Carpenter v. Daar ( 2020 )

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SHANE J. CARPENTER v. BRADLEY J.
DAAR ET AL.
(AC 42145)
Keller, Elgo and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant dentist, D, and
his business entity M Co., for medical malpractice in connection with
a dental procedure performed on the plaintiff by D. The plaintiff alleged
in his complaint that D held himself out as a specialist in endodontics
and attached to his complaint a good faith certificate from what he
alleged was a similar health care provider, S, an endodontist. The defen-
dants moved to dismiss on the ground that the opinion letter did not
comply with the requirements of the statute (§ 52-190a) because S was
not a similar health care provider as defined by statute (§ 52-184c). The
defendants attached an affidavit of D, in which he attested that he is a
general dentist. The plaintiff objected to the motion to dismiss and
attached a supplemental affidavit of S, which further elaborated on S’s
qualifications as a similar health care provider. The trial court granted
the defendants’ motion to dismiss on the ground that the plaintiff had
failed to provide an opinion letter from a similar health care provider
as required by §§ 52-190a and 52-184c. Specifically, because the plaintiff
had attached an opinion letter authored by S, a specialist in endodontics,
and D was a general dentist, the trial court determined that S’s opinion
letter was not that of a similar health care provider because D was not
a specialist as defined by § 52-184c (c) and, thus, the opinion letter
was required to be authored by a general dentist. Moreover, the court
concluded that there was no information to establish that S had been
involved in the teaching or practice of general dentistry in the five year
period before the procedure so as to be a similar health care provider
as defined by § 52-184c (b). The court rendered judgment in favor of
the defendants and the plaintiff appealed to this court. Held:
1. The defendants could not prevail on their unpreserved claim that the trial
court should not have considered the supplemental affidavit submitted
by the plaintiff because it was obtained after the statute of limitations
had expired and the court failed to state a factual basis for its application
of the accidental failure of suit statute (§ 52-592), which would have
extended the statute of limitations for an additional year from the date
judgment of dismissal was rendered in the plaintiff’s prior action;
although the defendants labeled their claim as an alternative ground for
affirmance, they were seeking to alter the court’s judgment to an extent
that would actually require reversal and the defendants failed to file a
cross appeal and likely could not have done so, given the fact that they
prevailed and that they failed to seek reconsideration or articulation of
the court’s ruling that § 52-592 applied; moreover, to afford the defen-
dants relief with respect to this claim would be prejudicial to the plaintiff,
who has repeatedly briefed and argued his claim that the opinion letter is
compliant with § 52-190a (a), with or without the supplemental affidavit.
2. The trial court properly determined that D was a nonspecialist practicing
general dentistry; it was undisputed that D was not certified by the
appropriate American board as a specialist and that he was not trained
or experienced in a specialty, as the plaintiff failed to allege this in his
complaint, and D attested in an affidavit that he was general dentist
and that the dental procedure was performed in that capacity, and the
plaintiff did not submit any counteraffidavits.
3. The judgment of the trial court was affirmed on the alternative ground
that the trial court should not have considered the supplemental affidavit
and the opinion letter was legally insufficient because it did not establish
that S was a similar health care provider pursuant to the statutory
nonspecialist definition in § 52-184c (b); the plaintiff was required to
properly amend his complaint to make the allegations in the supplemen-
tal affidavit a part of the pleading process, as correcting deficiencies in
process requires more than the filing of an affidavit, and, in failing to
do so, the opinion letter that was attached to the plaintiff’s complaint
was insufficient to establish that S was someone teaching in the nonspe-
cialty field of general dentistry, so as to qualify as a similar health care
provider under § 52-184c (b).
Argued January 6—officially released August 4, 2020
Procedural History
Action to recover damages for the defendants’ alleged
medical malpractice, brought to the Superior Court in
the judicial district of Middlesex, where the court,
Domnarski, J., granted the defendants’ motion to dis-
miss and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Kyle J. Zrenda, with whom was Theodore W. Heiser,
for the appellant (plaintiff).
Beverly Knapp Anderson, for the appellees
(defendants).
Opinion
KELLER, J. The plaintiff, Shane J. Carpenter, appeals
from the judgment rendered by the trial court dismiss-
ing his medical malpractice action against the defen-
dants, Dr. Bradley J. Daar (Daar), a dentist, and his
business entity, Shoreline Modern Dental, LLC (Shore-
line). The plaintiff claims that the court erred in
determining that his certificate of good faith, specifi-
cally, the accompanying opinion letter, as supple-
mented by an affidavit filed with the plaintiff’s objection
to the motion to dismiss, (supplemental affidavit) failed
to meet the requirements of General Statutes § 52-190a
because the author of the opinion letter and supplemen-
tal affidavit, Dr. Charles S. Solomon1 (Solomon), was
not a ‘‘similar health care provider’’ as defined in Gen-
eral Statutes § 52-184c.
The defendants counter that the certificate of good
faith and its accompanying opinion letter did not dem-
onstrate that Solomon was a similar health care pro-
vider under the definitions set forth in § 52-184c. They
further assert, as alternative grounds for affirmance of
the trial court’s judgment, that the supplemental affida-
vit should not have been considered by the trial court
because (1) it was procedurally improper for the plain-
tiff to have attempted to cure a § 52-190a (a) defect in
an opinion letter attached to the complaint with infor-
mation contained in a supplemental affidavit of the
author of the opinion without amending the complaint;
(2) it was obtained and submitted by the plaintiff after
the two year statute of limitations in General Statutes
§ 52-584 had expired, and the court failed to state a
factual basis to support the applicability of the acciden-
tal failure of suit statute, General Statutes § 52-592,
which would have extended the statute of limitations
for an additional year from the date the judgment of
dismissal was entered in the first action; see General
Statutes § 52-190a (a); and (3) without the supplemental
affidavit, the opinion letter attached to the complaint
did not contain sufficient information to demonstrate
that Solomon is a similar health care provider to Daar
under either definition of a similar health care provider
set forth in § 52-184c. We affirm the judgment of the
trial court.
The following relevant facts, alleged as the factual
predicate for the plaintiff’s cause of action or as found
by the court, and procedural history are relevant to our
disposition of this appeal. On June 1, 2017, in the judicial
district of Middlesex, the plaintiff commenced a prior
medical malpractice action against the defendants,
based on the same alleged conduct as in the present
case. See Carpenter v. Daar, Superior Court, judicial
district of Middlesex, Docket No. CV-XX-XXXXXXX-S.2 On
October 11, 2017, the court dismissed the plaintiff’s
first medical malpractice action against the defendants
because the opinion letter attached to the complaint,
which also was authored by Solomon, did not comply
with § 52-190a (a). Although the letter contained an
opinion as to whether there was evidence that medical
negligence had occurred, it did not contain, pursuant to
§ 52-184c, any information regarding Solomon’s training
and experience to establish that he was a similar health
care provider to Daar. Although the plaintiff filed a
request to amend his complaint, it was undisputed that
his request was filed after the applicable two year stat-
ute of limitations in § 52-584 had expired.
