed to this

court. Held:

1. This court determined that Morgan was incorrectly decided and, accordingly, overruled Morgan to the extent that it held that the opinion letter

required by § 52-190a implicates a court’s personal jurisdiction:

a. Nothing in the text or legislative history of § 52-190a suggested that

the legislature contemplated that the opinion letter would affect a court’s

personal jurisdiction over a defendant:

The legislature’s failure to use terms pertaining to jurisdiction, service,

or process in subsection (c) of § 52-190a, which provides that dismissal

is the remedy for failing to comply with the statute’s opinion letter

requirement, was strong textual evidence that the legislature did not

intend for the opinion letter and good faith certificate to implicate a

court’s personal jurisdiction, especially when the legislature uses such

terms in other statutes governing personal jurisdiction and the service

of process in a wide variety of contexts.

Nothing in the legislative history of § 52-190a supported the conclusion

that the statute implicates a court’s personal jurisdiction, as that history

demonstrated that the opinion letter requirement, enforced by way of a

motion to dismiss, was intended to prevent frivolous medical malpractice

actions by addressing the perceived problem that attorneys were misrepresenting the extent to which a factual basis existed for their good faith

in bringing those actions, not to serve as a sword to defeat otherwise

facially meritorious claims, and it also indicated that it was understood

that any dismissal under the statute was to be without prejudice.

Moreover, in Morgan, this court relied on a false logical premise insofar

as it assumed that, because this court previously had held that the good

faith certificate did not implicate a court’s subject matter jurisdiction,

dismissal under § 52-190a necessarily related to a court’s personal jurisdiction, as it failed to account for the numerous nonjurisdictional grounds

on which a court may dismiss a malpractice case.

b. The doctrine of stare decisis did not counsel against overruling the

holding in Morgan that the opinion letter required by § 52-190a implicates

a court’s personal jurisdiction:

There was not a strong case that the legislature had acquiesced in the

construction of § 52-190a (a) expressed in Morgan because, in the more

than eleven years since this court decided that case, the legislature had

made only a single, minor amendment to § 52-190a, and that amendment

was to a different subsection of the statute and was not germane to the

opinion letter requirement.

Moreover, developments in the law since Morgan justified this court’s

departure from precedent and illustrated the extent to which the court’s

holding as to personal jurisdiction had led to results that were at odds

with the legislature’s intent in enacting § 52-190a, as Morgan elevated

the credentials of the opinion letter’s author to a jurisdictional prerequisite and spawned a body of case law that imposed substantially greater

burdens on plaintiffs than the legislature intended by allowing potentially

curable, technical, prelitigation defects to defeat otherwise meritorious

medical malpractice actions, sometimes after several years of litigation.

c. This court clarified that the rules of practice (§§ 10-30 and 10-31)

governing motions to dismiss in civil matters and case law governing

the pleading and proof of jurisdictional facts are not applicable to motions
to dismiss filed under § 52-190a (c), the inquiry under § 52-190a is solely

framed by the allegations in the complaint, the only question at the

motion to dismiss stage is whether the author of the opinion letter is a

similar health care provider to the defendant, in view of their respective

qualifications as pleaded in the complaint and described in the opinion

letter, to the extent that the opinion letter is legally insufficient or defective under § 52-190a, trial courts retain the authority to permit amendments to or supplementation of a challenged letter in response to a

motion to dismiss, and this court’s holding in Morgan that a motion to

dismiss for failure to file an opinion letter pursuant to § 52-190a is waivable, including by inaction, remained good law.

2. The Appellate Court incorrectly concluded that the allegations in the

plaintiff’s complaint and the attached opinion letter were legally insufficient to establish that S was a similar health care provider to D within

the meaning of § 52-184c (c), and, accordingly, that court improperly

upheld the trial court’s granting of the defendants’ motion to dismiss:

Although the complaint did not use certain talismanic words to indicate

that D was board certified or specialized in endodontics, a broad and

realistic reading of the allegations in the complaint, including that D

‘‘held himself out as a practitioner’’ in the field of endodontics and the

quoted language from P Co.’s website, as well as the opinion letter’s

recitation of S’s board certification and extensive credentials as a practitioner and professor of endodontics, supported the conclusion that S

was a ‘‘similar health care provider’’ to D, as that term was intended

by the legislature when it amended § 52-190a to ensure that there are

nonfrivolous factual bases for malpractice claims brought in this

state’s courts.

Argued May 2, 2022—officially released February 1, 2023*

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 the Appellate Court, Keller, Elgo

and Pellegrino, Js., which affirmed the trial court’s judgment, and the plaintiff, on the granting of certification,

appealed to this court. Reversed; further proceedings.

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

for the appellant (plaintiff).

Beverly Knapp Anderson, for the appellees (defendants).

Alinor C. Sterling, Jeffrey W. Wisner, and Sarah

Steinfeld filed a brief for the Connecticut Trial Lawyers

Association as amicus curiae.

Liam M. West and Ryan T. Daly filed a brief for the

Connecticut Defense Lawyers Association as amicus

curiae.
Opinion

ROBINSON, C. J. This certified appeal requires us

to consider the extent to which our case law, most

significantly, Morgan v. Hartford Hospital, 301 Conn.

388, 21 A.3d 451 (2011), has resulted in the deviation of

Connecticut’s good faith opinion letter statute, General

Statutes § 52-190a,1

from the legislature’s intention that

it ‘‘prevent frivolous [medical] malpractice actions’’ but

not ‘‘serve as a sword to defeat otherwise facially meritorious claims.’’ Wilkins v. Connecticut Childbirth &

Women’s Center, 314 Conn. 709, 736 n.9, 104 A.3d 671

(2014). The plaintiff, Shane J. Carpenter, appeals, upon

our grant of his petition for certification,2

from the judgment of the Appellate Court upholding the dismissal of

his dental malpractice action against the defendants,

Bradley J. Daar and his business entity, Shoreline Modern Dental, LLC (Shoreline). Carpenter v. Daar, 199

Conn. App. 367, 369–70, 405, 236 A.3d 239 (2020). On

appeal, the plaintiff claims that the Appellate Court

incorrectly concluded that (1) because the opinion letter implicates the court’s personal jurisdiction, the trial

court should not have considered an affidavit filed by

the plaintiff to supplement a potentially defective opinion letter (supplemental affidavit) as an alternative to

amending the operative complaint, and (2) the author of

the opinion letter, Charles S. Solomon,3 an endodontist,

was not a ‘‘similar health care provider,’’ as defined by

General Statutes § 52-184c,4

to Daar, who is a general

dentist. Our review of the plaintiff’s claims leads us to

confront a more fundamental issue under § 52-190a,

namely, whether this court correctly concluded in Morgan that the opinion letter requirement implicates the

court’s personal jurisdiction for purposes of the procedures attendant to the motion to dismiss. See Morgan

v. Hartford Hospital, supra, 401–402. Having received

supplemental briefing on this issue; see footnote 2 of

this opinion; we conclude that Morgan was wrongly

decided on this point. We now hold that the opinion

letter requirement is a unique, statutory procedural

device that does not implicate the court’s jurisdiction

in any way. We further conclude that, consistent with

this court’s decision inBennett v. New Milford Hospital,

Inc., 300 Conn. 1, 12 A.3d 865 (2011), for purposes of

the motion to dismiss pursuant to § 52-190a (c), the

sufficiency of the opinion letter is to be determined

solely on the basis of the allegations in the complaint

and on the face of the opinion letter, without resort to

the jurisdictional fact-finding process articulated in, for

example, Conboy v. State, 292 Conn. 642, 651–52, 974

A.2d 669 (2009). Because the opinion letter in the present case established that Solomon was a similar health

care provider to Daar under the broadly and realistically

read allegations in the complaint, we conclude that

the plaintiff’s action should not have been dismissed.

Accordingly, we reverse the judgment of the Appellate Court.
We briefly summarize the facts and procedural history of this case, much of which is aptly described in

the opinion of the Appellate Court.5‘‘On February 21,

2018, the plaintiff commenced the present action

against the defendants6

. . . . 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 [a] detailed basis for the formation of that opinion, along with a supplemental correspondence outlining that similar health care provider’s

qualifications.’ . . . 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.7 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.’ ’’ (Citation omitted; footnote added;

footnote altered.) Carpenter v. Daar, supra, 199 Conn.

App. 370–72.

‘‘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 [i.e., the date of

the incident giving rise to the claim]. 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. 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 [pursuant to Practice Book § 10-

60] to attach a new or amended opinion letter. 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, [the] 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, 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.’’ (Footnotes omitted.) Id., 372–75.

Following oral argument, the trial court issued a

memorandum of decision and granted the defendants’

motion to dismiss. See id., 376–78. ‘‘The [trial] court

. . . analyzed the sufficiency of the opinion letter as

amended by the filing of the supplemental affidavit.’’8

Id., 376. The trial court determined that the allegations

in the complaint rendered applicable ‘‘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.’’ Id., 377. Citing Labissoniere v. Gaylord Hospital, Inc., 182 Conn. App. 445,

453, 185 A.3d 680 (2018), the trial court observed 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.’’ Carpenter v. Daar, supra, 199 Conn.

App. 377. After ‘‘reject[ing] the plaintiff’s alternative

argument that Solomon was qualified as a similar health

care provider under the nonspecialist definition in § 52-

184c (b)’’; id.; the trial ‘‘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 . . . granted the motion as to

that defendant as well, and rendered judgment in favor

of both defendants.’’ Id., 378.

The plaintiff appealed from the judgment of dismissal

to the Appellate Court. Id., 369, 378. On appeal, the

plaintiff claimed that the trial court incorrectly ‘‘determin[ed] that his certificate of good faith, specifically,

the accompanying opinion letter, as supplemented by

[the supplemental affidavit], failed to meet the requirements of . . . § 52-190a because the author of the opinion letter and supplemental affidavit, [Solomon], was

not a ‘similar health care provider’ as defined in . . .

§ 52-184c.’’ Id., 369. The Appellate Court decided the case

on the basis of two ‘‘interrelated,’’ alternative grounds

for affirmance raised by the defendants. Id., 389; see

id., 405. Specifically, the Appellate Court ‘‘agree[d] with

the defendants’ first alternative ground for affirmance

that the plaintiff, in lieu of amending his complaint,

[could not] 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 [when] the plaintiff continue[d] 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).’’ Id., 389–90. On this point, the

Appellate Court emphasized that this court’s decision

in Morgan v. Hartford Hospital, supra, 301 Conn. 388,

rendered the ‘‘opinion letter . . . part of civil process’’

for purposes of obtaining personal jurisdiction; Carpenter v. Daar, supra, 199 Conn. App. 399; and followed

its decision in Gonzales v. Langdon, 161 Conn. App.

497, 517–19, 128 A.3d 562 (2015), in agreeing with the

defendants’ argument that the plaintiff could not use

the supplemental affidavit to cure the deficiencies in

the process. See Carpenter v. Daar, supra, 398–403.

