Riccio v. Bristol Hospital, Inc. ( 2022 )

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JOANN RICCIO, EXECUTRIX (ESTATE OF THERESA
RICCIO) v. THE BRISTOL HOSPITAL, INC.
(SC 20529)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to the accidental failure of suit statute (§ 52-592 (a)), ‘‘[i]f any
action, commenced within the time limited by law, has failed one or
more times to be tried on its merits . . . because the action has been
. . . avoided or defeated . . . for any matter of form,’’ the plaintiff may
commence a new action for the same cause within one year after the
determination of the original action.
Pursuant to this court’s decision in Plante v. Charlotte Hungerford Hospital
(300 Conn. 33), a plaintiff may bring a subsequent medical malpractice
action pursuant to the matter of form provision of § 52-592 (a) only
when the trial court finds that the failure in the first action to provide
a legally sufficient opinion letter from a similar health care provider
pursuant to statute (§ 52-190a (a)) was the result of mistake, inadver-
tence, or excusable neglect, rather than egregious conduct or gross
negligence on the part of the plaintiff or his or her attorney.
The plaintiff, the executor of R’s estate, filed a medical malpractice action
against the defendant hospital, alleging that certain of its employees
had negligently caused R’s death. The trial court dismissed that action,
concluding that the plaintiff’s attorney, Z, had failed to file legally suffi-
cient medical opinion letters with the plaintiff’s complaint, as required
by § 52-190a (a) and prior Appellate Court case law interpreting that
statutory provision, as those opinion letters did not disclose the profes-
sional qualifications of their authors. The plaintiff did not appeal from
the trial court’s judgment of dismissal but, instead, commenced the
present action under § 52-592, which was based on the same malpractice
claims asserted in her prior action, approximately five months after
the statute of limitations expired. The trial court rendered judgment
dismissing the action as time barred, concluding that § 52-592 did not
apply because Z’s failure to include in the opinion letters the qualifica-
tions of their authors was not a matter of form due to mistake, inadver-
tence, or excusable neglect. On the plaintiff’s appeal, held that the trial
court correctly concluded that § 52-592 did not save the plaintiff’s other-
wise time barred action, the plaintiff having failed to meet her burden
of proving that Z’s failure to file legally sufficient medical opinion letters
in the first action was the result of a mistake, inadvertence, or excusable
neglect, rather than egregious conduct or gross negligence: having
reviewed the meanings of ‘‘gross negligence’’ and ‘‘egregious’’ in case
law and dictionaries, and having reviewed cases in which courts were
required to place an attorney’s conduct on the spectrum between excus-
able neglect and gross negligence, including cases involving the matter
of form provision in § 52-592, this court could not conclude, on the basis
of the evidence in the record, that Z’s lack of knowledge of and failure
to comply with the requirement, established by two Appellate Court
cases interpreting § 52-190a (a), that an opinion letter include the profes-
sional qualifications of its author was the result of a mistake, inadver-
tence, or excusable neglect, rather than egregious conduct or gross
negligence; Z had been practicing medical malpractice law for more
than ten years before he filed the plaintiff’s first action, the adequacy
of an opinion letter is one of the most frequently litigated pretrial issues
in medical malpractice actions, the two Appellate Court cases of which
Z was unaware were decided at least six years before the plaintiff’s first
action was filed, in the six year period after those two cases were
decided, Z filed five medical malpractice actions in which he had failed
to comply with the requirement established by those cases, and Z
acknowledged that, prior to filing the plaintiff’s first action, he had not
read those Appellate Court cases; accordingly, this was not a situation
in which Z inadvertently omitted necessary information from the opinion
letters, as Z was completely unaware of the requirement to include the
authors’ qualifications in the letters, and even cursory research into the
requirements for such opinion letters would have revealed this particular
requirement.
Argued February 19, 2021—officially released January 13, 2022*
Procedural History
Action to recover damages for the wrongful death of
the plaintiff’s decedent as a result of the defendant’s
alleged medical malpractice, and for other relief, brought
to the Superior Court in the judicial district of New
Britain, where the court, Morgan, J., granted the defen-
dant’s motion to dismiss and rendered judgment for the
defendant, from which the plaintiff appealed. Affirmed.
Joseph Peter Zeppieri, with whom, on the brief, was
Kevin Ferry, for the appellant (plaintiff).
Michael G. Rigg, for the appellee (defendant).
Opinion
McDONALD, J. The appeal in this medical malprac-
tice action requires us to determine whether the trial
court correctly concluded that the accidental failure of
suit statute, General Statutes § 52-592,1 did not save
the otherwise time barred action of the plaintiff, Joann
Riccio, executrix of the estate of Theresa Riccio,
because her first medical malpractice action was dis-
missed due to her attorney’s gross negligence for failing
to file with her complaint legally sufficient medical opin-
ion letters, as required by General Statutes § 52-190a
(a) and two Appellate Court decisions interpreting that
statute. Specifically, we must determine whether the
plaintiff met her burden of proving that her attorney’s
admitted failure to know of two Appellate Court deci-
sions, issued six years before she initiated the first
action, was a mistake, inadvertence, or excusable
neglect rather than egregious conduct or gross negli-
gence. We agree with the trial court that the plaintiff has
not met her burden and, therefore, affirm its judgment.