On February 21, 2018, the plaintiff commenced the
present action against the defendants pursuant to the
accidental failure of suit statute. See General Statutes
§ 52-592. As to dental malpractice, the plaintiff alleged
that on June 16, 2015, during root canal surgery, Daar
negligently failed to diagnose and treat an infection in
the plaintiff’s tooth and that, as a result, the plaintiff
suffered an infection in his mouth, throat, face and
neck that required additional emergency medical care,
hospitalization, oral and neck surgery and continuing
dental treatment. The plaintiff named Shoreline as a
defendant on the basis of vicarious liability for Daar’s
negligent treatment.
Pursuant to § 52-184c (c), the plaintiff further alleged
that Daar held himself out as a specialist in endodontics
on Shoreline’s website by indicating that he had com-
pleted hundreds of hours of training in endodontics and
by providing a general explanation of the nature of that
dental specialty.
The plaintiff attached to his complaint a good faith
certificate and what he alleged in the complaint to be
a ‘‘written and signed opinion from a similar health care
provider stating that there appears to be evidence of
negligence by the defendants, a violation of the standard
of care, and providing detailed basis for the formation
of that opinion, along with a supplemental correspon-
dence outlining that similar health care provider’s quali-
fications.’’ The ‘‘written and signed opinion letter’’
attached to the complaint is the same letter from Solo-
mon that was deemed noncompliant with § 52-190a (a)
in the prior action. The ‘‘supplemental correspondence’’
attached to the complaint, dated August 10, 2017, con-
tained information regarding Solomon’s qualifications
to establish that he was a similar health care provider
to Daar.3 The supplemental correspondence, also
authored by Solomon, indicated that he is a graduate
of Columbia University College of Dental Medicine
(Columbia), had been licensed to practice dentistry in
the state of New York, ‘‘with credentials that would
satisfy the requirement of any other state,’’ and received
his ‘‘specialty [b]oards in [e]ndodontics’’ in 1970. It also
stated that Solomon practiced endodontics in New York
for more than forty years, and that for the past eight
years he has been a full-time clinical professor of end-
odontics at Columbia, ‘‘teaching clinical and didactic
[e]ndodontics.’’
On April 5, 2018, the defendants moved to dismiss
the present action on the ground that the opinion letter
did not comply with §§ 52-190a (a) and 52-184c because
it failed to demonstrate that Solomon is a similar health
care provider to Daar, who is a general dentist, not
a specialist in endodontics. They argued that, as an
endodontist, Solomon is not a similar health care pro-
vider under § 52-184c (b) because Daar is not a special-
ist in endodontics and was not holding himself out to
be one. They further argued that Solomon also was
not a similar health care provider under § 52-184c (c)
because Daar is a practitioner of general dentistry and
Solomon had not practiced or taught general dentistry
within the five years preceding June 16, 2017.4 In addi-
tion 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 Connecti-
cut to practice dentistry since November, 1982. He indi-
cated that, as a general dentist, he provides such ser-
vices as fillings, inlay and onlays, crowns and bridges,
dentures, veneers, root canal treatments, simple extrac-
tions, 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 hold-
ing 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 web-
site 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 dis-
miss on June 5, 2018.5 The plaintiff continued to argue
that, as alleged in his complaint and on the basis of
the statements on Shoreline’s website, Daar had held
himself out to be a specialist in endodontics and, thus,
Solomon, a specialist in endodontics, was a similar
health care provider to Daar pursuant to § 52-184c (c).
The plaintiff did not submit any evidence to dispute
the facts set forth in Daar’s affidavit, which sought to
establish that, at the time of the root canal procedure,
Daar was a general dentist, not a specialist in endodon-
tics or someone holding himself out to be a specialist
in endodontics. The plaintiff did not request leave to
amend his complaint to attach a new or amended opin-
ion letter.6 Instead, the plaintiff attempted to cure the
alleged defects in the opinion letter, which the defen-
dants claimed mandated a dismissal, by submitting, as
an exhibit to his objection to the motion to dismiss, a
supplemental affidavit, executed by Solomon on May
30, 2018, which further elaborated on his qualifications
as a similar health care provider. In his supplemental
affidavit, Solomon attested in relevant part that he is a
clinical professor of dentistry at Columbia, served as
the Director of the Division of Endodontics from 2009
and continued in that position to 2017, is a Diplomate
of the American Board of Endodontics,7 past President
of the New York Section of the American College of
Dentists and past President of the New York Academy
of Dentistry. He further attested that (1) he teaches
both undergraduate and postgraduate students in end-
odontics at Columbia and that his ‘‘lectures to under-
graduate students involve general dentistry and the per-
formance of endodontic procedures, including root
canals, by general dentists; (2) ‘‘[t]he present case
involves an endodontic procedure performed by a gen-
eral dentist’’; (3) ‘‘the proper standards, procedures,
and care to be followed is the subject of my teaching
to undergraduate dental students and has been for more
than the last five years’’; and (4) ‘‘[t]he standard of care
with respect to the treatment provided by a general
dentist in the scenario presented in this case and an
endodontist is the same.’’
The plaintiff did not withdraw the allegation in his
complaint that, he maintained, alleged that Daar held
himself out to be a specialist. On the basis of the opinion
letter, alone or together with the supplemental affidavit,
the plaintiff argued that, even if Daar is a nonspecialist,
Solomon is a similar health care provider to Daar
because, pursuant to § 52-184c (b), Solomon’s teaching
involved instruction in endodontics as it pertains to the
practice of general dentistry, specifically relevant to
root canals, during the requisite five year period.
Following oral argument on the motion to dismiss
on July 30, 2018, the trial court issued a memorandum
of decision dated September 7, 2018. The court first
rejected the defendants’ argument, first set forth in the
defendants’ reply to the plaintiff’s objection to the
motion to dismiss, that the plaintiff could not cure any
deficiencies in the opinion letter attached to his com-
plaint with Solomon’s supplemental affidavit because
it was filed after the statute of limitations had expired.
The court, citing this court’s decision in Gonzales v.
Langdon, 161 Conn. App. 497, 510, 128 A.3d 562 (2015),8
noted that the defendants had argued that the plaintiff
could not evade the clear limits set forth in Gonzales
by submitting his opinion letter and Solomon’s supple-
mental affidavit after the limitation period had expired.
The court stated: ‘‘The defendant[s] [argue] that under
the holding of [Gonzales], the court cannot consider the
information contained in the [supplemental] affidavit
because it has been filed after the expiration of the two
year statute of limitations contained in . . . § 52-584.
Gonzales established that amendments to legally insuf-
ficient opinion letters are permitted only if they are
filed within the applicable statute of limitations. . . .
The action in Gonzales was brought within the two year
statute of limitations contained in § 52-584. . . . The
present case is distinguishable from Gonzales since it
was brought under the accidental failure of suit statute,
§ 52-592. Based upon Supreme Court precedent, this
court concludes that the accidental failure of suit stat-
ute effectively modifies and extends the time limitations
period imposed by § 52-584 by the period of time the
plaintiff is allowed to bring a second action under § 52-
592. . . . In this case, the statute of limitations con-
tained in § 52-584 does not bar the filing of the affidavit
by the author of an opinion letter. The original action
was dismissed on October 11, 2017. This action, and
the affidavit from the opinion author, have been filed
within the time allowed under § 52-592.’’9 (Citations
omitted.) The court did not find any facts or provide
any analysis as to why, under the circumstances of this
case, the plaintiff was entitled to the benefit of the
saving provisions of the accidental failure of suit stat-
ute, § 52-592.