Considering the amendment procedures set forth in

Practice Book §§ 10-59 and 10-60, the Appellate Court

reasoned that the ‘‘essentially unrestricted’’ filing of the

supplemental affidavit ‘‘avoids the limitations a court

must consider before it allows the filing of an amendment to a complaint.’’ Id., 403; see id., 404 (noting that

§ 52-190a does ‘‘not include any savings clause relative

to defective opinion letters, which suggests that the statutory requirements must be more strictly construed’’).
Second, the Appellate Court agreed with the defendants’ argument 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),’’ meaning that the

Appellate Court ‘‘necessarily address[ed] and disagree[d]

with the plaintiff’s claim that the [trial] court erred in

determining that the author of the opinion letter was

not a similar health care provider as defined in § 52-

184c (c).’’ Id., 390. The Appellate Court observed that

‘‘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.’’ Id., 392. The Appellate Court rejected the plaintiff’s reliance on the ‘‘ ‘hundreds of hours’ [of] training’’ in endodontics as ‘‘alleged

to be stated on Daar’s website’’ because ‘‘it [could not]

be specifically determined from this promotional website the exact amount of hours of training [Daar] 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 dentist’s

training and experience, including continuing education

and a postdoctoral specialty residency program required

to become a specialist in a recognized dental specialty.’’9

Id., 392–93. Thus, the Appellate Court ‘‘conclude[d] that

the defendants’ informative and promotional website

references did not equate to Daar’s holding himself out

as a specialist in endodontics.’’10 Id., 394. The Appellate

Court then determined that the opinion letter did not

establish that Solomon was a similar health care provider to Daar under § 52-184c (b) because it established

that Solomon ‘‘taught endodontics for the past eight

years’’ but did not ‘‘demonstrat[e] that [Solomon] had

any active involvement in the practice or teaching of

general dentistry during the requisite five year period.’’

(Emphasis in original.) Id., 396.

On the basis of these conclusions, the Appellate Court

affirmed the trial court’s judgment dismissing the complaint. Id., 405. This certified appeal followed. See footnote 2 of this opinion.

On appeal, the plaintiff claims that the Appellate

Court improperly upheld the dismissal of his action

for lack of personal jurisdiction. He contends that the

opinion letter was legally sufficient under § 52-190a

because the ‘‘contents of the complaint adequately

allege that . . . Daar held himself out as a specialist

endodontist . . . Daar’s affidavit failed to adequately

refute those allegations, and the opinion letter estab-
lishes that . . . Solomon,’’ himself a professor of endodontics, ‘‘is a similar health care provider to an endodontic specialist.’’ In response, the defendants contend

that the Appellate Court properly relied on Daar’s affidavit to establish that the plaintiff selected the wrong health

care provider to author the opinion letter because Daar

is—as a factual matter—a general dentist and not an

endodontist.11

Our review of a trial court’s decision to grant a motion

to dismiss pursuant to § 52-190a is plenary. See, e.g.,

Wilkins v. Connecticut Childbirth & Women’s Center,

supra, 314 Conn. 718.

I

WHETHER THE CONBOY JURISDICTIONAL FACT

ANALYSIS IS APPLICABLE TO THE § 52-190a

INQUIRY

The defendants’ arguments, which rely in substantial

part on factual claims that go beyond the allegations

on the face of the complaint and the opinion letter, beg

the question whether the well established jurisdictional

fact analysis implementing Practice Book §§ 10-30 and

10-31, as articulated in Conboy v. State, supra, 292 Conn.

651–5212 applies in the context of conducting the similar

health care provider inquiry under § 52-190a. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d

503 (1983) (observing that ‘‘a determination of whether

sufficient minimum contacts with Connecticut exist is

a fact question’’ in concluding that due process requires

‘‘a trial-like’’ evidentiary hearing when ‘‘issues of fact

are necessary to the determination of a court’s jurisdiction’’). Thus, with the aid of supplemental briefs submitted by the parties and the amicus curiae, the Connecticut Trial Lawyers Association (trial lawyers); see footnote

2 of this opinion; we consider, as a threshold matter,

the extent to which the opinion letter requirement is

jurisdictional in nature. This inquiry raises the question

of the continuing vitality of this court’s decision in Morgan v. Hartford Hospital, supra, 301 Conn. 401–402, in

which this court held that, pursuant to Practice Book

§ 10-32,13 the failure to file a timely motion to dismiss

waives any objection to the adequacy of the opinion letter.

A

Review of Morgan

In concluding in Morgan that the failure to file a

timely motion to dismiss waives any objection to the

adequacy of the opinion letter, this court held that the

opinion letter affects personal jurisdiction. See Morgan

v. Hartford Hospital, supra, 301 Conn. 401–402. This

court determined that the opinion letter necessarily

implicated personal jurisdiction, given its previous conclusion in LeConche v. Elligers, 215 Conn. 701, 702–703,

714, 579 A.2d 1 (1990), that the good faith certificate

requirement, later supplemented by the opinion letter,
is not subject matter jurisdictional.14 See Morgan v.

Hartford Hospital, supra, 397–98. This court observed

‘‘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.’’

Id., 398. The court also observed in Morgan that, in its

then recent decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 31, which had held that dismissal was the mandatory remedy for failure to comply

with the opinion letter statute, this court had ‘‘cited

favorably [to] Votre v. County Obstetrics & Gynecology

Group, P.C., 113 Conn. App. 569, 583–84, 966 A.2d 813,

cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), in

which the Appellate Court held that the failure to follow

the statutory attachment requirements does not implicate a plaintiff’s right to bring a medical malpractice

action . . . [or] affect the court’s power to hear such

actions. Thus, the court in Votre concluded that such

a failure does not implicate the subject matter jurisdiction of the court. . . . In Votre, the Appellate Court

also held that a defendant may waive the statutory

requirements of § 52-190a.’’ (Citation omitted.) Morgan

v. Hartford Hospital, supra, 398–99. In Morgan, however, the court went a step further and read Votre’s

conclusion as to subject matter jurisdiction necessarily

to ‘‘[support] the proposition that the failure to attach

a sufficient written opinion letter of a similar health care

provider involves in personam jurisdiction’’ because it

is ‘‘fundamental that jurisdiction over a person can be

obtained by waiver.’’15 (Emphasis in original; internal

quotation marks omitted.) Id., 399.

In Morgan, the court also observed that ‘‘the legislature did not establish a mandatory time limit in § 52-

190a for the filing of a motion to dismiss. It did, however,

establish a mandatory attachment to the complaint in

the form of a written opinion letter from a similar health

care provider. This certificate, therefore, serves as a

precondition to effective service of process for the initiation of a medical malpractice action.’’ Id., 400–401; see

id., 402 (‘‘constru[ing] the term ‘process’ to include . . .

the summons, the complaint and any requisite attachments thereto’’). The court then cited case law concerning the failure to establish personal jurisdiction because

of noncompliance with statutory service requirements

and stated: ‘‘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.’’16 Id., 401; see id., 402 (‘‘[T]he failure to attach

a proper written opinion letter pursuant to § 52-190a

constitutes insufficient service of process and, there-
fore, Practice Book § 10-32 and its corresponding time

and waiver rule [apply] by [their] very terms. Because

we conclude that the absence of a proper written opinion letter is a matter of form, it implicates personal

jurisdiction.’’ (Footnote omitted.)).

B

Whether Morgan Was Correctly Decided

1

Statutory Analysis of § 52-190a

In determining whether Morgan correctly concluded

that the opinion letter required by § 52-190a implicates

the court’s personal jurisdiction, our analysis begins

with the governing statutory text, as required by General Statutes § 1-2z.17 Section 52-190a (a), which is set

forth in footnote 1 of this opinion, provides in relevant

part: ‘‘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. . . .’’ Subsection (c) of § 52-190a then 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.’’

In reading the statute, we bear in mind that, doctrinally, personal jurisdiction relates to the court’s authority

to render judgment against a particular defendant who

has been haled before it, such as by compliance with

statutorily prescribed methods for serving process, consistent with constitutional due process guarantees.18

See, e.g., Argent Mortgage Co., LLC v. Huertas, 288

Conn. 568, 576, 953 A.2d 868 (2008); Lombard Bros.,

Inc. v. General Asset Management Co., 190 Conn. 245,

250, 460 A.2d 481 (1983); see also, e.g., Commissioner

of Environmental Protection v. Connecticut Building

Wrecking Co., 227 Conn. 175, 195–96, 629 A.2d 1116

(1993) (‘‘[a]lthough the Superior Court has general subject matter jurisdiction . . . it may exercise jurisdiction over a person only if that person has been properly

served with process, has consented to the jurisdiction

of the court or has waived any objection to the court’s

exercise of personal jurisdiction’’ (citations omitted)).

Nothing in the text of § 52-190a suggests that the

legislature contemplated that the opinion letter would

affect the court’s personal jurisdiction over a defendant.
The statute does not use terms pertaining to jurisdiction, service, or process when it provides in subsection

(c) that dismissal is the remedy for failing to comply

with the opinion letter requirement set forth in subsection (a). See General Statutes § 52-190a (c); see also

Bennett v. New Milford Hospital, Inc., supra, 300 Conn.

28 (‘‘dismissal is the mandatory remedy’’ for failure ‘‘to

file an opinion letter that complies with § 52-190a (a)’’).

As the plaintiff and the trial lawyers point out, the

absence of jurisdictional language puts § 52-190a in

stark contrast to other statutes governing personal jurisdiction and the service of process in a wide variety

of contexts, including those, like § 52-190a, that are

codified in title 52 of the General Statutes, which specifically concerns civil actions.19 See, e.g., General Statutes

§ 52-45a (‘‘[c]ivil actions shall be commenced by legal

process consisting of a writ of summons or attachment,’’

which ‘‘shall be accompanied by the plaintiff’s complaint’’ (emphasis added)). In contrast to these other

statutes, the absence of the terms ‘‘process,’’ ‘‘service’’

or ‘‘personal jurisdiction’’ in § 52-190a is significant

because we have described them as ‘‘express[ly]’’ implicating the court’s ‘‘personal jurisdiction,’’ insofar as ‘‘the

legislature frequently employs the term ‘service’ when

dictating the necessary procedures by which a court

may gain jurisdiction over a person.’’ Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn.

10, 32–33, 848 A.2d 418 (2004); see id., 33 (concluding

that 120 day period for commencement of apportionment action implicates personal jurisdiction, rather

than subject matter jurisdiction, given multiple references to ‘‘the term ‘service’ ’’); Commissioner of Transportation v. Kahn, 262 Conn. 257, 273–74, 811 A.2d 693

(2003) (concluding that trial court’s failure to provide

notice to Commissioner of Transportation, as required

by General Statutes § 13a-76, did not implicate court’s

personal jurisdiction over commissioner in condemnation proceeding because ‘‘absent from the statute is any

reference to ‘service’ or ‘process,’ terms commonly used

in our statutes to dictate the necessary procedure by

which the court obtains jurisdiction over the person’’);

see also Ahrens v. Hartford Florists’ Supply, Inc., 198

Conn. App. 24, 38–40, 232 A.3d 1129 (2020) (concluding

that General Statutes § 52-577a (b), setting forth procedure for third-party product liability claim, implicates

court’s personal jurisdiction because it provides particular procedure for service of process).