The record reveals the following relevant facts and
procedural history. On May 3, 2018, the plaintiff filed
a medical malpractice action (Riccio I) against the
defendant, The Bristol Hospital, Inc., alleging that vari-
ous doctors and nurses negligently caused the death of
the decedent. The trial court dismissed Riccio I for lack
of personal jurisdiction because the plaintiff failed to
file with her complaint legally sufficient medical opin-
ion letters as required by § 52-190a (a) and General
Statutes § 52-184c. Specifically, the court in Riccio I
held that, under Lucisano v. Bisson, 132 Conn. App.
459, 466, 34 A.3d 983 (2011), and Bell v. Hospital of
Saint Raphael, 133 Conn. App. 548, 560–61, 36 A.3d
297 (2012), the submitted opinion letters were legally
insufficient because neither disclosed the author’s pro-
fessional qualifications. The plaintiff did not appeal the
court’s dismissal of Riccio I.
On October 9, 2018, the plaintiff commenced this
action (Riccio II) under the accidental failure of suit
statute, § 52-592. In her complaint, the plaintiff alleged,
among other things, that Riccio I was dismissed due
to the plaintiff’s ‘‘mere mistake or inadvertence’’ in fail-
ing to include the credentials of the experts in the opin-
ion letters attached to the original complaint. The defen-
dant moved to dismiss Riccio II for lack of subject
matter jurisdiction, claiming, among other things, that
the dismissal of Riccio I was not a ‘‘matter of form’’
within the meaning of § 52-592, and, thus, Riccio II
could not be saved under the accidental failure of
suit statute.
The trial court noted that the two year statute of
limitations for a wrongful death action, having been
extended ninety days pursuant to § 52-190a (b), expired
on May 11, 2018, and Riccio II was commenced approxi-
mately five months after the statute of limitations had
expired. Thus, the court concluded that the action was
time barred unless § 52-592 applied.
The trial court held an evidentiary hearing on the
issue of whether § 52-592 applied to this action. During
the hearing, the sole witness was one of the plaintiff’s
attorneys, Joseph Zeppieri. The court found that Zep-
pieri has been practicing law since 2006 and that, prior
to attending law school, he practiced medicine for more
than thirty years. Zeppieri has been involved in medical
malpractice cases since his admission to the bar, and,
since 2012, after Lucisano and Bell were decided, he
has represented clients in five medical malpractice
actions and has joined with other counsel in a sixth
action.2 The court also found that, prior to filing Riccio
I, Zeppieri, by his own admission, had not read the
Appellate Court’s decisions in Lucisano or Bell. He only
became aware of those decisions when the defendant
filed its motion to dismiss in Riccio I. During the hear-
ing, Zeppieri acknowledged that it was a mistake not
to have been aware of controlling case law before com-
mencing Riccio I but contended that his error was an
‘‘insubstantial technical mistake.’’ No other evidence
was introduced at the hearing.
The trial court ultimately rejected the plaintiff’s con-
tention that the failure to articulate the experts’ creden-
tials in their opinion letters was simply a matter of form
due to mistake, inadvertence, or excusable neglect.3
The court explained that, if Zeppieri had read Lucisano
or Bell, he would have known that the opinion letters
he solicited and obtained for Riccio I were legally insuf-
ficient and would render the action subject to dismissal.
The court also noted that Zeppieri offered no explana-
tion for his ‘‘misconduct.’’ It reasoned: ‘‘The adequacy
of a ‘similar health care provider’ opinion letter is one
of the most frequently litigated pretrial issues in medical
malpractice actions. Given the law in Connecticut at the
time Riccio I was commenced, the plaintiff’s counsel
reasonably could not have believed that the opinion
letters they supplied complied with § 52-190a. Counsel’s
admitted failure to read and comply with controlling
appellate precedent, decided more than six years before
Riccio I was filed, is egregious, inexplicable, and inex-
cusable conduct.’’ The court then concluded: ‘‘[T]he
court finds on the facts before it that the plaintiff’s
counsel’s lack of diligence in knowing and complying
with Appellate Court precedent is blatant and egregious
conduct that was not intended to be condoned and
sanctioned by the ‘matter of form’ provision of § 52-
592. Simply put, the plaintiff’s counsel’s ignorance of
the law in this case does not constitute excusable
neglect. ‘The familiar legal maxims, that everyone is
presumed to know the law, and that ignorance of the
law excuses no one, are founded [on] public policy and
in necessity, and the idea [behind] them is that one’s
acts must be considered as having been done with
knowledge of the law, for otherwise its evasion would
be facilitated and the courts burdened with collateral
inquiries into the content of men’s [and women’s]
minds.’ ’’ The court explained that, because the plaintiff
‘‘failed to meet her burden of demonstrating that the
dismissal of Riccio I was a matter of form, the plaintiff
[could not] avail herself of the accidental failure of suit
statute.’’ Accordingly, the court dismissed Riccio II,
concluding that the action was time barred.