The court next analyzed the sufficiency of the opinion
letter as amended by the filing of the supplemental
affidavit. It first concluded that the applicable definition
of a similar health care provider was the nonspecialist
definition in subsection (b) of § 52-184c, rather than
the specialist definition in subsection (c), as alleged by
the plaintiff in his complaint.10 The court found that,
‘‘[i]n the present case, in connection with his claim that
the defendant is a specialist, the plaintiff has not utilized
the specific language contained in § 52-184c (c) and has
not alleged that the defendant is ‘trained and experi-
enced in a medical specialty, or holds himself out as a
specialist’ in endodontics. The plaintiff only alleged that
the defendant ‘held himself out as a practitioner of
endodontics’ and ‘has completed hundreds of hours of
training in endodontics.’ ’’ (Emphasis in original). The
court, citing Labissoniere v. Gaylord Hospital, Inc.,
182 Conn. App. 445, 453, 185 A.3d 680 (2018), noted
that the plaintiff had not provided an affidavit disputing
the facts contained in the defendants’ affidavit in sup-
port of their motion to dismiss and, that under such
circumstances, the court ‘‘need not conclusively pre-
sume the validity of the allegations in the complaint.’’
The court concluded that Daar was not a specialist as
that term is defined in § 52-184c (c), and therefore any
opinion from a similar health care provider must come
from a general dentist.
The court next rejected the plaintiff’s alternative
argument that Solomon was qualified as a similar health
care provider under the nonspecialist definition in § 52-
184c (b), which requires a similar health care provider
to be ‘‘trained and experienced in the same discipline
or school of practice and such training and experience
shall be as a result of the active involvement in the
practice or teaching of medicine [general dentistry]
within the five-year period before the incident giving
rise to the claim.’’ The court found that ‘‘[t]here is a lack
of information to establish that [Solomon] has practiced
general dentistry within the requisite five year period.
Furthermore, there is a paucity of facts from which it
can be found he has been teaching general dentistry
during that period. From the information provided, the
court finds that [Solomon] is a specialist in endodontics
and he has training and experience as a result of the
active teaching of endodontics. He is not, however, a
similar health care provider to the defendant, who is a
general dentist. The fact that [Solomon] teaches end-
odontics to undergraduate dental students does not
equate to the teaching of general dentistry. If such were
the case, any teaching specialist at a dental school or
medical school would automatically be a similar health
care provider to any nonspecialist dentist or medical
doctor. Such an interpretation would vitiate the provi-
sions of § 52-184c which requires different qualifica-
tions for a specialist and a nonspecialist health care
provider.’’11 (Emphasis in original.)
As a result, the court granted the motion to dismiss
as to Daar. Because the alleged liability of Shoreline
was derivative of the cause of action brought against
Daar, the court also granted the motion as to that defen-
dant as well, and rendered judgment in favor of both
defendants. This appeal followed.
Before we turn to the claims raised by the plaintiff,
we set forth relevant statutory provisions and legal prin-
ciples pertaining to opinion letters in medical malprac-
tice actions. Section 52-190a provides in relevant part:
‘‘(a) No civil action . . . shall be filed to recover dam-
ages resulting from personal injury or wrongful death
. . . whether in tort or contract, in which it is alleged
that such injury or death resulted from the negligence
of a health care provider, unless the attorney or party
filing the action . . . has made a reasonable inquiry as
permitted by the circumstances to determine that there
are grounds for a good faith belief that there has been
negligence in the care or treatment of the claimant. The
complaint . . . shall contain a certificate of the attor-
ney or party filing the action . . . that such reasonable
inquiry gave rise to a good faith belief that grounds
exist for an action against each named defendant . . . .
To show the existence of such good faith, the claimant
or the claimant’s attorney . . . shall obtain a written
and signed opinion of a similar health care provider,
as defined in section 52-184c, which similar health care
provider shall be selected pursuant to the provisions
of said section, that there appears to be evidence of
medical negligence and includes a detailed basis for
the formation of such opinion. Such written opinion
shall not be subject to discovery by any party except
for questioning the validity of the certificate. The claim-
ant or the claimant’s attorney . . . shall retain the orig-
inal 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 certifi-
cate. . . .
‘‘(c) The failure to obtain and file the written opinion
required by subsection (a) of this section shall be
grounds for the dismissal of the action.’’
As this court has explained, ‘‘[t]he purpose of [§ 52-
190a (a)] is to discourage frivolous lawsuits against
health care providers. . . . One of the mechanisms
introduced in the amendments to the statute of 2005
was the written opinion requirement. The ultimate pur-
pose of this requirement is to demonstrate the existence
of the claimant’s good faith in bringing the complaint
by having a witness, qualified under . . . § 52-184c,
state in written form that there appears to be evidence
of a breach of the applicable standard of care. . . .
The person rendering this opinion is not required by
§ 52-190a (a) to be the expert witness on medical negli-
gence to be used at the time of trial by the plaintiff.’’
(Citation omitted.) Wilcox v. Schwartz, 119 Conn. App.
808, 816, 990 A.2d 366 (2010), aff’d, 303 Conn. 630, 37
A.3d 133 (2012). The statutory condition that an opinion
letter written by a similar health care provider be
appended to the complaint was ‘‘implemented to pre-
vent frivolous medical malpractice actions by requiring
a medical professional with expertise in the particular
medical field involved in the claim to offer his or her
professional opinion that the standard of care was
breached in a particular instance.’’ (Emphasis added.)
Wilkins v. Connecticut Childbirth & Women’s Center,
314 Conn. 709, 730, 104 A.3d 671 (2014).
Section 52-184c provides in relevant part: ‘‘(b) If the
defendant health care provider is not certified by the
appropriate American board as being a specialist, is not
trained and experienced in a medical specialty, or does
not hold himself out as a specialist, a ‘similar health care
provider’ is one who: (1) Is licensed by the appropriate
regulatory agency of this state or another state requiring
the same or greater qualifications, and (2) is trained
and experienced in the same discipline or school of
practice and such training and experience shall be as
a result of the active involvement in the practice or
teaching of medicine within the five-year period before
the incident giving rise to the claim.
‘‘(c) If the defendant health care provider is certified
by the appropriate American board as a specialist, is
trained and experienced in a medical specialty, or holds
himself out as a specialist, a ‘similar health care pro-
vider’ 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 diagno-
sis for that condition shall be considered a ‘similar
health care provider.’ ’’
Next, we set forth the standard of review applicable
to a judgment rendered following the granting of a
motion to dismiss. ‘‘[A] motion to dismiss . . . prop-
erly attacks the jurisdiction of the court, essentially
asserting that the plaintiff cannot as a matter of law
and fact state a cause of action that should be heard
by the court.’’ (Internal quotation marks omitted.) Sant-
orso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d
940 (2013). ‘‘A motion to dismiss admits all facts well
pleaded and invokes any record that accompanies the
motion, including supporting affidavits that contain
undisputed facts.’’ (Internal quotation marks omitted.)
Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d
1142 (2002). In a medical malpractice action, despite
the allegations in the plaintiff’s complaint, it is proper to
consider undisputed facts contained in affidavits when
deciding a motion to dismiss if the affidavits provide
independent evidence of the nature of a defendant’s
medical practice. See Labissoniere v. Gaylord Hospi-
tal, Inc., supra, 182 Conn. App. 453–54. ‘‘Where . . .
the motion [to dismiss] is accompanied by supporting
affidavits containing undisputed facts, the court may
look to their content for determination of the jurisdic-
tional issue and need not conclusively presume the
validity of the allegations of the complaint.’’ (Footnote
omitted; internal quotation marks omitted.) Ferreira v.
Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).
Generally, ‘‘[i]f affidavits and/or other evidence submit-
ted in support of a defendant’s motion to dismiss con-
clusively establish that jurisdiction is lacking, and the
plaintiff fails to undermine this conclusion with count-
eraffidavits . . . 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 counteraffi-
davits or other evidence to support the complaint, but
may rest on the jurisdictional allegations therein. . . .
‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts.’’ (Citations omitted; internal quotation
marks omitted.) Conboy v. State, 292 Conn. 642, 652,
974 A.2d 669 (2009). ‘‘When the facts relevant to an
issue are not in dispute, this court’s task is limited to
a determination of whether, on the basis of those facts,
the trial court’s conclusions of law are legally and logi-
cally correct.’’ (Internal quotation marks omitted.) Luc-
isano v. Bisson, 132 Conn. App. 459, 463–64, 34 A.3d
983 (2011). ‘‘As a general matter, the burden is placed
on the defendant to disprove personal jurisdiction.’’
Cogswell v. American Transit Ins. Co., 282 Conn. 505,
515, 923 A.2d 638 (2007).
As the foregoing cases reflect, generally, in ruling on
a motion to dismiss, it may be appropriate for a court
to consider more than the factual allegations of a com-
plaint, including undisputed facts submitted for the
court’s consideration by way of affidavits and counter-
affidavits. See, e.g., Cuozzo v. Orange, 315 Conn. 606,
615–16, 109 A.3d 903 (2015). Because, however, of the
distinctive nature of opinion letters, which are part of
process, it is imperative that they are not merely added
to the record, but that they are properly made part of
the pleadings, thus rectifying any defects in process.
Thus, opinion letters necessarily are treated differently
than affidavits and counteraffidavits submitted in sup-
port of and in opposition to a motion to dismiss in other
types of civil actions.
When evaluating whether the author of the written
opinion letter is a ‘‘similar health care provider,’’ the
court must examine the allegations of the complaint,
keeping in mind that ‘‘the actual board certification
of the defendant is not what matters; the appropriate
similar health care provider is defined by the allegations
of the complaint.’’ Gonzales v. Langdon, supra, 161
Conn. App. 506.
The interpretation of § 52-190a is a question of law
over which this court exercises plenary review. Dias
v. Grady, 292 Conn. 350, 354, 972 A.2d 715 (2009). ‘‘Fail-
ure to comply with the statutory requirements of service
renders a complaint subject to a motion to dismiss on
the ground of lack of personal jurisdiction. . . . Facts
showing the service of process in time, form, and man-
ner sufficient to satisfy the requirements of mandatory
statutes in that regard are essential to jurisdiction over
the person.’’ (Internal quotation marks omitted.) Mor-
gan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d
451 (2011).
I
We begin by addressing the defendants’ first claim,
which they label as an alternative ground for
affirmance. The defendants claim, for the first time on
appeal, that the court should not have considered the
supplemental affidavit prepared by Solomon because
it was obtained and submitted by the plaintiff after the
two-year statute of limitations in § 52-584 had expired,
and the court failed to state a factual basis to support
the applicability of the accidental failure of suit statute,
§ 52-592, which would have extended the statute of
limitations for an additional year from the date the
judgment of dismissal was entered in the first action.
See General Statutes § 52-592 (a). For the reasons that
follow, we decline to afford the defendants relief with
respect to this alternative ground for affirmance.
First, for the reasons that follow, if the court erred
in failing to state a factual basis to support the applica-
bility of § 52-592 before it addressed the sufficiency of
the opinion letter and the affidavit, this would not be
an alternative ground for affirmance but, rather, a
ground for reversal, a remedy that the defendants do
not seek, as they have filed no cross appeal. This court
does not find facts, and this matter would have to be
remanded for the court to hear evidence and make a
factual determination on whether the accidental failure
of suit statute may apply in this case. As a general rule,
‘‘[i]f an appellee wishes to change the judgment in any
way, the party must file a cross appeal.’’ (Internal quota-
tion marks omitted.) East Windsor v. East Windsor
Housing, Ltd., LLC, 150 Conn. App. 268, 270 n.1, 92 A.3d
955 (2014); id. (refusing appellee’s request ‘‘to direct
the trial court to remove costs of seven title searches
and seven filing fees from the fees awarded to the plain-
tiff’’ because of failure to file cross appeal); see also
River Dock & Pile, Inc. v. O & G Industries, Inc., 219
Conn. 787, 792 n.5, 595 A.2d 839 (1991) (declining to
reach alternative claims for relief raised by appellee
because appellee failed to file cross appeal); Farmers &
Mechanics Savings Bank v. First Federal Savings &
Loan Assn. of Meriden, 167 Conn. 294, 303 n.4, 355
A.2d 260 (1974) (declining to consider briefed issue
concerning validity of restrictive covenants because,
although appellees ‘‘raised this issue at the trial level,
the trial court did not find it necessary to rule thereon,’’
and appellee did not ‘‘file a cross appeal assigning error
in the court’s failure to treat this issue’’); East Windsor
v. East Windsor Housing, Ltd., LLC, supra, 270 n.1.
This rule is not, however, absolute, and the court may
consider such a claim otherwise improperly raised in
the appellee’s brief in the absence of prejudice to the
appellant. See Akin v. Norwalk, 163 Conn. 68, 70–71,
301 A.2d 258 (1972); Rizzo v. Price, 162 Conn. 504,
512–13, 294 A.2d 541 (1972); DiSesa v. Hickey, 160
Conn. 250, 262–63, 278 A.2d 785 (1971).
The following procedural history pertains to this
claim. During oral argument before the trial court, the
court inquired of counsel for the defendants how she
could claim the opinion letter and the supplemental
affidavit, dated May 30, 2018, had been submitted
beyond the statute of limitations. As previously noted,
the prior action was dismissed on October 11, 2017,
and, pursuant to the accidental failure of suit statute,
§ 52-592, the plaintiff would have been entitled to com-
mence the present action for up to one year following
the dismissal of the prior action. Counsel for the defen-
dants responded that the issue of whether this suit was
brought properly under the accidental failure of suit
statute was not an issue for a motion to dismiss, but
that it could be an issue for a summary judgment motion
‘‘someday down the line.’’ Counsel for the defendants
indicated that, for purposes of the motion to dismiss,
the court only had to consider § 52-190a (a) and whether
the information in the opinion letter attached to the
complaint was sufficient. The defendants argued that,
if it was not, the court needed to determine whether the
subsequently filed supplemental affidavit could even
be considered and, if it could, whether it sufficiently
amended the opinion letter.