The legislature’s failure to use the terms ‘‘personal

jurisdiction’’ or ‘‘service of process’’ in § 52-190a, when

it so readily uses those terms in other statutes in the

same title governing civil actions, provides strong textual evidence that the legislature did not intend the

opinion letter and good faith certificate to implicate

the court’s personal jurisdiction. See, e.g., Hartford/

Windsor Healthcare Properties, LLC v. Hartford, 298

Conn. 191, 205, 3 A.3d 56 (2010); see also Commissioner
of Transportation v. Kahn, supra, 262 Conn. 273 (‘‘[i]n

light of the frequency with which the legislature expressly

employs such terms to dictate the means by which

notice must be given, we presume from their absence

that neither service of process nor an order of notice

is required under the statute’’). Although we find strong

support in the text of § 52-190a indicating that the opinion letter and good faith certificate requirements do not

implicate a court’s personal jurisdiction, we nevertheless assume that this court’s contrary interpretation of

the statute in Morgan v. Hartford Hospital, supra, 301

Conn. 401–402, is reasonable for purposes of determining ambiguity in connection with the § 1-2z analysis.

Accordingly, we now turn to extratextual sources,

namely, the legislative history of § 52-190a. See, e.g.,

Wilkins v. Connecticut Childbirth & Women’s Center,

supra, 314 Conn. 718–19.

The legislative history of § 52-190a does not support

Morgan’s construction of the statute as implicating the

court’s personal jurisdiction. The legislature added the

opinion letter requirement to § 52-190a in 2005 as No.

05-275, § 2, of the 2005 Public Acts (P.A. 05-275), which

was part of a comprehensive tort reform effort to

address a perceived crisis resulting from skyrocketing

medical malpractice insurance premiums in high-risk

specialties, in part by deterring frivolous medical malpractice actions. See id., 728. Supporters of the opinion

requirement letter viewed it, in the words of then Senator Andrew J. McDonald, as ‘‘mak[ing] substantial improvements’’ over the statute’s existing good faith certification requirement20 in the screening of frivolous medical

malpractice actions because it would demand a detailed

explanation of the requisite good faith basis for the

medical malpractice action. 48 S. Proc., Pt. 14, 2005

Sess., p. 4411; see id., pp. 4410–11; see also Wilkins v.

Connecticut Childbirth & Women’s Center, supra, 314

Conn. 728–30. The opinion letter provision, with

enforcement via a motion to dismiss, addressed the

perceived problem that attorneys were misrepresenting—often ‘‘ ‘innocently’ ’’—the extent to which a factual basis existed for their good faith in bringing the

action. Wilkins v. Connecticut Childbirth & Women’s

Center, supra, 730.

The only legislative history concerning the nature of

the dismissal for failure to provide a compliant opinion

letter appears in an exchange during a Judiciary Committee hearing between Senator Edward Meyer and

Attorney Michael D. Neubert, who spoke on behalf of

the Connecticut State Medical Society in support of the

bill. Attorney Neubert did not mention jurisdiction but,

instead, confirmed his understanding that any dismissal

would be without prejudice, given the lack of any

express language in the bill stating that dismissal would

be with prejudice, although he did observe that ‘‘the

[s]tatute of [l]imitations is always an issue.’’ Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 18, 2005
Sess., p. 5552. Significantly, he observed that it would

be easy for plaintiffs to fix potentially noncompliant

opinion letters, observing: ‘‘Let’s say [someone] were

to file a case. The letter doesn’t state what he says it

says and the court agrees . . . and dismisses it. I guess

clearly he could have another bite at the apple and

submit another complaint with another letter or possibly respond by attaching the letter that met the requirements of the [s]tatute.’’ (Emphasis added.) Id. In response

to Senator Meyer’s observation that the provision ‘‘doesn’t

have a lot of teeth,’’ Attorney Neubert opined that this

provision was envisioned as affecting only ‘‘the cases

on the margins,’’ in which ‘‘attorneys, based on their

own judgment and maybe in good faith have misread

what an expert’s told them’’ about the merits of their

case. Id., p. 5553.

Beyond its lack of support in the statutory text or

the legislative history, Morgan’s conclusion that the

opinion letter requirement implicates the court’s personal jurisdiction also relies on a false logical premise.

Specifically, Morgan assumed that, because, in LeConche v. Elligers, supra, 215 Conn. 702–703, 714, the court

held that the good faith certificate was not subject matter jurisdictional, the dismissal provided by § 52-190a

(c) necessarily had to relate to personal jurisdiction.

See Morgan v. Hartford Hospital, supra, 301 Conn.

397–99. As the plaintiff and the trial lawyers observe,

this either/or assumption fails to recognize that a case

may be dismissed on nonjurisdictional grounds in a

variety of situations, some of which implicate the merits

of the case. For example, the legislature has made a

‘‘special motion to dismiss’’ available under certain circumstances to dispose of strategic lawsuits against public participation (SLAPP lawsuits). General Statutes

§ 52-196a (b); see, e.g., Lafferty v. Jones, 336 Conn. 332,

380–82, 246 A.3d 429 (2020), cert. denied, U.S. ,

141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021). It similarly fails

to account for the concept of dismissal as a disciplinary

sanction. See, e.g., Ridgaway v. Mount Vernon Fire

Ins. Co., 328 Conn. 60, 70–71, 176 A.3d 1167 (2018);

Millbrook Owners Assn., Inc. v. Hamilton Standard,

257 Conn. 1, 16–17, 776 A.2d 1115 (2001); see also, e.g.,

General Statutes § 52-549t (b) (discretionary dismissal

when party fails to appear before fact finder); Practice

Book § 14-3 (dismissal for lack of diligence in prosecuting action). Indeed, numerous other examples of nonjurisdictional dismissals can be cited, such as certain

prudential doctrines. See, e.g., Practice Book § 23-29

(providing for dismissal of habeas corpus actions on

numerous substantive and jurisdictional grounds); Durkin v. Intevac, Inc., 258 Conn. 454, 480, 782 A.2d 103

(2001) (forum non conveniens); Halpern v. Board of

Education, 196 Conn. 647, 652 and n.4, 495 A.2d 264

(1985) (prior pending action doctrine is ‘‘a rule of justice

and equity’’ that may be raised by motion to dismiss, as

successor procedure to ‘‘a plea in abatement’’ (internal
quotation marks omitted)); see also Votre v. County

Obstetrics & Gynecology Group, P.C., supra, 113 Conn.

App. 582, 583–84 (observing that ‘‘motions to dismiss

are not limited to jurisdictional challenges’’ and holding

that ‘‘[a] plaintiff’s failure to comply with the requirements of § 52-190a (a) does not destroy the court’s

subject matter jurisdiction over the claim,’’ rendering

‘‘[d]ismissal pursuant to this section . . . a statutory

remedy for any defendant who is subject to a legal

action in which the statutorily required written opinion

is not annexed to the complaint or initial pleading’’);

Rios v.CCMC Corp.,106 Conn. App. 810, 821 n.8, 821–22,

943 A.2d 544 (2008) (observing that ‘‘motions to dismiss

are [not] limited to jurisdictional challenges’’ in concluding that plain language of § 52-190a (c) made

motion to dismiss, rather than motion to strike, proper

procedural vehicle to challenge medical malpractice

complaint filed without written opinion letter).

The legislature’s focus on preventing frivolous medical malpractice litigation, and the suggestion proffered

by Attorney Neubert in his testimony before the Judiciary Committee that some plaintiffs’ attorneys had

stretched the results of their precomplaint investigations when signing good faith certificates, indicates that

the dismissal prescribed by § 52-190a is a statutory

device that, like some of these other examples, plays a

nonjurisdictional, merits related, gatekeeping function.

Indeed, a conclusion to the contrary is inconsistent with

the maxim that the legislature is presumed to be aware

of this court’s interpretation of statutes when it acts;

see, e.g., State v. Ashby, 336 Conn. 452, 493, 247 A.3d

521 (2020); because, by adding subsection (c) to § 52-

190a, P.A. 05-275 made clear the necessity of dismissal

as the remedy for failure to file a proper certificate,

which had been a subject of considerable discussion

in LeConche without changing the existing statutory

language providing that challenges to the good faith

underlying the certificate were not considered until

‘‘ ‘after the completion of discovery,’ ’’ on which the

court had relied in determining that the good faith certificate did not implicate the court’s jurisdiction. (Emphasis added.) LeConche v. Elligers, supra, 215 Conn.

711–13; see footnote 14 of this opinion. Although the

legislature acted decisively by making dismissal mandatory in the event of noncompliance, its decision to continue to defer considerations of good faith until after

the discovery process suggests that it did not consider

that dismissal to contemplate the court’s jurisdictional

power to hale a health care provider before it.

2

Stare Decisis Concerns

Although there is no support in the text or legislative

history of § 52-190a for Morgan’s holding that it implicates the court’s personal jurisdiction, and ample support exists for a conclusion that it is a statutory device
intended only to weed out frivolous medical malpractice suits by requiring plaintiffs to obtain a corroborating expert opinion prior to commencing a lawsuit, our

inquiry does not end there. ‘‘The doctrine of stare decisis counsels that a court should not overrule its earlier

decisions unless the most cogent reasons and inescapable logic require it.’’ (Internal quotation marks omitted.) State v. Ashby, supra, 336 Conn. 487. ‘‘[Although]

stare decisis is not an inexorable command . . . the

doctrine carries such persuasive force that we have

always required a departure from precedent to be supported by some special justification.’’ (Internal quotation marks omitted.) State v. Petion, 332 Conn. 472,

503, 211 A.3d 991 (2019). ‘‘When a prior decision is seen

so clearly as error that its enforcement [is] for that very

reason doomed . . . the court should seriously consider whether the goals of stare decisis are outweighed,

rather than dictated, by the prudential and pragmatic

considerations that inform the doctrine to enforce a

clearly erroneous decision.’’ (Internal quotation marks

omitted.) Id., 503–504; see Conway v. Wilton, 238 Conn.

653, 659–60, 680 A.2d 242 (1996).

‘‘[I]n evaluating the force of stare decisis, our case

law dictates that we should be especially wary of overturning a decision that involves the construction of a

statute. . . . When we construe a statute, we act not as

plenary lawgivers but as surrogates for another policy

maker, [that is] the legislature. In our role as surrogates,

our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the

legislature instructs us that we have misconstrued its

intentions. We are bound by the instructions so provided. . . . More often, however, the legislature takes

no further action to clarify its intentions. Time and

again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute.

. . . Once an appropriate interval to permit legislative

reconsideration has passed without corrective legislative action, the inference of legislative acquiescence

places a significant jurisprudential limitation on our

own authority to reconsider the merits of our earlier

decision.’’ (Internal quotation marks omitted.) Graham

v. Commissioner of Transportation, 330 Conn. 400,

417–18, 195 A.3d 664 (2018); accord Spiotti v. Wolcott,

326 Conn. 190, 201–202, 163 A.3d 46 (2017).

a

Considerations of Legislative Acquiescence

The legislative acquiescence doctrine does not necessarily foreclose reconsideration of a decision interpreting a statute. This is because ‘‘the legislative acquiescence doctrine requires actual acquiescence on the part

of the legislature. [Thus] [i]n most of our prior cases,

we have employed the doctrine not simply because of
legislative inaction, but because the legislature affirmatively amended the statute subsequent to a judicial or

administrative interpretation, but chose not to amend

the specific provision of the statute at issue. . . . In

other words, [l]egislative concurrence is particularly

strong [when] the legislature makes unrelated amendments in the same statute.’’ (Citation omitted; emphasis

in original; internal quotation marks omitted.) Stuart

v. Stuart, 297 Conn. 26, 47, 996 A.2d 259 (2010); see,

e.g., State v. Ashby, supra, 336 Conn. 492–93; Spiotti v.