On appeal, the plaintiff claims that the trial court
incorrectly determined that the omission of the experts’
qualifications in their letters was egregious conduct
rather than a matter of form or a mistake. Specifically,
the plaintiff argues that the court did not place Zep-
pieri’s actions on the continuum of mistake, inadver-
tence, or excusable neglect, on the one hand, and dis-
missal for egregious conduct or gross negligence, on
the other, as required by Plante v. Charlotte Hungerford
Hospital, 300 Conn. 33, 50–51, 56, 12 A.3d 885 (2011).
Rather, the plaintiff contends, the trial court improperly
applied the legal maxims ‘‘ ‘that everyone is presumed
to know the law, and that ignorance of the law excuses
no one . . . .’ ’’ As a result, the plaintiff argues, the
trial court essentially created a rule that the failure
to know the law is per se gross negligence and could
never be considered mistake, inadvertence, or excus-
able neglect.4
The defendant notes that ‘‘[t]he plaintiff bears the
burden of proving that her failure to comply with § 52-
190a was the result of ‘mistake, inadvertence or excus-
able neglect,’ which is a factual question.’’ The defen-
dant contends that the trial court’s finding that Zep-
pieri’s ignorance of law was inexcusable was not clearly
erroneous because (1) Zeppieri has been involved in
medical malpractice actions since his admission to the
bar in 2006, (2) Lucisano and Bell were issued more
than six years before Riccio I was commenced, (3) in
the six year period after Lucisano and Bell were
decided, Zeppieri testified that he filed five medical
malpractice actions in which he failed to comply with
the requirements in Lucisano and Bell, and (4) prior to
filing Riccio I, Zeppieri had not read Lucisano and Bell.5
We begin with the standard of review and relevant
legal principles. ‘‘A determination of the applicability of
§ 52-592 depends on the particular nature of the conduct
involved. . . . This requires the court to make factual
findings, and [a] finding of fact will not be disturbed
unless it is clearly erroneous. . . . [T]he question of
whether the court properly applied § 52-592 presents
an issue of law over which our review is plenary.’’ (Cita-
tions omitted; internal quotation marks omitted.) Estela
v. Bristol Hospital, Inc., 179 Conn. App. 196, 215, 180
A.3d 595 (2018).
As we have explained, ‘‘the accidental failure of suit
statute can be traced as far back as 1862 . . . and is
a savings statute that is intended to promote the strong
policy favoring the adjudication of cases on their merits
rather than the disposal of them on the grounds enumer-
ated in § 52-592 (a). . . . We note, however, that this
policy is not without limits. If it were, there would be
no statutes of limitations. Even the saving[s] statute
does not guarantee that all plaintiffs have the opportu-
nity to have their cases decided on the merits. It merely
allows them a limited opportunity to correct certain
defects in their actions within a certain period of time.’’
(Citations omitted; internal quotation marks omitted.)
Santorso v. Bristol Hospital, 308 Conn. 338, 355, 63
A.3d 940 (2013). We have previously explained that
§ 52-592 (a) is ambiguous regarding what constitutes a
‘‘matter of form’’; Plante v. Charlotte Hungerford Hos-
pital, supra, 300 Conn. 49; and have declined to adopt
an extremely broad construction of the accidental fail-
ure of suit statute to the effect that ‘‘ ‘[t]he phrase,
‘‘any matter of form,’’ was used in [contradistinction]
to matter of substance, as embracing the real merits of
the controversy between the parties.’ ’’ Id., 50. Rather,
we have emphasized that § 52-592 (a) ‘‘does not autho-
rize the reinitiation of all actions not tried on . . .
[their] merits’’ and that, ‘‘[i]n cases [in which] we have
either stated or intimated that the any matter of form
portion of § 52-592 would not be applicable to a subse-
quent action brought by a plaintiff, we have concluded
that the failure of the case to be tried on its merits had
not resulted from accident or even simple negligence.’’
(Internal quotation marks omitted.) Lacasse v. Burns,
214 Conn. 464, 473, 572 A.2d 357 (1990).
In particular, with respect to similar health care pro-
vider opinion letters, ‘‘a plaintiff may bring a subsequent
medical malpractice action pursuant to the matter of
form provision of § 52-592 (a) only when the trial court
finds as a matter of fact that the failure in the first
action to provide an opinion letter that satisfies § 52-
190a (a) was the result of mistake, inadvertence or
excusable neglect, rather than egregious conduct or
gross negligence on the part of the plaintiff or his attor-
ney.’’ (Emphasis added.) Plante v. Charlotte Hun-
gerford Hospital, supra, 300 Conn. 56. The plaintiff
bears the burden of proving that the prior dismissal
was the result of mistake, inadvertence, or excusable
neglect and, therefore, a ‘‘matter of form’’ within the
meaning of § 52-592. See Ruddock v. Burrowes, 243
Conn. 569, 576–77, 706 A.2d 967 (1998) (‘‘[t]o enable a
plaintiff to meet the burden of establishing the right
to avail himself or herself of the statute, a plaintiff must
be afforded an opportunity to make a factual showing
that the prior dismissal was a ‘matter of form’ ’’ (empha-
sis added)). In Plante, we emphasized the ‘‘case-sensi-
tive nature of the inquiry under § 52-592 (a) . . . .’’