We begin with the law pertaining to the applicability
of the accidental failure of suit statute to medical mal-
practice actions dismissed for failure to supply an
appropriate opinion letter from a similar health care
provider. The accidental failure of suit statute is a saving
statute that is intended to promote ‘‘the strong policy
favoring the adjudication of cases on their merits rather
than the disposal of them on the grounds enumerated
in § 52-592 (a).’’ Peabody N.E., Inc. v. Dept. of Transpor-
tation, 250 Conn. 105, 127, 735 A.2d 782 (1999). Never-
theless, that ‘‘policy is not without limits. If it were,
there would be no statutes of limitations. Even the
saving statute does not guarantee that all plaintiffs have
the opportunity to have their cases decided on the mer-
its. It merely allows them a limited opportunity to cor-
rect certain defects in their actions within a certain
period of time.’’ Id., 127–28.
In Plante v. Charlotte Hungerford Hospital, 300
Conn. 33, 12 A.3d 885 (2011), our Supreme Court held
that ‘‘when a medical malpractice action has been dis-
missed 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 mat-
ter of form provisions of § 52-592 (a) only if that failure
was caused by a simple mistake or omission, rather
than egregious conduct or gross negligence . . . .’’ Id.,
46–47. The issue of whether § 52-592 (a) applies cannot
be decided in a factual vacuum. ‘‘[T]o enable a plaintiff
to meet the burden of establishing the right to avail
himself or herself of the statute, a plaintiff must be
afforded an opportunity to make a factual showing that
the prior dismissal was a matter of form in the sense
that the plaintiff’s noncompliance with a court order
occurred in circumstances such as mistake, inadver-
tence or excusable neglect.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Id., 50.
 The plaintiff’s complaint does not allege any factual
basis as to why, pursuant to § 52-592 (a), the circum-
stances leading to the dismissal of his first malpractice
action constituted a matter of form and, therefore, war-
ranted application of the saving statute. Thus, there
was no basis on which the court, in hearing the motion
to dismiss, could have found facts that supported
applying § 52-592 on the basis of allegations in the com-
plaint. We note, as well, that there was no discussion
whatsoever in the record as to the reasons for the plain-
tiff’s production of a noncompliant opinion letter in the
first action.
The court, without providing either party the opportu-
nity to present evidence as to whether the plaintiff’s
noncompliance with § 52-190a (a) in his first action
was the result of a mistake, inadvertence, or excusable
neglect, concluded that the plaintiff could avail himself
of the accidental failure of suit statute’s saving provi-
sions. The question raised by the defendants for the
first time on appeal is whether the court should have
made such a ruling in the absence of any factual findings
to support it, because Plante requires that ‘‘a plaintiff
may bring a subsequent medical malpractice action pur-
suant to the matter of form provision of § 52-592 (a)
only when the trial court finds as a matter of fact that
the failure in the first action to provide an opinion letter
that satisfied § 52-190a (a) was the result of mistake,
inadvertence or excusable neglect, rather than egre-
gious conduct or gross negligence on the part of the
plaintiff or his attorney.’’ Plante v. Charlotte Hun-
gerford Hospital, supra, 300 Conn. 56; see also Santorso
v. Bristol Hospital, supra, 308 Conn. 358 (after plain-
tiff’s counsel declined court’s invitation to explain fail-
ure to comply with requirements of § 52-190a (a), no
record existed to establish that failure to file good faith
certificate and opinion letters in first action was result
of mistake, inadvertence, or excusable neglect and
therefore second action not saved by accidental failure
of suit statute).12 As a result, no allegations in the com-
plaint, evidentiary facts or argument being presented
to suggest otherwise, the court overlooked the directive
in Plante that requires it to find a factual basis for
allowing a plaintiff the benefit of the saving statute.13
This claim raises issues of fact, particularly with
respect to the reasons the plaintiff or counsel for the
plaintiff provided a deficient opinion letter in his first
action against the defendants that would have been
more properly considered by the trial judge in the first
instance, particularly since this same trial judge ordered
the dismissal of the plaintiff’s first action. See Gianetti
v. Norwalk Hospital, 266 Conn. 544, 560, 833 A.2d 891
(2003) (‘‘[o]rdinarily it is not the function of this court
or the Appellate Court to make factual findings, but
rather to decide whether the decision of the trial court
was clearly erroneous in light of the evidence . . . in
the whole record’’ (internal quotation marks omitted));
Rizzo v. Price, supra, 162 Conn. 513 (declining to review
appellee’s challenge, raised for first time in brief, to
trial court’s failure to make certain factual conclusions
as ‘‘clearly prejudicial to the appellant’’).
The defendants are not presently seeking to affirm
the trial court’s judgment, but are seeking to alter it to
an extent that would require reversal. We decline to
afford the defendants, who prevailed in the trial court
and have not filed a cross appeal, relief with respect
to this claim. Generally, a party who prevails in the
lower court is unable to file a cross appeal. See, e.g.,
Skakel v. Commissioner of Correction, 325 Conn. 426,
528 n.35, 159 A.3d 109 (2016); Sekor v. Board of Educa-
tion, 240 Conn. 119, 121 n.2, 689 A.2d 1112 (1997);
Greene v. Keating, 197 Conn. App. 447, 449 n.2, A.3d
(2020); Brown v. Villano, 49 Conn. App. 365, 372
n.6, 716 A.2d 111, cert. denied, 247 Conn. 904, 720 A.2d
513 (1998). We also believe such a course of action
would be prejudicial to the plaintiff who already has
repeatedly briefed and argued the merits of his claim
that the opinion letter, with or without the supplemental
affidavit, is compliant with § 52-190a (a), an issue he
would not have been able to address had the court
determined facts that would not have permitted him to
avail himself of the accidental failure of suit statute.
Not only did counsel for the defendants advise the court
not to reach this issue, the defendants never sought
reconsideration or articulation of the court’s ruling that
§ 52-592 applied. Were we to reverse and remand this
case for an evidentiary hearing on the applicability of
§ 52-592 pursuant to Plante, the parties might find them-
selves in the same position in which they both stand
before us now should the court, on remand, make the
not unlikely factual determination that the plaintiff
could avail himself of the accidental failure of suit stat-
ute. Even with the extended time provided by the saving
statute, the time limitation already has expired as of
October 11, 2018, and, pursuant to the ruling in Gonza-
les, the plaintiff could not amend or supplement his
opinion letter further during any reconsideration of the
defendants’ motion to dismiss on remand. Conse-
quently, on remand, the trial court possibly would be
faced with the same issue we have decided to address
in this appeal—whether the plaintiff complied with the
requirements of § 52-190a (a) based on the existing doc-
umentation the trial court reviewed during the hearing
on the motion to dismiss on July 30, 2018. Thus, it is
appropriate for us to turn our focus, instead, to the
opinion letter and supplemental affidavit that are the
primary subjects of this appeal.
