A Connecticut Appellate Court ruled in its decision filed on September 5, 2017 that the trial court erred when it improperly opened the judgment more than four months after it was rendered when no exception to the timeliness requirement existed.
The Underlying Facts
The plaintiff filed his complaint against the defendant podiatrist, alleging that the podiatrist amputated two of his toes without “any real examination” and recommended the amputation of his right foot, to which he responded that amputation was unnecessary. Instead, the plaintiff had two surgeries at the defendant hospital to open, scrape, and flush his right foot, both of which were performed by the defendant podiatrist. During the second surgery, the plaintiff alleged that the defendant podiatrist amputated two noninfected, perfectly normal toes.
The plaintiff subsequently filed his Connecticut medical malpractice complaint in which he included a claim alleging the lack of informed consent for the procedure(s).
The defendants filed motions to dismiss in which they argued that the plaintiff had failed to obtain and file a written opinion of a similar health care provider, as required in medical malpractice cases pursuant to General Statutes § 52-190a. The trial court granted the motions to dismiss in the podiatry malpractice case, from which the plaintiff failed to timely appeal. The plaintiff thereafter filed a motion to open the judgment of dismissal on the grounds of “[l]ack of legal assistance and . . . poor [response] from defense [attorney’s] office,” to which the defendants objected.
The trial court subsequently issued an order, sua sponte, in which it stated that the defendants’ motions to dismiss had been improperly granted because the plaintiff’s complaint included a claim for lack of informed consent, which exists outside the scope of § 52-190a, and, therefore, the motions to dismiss should have been applicable only to part of the complaint alleging medical malpractice. A subsequent “memorandum of decision” ordered that “the motion to open the judgment is granted in part, limited to the claims of the plaintiff asserting lack of consent and/or lack of informed consent, i.e., issues fairly within the scope of the complaint but not asserting medical negligence. The motion is denied with respect to the claims of medical negligence, for which § 52-190a is applicable.” Thereafter, the defendants appealed.
The Connecticut Appellate Court Decision
The Connecticut Appellate Court stated that ordinarily, the granting of a motion to open a prior judgment is not a final judgment, and, therefore, not immediately appealable. However, an exception to that rule is where a colorable claim is made that the trial court lacked the power to open a judgment. The Connecticut Appellate Court stated that the defendants’ claim in this case is a colorable claim that the trial court lacked the authority to open the judgment.
Section 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”
In the present case, the plaintiff had filed his motion to open the judgment beyond the four month period in which the plaintiff properly could have filed his motion without an applicable exception. The trial court had the authority to open the judgment of dismissal only if one of the exceptions to the four month period was applicable. The exceptions to § 52-212a that authorize a trial court to open a judgment when the four month period has expired are fraud, duress, and mutual mistake. The plaintiff neither claimed nor attempted to prove the existence of any one of these exceptions when he filed his motion to open the judgment of dismissal, and the trial court did not make a finding that any of these exceptions applied. The Connecticut Appellate Court therefore held that the trial court was without authority to open the judgment pursuant to § 52-212a.
The Connecticut Appellate Court further held that the fact that other claims may have been in the complaint does not make the dismissal of the action manifestly unjust, citing § 52-190a (c) that provides in relevant part that “failure to obtain and file the written opinion letter . . . shall be grounds for dismissal of the action.” The Connecticut Appellate Court stated that it did find that an injustice occurred in connection with the original judgment of dismissal that violates the principles of equity and, thus, justifies the trial court’s opening of the judgment.
Source Simmons v. Weiss, (AC 38610) (AC 38657)
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