Plante v. Charlotte Hungerford Hospital, supra, 56 n.21;
see also id., 57 n.21 (‘‘a plaintiff seeking relief under
the matter of form provision of § 52-592 (a) does so at
his or her peril, given the case-sensitive nature of the
determination that the failure as a matter of form was
not based on ‘egregious’ conduct by the party or coun-
sel’’ (emphasis added)). As the Appellate Court has
aptly put it, ‘‘[t]he inquiry under § 52-592 . . . may be
conceptualized as a continuum whereupon a case must
be properly placed between one extreme of dismissal
for mistake and inadvertence, and the other extreme
of dismissal for serious misconduct or cumulative trans-
gressions.’’ Skinner v. Doelger, 99 Conn. App. 540, 554,
915 A.2d 314, cert. denied, 282 Conn 902, 919 A.2d
1037 (2007).
Relevant to this case, § 52-190a (a) requires that a
plaintiff bringing a medical malpractice action include
an opinion letter of a similar health care provider stating
that there is evidence of medical negligence. Specifi-
cally, the statute provides in relevant part: ‘‘No civil
action or apportionment complaint shall be filed to
recover damages resulting from personal injury or
wrongful death . . . 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 reason-
able inquiry as permitted by the circumstances to deter-
mine 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 appor-
tionment 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 com-
plaint 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. . . .’’6 (Emphasis added.) General Statutes
§ 52-190a (a).
In 2011, the Appellate Court held that ‘‘the language
of § 52-190a, read in the context of § 52-184c, clearly
and unambiguously requires that the qualifications of
the opinion letter author be set forth’’ in the opinion
letter. Lucisano v. Bisson, supra, 132 Conn. App. 468.
That holding was reaffirmed several months later by
the Appellate Court in Bell v. Hospital of Saint Raphael,
supra, 133 Conn. App. 560–61. This court has not yet
had occasion to address whether § 52-190a requires the
qualifications of the opinion letter author to be included
in the letter, and the parties in this appeal do not chal-
lenge the holdings of Lucisano and Bell. Accordingly,
we express no opinion on the matter other than to note
that the trial court was bound by those precedents.
Here, there is no dispute that, in Riccio I, the plain-
tiff’s attorney did not comply with the requirement in
Lucisano and Bell that the opinion letters contain a
statement regarding the qualifications of the author.
Zeppieri testified that he had not read the two Appellate
Court decisions and became aware of them only when
the defendant filed its motion to dismiss in Riccio I.
The plaintiff characterizes this as excusable neglect,
which would permit § 52-592 to save her cause of action.
The defendant, on the other hand, contends it is gross
negligence, which would preclude the application of
§ 52-592. The question we must decide is whether the
trial court correctly determined that the plaintiff failed
to establish that Zeppieri’s admitted failure to know of
two Appellate Court decisions, issued six years before
plaintiff initiated the first action, was a mistake, inadver-
tence, or excusable neglect rather than egregious con-
duct or gross negligence.
We begin with the definitions of ‘‘gross negligence’’
and ‘‘egregious.’’ Connecticut law ‘‘does not recognize
degrees of negligence and, consequently, does not rec-
ognize the tort of gross negligence as a separate basis
of liability.’’ Hanks v. Powder Ridge Restaurant Corp.,
276 Conn. 314, 337, 885 A.2d 734 (2005). We have, how-
ever, defined gross negligence as ‘‘very great or exces-
sive negligence, or as the want of, or failure to exercise,
even slight or scant care or slight diligence . . . .’’
(Internal quotation marks omitted.) Id., 338; see also
C & H Electric, Inc. v. Bethel, 312 Conn. 843, 869, 96
A.3d 477 (2014) (‘‘[g]ross negligence requires conduct
that ‘betokens a reckless indifference to the rights of
others’ ’’); Hanks v. Powder Ridge Restaurant Corp.,
supra, 352 (Norcott, J., dissenting) (‘‘[t]his court has
construed gross negligence to mean no care at all, or
the omission of such care [that] even the most inatten-
tive and thoughtless seldom fail to make their concern,
evincing a reckless temperament and lack of care, prac-
tically [wilful] in its nature’’ (internal quotation marks
omitted)); 57A Am. Jur. 2d 296–97, Negligence § 227
(2004) (‘‘ ‘Gross negligence’ means more than momen-
tary thoughtlessness, inadvertence or error of judg-
ment; hence, it requires proof of something more than
the lack of ordinary care. It implies an extreme depar-
ture from the ordinary standard of care, aggravated
disregard for the rights and safety of others, or negli-
gence substantially and appreciably greater than ordi-
nary negligence.’’ (Footnotes omitted.)). Similarly,
‘‘egregious’’ is defined as ‘‘[e]xtremely or remarkably
bad; flagrant . . . .’’ Black’s Law Dictionary (11th Ed.
2019) p. 652; see also American Heritage College Dic-
tionary (4th Ed. 2007) p. 447 (defining ‘‘egregious’’ as
‘‘[c]onspicuously bad or offensive’’); Webster’s New
International Dictionary of the English Language (2d
Ed. 1953) p. 821 (defining ‘‘egregious’’ as ‘‘[c]onspicuous
for bad quality; flagrant; gross; shocking’’).