II
We next address the defendants’ first and third alter-
native grounds for affirmance because they are interre-
lated and, considered together, they are dispositive of
this appeal.14 We agree with the defendants’ first alterna-
tive ground for affirmance that the plaintiff, in lieu of
amending his complaint, cannot cure a § 52-190a (a)
defect in the opinion letter attached to the complaint
with information contained in a subsequently filed sup-
plemental affidavit of the opinion author where the
plaintiff continues to maintain that his complaint prop-
erly 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 non-
specialist definition set forth in § 52-184c (b). We con-
clude that such a material turnabout in what the plaintiff
maintains his opinion letter purports to demonstrate as
to the professional similarities between the defendant
and the author of an opinion letter should be accom-
plished only by the filing of an amendment to the com-
plaint. In other words, in order to potentially rely on
the supplemental affidavit to avoid dismissal, the plain-
tiff first had to amend his complaint to allege that Daar
was either a nonspecialist engaged in the practice of
general dentistry or, alternatively, that he was holding
himself out to be a specialist.
Furthermore, in addressing the defendants’ third
alternative ground for affirmance that the opinion letter
attached to the complaint did not contain sufficient
information to demonstrate that Solomon is a similar
health care provider to Daar under the specialist defini-
tion of a similar health care provider in § 52-184c (c),
we necessarily address and disagree with the plaintiff’s
claim that the court erred in determining that the author
of the opinion letter was not a similar health care pro-
vider as defined in § 52-184c (c).15 First, we disagree
with the plaintiff’s claim that the specialist definition
in subsection § 52-184c (c) should apply in this case.
Second, because we conclude it was error to consider
the supplemental affidavit, we agree with the defen-
dants that the opinion letter attached to the complaint
was insufficient to establish that Solomon is a similar
health care provider to Daar pursuant to § 52-184c (b).16
‘‘The interpretation of § 52-190a is a question of law
over which this court exercises plenary review. . . .
Moreover, review of the trial court’s ultimate legal con-
clusion and resulting [decision to] grant [a] motion to
dismiss will be de novo.’’’’ (Citation omitted; internal
quotation marks omitted.) Morgan v. Hartford Hospi-
tal, supra, 301 Conn. 395. Our Supreme Court has ‘‘hewn
very closely’’ to the legislature’s specific articulation of
a similar health care provider under subsections (b)
and (c) of § 52-184c, expressly declining to expand or
modify it in any way. See Bennett v. New Milford Hospi-
tal, Inc., 300 Conn. 1, 15–16, 12 A.3d 865 (2011). As we
observed previously, ‘‘[w]hen the facts relevant to an
issue are not in dispute, this court’s task is limited to
a determination of whether, on the basis of those facts,
the trial court’s conclusions of law are legally and logi-
cally correct.’’ (Internal quotation marks omitted.) Luc-
isano v. Bisson, supra, 132 Conn. App. 463–64.
We begin by determining whether the court properly
found that Daar, at the time of the alleged negligent
root canal procedure, was a nonspecialist practicing
general dentistry rather than a specialist in endodontics
because, as the plaintiff purports to have alleged, Daar
was holding himself out as a specialist. This is necessary
because such a determination makes either subsection
(b) or subsection (c) of § 52-184c applicable to the type
of health care provider who properly should have
authored the opinion letter.
It is not disputed that Daar is not certified by the
appropriate American board as a specialist, and he is
not trained and experienced in a medical specialty.17
The plaintiff’s complaint failed to allege that Daar was
‘‘trained and experienced in a medical specialty, or
holds himself out as a specialist’’ in endodontics, the
specific language set forth in § 52-184c (b) for determin-
ing whether or not a defendant provider should be con-
sidered a specialist. The plaintiff only alleged that the
defendant ‘‘held himself out as a practitioner of end-
odontics’’ and ‘‘has completed hundreds of hours of
training in endodontics.’’ The plaintiff also did not allege
that in performing the root canal, Daar provided treat-
ment for a condition not within his specialty, in which
case, pursuant to an exception contained in § 52-184c
(c), a specialist trained in the treatment or diagnosis
for that condition shall be considered a similar health
care provider. Indeed, both the plaintiff and the defen-
dants acknowledge that dentists practicing general den-
tistry do perform root canals and other procedures also
performed by specialists in dentistry, despite their lack
of board certification in any specialty.
As the court found, the affidavit of Daar submitted
in connection with the defendants’ motion to dismiss
supported the conclusion that he is a general dentist
and that the root canal treatment he performed on the
plaintiff was performed in his capacity as a general
dentist. The ‘‘hundreds of hours’’ training alleged to be
stated on Daar’s website by the plaintiff, in the state-
ment in which it is contained, did not modify only the
word, ‘‘[e]ndodontics,’’ it also modified ‘‘[o]rthodontics,
[p]eriodontics, [d]ental [i]mplants, [s]leep [a]pnea,’’ and
more. It thus could not be read as any indication that
Daar had hundreds of hours of training in endodontics
and it cannot be specifically determined from this pro-
motional website the exact amount of hours of training
he may have had in endodontics. The allegation that
there is a statement on the website that Daar completed
hundreds of hours of training in endodontics, does not
support a finding that Daar held himself out as an end-
odontic specialist. The website actually states that Daar
‘‘has completed hundreds of hours of training’’ in many
subjects. There is a distinction between a general den-
tist’s training and experience, including continuing edu-
cation and a postdoctoral specialty resident program
required to become a specialist in a recognized dental
specialty. General Statutes § 20-106a prohibits any
licensed or registered dentist from designating that his
practice is limited to a specialty recognized by the Amer-
ican Dental Association unless the dentist has com-
pleted 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 Con-
necticut since 1982, is not synonymous with being a
specialist. Dentists in Connecticut are prohibited from
renewing their practice licenses unless they take a req-
uisite number of continuing education credits. See Gen-
eral Statutes § 20-126c (b) (requiring all licensed den-
tists to have minimum of twenty-four contact hours of
continuing education within twenty-four months pre-
ceding their application for renewal). The plaintiff’s
theory that hours of continuing education contributes
to holding oneself out as a specialist would result in
treating all physicians and dentists, regardless of
whether they are trained and experienced in a specialty,
as health providers holding themselves out as special-
ists merely because they have completed required con-
tinuing education. ‘‘This construction would run afoul
of the basic tenet of statutory construction that the
legislature [does] not intend to enact meaningless provi-
sions.’’ (Internal quotation marks omitted.) Bennett v.
New Milford Hospital, supra, 300 Conn. 23. We con-
clude that the defendants’ informative and promotional
website references did not equate to Daar’s holding
himself out as a specialist in endodontics.18
Moreover, the plaintiff took no steps to counter the
contents of Daar’s affidavit, which indicated that he has
been engaged in the practice of general dentistry since
1982 and refuted the plaintiff’s mischaracterization of
the content of his website.
As we recently explained in Labissoniere v. Gaylord
Hospital, Inc., supra, 182 Conn. App. 445, Practice Book
§ 10-3 (c) allows either party to submit affidavits and/
or other evidence in support of a motion to dismiss.