Wolcott, supra, 326 Conn. 202; State v. Salamon, 287

Conn. 509, 525–26, 949 A.2d 1092 (2008).

Legislative acquiescence is not particularly strong in

the present case because the legislature has made only

a single minor amendment to § 52-190a in the more than

eleven years since this court decided Morgan, and that

amendment was to a different subsection of the statute

and not germane to the opinion letter requirement at

issue in Morgan and the present case.21 See State v.

Salamon, supra, 287 Conn. 525–26 (concluding that

there was no actual acquiescence to interpretations

of second degree kidnapping statute, General Statutes

§ 53a-94, when, ‘‘with the exception of a 1993 amendment . . . affecting only its penalty provisions, neither

that section nor the pertinent definitional section . . .

ha[d] been subject to any substantive amendments

since it first was enacted in 1969’’ (footnote omitted));

Conway v. Wilton, supra, 238 Conn. 678 (‘‘[w]e have

. . . frowned [on] the use of legislative inaction regarding one section of a statute as a reliable indicator of

legislative intent when the legislature has undertaken

to amend other sections of the same statute’’).

b

Practical Effects of Morgan

Moving beyond concerns of legislative acquiescence,

‘‘[a]mong the factors that may justify overruling a prior

decision interpreting a statute are intervening developments in the law, the potential for unconscionable

results, the potential for irreconcilable conflicts and

difficulty in applying the interpretation.’’ (Internal quotation marks omitted.) Graham v. Commissioner of

Transportation, supra, 330 Conn. 421. ‘‘In addition, a

departure from precedent may be justified when the

rule to be discarded may not be reasonably supposed

to have determined the conduct of the litigants . . . .’’

(Internal quotation marks omitted.) Spiotti v. Wolcott,

supra, 326 Conn. 202–203; see Conway v. Wilton, supra,

238 Conn. 661. As a procedural rule in a tort case, § 52-

190a cannot reasonably be deemed to have determined

the litigants’ conduct. See, e.g., George v. Ericson, 250

Conn. 312, 326–27, 736 A.2d 889 (1999); Conway v.

Wilton, supra, 661–62; see also Corley v. United States,

11 F.4th 79, 86–87 (2d Cir. 2021) (rejecting government’s

‘‘contention that § 52-190a is substantive’’ for purposes

of Federal Tort Claims Act proceeding because, despite
its ‘‘substantive goal . . . to deter frivolous medical

malpractice claims,’’ it is ‘‘[a] rule that regulates pleading and service of process, and that has been expressly

construed . . . [in Morgan] as having no effect on the

standard for substantive liability’’ (internal quotation

marks omitted)).

Developments in the law since Morgan illustrate the

extent to which its holding as to personal jurisdiction

has led to results that, in our view, are wholly unjustifiable in light of the legislature’s intent in enacting § 52-

190a. First, given this court’s contemporaneous conclusion in Bennett v. New Milford Hospital, Inc., supra,

300 Conn. 21, that ‘‘the author of an opinion letter pursuant to § 52-190a (a) must be a similar health care provider as that term is defined by § 52-184c (c), regardless

of his or her potential qualifications to testify at trial

pursuant to § 52-184c (d),’’ Morgan’s holding elevates

the qualifications of the opinion letter’s author to a

jurisdictional factual prerequisite that is flatly inconsistent with the substantive law of medical malpractice.

Under this regime, a plaintiff may prevail on the merits

of a medical malpractice claim at trial on the basis of

the opinion of an expert witness who would fail to

qualify as a ‘‘similar health care provider’’ under § 52-

184c and, thus, could not be used to establish that the

claim was nonfrivolous for gatekeeping purposes under

§ 52-190a.22 See General Statutes § 52-184c (d).

Second, in the wake of Morgan and Bennett, a voluminous body of case law23 has developed to flesh out

the proper procedures under § 52-190a. Although the

defendants argue that this body of law demonstrates

the extent to which Morgan’s conclusion as to personal

jurisdiction has become ‘‘black letter law,’’ the plaintiff

and the trial lawyers contend that these cases demonstrate how far we have deviated from the purpose of

§ 52-190a, insofar as they require the dismissal of potentially nonfrivolous actions due to curable technical flaws

unrelated to the actual merits of the claim. Accordingly,

we now review the body of Appellate Court cases expandingon Morgan and the procedural incongruities that

have arisen because of the jurisdictional nature of its

holding.24

These cases demonstrate that the combined force of

the case law construing § 52-190a imposes substantially

greater burdens on a plaintiff than intended by the legislature in enacting the statute to require the substantiation of the precomplaint investigation. This is particularly so when coupled with case law requiring the

plaintiff to prove the existence of personal jurisdiction

in response to a motion to dismiss pursuant to § 52-

190a. See, e.g., LaPierre v. Mandell & Blau, M.D.’s,

P.C., 202 Conn. App. 44, 49 n.3, 243 A.3d 816 (2020);

Young v. Hartford Hospital, 196 Conn. App. 207, 211,

229 A.3d 1112 (2020); see also Standard Tallow Corp.

v. Jowdy, supra, 190 Conn. 53–54. One significant line
of cases holds that the case law governing motions to

dismiss under Practice Book §§ 10-30 and 10-31, such

as Dorry v. Garden, 313 Conn. 516, 522–23, 98 A.3d 55

(2014), and Conboy v. State, supra, 292 Conn. 651–52,

allows for courts deciding motions to dismiss under

§ 52-190a to consider ‘‘supplementary undisputed facts’’

in affidavits to ‘‘conclusively establish that jurisdiction

is lacking,’’ rather than to ‘‘conclusively presume the validity of the allegations in the complaint.’’ (Internal quotation marks omitted.) Labissoniere v. Gaylord Hospital,

Inc., supra, 182 Conn. App. 453; see id., 452 (rejecting

plaintiff’s argument that trial court should not have

‘‘consider[ed] the affidavits that the defendants attached

to their motions because the issues . . . do not involve

factual issues concerning personal jurisdiction that are

not determinable on the face of the record’’ (emphasis

added; internal quotation marks omitted)); see also Labissoniere v. Gaylord Hospital, Inc., 199 Conn. App. 265,

279–81, 235 A.3d 589 (trial court was not ‘‘obligated

to accept as true [the plainitiffs’] allegations that the

diagnosis and treatment of the decedent’s postsurgical

complications were within the specialty of general surgery and outside the specialty of internal medicine’’),

cert. denied, 335 Conn. 968, 240 A.3d 284, and cert.

denied, 335 Conn. 968, 240 A.3d 285 (2020); Lohnes v.

Hospital of Saint Raphael, 132 Conn. App. 68, 78, 31

A.3d 810 (2011) (relying on affidavit submitted in connection with motion to dismiss to establish that defendant was board certified in emergency medicine, rendering pulmonologist who authored opinion letter not

‘‘similar health care provider’’ for purposes of § 52-190a,

given lack of ‘‘an express allegation’’ in complaint that

defendant was practicing outside of his specialty), cert.

denied, 303 Conn. 921, 34 A.3d 397 (2012).

Another series of Appellate Court decisions explains

the restricted curative options—beyond resort to the

accidental failure of suit statute following dismissal;

see General Statutes § 52-592; Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 46–47, 12 A.3d 885

(2011)—that are available to plaintiffs given the jurisdictional implications of defective opinion letters under

§ 52-190a, as interpreted by Morgan. The leading decision of Gonzales v. Langdon, supra, 161 Conn. App.

518–19 and n.9, holds that the amendment of the complaint and opinion letter under General Statutes § 52-

128 and Practice Book §§ 10-59 and 10-60 is available

only when the request for leave to amend—whether

discretionary or as of right within thirty days of the

return day—is filed prior to the running of the applicable statute of limitations. To this end, the Appellate

Court has also held that plaintiffs should not be permitted to use the amendment process to provide a missing

opinion letter in the first instance, even during the thirty

day period in which amendments are permitted as of

right pursuant to Practice Book § 10-59. See Barnes v.

Greenwich Hospital, 207 Conn. App. 512, 523–25, 262
A.3d 1008, cert. denied, 340 Conn. 904, 263 A.3d 100

(2021).

Two decisions illustrate how restrictive Gonzales is

in its application, given its roots in the personal jurisdiction aspect of Morgan. The upshot is that, ‘‘[r]egardless

of the type of procedure a plaintiff elects to employ to

cure a defect in an opinion letter filed in accordance

with § 52-190a, that procedure must be initiated prior

to the running of the statute of limitations. Otherwise,

the sole remedy available will be to initiate a new action,

if possible, pursuant to [the accidental failure of suit

statute] § 52-592.’’ Peters v. United Community & Family Services, Inc., 182 Conn. App. 688, 706, 191 A.3d

195 (2018). Consistent with this principle, the Appellate

Court has held that the jurisdictional implications of

the opinion letter preclude the use of the relation back

doctrine to render timely amendments to complaints

that are intended to cure legally insufficient opinion

letters. See Ugalde v. Saint Mary’s Hospital, Inc., 182

Conn. App. 1, 9–13, 188 A.3d 787, cert. denied, 330 Conn.

928, 194 A.3d 1195 (2018); see id., 12–13 (noting that

permitting use of relation back doctrine to save actions

supported by insufficient opinion letters would ‘‘[circumvent]’’ accidental failure of suit procedure and ‘‘would

be fundamentally inconsistent with [the approach]

taken by the legislature in mandating the dismissal

of such actions for lack of personal jurisdiction’’

(emphasis added)). Further, the Appellate Court has

held that an explanatory or clarifying affidavit may not

be used to address defects in the opinion letter itself,

after the expiration of the limitation period, rejecting an

attempt to limit Gonzales’ application ‘‘only [to] those

cases in which a plaintiff has sought to cure a defective

opinion letter by way of an amendment of the pleadings

. . . .’’25 Peters v. United Community & Family Services, Inc., supra, 703; see id., 705 (‘‘[i]t simply would

be illogical and an unwarranted circumvention of our

decision in Gonzales to conclude that a plaintiff could

avoid dismissal by submitting an affidavit in lieu of an

amendment’’).

Tying it all together, the Appellate Court’s recent

decision in Kissel v. Center for Women’s Health, P.C.,

205 Conn. App. 394, 258 A.3d 677, cert. denied, 339

Conn. 917, 262 A.3d 137, and cert. granted, 339 Conn.

917, 262 A.3d 138 (2021), and cert. granted, 339 Conn.

916, 262 A.3d 139 (2021), illustrates the extreme result

of considering the opinion letter to implicate personal

jurisdiction. Although the plaintiff in Kissel had obtained

an opinion letter from a similar health care provider,

she neglected to attach it to the complaint out of ‘‘inadvertence or oversight.’’ (Internal quotation marks omitted.) Id., 409; see id., 421–22. When the action was

brought in 2012, the trial court denied the defendant’s

motion to dismiss for lack of ‘‘personal jurisdiction on

the basis of the plaintiff’s failure (1) to attach an opinion

letter from a similar health care provider to her medical
malpractice complaint and (2) to cure that defect within

the applicable two year statutory limitation period.’’26

Id., 400; see id., 401. Five years later, in 2017, the case

was tried to a jury, which returned a verdict for the

plaintiff. Id., 409. After trial, the trial court denied the

defendant’s motion for reconsideration of the denial of

the motion to dismiss. See id., 409–10.