Although not precisely the same procedural posture,
in determining whether Zeppieri’s conduct was egre-
gious or amounted to gross negligence, we find instruc-
tive our decision regarding disciplinary dismissals in
Ruddock v. Burrowes, supra, 243 Conn. 569, given that,
in the present case, Zeppieri was unaware of controlling
appellate case law, which the trial court characterized
as ‘‘misconduct.’’ In Ruddock, this court determined
that ‘‘[d]isciplinary dismissals do not, in all cases, dem-
onstrate the occurrence of misconduct so egregious as
to bar recourse to § 52-592.’’ Id., 576. Rather, the court
explained, whether the dismissal of a prior proceeding
permitted a plaintiff recourse to the savings statute
‘‘depends [on] the nature and the extent of the conduct
that led to the disciplinary dismissal.’’ (Emphasis
added.) Id., 570. Thus, not all negligence on the part of
an attorney is per se gross negligence or egregious
conduct because § 52-592 distinguishes between excus-
able neglect and gross negligence. Indeed, § 52-592
comes into play only when an error has been made,
most often by an attorney. A trial court, therefore, must
make factual findings and explain why the attorney’s
error is egregious or gross negligence and not excusable
neglect. Cf. id., 577 (‘‘We have not often decided that
a plaintiff, after a dismissal under an applicable rule
of practice, should be denied access to [§ 52-592 (a)]
because the prior judgment was not a ‘matter of form.’
When we have done so, our decision has focused on
conduct other than mistake, inadvertence or excusable
neglect.’’ (Emphasis added.)). In short, ‘‘the egregiousness
of the conduct precipitating the dismissal must be
examined in determining whether § 52-592 applies in a
given instance.’’7 Vestuti v. Miller, 124 Conn. App. 138,
144, 3 A.3d 1046 (2010).
With this background in mind, we turn to the cases
in which we have placed an attorney’s conduct on the
spectrum of excusable neglect and gross negligence to
determine the applicability of the accidental failure of
suit statute. We have previously held that the failure
to submit an opinion letter from a similar health care
provider and the failure to submit any opinion letter at
all constitutes gross negligence such that a plaintiff
cannot make use of the accidental failure of suit statute.
First, in Plante, this court upheld the trial court’s deter-
mination that the failure to submit an opinion letter
from a similar health care provider constituted gross
negligence. Plante v. Charlotte Hungerford Hospital,
supra, 300 Conn. 57. Specifically, this court stated:
‘‘[W]e agree with the hospital defendants that § 52-592
(a) did not permit the plaintiffs to bring [the] action
against them after dismissal of the original action. The
trial court found that the ‘decision to engage . . . [the
nurse expert] to review the file and to provide a written
opinion of negligence is inexplicable. Even a cursory
reading of § 52-190a would have revealed that . . . [the
nurse expert] did not qualify as a similar health care
provider.’ . . . The trial court’s finding is particularly
apt given that [the nurse expert] is neither a physician
nor a social worker, and even her psychiatric nursing
experience was scant. . . . Thus, we agree with the
trial court’s determination that the ‘plaintiffs’ lack of
diligence in selecting an appropriate person or persons
to review the case for malpractice can only be charac-
terized as blatant and egregious conduct [that] was
never intended to be condoned and sanctioned by the
‘‘matter of form’’ provision of § 52-592.’ ’’ (Citation omit-
ted; emphasis omitted.) Id. Most recently, in Santorso,
this court agreed with the trial court’s finding that ‘‘[i]t
[could not] be said that counsel’s failure to file a good
faith certificate and opinion letters in [the first action]
was the result of mistake, inadvertence, or excusable
neglect.’’ (Internal quotation marks omitted.) Santorso
v. Bristol Hospital, supra, 308 Conn. 358. The court
found it particularly significant that, ‘‘because the plain-
tiff’s counsel declined the court’s invitation to explain
the failure to comply with the requirements of § 52-
190a (a), there is no record that might support a finding
that [counsel’s] conduct was due to [mistake, inadver-
tence, or excusable neglect], and the court must con-
clude that his action was deliberate.’’ (Internal quota-
tion marks omitted.) Id.
In related contexts, courts have held that the failure
to know controlling law may constitute gross negli-
gence. Rule 60 (b) of the Federal Rules of Civil Proce-
dure is similar to § 52-592 in that it allows a court to
vacate a ‘‘final judgment, order, or proceeding’’ within
one year of the decision based on a finding of ‘‘mistake,
inadvertence, surprise, or excusable neglect . . . .’’8
Federal courts have explained that, ‘‘[w]hile [r]ule 60
(b) (1) allows relief for ‘mistake, inadvertence . . . or
excusable neglect,’ these terms are not wholly open-
ended. ‘Gross carelessness is not enough. Ignorance of
the rules is not enough, nor is ignorance of the law.’ ’’
(Emphasis added.) Pryor v. U.S. Postal Service, 769
F.2d 281, 287 (5th Cir. 1985); see also Thompson v. E.I.
DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir.
1996) (‘‘inadvertance, ignorance of the rules, or mis-
takes construing the rules do not usually constitute
excusable neglect’’ (internal quotation marks omitted));
United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.)