‘‘If affidavits and/or other evidence submitted in support
of a defendant’s motion to dismiss conclusively estab-
lish that jurisdiction is lacking, and the plaintiff fails to
undermine this conclusion with counteraffidavits . . .
or other evidence, the trial court may dismiss the action
without further proceedings.’’ (Internal quotation
marks omitted.) Id., 453.
The court was not bound to presume the validity of
only the facts alleged in the complaint. Furthermore,
it noted that the complaint itself failed to sufficiently
allege Daar was holding himself out as a specialist.
The indeterminate complaint, as well as the undisputed
facts alleged in Daar’s affidavit, justified the court’s
conclusion that Daar was neither a specialist, nor hold-
ing himself out to be one, and thus, pursuant to § 52-
184c (b), any opinion from a similar health care provider
must come from ‘‘someone who (1) is licensed by the
appropriate regulatory agency of this state or another
state requiring the same or greater qualifications; and
(2) is trained and experienced in the same discipline
or school of practice and such training and experience
shall be as a result of the active involvement in the
practice or teaching of medicine within the five-year
period before the incident giving rise to the claim.’’19
Next, we must determine whether the opinion letter,
consisting of the two letters from Solomon attached to
the plaintiff’s complaint as an exhibit in the present
action, sufficiently established that Solomon qualified
as a similar health care provider pursuant to §§ 52-190a
(a) and 52-184c (b). The first letter is the same one that
was attached to the plaintiff’s complaint as the opinion
letter in his first action, which the court dismissed
because that letter, in and of itself, did not reflect Solo-
mon’s qualifications. The supplemental correspon-
dence attached to the complaint, first produced in the
present action, describes its author, Solomon, as a grad-
uate of Columbia, licensed to practice dentistry in New
York, with credentials that would satisfy the require-
ments of any other state. It further indicates that Solo-
mon ‘‘received specialty [b]oards in [e]ndodontics in
1970 and practiced [e]ndodontics in New York City for
over [forty] years [and that in] [t]he last [eight] years,
[Solomon] [had] been a full-time clinical professor of
[e]ndodontics at Columbia . . . teaching clinical and
didactic [e]ndodontics.’’
The defendants claim that the two part opinion letter
was insufficient because it unequivocally does not dem-
onstrate that the author is a similar health care provider
to Daar, a general dentist. The nonspecialist definition,
set forth in § 52-184c (b), requires not only that the
similar health care provider have the appropriate licen-
sure but, also, that such provider have training and
experience in the ‘‘same discipline or school of prac-
tice’’ and such training and experience must ‘‘be as a
result of the active involvement in the practice or teach-
ing of [general dentistry] within the five-year period
before the incident giving rise to the claim.’’ Although
the second letter attached to the complaint indicates
that the author taught endodontics for the past eight
years, there plainly is no information in the opinion
letter demonstrating that the author had any active
involvement in the practice or teaching of general den-
tistry during the requisite five year period. Nowhere
does the plaintiff argue that the opinion letter attached
to his complaint, which makes no mention of the fact
that Solomon had been teaching endodontics to stu-
dents of general dentistry, is sufficient to qualify its
author as a similar health care provider to Daar pursu-
ant to § 52-184c (b). It is indisputable, therefore, that
unless the supplemental affidavit of Solomon attached
to his objection to the motion to dismiss may be consid-
ered, the plaintiff’s cause of action definitely fails for
want of personal jurisdiction because the opinion letter
alone is not compliant with § 52-190a.
The defendants argue that the plaintiff failed to prop-
erly amend his complaint to attach an amended or new
opinion letter making the allegations in the supplemen-
tal affidavit part of the pleading process and thus failed
to confer personal jurisdiction over the defendants
under § 52-190a. In his reply brief, the plaintiff argues
that the defendants did not preserve in the trial court
the issue of whether he had to amend his complaint
rather than simply file the supplemental affidavit, nor
did they claim this as a proposed alternative ground
for affirmance in their preliminary statement of issues
dated October 15, 2019, and this court should refuse to
consider the issue because the plaintiff was prejudiced
in having been given only twenty days from the filing
of the defendants’ brief to consider the issue.20 We note,
however, that the defendants raised this claim to the
trial court during oral argument on the motion to dis-
miss, although they did not address it in either their
memorandum of law in support of their motion to dis-
miss or in their reply to the plaintiff’s objection to the
motion to dismiss. At oral argument on the motion
to dismiss, counsel for the defendants stated: ‘‘This
affidavit from [Solomon], it can’t be considered by the
court in the second action. If it had been attached to
the complaint in the second action, then that would—
I wouldn’t be taking that position.’’ As a result of the
defendants’ lack of emphasis on this point, the court did
not address the precise issue. In the plaintiff’s appellate
brief, however, he anticipates this argument and cites
to Peters v. United Community & Family Services,
Inc., 182 Conn. App 688, 181 A.3d 195 (2018), as author-
ity for his ability to submit an affidavit with his objection
to the motion to dismiss, in lieu of amending the com-
plaint, to cure a deficient opinion letter. The plaintiff
also was able to respond to the defendants’ claim in
his reply brief. If he felt he needed additional time to
do so adequately, he could have sought an extension
of time in which to file the reply brief, but he did not
do so. In the exercise of our plenary review of this
issue, which is one of law, and the fact that it was raised
in the trial court and on appeal, and that both parties
had sufficient opportunity to brief it, we will address
it. See Connecticut Ins. Guaranty Assn. v. Fontaine,
278 Conn. 779, 784 n.4, 900 A.2d 18 (2006) (when alterna-
tive ground for affirmance was raised in trial court,
failure to comply with Practice Book § 63-4 (a) (1) did
not render claim unreviewable when all parties briefed
claim); Skuzinski v. Bouchard Fuels, Inc., 240 Conn.
694, 702–703, 694 A.2d 788 (1997) (reviewing alternative
grounds for affirmance that were raised in trial court
even though trial court failed to rule on claims); Chot-
kowski v. State, 240 Conn. 246, 256 and n.17, 690 A.2d
368 (1997) (reviewing alternative grounds for
affirmance that were not included in preliminary state-
ment of issues when claims were raised in trial court).
Both the plaintiff and the defendants correctly assert
that no appellate court has yet decided whether a defec-
tive opinion letter may be cured with an affidavit if
submitted with a plaintiff’s objection to a motion to
dismiss within the statute of limitations period. In Peters
v. United Community & Family Services, Inc., supra,
182 Conn. App. 703, this court held that a plaintiff can-
not evade the clear limits set forth in Gonzales v. Lang-
don, supra, 161 Conn. App. 519, by, in lieu of seeking
to amend the complaint, submitting a clarifying or
explanatory affidavit from the author of the opinion
letter after the limitation period has expired. We
declined, however, to decide whether the use of a
timely filed affidavit from the author of the opinion
letter, submitted in lieu of amending the complaint, was
procedurally appropriate. See Peters v. United Commu-
nity & Family Services, Inc., supra, 704.