On appeal in Kissel, the Appellate Court reversed the

judgment of the trial court, concluding that the trial

court had improperly relied on equitable and public

policy grounds in denying reconsideration of its denial

of the motion to dismiss. See id., 397, 406, 410. The court

first emphasized that, under Bennett v. New Milford

Hospital, Inc., supra, 300 Conn. 27–29, and Morgan v.

Hartford Hospital, supra, 301 Conn. 399, ‘‘in a medical

malpractice action, a plaintiff must comply with § 52-

190a by including an opinion letter from a similar health

care provider with the complaint to establish personal

jurisdiction, and a timely challenge to the failure to

include a legally sufficient opinion letter will result in

a dismissal.’’ Kissel v. Center for Women’s Health, P.C.,

supra, 205 Conn. App. 416. Discussing Gonzales v. Langdon, supra, 161 Conn. App. 497, Ugalde v. Saint Mary’s

Hospital, Inc., supra, 182 Conn. App. 1, and Peters v.

United Community & Family Services, Inc., supra,

182 Conn. App. 688, the Appellate Court then observed

that, during ‘‘the time period between the denial of the

2012 motions and the second motion for reconsideration filed in 2018, the law concerning § 52-190a developed in our appellate courts. . . . Significantly, our

jurisprudence shifted from consideration of whether

the opinion letter had existed at the time the plaintiff

commenced the malpractice action to a focus on

whether the elected procedure to remedy a defective

opinion letter had begun prior to the expiration of the

statute of limitations.’’ (Citations omitted.) Kissel v.

Center for Women’s Health, P.C., supra, 422–23. The

Appellate Court then afforded that body of case law

retroactive effect, despite the ‘‘extended time period’’ at

issue in the case, given the timely personal jurisdictional

challenge raised by the defendant in 2012. Id., 429; see

id., 428–30.

Acknowledging its ‘‘pragmatic nature’’; id., 431; the

Appellate Court nevertheless rejected the ‘‘plaintiff’s

contention [in Kissel] that, as a result of the jury’s

verdict, the purpose of § 52-190a, preventing frivolous

medical malpractice actions, was served . . . and,

therefore, to dismiss the medical malpractice action at

[that] juncture would elevate form over substance to

an unreasonable degree.’’ Id., 430. The Appellate Court

stated: ‘‘Consistent with established precedent, an

appellate determination that the trial court [incorrectly]

concluded that personal jurisdiction existed has

resulted in the dismissal or vacatur of the subsequent

proceedings before the trial court. . . . For these reasons, we are not persuaded by the plaintiff’s argument
that a jury verdict in a medical malpractice action would

insulate a defect in the required opinion letter from

appellate review.’’ (Citations omitted.) Id., 432; see

Barnes v. Greenwich Hospital, supra, 207 Conn. App.

524 (‘‘this court’s holding in Kissel leaves no room for

doubt that [when] a plaintiff in a medical malpractice

action fails to attach an opinion letter to the initial

complaint and [curative efforts] are not initiated prior

to the expiration of the statute of limitations, the court

lacks personal jurisdiction over the defendant and the

action is subject to dismissal pursuant to § 52-190a

(c)’’). The Appellate Court’s recent decision in Kissel,

which is wholly consistent with its post-Morgan body

of case law with respect to addressing flawed or absent

opinion letters, reveals the danger of Morgan’s conclusion that the opinion letter implicates personal jurisdiction. By elevating the opinion letter to a jurisdictional

prerequisite of any kind, it allows a potential prelitigation defect to defeat a medical malpractice action that

a jury has deemed meritorious after several years of

litigation.

C

Conclusion and Other Procedural Issues

Attendant to Overruling Morgan

For all of the foregoing reasons, we agree with the

plaintiff and the trial lawyers that Morgan is clearly

wrong and should be overruled to the extent that it

holds that the opinion letter implicates the court’s personal jurisdiction.27 Particularly with respect to the difficulty of amending flawed opinion letters, the jurisdictional body of case law spawned by Morgan has created

roadblocks for otherwise meritorious cases that are

squarely at odds with the legislature’s limited goal of

ensuring an adequate, good faith investigation and eliminating only frivolous cases. Put differently, categorizing the opinion letter in any way as jurisdictional has

had the effect of elevating the credential of the authoring

health care provider to a jurisdictional prerequisite and

turned what the legislature intended to be a simple

prelitigation documentation of the plaintiff’s good faith

inquiry into, in essence, a trap under which even meritorious suits are subject to dismissal. Instead, we conclude that the legislative history and text indicate that

dismissal under § 52-190a is a unique statutory remedy

intended to strengthen the existing good faith inquiry

and to expedite the disposition of obviously frivolous

medical malpractice actions.

We recognize that this conclusion renders inapplicable to the § 52-190a motion to dismiss the rules of practice and applicable case law governing the pleading and

proof of jurisdictional facts, as explicated by Conboy

v. State, supra, 292 Conn. 650–52, and set forth in footnote 12 of this opinion. See Durkin v. Intevac, Inc.,

supra, 258 Conn. 464, 480 (thirty day deadline provided

by Practice Book §§ 10-30 and 10-32 was not applicable
to motion to dismiss on ground of forum non conveniens, which is principle of deference rather than jurisdiction). Accordingly, we provide two more points of procedural clarification as to the adjudication of motions

to dismiss under § 52-190a that guide our analysis of

the motion to dismiss in the present case.

First, we agree with the argument of the trial lawyers

and clarify that, as stated in Bennett, the inquiry under

§ 52-190a is squarely and solely framed by the allegations in the complaint, rendering the only question at

the motion to dismiss stage whether the author of the

opinion letter is a similar health care provider to the

defendant as their respective qualifications are pleaded

in the complaint and described in the opinion letter.

See Bennett v. New Milford Hospital, Inc., supra, 300

Conn. 23–24 (general surgeon was not similar health

care provider when complaint alleged ‘‘that the defendant ‘specialize[d] in the field of emergency medicine’ ’’); see also Gonzales v. Langdon, supra, 161 Conn.

App. 506 (relying on Bennett for proposition that ‘‘the

actual board certification of the defendant is not what

matters; the appropriate similar health care provider is

defined by the allegations in the complaint’’). Thus,

contrary to the Appellate Court’s decision in Labissoniere v. Gaylord Hospital, Inc., supra, 182 Conn. App.

452–53, there simply is no place in the § 52-190a inquiry

for the consideration of affidavits or other materials

intended to inject factual disputes beyond the adequacy

of the pleadings and the annexed letter. Because the

opinion letter is not itself process, to the extent that

the opinion letter itself is legally insufficient or defective

under § 52-190a, trial courts retain the authority to permit amendments or supplementation of a challenged

letter in response to a motion to dismiss, as the legislature itself evidently contemplated.28 See Conn. Joint

Standing Committee Hearings, supra, p. 5552.

Second, we emphasize that our ultimate holding in

Morgan, namely, that a motion to dismiss for failure

to file an opinion letter pursuant to § 52-190a remains

waivable, including by inaction, remains good law. See

Morgan v. Hartford Hospital, supra, 301 Conn. 391.

Specifically, we agree with the trial lawyers that, consistent with the legislature’s intent of screening out frivolous malpractice actions early in the litigation process,

the order of the pleadings provided by Practice Book

§§ 10-6 and 10-729 continues to render dismissal under

§ 52-190a waivable for failure to file a timely motion to

dismiss; see id.; and requires that the motion to dismiss

be filed early in the action, as the legislature envisioned

in enacting the statute.30 See, e.g., Wilkins v. Connecticut Childbirth & Women’s Center, supra, 314 Conn.

729–30.

II

REVIEW OF THE FACIAL SUFFICIENCY OF THE

OPINION LETTER AND THE ALLEGATIONS
IN THE COMPLAINT

We now turn to the plaintiff’s claim that the opinion

letter was legally sufficient under § 52-190a because the

‘‘contents of the complaint adequately allege that . . .

Daar held himself out as a specialist endodontist . . .

Daar’s affidavit failed to adequately refute those allegations, and the opinion letter establishes that . . . Solomon,’’ a professor of endodontics, ‘‘is a similar health

care provider to an endodontic specialist.’’ Relying on

well established case law holding that pleadings should

be read ‘‘broadly and realistically, rather than narrowly

and technically’’; (internal quotation marks omitted)

Doe v. Cochran, 332 Conn. 325, 333, 210 A.3d 469 (2019);

the plaintiff argues that his complaint adequately

alleged that Daar held himself out as a specialist in

endodontics ‘‘by virtue of advertising [on Shoreline’s

website] that he received substantial additional training

in endodontics.’’31 The plaintiff then argues that Solomon’s statement in the opinion letter that ‘‘he received

his specialty boards,’’ read in context with Solomon’s

credentials as a professor of endodontics at Columbia

and his practice of endodontics in New York City, establishes that he is a ‘‘similar health care provider’’ by

supporting the reasonable inference that his board certification is in endodontics, as defined by the American

Association of Endodontists. We agree with the plaintiff

and conclude that a broad and realistic reading of the

face of the complaint and opinion letter establishes

their compliance with § 52-190a.

‘‘The interpretation of pleadings is always a question

of law for the court . . . . Our review of the trial

court’s interpretation of the pleadings therefore is plenary. . . . Furthermore, we long have eschewed the

notion that pleadings should be read in a hypertechnical

manner. Rather, [t]he modern trend, which is followed

in Connecticut, is to construe pleadings broadly and

realistically, rather than narrowly and technically.

. . . [T]he complaint must be read in its entirety in such

a way as to give effect to the pleading with reference

to the general theory [on] which it proceeded, and do

substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial

justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with

it the related proposition that it must not be contorted

in such a way so as to strain the bounds of rational

comprehension.’’ (Emphasis added; internal quotation

marks omitted.) Flannery v. Singer Asset Finance Co.,

LLC, 312 Conn. 286, 299–300, 94 A.3d 553 (2014); see,

e.g., Doe v. Cochran, supra, 332 Conn. 333–34; Travelers

Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467

(2002). ‘‘As long as the pleadings provide sufficient

notice of the facts claimed and the issues to be tried

and do not surprise or prejudice the opposing party,

we will not conclude that the complaint is insufficient

to allow recovery.’’ (Internal quotation marks omitted.)
Flannery v. Singer Asset Finance Co., LLC, supra, 300.

The challenged portions of the operative pleadings

support the plaintiff’s position. Quoting from Shoreline’s website in support of the allegation, the operative

complaint alleges that Daar ‘‘held himself out as a practitioner of [e]ndodontics, stating on [Shoreline’s] website that ‘he has completed hundreds of hours of training

in [e]ndodontics.’ ’’ The complaint then states that Shoreline’s website ‘‘describes [e]ndodontics, in part, as . . .