(‘‘[t]he law in this circuit is reasonably clear when a
conscious decision has been made by counsel, igno-
rance of the law is not the sort of excusable neglect
contemplated by [f]ederal [c]ivil [r]ule 60 (b)’’ (internal
quotation marks omitted)), cert. denied sub nom. Hor-
vath v. United States, 404 U.S. 849, 92 S. Ct. 83, 30 L.
Ed. 2d 88 (1971); Vaden v. Connecticut, 557 F. Supp.
2d 279, 293 (D. Conn. 2008) (‘‘[t]he Second Circuit has
consistently declined to relieve a client . . . of the bur-
dens of a final judgment [rendered] against him due to
the mistake or omission of his attorney by reason of
the latter’s ignorance of the law or other rules of court’’
(internal quotation marks omitted)).
State courts have also held that ignorance of the
law does not constitute excusable neglect in related
contexts. See, e.g., Madill v. Rivercrest Community
Assn., Inc., 273 So. 3d 1157, 1160 (Fla. App. 2019)
(‘‘ ‘[e]xcusable neglect cannot be based [on] an attorney’s
misunderstanding or ignorance of the law’ ’’); Whitefish
Credit Union v. Sherman, 367 Mont. 103, 109, 289 P.3d
174 (2012) (‘‘[e]xcusable neglect requires some justifi-
cation for an error beyond mere carelessness or igno-
rance of the law on the part of the litigant or his attor-
ney’’). Significantly, the Colorado Supreme Court has
held that an attorney’s ignorance of controlling case
law constituted gross negligence. People v. Barber, 799
P.2d 936, 940 (Colo. 1990). The court explained that
‘‘[i]t is objectively unreasonable for the respondent to
claim reliance on a federal district court decision with
which this court expressly disagreed on the precise
point of Colorado law raised here.’’ Id., 939. The court
noted that the attorney’s ‘‘contrary conclusion was
based only on a cursory examination of the annotations
to [the statute of limitations]. Even if we were to believe
the respondent, given the time available and the urgings
of his clients to proceed, legal research [that] was so
obviously inadequate on a question of such magnitude
would constitute gross negligence . . . .’’ Id., 940.
Here, Zeppieri acknowledged before the trial court
that it was a mistake not to have been aware of control-
ling case law before commencing Riccio I but other-
wise provided no explanation for his actions. The
twenty page transcript that contains the entire eviden-
tiary record on this issue indicates only that Zeppieri
and the plaintiff’s other attorney, Kevin Ferry, had not
read Lucisano or Bell until it became an issue in this
case. On cross-examination, Zeppieri explained: ‘‘I had
not read [Lucisano], which had attached a new require-
ment to the statute that is not in the text of the statute.
There’s no requirement in [§ 52-190a] that the letter
include that material. The requirement came only as a
result of the Appellate Court’s . . . decision in Luci-
sano . . . .’’ There is no testimony regarding whether
Zeppieri had conducted any research or otherwise
explaining why he was unaware of the two Appellate
Court decisions. As a result, we agree with the trial
court that Zeppieri failed to meet his burden of proving
that the dismissal of Riccio I was the result of mistake,
inadvertence, or excusable neglect. See Ruddock v.
Burrowes, supra, 243 Conn. 576–77. In the absence of
further explanation—such as the failure to uncover
Lucisano and Bell despite diligent research—we agree
with the trial court’s determination that Zeppieri’s
admitted failure to know of controlling Appellate Court
case law, decided six years before he initiated the
action, constituted gross negligence. As in Santorso,
in which the plaintiff’s counsel failed to explain his
noncompliance with § 52-190a (a); see Santorso v. Bris-
tol Hospital, supra, 308 Conn. 358; Zeppieri failed to
explain his noncompliance with Lucisano and Bell.
Accordingly, there is no evidence in the record from
which to conclude that Zeppieri’s failure to know of the
controlling Appellate Court case law was an accident,
inadvertence, or excusable neglect.
The plaintiff nevertheless contends that the trial court
improperly applied the legal maxims ‘‘ ‘that everyone
is presumed to know the law, and that ignorance of the
law excuses no one . . . .’ ’’ We agree with the plaintiff
that application of such legal maxims would violate the
requirement in Plante that a court place an attorney’s
actions on the continuum of mistake, inadvertence, or
excusable neglect, on the one hand, and dismissal for
egregious conduct or gross negligence, on the other.9
Plante v. Charlotte Hungerford Hospital, supra, 300
Conn. 50–51, 56. We disagree, however, that the trial
court failed to place Zeppieri’s conduct on the contin-
uum. As the trial court found: (1) Zeppieri has practiced
in the ‘‘complex, vigorously contested area of medical
malpractice law’’ since his admission to the bar in 2006;
(2) ‘‘[t]he adequacy of a ‘similar health care provider’
opinion letter is one of the most frequently litigated
pretrial issues in medical malpractice actions’’; (3) Luc-
isano and Bell were decided more than six years before
Riccio I was commenced; (4) after Lucisano, there
could be no doubt that the plaintiff was required to
include ‘‘sufficient qualifications of the author in the
opinion letter to demonstrate compliance with § 52-
190a’’; (5) in the six year period after Lucisano and
Bell were decided, Zeppieri testified that he filed five
medical malpractice actions in which he had failed to
comply with the requirements in Lucisano and Bell;
and (6) prior to filing Riccio I, Zeppieri had not read
Lucisano and Bell. This is not a situation in which
the plaintiff’s counsel inadvertently omitted necessary
information from the opinion letter. Zeppieri was com-
pletely unaware of the requirement to include the quali-
fications of the author of the letter. Even cursory
research into the requirements of the similar health
care provider opinion letter would have revealed this
requirement. Section 52-592 is designed to aid the ‘‘ ‘dili-
gent suitor’ ’’; Isaac v. Mount Sinai Hospital, 210 Conn.
721, 733, 557 A.2d 116 (1989); not to excuse the failure
of counsel to conduct a basic inquiry into the require-
ments of § 52-190a (a) and case law interpreting that
provision, which we can only characterize as the failure
to exercise even ‘‘ ‘slight diligence . . . .’ ’’ Hanks v.
Powder Ridge Restaurant Corp., supra, 276 Conn. 338.
Given the fact intensive nature of the inquiry under
§ 52-592 (a); Plante v. Charlotte Hungerford Hospital,
supra, 300 Conn. 56–57 n.21; we need not decide whether
different factual circumstances—such as counsel’s fail-
ure to know of a decision from an appellate court
released in closer proximity to the commencement of
the first action or his failure to uncover controlling
appellate precedent despite diligent research—might
constitute excusable neglect and save the plaintiff’s
otherwise time barred action under § 52-592. As we
explained in Plante, ‘‘a plaintiff seeking relief under the
matter of form provision of § 52-592 (a) does so at
his or her peril, given the case-sensitive nature of the
determination that the failure as a matter of form was
not based on ‘egregious’ conduct by the party or coun-
sel.’’10 (Emphasis added.) Id., 57 n.21.
We note that plaintiffs whose time barred actions
are not saved by § 52-592 due to their attorney’s gross
negligence are not left without recourse. In certain cir-
cumstances, a plaintiff may have recourse in a legal
malpractice action. Cf. Link v. Wabash Railroad Co.,
370 U.S. 626, 634 n.10, 82 S. Ct. 1386, 8 L. Ed. 2d 734(1962) (‘‘[I]f an attorney’s conduct falls substantially
below what is reasonable under the circumstances, the
client’s remedy is against the attorney in a suit for
malpractice. But keeping this suit alive merely because
[the] plaintiff should not be penalized for the omissions
of his own attorney would be visiting the sins of [the]
plaintiff’s lawyer upon the defendant.’’ (Emphasis omit-
ted.)); Friezo v. Friezo, 281 Conn. 166, 196, 914 A.2d
533 (2007) (‘‘incompetence is an insufficient reason to
avoid imputing knowledge to the plaintiff, who could
have sought appropriate legal redress by filing a mal-
practice claim against [her former attorney] but did not
do so’’), overruled in part on other grounds by Bedrick
v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011). Because
that issue is not before us, we express no opinion about
whether this case might satisfy the separate legal mal-
practice standard.
The judgment is affirmed.
In this opinion the other justices concurred.
* January 13, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 52-592 (a) provides in relevant part: ‘‘If any action,
commenced within the time limited by law, has failed one or more times
to be tried on its merits because of insufficient service or return of the writ
due to unavoidable accident or the default or neglect of the officer to whom
it was committed, or because the action has been dismissed for want of
jurisdiction, or the action has been otherwise avoided or defeated by the
death of a party or for any matter of form . . . the plaintiff . . . may com-
mence a new action . . . for the same cause at any time within one year
after the determination of the original action or after the reversal of the
judgment.’’
2
During the hearing, Zeppieri testified that, in all of those cases that he
participated in since Lucisano and Bell had been decided, the expert opinion
letters he filed did not include statements of the expert’s qualifications. He
also testified that all six cases went to verdict or settlement without the
defendant’s counsel raising a motion to dismiss based on the failure of the
expert opinion letters to include the statement of qualifications.
3
The trial court also rejected the plaintiff’s argument that the failure to
file legally sufficient medical opinion letters in Riccio I was a scrivener’s
error. It further rejected the plaintiff’s contention that she met the intent
of the law because both experts were properly credentialed. The court
explained that the plaintiff ‘‘filed no affidavits or other documentation in
opposition to the motion to dismiss and offered no evidence at the [eviden-
tiary hearing] as to the opinion letter authors’ qualifications. Consequently,
the court cannot determine whether the experts who authored letters in
Riccio I were properly credentialed or whether the intent of § 52-190a was
met, namely, protecting health care providers from frivolous malpractice
actions.’’
4
The plaintiff also contends that the trial court erred when it failed to
consider whether the authors of the opinion letters were in fact similar
experts or were qualified to testify at trial as part of its evaluation of whether
the plaintiff’s attorney’s conduct was a mistake, inadvertence, or excusable
neglect. On this point, the trial court explained, ‘‘the plaintiff’s [counsel’s]
failure to provide this court with evidence as to the qualifications of the
authors of the Riccio I opinion letters precluded the court from considering
whether the authors are ‘similar health care providers,’ as defined by § 52-
184c (b) [and] (c), or whether either might be otherwise qualified to testify
at the trial of the action pursuant to § 52-184c (d).’’