‘the dental specialty that deals with tissues and structures located inside the tooth’ ’’ and explains root canal

therapy.32

A broad and realistic reading of the allegation that

Daar ‘‘held himself out as a practitioner’’ in the specific

field of endodontics, with the accompanying description of the field of endodontics and his extensive training in that field, triggers the applicability of § 52-184c

(c) with respect to the selection of a similar health care

provider to author the good faith opinion letter required

by § 52-190a. The plain meaning of the word ‘‘practitioner’’ suggests one who has elected to make a chosen

professional field his or her occupation, in this case,

endodontics. See American Heritage College Dictionary

(4th Ed. 2007) p. 1093 (defining ‘‘practice’’ as ‘‘[t]o work

at, [especially] as a profession,’’ and ‘‘practitioner’’ as

‘‘[o]ne who practices something, [especially] an occupation, profession, or technique’’). One widely regarded

dictionary, which defines ‘‘practitioner’’ as ‘‘a person

engaged in the practice of a profession, occupation,

etc.,’’ specifically identifies ‘‘doctor,’’ ‘‘master,’’ and

‘‘specialist’’ as related words. (Emphasis added.) Dictionary.com, available at https://www.dictionary.com/

browse/practitioner (last visited January 31, 2023).

Although the complaint does not use certain talismanic words to indicate that Daar is board certified,

‘‘specializes’’ in endodontics, or ‘‘held himself out’’ as

such a ‘‘specialist,’’ a reasonable reading of the complaint, accompanied by the opinion letter reciting Solomon’s board certification and extensive academic credentials in endodontics, supports the conclusion that

Solomon is a ‘‘similar health care provider’’ to Daar,

as that term was intended by the legislature when it

amended § 52-190a to ensure that there are nonfrivolous

factual bases for medical malpractice claims brought in

Connecticut’s courts. See, e.g., Wilkins v. Connecticut

Childbirth & Women’s Center, supra, 314 Conn. 728–30.

A conclusion to the contrary runs afoul of the ‘‘well

settled’’ principle that our ‘‘courts do not interpret

pleadings so to require the use of talismanic words and

phrases.’’ Antonio A. v. Commissioner of Correction,

205 Conn. App. 46, 90, 256 A.3d 684, cert. denied, 339

Conn. 909, 261 A.3d 744 (2021); see State v. Elson, 311

Conn. 726, 752–53, 91 A.3d 862 (2014) (emphasizing

‘‘this court’s refusal in a variety of contexts to attach

talismanic significance to the presence or absence of
particular words or phrases’’ (internal quotation marks

omitted)); see also, e.g., Flannery v. Singer Asset Finance

Co., LLC, supra, 312 Conn. 303–304 (‘‘[a]lthough it

would have been a far better practice for the plaintiff

to use the words ‘continuing course of conduct’ in his

pleading in avoidance, the record demonstrates that the

defendant was sufficiently apprised of the plaintiff’s

intent to rely on that doctrine and suffered no prejudice

as a result of the plaintiff’s lapse in pleading’’); Deming

v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905

A.2d 623 (2006) (rejecting ‘‘the defendants’ contention

that the plaintiffs’ allegations referring to ‘renewals,’

rather than ‘renewal commissions,’ and ‘insurance

agent’ or ‘Nationwide agent,’ rather than ‘producer,’ are

dispositive’’); Travelers Ins. Co. v. Namerow, supra,

261 Conn. 800–801 (insurer was not required to plead

special defense using words ‘‘civil arson’’ given detailed

nature of allegations in answer, which alleged intentional act by insured and described fire as ‘‘ ‘incendiary’ ’’ in nature); Antonio A. v. Commissioner of Correction, supra, 90 (conclusion that petitioner did not raise

claim of actual innocence in habeas petition was ‘‘based

on the lack of material facts contained therein in support of a claim of actual innocence; it [was] not the

result of the petitioner’s failure to use the specific

phrase ‘actual innocence’ ’’). Thus, we conclude that

that a broad and realistic reading of the complaint suggests that it is pleading that Daar held himself out as

a specialist in endodontics, rendering Solomon, a professor of endodontics, a similar health care provider.33

The Appellate Court, therefore, improperly upheld the

trial court’s granting of the defendants’ motion to dismiss.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment of the trial court and to remand the

case to that court with direction to deny the defendants’

motion to dismiss and for further proceedings according to law.

In this opinion the other justices concurred.

* February 1, 2023, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 General Statutes § 52-190a provides: ‘‘(a) No 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. The complaint, initial pleading or apportionment complaint

shall contain a certificate of the attorney or party filing the action or

apportionment complaint that such reasonable inquiry gave rise to a good

faith belief that grounds exist for an action against each named defendant

or for an apportionment complaint against each named apportionment

defendant. To show the existence of such good faith, the claimant or the

claimant’s attorney, and any apportionment complainant or the apportionment complainant’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, and any apportionment complainant or apportionment complainant’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. The similar health care

provider who provides such written opinion shall not, without a showing

of malice, be personally liable for any damages to the defendant health care

provider by reason of having provided such written opinion. In addition to

such written opinion, the court may consider other factors with regard to

the existence of good faith. If the court determines, after the completion

of discovery, that such certificate was not made in good faith and that no

justiciable issue was presented against a health care provider that fully

cooperated in providing informal discovery, the court upon motion or upon

its own initiative shall impose upon the person who signed such certificate

or a represented party, or both, an appropriate sanction which may include

an order to pay to the other party or parties the amount of the reasonable

expenses incurred because of the filing of the pleading, motion or other

paper, including a reasonable attorney’s fee. The court may also submit the

matter to the appropriate authority for disciplinary review of the attorney

if the claimant’s attorney or the apportionment complainant’s attorney submitted the certificate.

‘‘(b) Upon petition to the clerk of any superior court or any federal district

court to recover damages resulting from personal injury or wrongful death,

an automatic ninety-day extension of the statute of limitations shall be

granted to allow the reasonable inquiry required by subsection (a) of this

section. This period shall be in addition to other tolling periods.

‘‘(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.’’

(Emphasis added.)

2 We initially granted the plaintiff’s petition for certification to appeal,

limited to the following issue: ‘‘Did the Appellate Court properly uphold the

trial court’s dismissal of the plaintiff’s medical malpractice action for failure

to comply with . . . § 52-190a?’’ Carpenter v. Daar, 335 Conn. 962, 239 A.3d

1215 (2020).

Following oral argument in this certified appeal, on July 5, 2022, pursuant

to Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,

Inc., 311 Conn. 123, 162–63, 84 A.3d 840 (2014), we ordered the parties and

invited the amici curiae—the Connecticut Defense Lawyers Association

and the Connecticut Trial Lawyers Association—to file supplemental briefs,

limited to the following issue: ‘‘Did this court properly conclude in Morgan

v. Hartford Hospital, [supra] 301 Conn. 388 . . . that the good faith opinion

letter required by . . . [§] 52-190a implicates the personal jurisdiction of

the court over the defendant?’’ See, e.g., State v. Peluso, 344 Conn. 404, 413

n.7, 279 A.3d 707 (2022) (Supreme Court may modify certified question as

necessary).

3

‘‘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.’’ Carpenter v. Daar, supra, 199 Conn.

App. 369 n.1.

4 General Statutes § 52-184c provides: ‘‘(a) In any civil action to recover

damages resulting from personal injury or wrongful death occurring on or

after October 1, 1987, in which it is alleged that such injury or death resulted

from the negligence of a health care provider, as defined in section 52-184b,

the claimant shall have the burden of proving by the preponderance of the

evidence that the alleged actions of the health care provider represented a

breach of the prevailing professional standard of care for that health care

provider. The prevailing professional standard of care for a given health

care provider shall be that level of care, skill and treatment which, in light

of all relevant surrounding circumstances, is recognized as acceptable and

appropriate by reasonably prudent similar health care providers.

‘‘(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 fiveyear period before the incident giving rise to the claim.

‘‘(c) If the defendant health care provider is certified by the appropriate

American board as a specialist, is trained and experienced in a medical

specialty, or holds himself out as a specialist, a ‘similar health care provider’

is one who: (1) Is trained and experienced in the same specialty; and (2) is

certified by the appropriate American board in the same specialty; provided

if the defendant health care provider is providing treatment or diagnosis

for a condition which is not within his specialty, a specialist trained in the

treatment or diagnosis for that condition shall be considered a ‘similar health

care provider’.

‘‘(d) Any health care provider may testify as an expert in any action if

he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c)

of this section; or (2) is not a similar health care provider pursuant to

subsection (b) or (c) of this section but, to the satisfaction of the court,

possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide

such expert testimony as to the prevailing professional standard of care in

a given field of medicine. Such training, experience or knowledge shall be

as a result of the active involvement in the practice or teaching of medicine

within the five-year period before the incident giving rise to the claim.’’

5 The Appellate Court’s opinion sets forth a more detailed recitation of

the facts and procedural history. See Carpenter v. Daar, supra, 199 Conn.

App. 370–78.

6 We note that the plaintiff brought the present action pursuant to General

Statutes § 52-592, the accidental failure of suit statute, following the dismissal

of a previous action against the defendants for failure to provide an opinion

letter that complied with § 52-190a. See Carpenter v. Daar, supra, 199 Conn.

App. 370.

7 Hereinafter, we refer to the opinion letter and the supplemental correspondence, both of which were attached to the complaint, as the ‘‘opinion letter.’’

8 The trial court ‘‘rejected the defendants’ argument . . . 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.’’ Carpenter v. Daar, supra, 199 Conn. App. 375.

In so concluding, the trial court relied on the ‘‘[effective]’’ modification

and extension of the applicable statute of limitations; id., 376; see General

Statutes § 52-584; by the accidental failure of suit statute; see General Statutes § 52-592; but ‘‘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 . . . .’’

Carpenter v. Daar, supra, 376.

9 The Appellate Court further observed: ‘‘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-five] contact hours of continuing education

within twenty-four months preceding their application for renewal). The

plaintiff’s theory that hours of continuing education [contribute] 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.’’ Carpenter v. Daar, supra,

199 Conn. App. 393.

10 The Appellate Court also noted that ‘‘the plaintiff took no steps [pursuant

to Practice Book § 10-3 (c)] 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.’’ Carpenter v. Daar, supra, 199 Conn. App. 394. The Appellate

Court held that the trial ‘‘court was not bound to presume the validity of

only the facts alleged in the complaint. Furthermore, [the trial court] noted

that the complaint itself failed to sufficiently allege [that] Daar was holding
himself out as a specialist. The indeterminate complaint, as well as the

undisputed facts alleged in Daar’s affidavit, justified the [trial] court’s conclusion that Daar was neither a specialist . . . nor holding himself out to be

one . . . .’’ Id., 395.

11 The defendants contend that the plaintiff misquoted Shoreline’s website

out of context in elevating Daar’s continuing education to claims of specialty

training. They emphasize the ‘‘distinction between a general dentist’s continuing education and the postdoctoral specialty residency program to become

a specialist in a recognized dental specialty such as endodontics’’; (footnote

omitted); given the statutory requirements for board certification under

General Statutes § 20-106a. See footnote 9 of this opinion.

12 In Conboy, a sovereign immunity case, this court considered the various

factual circumstances under which trial courts can consider motions to

dismiss for lack of subject matter jurisdiction under Practice Book §§ 10-

30 and 10-31, namely, ‘‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed

facts. . . . Different rules and procedures will apply, depending on the state

of the record at the time the motion is filed.’’ (Citation omitted; internal

quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651.

‘‘The standard of review for a court’s decision on a motion to dismiss

[under Practice Book § 10-31 (a) (1)] is well settled. A motion to dismiss

tests, inter alia, whether, on the face of the record, the court is without

jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and

resulting [determination] of the motion to dismiss will be de novo. . . .