5
As an alternative ground for affirmance, the defendant contends that
the opinion letters filed in Riccio II still do not comply with the requirements
of § 52-190a. Specifically, the defendant contends that one of the opinion
letters fails to satisfy the requirement that it state that ‘‘there appears to be
evidence of medical negligence and [include] a detailed basis for the forma-
tion of such opinion.’’ General Statutes § 52-190a (a). The defendant claims
that the other opinion letter is deficient because it does not comply with
§ 52-184c (b) in that it ‘‘contains no information that would permit the court
to determine that the author has relevant experience ‘within the five-year
period before the incident giving rise to the claim.’ ’’ Finally, the defendant
contends that, to the extent that we conclude that those opinion letters are
legally sufficient, partial dismissal is required because the opinion letters
‘‘fail to show that the authors are similar health care providers to anyone
other than nurses and internists.’’ The plaintiff contends that the defendant’s
alternative grounds for affirmance are not yet ripe and, therefore, should
not be considered. The plaintiff also disagrees with the merits of those
claims. Given our conclusion that the plaintiff’s first action was not dismissed
based on a matter of form, we need not reach the defendant’s alternative
grounds for affirmance.
6
The validity of the opinion letter under § 52-190a depends in part on
whether the author of that letter qualifies as a ‘‘similar health care provider,’’
which is defined in General Statutes § 52-184c (b) as one who ‘‘(1) [i]s
licensed by the appropriate regulatory agency of this state or another state
requiring the same or greater qualifications; and (2) is trained and experi-
enced in the same discipline or school of practice and such training and
experience shall be as a result of the active involvement in the practice or
teaching of medicine within the five-year period before the incident giving
rise to the claim.’’ See also General Statutes § 52-184c (c) (setting forth
requirements for similar health care provider when defendant is certified
as specialist).
7
Indeed, cases have been remanded to the trial court for failure to appro-
priately weigh evidence and determine credibility resulting in an insufficient
evidentiary basis for a case to be accurately placed on the § 52-592 contin-
uum. For example, in Vestuti v. Miller, 124 Conn. App. 138, 3 A.3d 1046(2010), the Appellate Court explained: ‘‘[T]he plaintiff should be afforded
the opportunity to have the court determine this issue—that the judgment
of nonsuit [was rendered] due to the mere inadvertence of the plaintiff’s
attorney—especially given the surrounding circumstances in which the
plaintiff’s attorney knew for months in advance the date of the mandatory
pretrial conference and yet still failed to notify both the plaintiff of the
conference and the presiding judge that she would not attend. Without the
trial court appropriately weighing the evidence and determining credibility,
there is an insufficient evidentiary basis for this case to be accurately placed
on the § 52-592 continuum.’’ Id., 146–47; see also Ruddock v. Burrowes,
supra, 243 Conn. 578 (ordering trial court on remand to make findings of
fact with respect to ‘‘the circumstances of the plaintiffs’ claimed justification
for nonappearance at the pretrial conference’’).
8
We acknowledge that rule 60 (b) of the Federal Rules of Civil Procedure
pertains to opening judgments, including for cases that have been tried on
the merits, and is not identical to § 52-592. Our discussion of rule 60 (b),
and the various state court cases that follow, is intended to highlight the
various situations in which courts have considered whether an attorney’s
negligence may constitute gross negligence or excusable neglect. See, e.g.,
Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership,
507 U.S. 380, 393–95, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993) (noting that,
under rule 60 (b), attorney negligence can constitute excusable neglect and
rejecting notion that attorney negligence is per se inexcusable neglect).
Nothing in this opinion should be read to import the analytic framework
from the rule 60 (b) context into an analysis under § 52-592.
9
We note that the plaintiff herself appears to advocate for a per se rule
that the failure to know the law would never constitute egregious conduct
or gross negligence. As with the legal maxims that ‘‘everyone is presumed
to know the law’’ and ‘‘ignorance of the law excuses no one,’’ we reject
such an absolute rule, which is antithetical to the fact intensive inquiry § 52-
592 demands.
10
As she did before the trial court, the plaintiff also points to several
other medical malpractice cases in which Zeppieri participated, wherein
the similar health care provider opinion letters did not include statements
concerning the author’s qualifications. The plaintiff contends that, because
these cases went to verdict or settlement without anyone raising a motion
to dismiss based on the inadequacy of the opinion letters, this evinces the
fact that these attorneys were also not aware of the requirement from
Lucisano and Bell. We decline to speculate on why attorneys in separate
medical malpractice actions may have chosen not to file a motion to dismiss.
As the trier of fact, the trial court was free to reject Zeppieri’s self-serving
testimony that the only reason these attorneys had not filed motions to
dismiss was because of their ignorance of the law. See, e.g., Sun Val, LLC
v. Commissioner of Transportation, 330 Conn. 316, 330, 193 A.3d 1192(2018) (‘‘ ‘[I]t is the quintessential function of the fact finder to reject or
accept certain evidence, and to believe or disbelieve any expert testimony.
. . . The trier may accept or reject, in whole or in part, the testimony of
an expert offered by one party or the other.’ ’’).