When a . . . court decides a jurisdictional question raised by a pretrial

motion to dismiss, it must consider the allegations of the complaint in their

most favorable light. . . . In this regard, a court must take the facts to be

those alleged in the complaint, including those facts necessarily implied

from the allegations, construing them in a manner most favorable to the

pleader. . . . The motion to dismiss . . . admits all facts [that] are well

pleaded, invokes the existing record and must be decided [on] that alone.

. . . In undertaking this review, we are mindful of the well established

notion that, in determining whether a court has subject matter jurisdiction,

every presumption favoring jurisdiction should be indulged. . . .

‘‘Trial courts addressing motions to dismiss for lack of subject matter

jurisdiction pursuant to [Practice Book] § 10-31 (a) (1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, [l]ack of subject matter jurisdiction may be found in any

one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed

facts. . . . Different rules and procedures will apply, depending on the state

of the record at the time the motion is filed.

‘‘When a trial court decides a jurisdictional question raised by a pretrial

motion to dismiss on the basis of the complaint alone, it must consider the

allegations of the complaint in their most favorable light. . . . In this regard,

a court must take the facts to be those alleged in the complaint, including

those facts necessarily implied from the allegations, construing them in a

manner most favorable to the pleader. . . .

‘‘In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice

Book § 10-31 (a); [and/or] other types of undisputed evidence . . . taken

. . . the trial court, in determining the jurisdictional issue, may consider

these supplementary undisputed facts and need not conclusively presume

the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. . . . If affidavits [or] other evidence submitted in support of

a defendant’s motion to dismiss conclusively establish[es] that jurisdiction

is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10-31 (b); 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, [when] 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.

. . . Likewise, if the question of jurisdiction is intertwined with the merits

of the case, a court cannot resolve the jurisdictional question without a

hearing to evaluate those merits. . . . An evidentiary hearing is necessary

because a court cannot make a critical factual [jurisdictional] finding based

on memoranda and documents submitted by the parties.’’ (Citations omitted;

internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 521–24,

98 A.3d 55 (2014); see Conboy v. State, supra, 292 Conn. 650–54; see also

Conboy v. State, supra, 653 n.15 (‘‘[a] preliminary evidentiary hearing ordinarily will suffice [when] the jurisdictional issue is distinct and severable

from the merits of the action, for example, when personal jurisdiction is

called into question’’).

Although Conboy itself concerned subject matter jurisdiction, the substance of its analysis has been applied to consider claims in personal jurisdiction cases. See, e.g., North Sails Group, LLC v. Boards & More GmbH, 340

Conn. 266, 269–70, 264 A.3d 1 (2021). This includes challenges to personal

jurisdiction arising under § 52-190a, as interpreted by Morgan. See, e.g.,

Barnes v. Greenwich Hospital, 207 Conn. App. 512, 518–19 and n.12, 262 A.3d

1008, cert. denied, 340 Conn. 904, 263 A.3d 100 (2021); Caron v. Connecticut

Pathology Group, P.C., 187 Conn. App. 555, 563–64, 202 A.3d 1024, cert.

denied, 331 Conn. 922, 206 A.3d 187 (2019). This analysis is consistent with

the extension of the due process aspects of the hearing required by Standard

Tallow Corp., which involved the issue of minimum contacts in the personal

jurisdiction context; see Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56,

459 A.2d 503 (1983); to issues of subject matter jurisdiction. See, e.g., Bank

of New York Mellon v. Tope, 345 Conn. 662–63, 682, A.3d (2022)

(plaintiff’s standing to bring foreclosure action); Graham v. Commissioner

of Transportation, 330 Conn. 400, 443, 195 A.3d 664 (2018) (D’Auria, J.,

dissenting) (proof of agency relationship between Commissioner of Transportation and state employee for purposes of waiver of sovereign immunity

under General Statutes § 13a-144); Bayer v. Showmotion, Inc., 292 Conn.

381, 393 n.8, 973 A.2d 1229 (2009) (prior pending action doctrine).

13 Practice Book § 10-32 provides: ‘‘Any claim of lack of jurisdiction over

the person 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.’’

14 In LeConche, this court considered whether the failure of a medical

malpractice complaint to include a good faith certificate deprived the court

of subject matter jurisdiction. See LeConche v. Elligers, supra, 215 Conn.

707–709. In concluding that it did not, and that the trial court therefore

should have permitted the plaintiffs to amend their complaint to include

the certificate; see id., 715; this court observed that, although ‘‘the general

purpose of § 52-190a is to discourage the filing of baseless lawsuits against

health care providers . . . the good faith certificate is [not] so central to

that purpose that it is ‘of the essence of the thing to be accomplished,’ ’’

thus rendering it subject matter jurisdictional in nature. Id., 710–11. The

court emphasized that 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.

In light of that purpose, the lack of a certificate does not defeat what would

otherwise be valid jurisdiction in the court. The purpose is just as well

served by viewing the statutory requirement that the complaint contain a

good faith certificate as a pleading necessity akin to an essential allegation

to support a cause of action. Viewed through that prism, the absence from

the complaint of the statutorily required good faith certificate renders the

complaint subject to a motion to strike . . . for failure to state a claim [on]

which relief can be granted, and to render that absence curable by timely

amendment . . . .’’ (Footnote omitted.) Id., 711.

In so concluding, this court observed in LeConche that the pre-2005 version

of § 52-190a did ‘‘not address the consequences of a failure to file a certificate’’ but did ‘‘address the consequences of filing of what is later deemed

to be a false certificate,’’ with that determination to be made after the

completion of discovery. Id., 712. The court observed: ‘‘Assuming without

deciding that ‘an appropriate sanction’ for filing a false certificate includes

dismissal, it is clear that such a dismissal would be discretionary, rather

than required due to lack of subject matter jurisdiction.’’ Id.

15 In concluding in Morgan that the opinion letter and good faith certificate

did not pertain to subject matter jurisdiction, this court cited to Plante v.

Charlotte Hungerford Hospital, 300 Conn. 33, 46–47, 12 A.3d 885 (2011),
which 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 [v. Elligers, supra, 215 Conn. 701], involved a matter of form [the]

deficiencies [of which], 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.’’ Morgan v. Hartford Hospital, supra, 301 Conn. 399–400.

16 Significantly, the court in Morgan squarely rejected the argument 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.’’ (Emphasis added.) Morgan v. Hartford Hospital,

supra, 301 Conn. 403. In particular, the court determined that the defendant’s

reading of § 52-190a as not relating to personal jurisdiction would excuse

compliance with the deadlines set by Practice Book §§ 10-30 and 10-32 and

lead to absurd results by (1) presuming that experienced defense attorneys

would miss the thirty day dismissal deadline and allow a frivolous case to

proceed, and (2) allowing motions to dismiss to be filed many months into

the litigation, perhaps at the nineteenth hour after the expense of depositions. See id., 403–404.

17 ‘‘[W]hen the legal issue presented in connection with a motion to dismiss

is one of statutory construction, [o]ur fundamental objective is to ascertain

and give effect to the apparent intent of the legislature. . . . In other words,

we seek to determine, in a reasoned manner, the meaning of the statutory

language as applied to the facts of [the] case, including the question of

whether the language actually does apply. . . . In seeking to determine that

meaning . . . § 1-2z directs us first to consider the text of the statute itself

and its relationship to other statutes. If, after examining such text and

considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence

of the meaning of the statute shall not be considered. . . . The test to

determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . Further, in construing

statutes, we presume that there is a purpose behind every sentence, clause

or phrase used in an act, and that no part of a statute is superfluous.’’

(Citation omitted; internal quotation marks omitted.) Wilkins v. Connecticut

Childbirth & Women’s Center, supra, 314 Conn. 718–19.

18 This is in contrast to subject matter jurisdiction, which ‘‘is the power

[of the court] to hear and determine cases of the general class to which the

proceedings in question belong. . . . A court has subject matter jurisdiction

if it has the authority to adjudicate a particular type of legal controversy.’’

(Internal quotation marks omitted.) Lostritto v. Community Action Agency

of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004).

19 Examples abound in title 52 of the General Statutes. See, e.g., General

Statutes § 52-59b (a) through (c) (long arm statute setting forth numerous

bases for acts committed ‘‘in person or through an agent,’’ over which ‘‘a

court may exercise personal jurisdiction over any nonresident individual,

foreign partnership or foreign voluntary association, or over the executor or

administrator of such nonresident individual, foreign partnership or foreign

voluntary association,’’ emphasizing that, ‘‘[w]here personal jurisdiction is

based solely upon this section, an appearance does not confer personal

jurisdiction with respect to causes of action not arising from an act enumerated in this section,’’ and describing method by which ‘‘any process in any

civil action brought against the nonresident . . . may be served upon the

Secretary of the State and shall have the same validity as if served . . .

personally’’ (emphasis added)); General Statutes § 52-102b (a) (apportionment action may be commenced by service of ‘‘a writ, summons and complaint upon a person not a party to the action who is or may be liable

pursuant to said section for a proportionate share of the plaintiff’s damages

in which case the demand for relief shall seek an apportionment of liability,’’

and ‘‘such writ, summons and complaint, [i.e.] the apportionment complaint,

shall be served within one hundred twenty days of the return date specified

in the plaintiff’s original complaint’’ (emphasis added)).

Beyond title 52, other titles in the General Statutes also have provisions

that refer specifically to personal jurisdiction and the service of process.

See, e.g., General Statutes § 1-101oo (a) and (c) (prescribing that, ‘‘[i]n
addition to its jurisdiction over persons who are residents of this state, the

Office of State Ethics may exercise personal jurisdiction over any nonresident person, or the agent of such nonresident person, who makes a payment

of money or gives anything of value to a public official or state employee

in violation of section 1-101nn, or who is, or is seeking to be, prequalified

under section 4a-100,’’ and setting forth method for ‘‘service of process’’ on

either such nonresident’s ‘‘registered agent’’ or ‘‘the Secretary of the State’’);

General Statutes § 7-137c (‘‘the owner of any property so assessed may

appeal to the superior court . . . from the valuation of his assessment, by

service of process made in accordance with the provisions of section 52-57’’).

20 ‘‘Section 52-190a originally was enacted as part of the Tort Reform Act

of 1986. See Public Acts 1986, No. 86-338, § 12. The original version of the

statute required the plaintiff in any medical malpractice action to conduct

‘a reasonable inquiry as permitted by the circumstances to determine that

there are grounds for a good faith belief that there has been negligence in

the care or treatment of the [plaintiff]’ and to file a certificate ‘that such

reasonable inquiry gave rise to a good faith belief that grounds exist for an

action against each named defendant.’ General Statutes (Rev. to 1987) § 52-

190a (a). The original statute did not require the plaintiff to obtain the

written opinion of a similar health care provider that there appeared to be

evidence of medical negligence, but permitted the plaintiff to rely on such

an opinion to support his good faith belief. The . . . purpose of the original

version of § 52-190a was to prevent frivolous medical malpractice actions.’’

Dias v. Grady, 292 Conn. 350, 357, 972 A.2d 715 (2009).

21 Specifically, in 2019, the legislature amended § 52-190a when it enacted

No. 19-64, § 16, of the 2019 Public Acts (P.A. 19-64), which is the annual

court operations bill. Section 16 of P.A. 19-64 made a minor change to

subsection (b), which extends the limitation period upon petition to the

clerk of court to allow for the completion of the good faith inquiry, by

replacing the phrase ‘‘the court where the civil action will be filed,’’ with

‘‘any superior court or any federal district court . . . .’’ That amendment

of subsection (b) of § 52-190a pertains only to the extension of the statute

of limitations for purposes of the good faith inquiry, which is a provision

that preexisted the enactment of the opinion letter requirement in 2005.

Moreover, there is no recorded legislative history with respect to the enactment of § 16 of P.A. 19-64 that could potentially indicate any relationship

between the opinion letter requirement and the 2019 amendment of § 52-

190a (b).

22 Jurisdiction aside, for purposes of authoring an opinion letter, this court

observed in Bennett that ‘‘strictly adhering to the legislature’s articulation

of who is a similar health care provider may be harsh to would-be plaintiffs,

but [it] is not absurd or unworkable. . . . Specifically, the text of the related

statutes and the legislative history support the . . . determination that,

unlike § 52-184c (d), which allows for some subjectivity as it gives the trial

court discretion in determining whether an expert may testify, § 52-190a

establishes objective criteria, not subject to the exercise of discretion, making the prelitigation requirements more definitive and uniform and, therefore,

not as dependent on an attorney or self-represented party’s subjective assessment of an expert’s opinion and qualifications.’’ (Citation omitted; internal

quotation marks omitted.) Bennett v. New Milford Hospital, Inc., supra,

300 Conn. 21.

23 See, e.g., Peters v. United Community & Family Services, Inc., 182

Conn. App. 688, 689–90, 690 n.1, 191 A.3d 195 (2018) (‘‘extensive litigation

since [the] enactment’’ of opinion letter requirement has resulted in ‘‘[a]

computer search for Connecticut cases citing § 52-190a yield[ing] almost

[one] thousand results’’).

24 By way of background, we go beyond procedure and briefly discuss

the series of cases expanding on Bennett v. New Milford Hospital, Inc.,

supra, 300 Conn. 1, insofar as their explication of what the opinion letter

must include substantively governs the motion to dismiss and illustrates

the potential pitfalls in complying with the statute. This line of cases is

significant because it demonstrates the numerous substantive reasons that

might result in dismissal under § 52-190a.

First, to ensure that the plaintiff has complied with § 52-190a (a) by

procuring an opinion authored by a ‘‘similar health care provider,’’ the

Appellate Court has held that the opinion letter must include ‘‘adequate

information that could be used to determine whether the author is a similar

health care provider,’’ such as his or her professional qualifications. Lucisano v. Bisson, 132 Conn. App. 459, 466–67, 34 A.3d 983 (2011); see Bell v.

Hospital of Saint Raphael, 133 Conn. App. 548, 561 n.6, 36 A.3d 297 (2012)
(declining ‘‘to require that the letter ‘contain a complete exposition of the

health care provider’s bona fides,’ but [requiring] merely that it disclose

that the health care provider possesses the qualifications set forth in § 52-

184c’’). We note that the trial lawyers specifically ask us to overrule the

Lucisano line of cases as inconsistent with the text of § 52-190a (a); we

leave this request for another day in a case in which the issue is squarely

presented by the parties. See, e.g., Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 550–51 n.35, 93 A.3d

1142 (2014).

Turning to the specifications of negligence, we note that an opinion letter

complies with ‘‘the ‘detailed basis’ requirement of § 52-190a (a) if it sets

forth the basis of the similar health care provider’s opinion that there appears

to be evidence of medical negligence by express reference to what the

defendant did or failed to do to breach the applicable standard of care. In

other words, the written opinion must state the similar health care provider’s

opinion as to the applicable standard of care, the fact that the standard of

care was breached, and the factual basis of the similar health care provider’s

conclusion concerning the breach of the standard of care’’ because ‘‘a blanket

requirement mandating a more onerous or stringent standard would serve

to deter not only frivolous lawsuits but some meritorious ones, as well, a

result that the legislature did not intend to achieve.’’ Wilcox v. Schwartz,

303 Conn. 630, 643–44, 37 A.3d 133 (2012); see Dias v. Grady, 292 Conn. 350,

359, 972 A.2d 715 (2009) (concluding that ‘‘the phrase ‘medical negligence,’

as used in § 52-190a (a),’’ requires only that author explain breach of standard

of care and does not require author to opine as to causation).

Finally, the Appellate Court more recently explained the extent to which

a plaintiff must undertake a ‘‘reasonable inquiry’’ into the credentials of the

defendant health care provider to secure the appropriate similar health care

provider to author the opinion letter. See Doyle v. Aspen Dental of Southern

CT, PC, 179 Conn. App. 485, 497, 179 A.3d 249 (2018). In concluding that a

general dentist could not author a letter against an oral and maxillofacial

surgeon, the Appellate Court rejected the plaintiff’s reliance on the defendant’s profile on the Department of Public Health website, which did not

indicate the defendant’s board certification, and her argument that ‘‘there

was no authentic public record by which to determine or verify that [the

defendant] had training as an oral and maxillofacial surgeon and she could

verify only that the defendant was a licensed general dentist.’’ (Internal

quotation marks omitted.) Id., 494; see id., 494–95. The Appellate Court held

that ‘‘a reasonable inquiry as permitted by the circumstances’’ would go

beyond the department’s website to ‘‘other methods for ascertaining a defendant health care provider’s credentials,’’ such as simply asking the defendant

or his employer, or filing an independent action for a bill of discovery.

(Emphasis omitted; internal quotation marks omitted.) Id., 496–97.

25 Because it would have been time barred in any event, the Appellate

Court deemed it unnecessary to reach the plaintiff’s broader attempt in

Peters ‘‘to establish that the use of an explanatory or supplemental affidavit

to cure a defect in an opinion letter in response to a motion to dismiss

comports with language in Practice Book § 10-31 (a) permitting supporting

affidavits to establish facts necessary for the adjudication of the motion to

dismiss.’’ Peters v. United Community & Family Services, Inc., supra, 182

Conn. App. 704; see id., 703–704 (observing that ‘‘certain Superior Court

decisions provide some authority for permitting a plaintiff to cure a defective

opinion letter by [a] supplemental affidavit rather than by following the

amendment procedures set forth in Practice Book §§ 10-59 and 10-60’’).

26 The trial court in Kissel had denied the 2012 motion to dismiss, following

dictum from the Appellate Court’s 2009 decision in Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn. App. 585, and determining

that it had the discretion to permit the plaintiff to amend her complaint to

include the opinion letter given the unchallenged attestations of the plaintiff’s

attorney that the letter existed prior to the commencement of the action,

with the failure to attach it to the complaint having been an ‘‘oversight.’’

Kissel v. Center for Women’s Health, P.C., supra, 205 Conn. App. 408; see

id., 407–409.

27 Swinging for the fences, the trial lawyers also challenge several aspects

of Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1, as inconsistent

with the focus of § 52-190a on ‘‘good faith’’ and ‘‘reasonableness,’’ in particular focusing on (1) the difficulty of obtaining an exact match in credentials

between the defendant and authoring health care providers, given the multiplicity of overlapping medical specialties, and (2) the extent to which dismissal is, or should be, the mandatory remedy for failure to supply a compli-
ant opinion letter. As with their challenge to the Appellate Court’s decision

in Lucisano v. Bisson, 132 Conn. App. 459, 466–67, 34 A.3d 983 (2011); see

footnote 24 of this opinion; we leave these arguments about Bennett for

another day.

28 If a defendant intends to raise the issue whether the plaintiff acted in

good faith with respect to the selection of the similar health care provider for

purposes of the opinion letter, that topic may be taken up at the conclusion

of discovery, as § 52-190a (a) has provided both before and after the addition

of the opinion letter requirement in 2005. See General Statutes § 52-190a

(a); see also LeConche v. Elligers, supra, 215 Conn. 708 (‘‘The statute . . .

clearly requires a factual inquiry by the court regarding the sufficiency of

the precomplaint investigation. That inquiry is to be undertaken after the

completion of discovery.’’).

29 Practice Book § 10-6 provides that a motion to dismiss shall be filed

after the complaint, and Practice Book § 10-7 provides that, unless otherwise

ordered by the court, ‘‘the filing of any pleading provided for by [Practice

Book § 10-6] will waive the right to file any pleading which might have been

filed in due order and which precedes it in the order of pleading provided

in that section.’’

30 To the extent that additional elaboration may be helpful as to more

specific procedures governing motions to dismiss under § 52-190a, the legislature is free to provide such guidance, as it has done in similar contexts.

See General Statutes § 52-196a (c), (d) and (e) (prescribing procedure for

special motion to dismiss under anti-SLAPP statute, including thirty day

extendable deadline for motion, stay of discovery upon filing of motion,

and expedited hearing and decision procedure). Thus, the legislature, along

with the Rules Committee of the Superior Court, remains best suited to

consider the views of the relevant stakeholders as to the resolution of any

remaining procedural lacunae or ambiguities with respect to § 52-190a. See,

e.g., Newland v. Commissioner of Correction, 322 Conn. 664, 686 n.7, 142

A.3d 1095 (2016); Commissioner of Public Safety v. Freedom of Information

Commission, 312 Conn. 513, 550, 93 A.3d 1142 (2014).

31 The plaintiff argues that the term ‘‘holds himself out as a specialist,’’

as used in § 52-184c (c), is undefined and a question of fact. The plaintiff

emphasizes that ‘‘[h]ealth care providers [who] attempt to present their

continuing education coursework as particularized training, as . . . Daar

did, should be deemed to have held themselves out as specialists, rather

than those [who] simply adhere to their professional responsibilities.’’

32 The complaint avers: ‘‘One of the most common endodontic treatments

is root canal therapy, a procedure [that] effectively eases the pain associated

with a bacterial infection deep within the pulp of the tooth. Of course, root

canal treatment doesn’t just relieve pain—it also stops the infection by

removing dead and dying tissue from the tooth’s pulp. Plus, it helps to

save the tooth, which is in danger of being lost if left untreated.’’ (Internal

quotation marks omitted.)

33 We disagree with the defendants’ claim that the opinion letter itself is

inadequate because Solomon’s statement that he ‘‘ ‘received [his] specialty

[b]oards in [e]ndodontics in 1970’ . . . does not lead to the conclusion that

the author is American board certified in the specialty of endodontics.’’

(Citation omitted; emphasis in original.) They contend that the ‘‘reference

to plural ‘specialty [b]oards in [e]ndodontics’ also is indeterminate and

ambiguous. There simply is no way for a court to determine from the opinion

letters attached to the complaint whether [Solomon’s] reference to ‘specialty

[b]oards’ included board certification by the American Board of Endodontics

. . . [or] any basis to find that [Solomon] had maintained his board certification since it was obtained in 1970.’’ (Emphasis in original.) They further

argue that, although Solomon adequately stated that he ‘‘teaches endodontics, there is no specific information as to his training in the specialty

of endodontics,’’ citing General Statutes § 20-106a, which governs when a

Connecticut licensed dentist may designate himself or herself as a specialist.

See footnote 9 of this opinion. We disagree. Although the plaintiff likely

would have benefited had Solomon stated his qualifications more specifically

in the opinion letter, Solomon’s failure to use talismanic words does not

preclude us from reading it broadly and realistically—given his statements

about receiving his specialty boards and academic career teaching endodontics—to deem him the requisite similar health care provider.