In Peters, however, this court did reference two
Supreme Court opinions, Bennett v. New Milford Hos-
pital, Inc., supra, 300 Conn. 1, and Morgan v. Hartford
Hospital, supra, 301 Conn. 388, that unequivocally state
that an opinion letter is part of civil process. In Morgan,
the court construed the term ‘‘process’’ to include both
the summons, the complaint and any requisite attach-
ments thereto and recognized that ‘‘the written opinion
letter, prepared in accordance with the dictates of § 52-
190a, like the good faith certificate, is akin to a pleading
that must be attached to the complaint in order to
commence properly the action.’’ (Emphasis added.)
Morgan v. Hartford Hospital, supra, 398. In Bennett,
in which our Supreme Court decided that a motion to
dismiss was the proper vehicle to attack a deficient
opinion letter; Bennett v. New Milford Hospital, Inc.,
supra, 29; the court declined to ‘‘permit the free amend-
ment of challenged opinion letters to ensure their com-
pliance with the statute.’’21 Id., 24. The court also
rejected an argument in the amicus brief of the Connect-
icut Trial Lawyers Association that the appropriate pro-
cedural vehicle for challenging an opinion letter that is
not compliant with § 52-190a is the motion to strike, as
that would provide the plaintiff with an opportunity to
plead over and correct the deficiency as a matter of
right, whereas the allowance of an amendment to the
complaint lies in the discretion of the court. Id., 24–25.
Rather, the court agreed with the defendant’s position
that when he filed a motion to dismiss, the plaintiff
could have sought either to amend the complaint to
include an appropriate opinion letter, or, because the
statute of limitations had not yet run at the time of
dismissal, to refile the action after dismissal with an
appropriate opinion letter. Id., 25.22
 Consequently, our Supreme Court has held that fail-
ure to comply with the statutory requirements of ser-
vice, including attaching a proper opinion letter, renders
a complaint in a medical malpractice action subject to
a motion to dismiss on the ground of lack of personal
jurisdiction. See Morgan v. Hartford Hospital, supra,
301 Conn. 401. A challenge to the sufficiency of the
opinion letter, which is required to be attached to the
complaint, is a challenge to in personam jurisdiction,
which a defendant can waive if a motion to dismiss is
not filed within thirty days of the filing of an appearance.
See Practice Book § 10-30; Pitchell v. Hartford, 247
Conn. 422, 433, 722 A.2d 797 (1999) (‘‘[t]he rule specifi-
cally and unambiguously provides that any claim of
lack of jurisdiction over the person as a result of an
insufficiency of service of process is waived unless it
is raised by a motion to dismiss filed within thirty days
in the sequence required by Practice Book § 10-6’’
(emphasis in original)). It would not seem fair to deprive
a defendant of the right to raise a claim of lack of
personal jurisdiction based on a noncompliant opinion
letter beyond thirty days from the date of filing his or
her appearance, but afford a plaintiff an unlimited time
period to cure a defective opinion letter by the mere
filing of an affidavit, which in most circumstances
would not require the prior permission of the court.
Thus, our decisional law reflects that an opinion letter
is in the nature of a pleading that must be attached to
the complaint. If an opinion letter is noncompliant with
the statutory prerequisites set forth in §§ 52-190a and
52-184c, the plaintiff is faced with a problem of defective
process because ‘‘the attachment of a written opinion
letter that does not comply with § 52-190a, constitutes
insufficient process and, thus, service of that insuffi-
cient process does not subject the defendant to the
jurisdiction of the court. . . . [U]nless service of pro-
cess is made as the statute prescribes, the court to
which it is returnable does not acquire . . . jurisdic-
tion over the person . . . .’’ (Citation omitted; internal
quotation marks omitted.) Morgan v. Hartford Hospi-
tal, supra, 301 Conn. 401–402.
Although Practice Book § 10-30, which governs
motions to dismiss, provides for the submission of affi-
davits by either party in some circumstances, correcting
deficiencies in process that lead to a lack of personal
jurisdiction requires more than the filing of an affidavit.
In Gonzales v. Langdon, supra, 161 Conn. App. 514,
this court stated, ‘‘[p]resumably, because Morgan holds
that a legally sufficient opinion letter is part of process,
General Statutes § 52-72 (a) for amending process
applies . . . .’’ Section 52-72 (a) provides: ‘‘Upon pay-
ment of taxable costs, any court shall allow a proper
amendment to civil process which is for any reason
defective.’’ Section 52-72 (b) provides: ‘‘Such amended
process shall be served in the same manner as other
civil process and shall have the same effect, from the
date of the service, as if originally proper in form.’’ The
statute provides for ‘‘amendment of otherwise incurable
defects that go to the court’s jurisdiction.’’ Hartford
National Bank & Trust Co. v. Tucker, 178 Conn. 472,
478, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100
S. Ct. 1079, 63 L. Ed. 2d 319 (1980). The statute has
been interpreted to allow for the granting of motions
to amend defective process rather than requiring reser-
vice of civil process. For example, in Concept Associ-
ates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642
A.2d 1186 (1994), our Supreme Court reversed the trial
court for failing to grant the plaintiff’s motion to amend
to correct a defective return date. Id., 619–20. In dis-
cussing § 52-72, the court noted that ‘‘the legislature
has the power to authorize, by statute, the amendment
of defects in process that would otherwise deprive the
court of jurisdiction.’’ Id., 622.23 Likewise, in Gonzales
v. Langdon, supra, 161 Conn. App. 510, this court sanc-
tioned the use of rules of practice for amending com-
plaints, Practice Book §§ 10-59 and 10-60, to cure a
defective opinion letter pursuant to § 52-72.24 Id.,
517–18.
The plaintiff argues that this court’s decision in
Peters, decided subsequent to Gonzales, established
that a plaintiff may use an explanatory affidavit to sup-
plement an opinion letter if the affidavit is filed within
the statute of limitations. After noting that ‘‘[n]o appel-
late court to date has sanctioned the use of an affidavit
to cure a defective opinion letter,’’ however, the court
in Peters expressly stated that in light of what was
necessary to its analysis in that appeal, it was leaving
that issue ‘‘for another day.’’ Peters v. United Commu-
nity & Family Services, Inc., supra, 182 Conn. App.
704. Furthermore, the court cautioned in a footnote
that, because it was not deciding whether a trial court
has the authority to permit alternative procedures such
as a clarifying affidavit to remedy a defective opinion
letter, ‘‘it would seem prudent for a plaintiff to follow
the corrective measures approved in Gonzales . . . .’’
Id., 704 n.10. Thus, Peters is not inconsistent with our
present analysis.
We agree with the defendants that the plaintiff’s posi-
tion that a subsequently filed affidavit should be permit-
ted to cure a defective opinion letter would circumvent
the amendment procedures set forth in Practice Book
§§ 10-59 and 10-60. An affidavit obtained from the
author of the opinion letter after commencement of the
action necessarily would not comply with the procedure
for an amendment as of right in Practice Book § 10-59,
because an affidavit obtained after the commencement
of the action could not have been ‘‘originally inserted
therein. . . .’’ Practice Book § 10-59. In addition, a trial
court’s determination whether to allow an amendment
under Practice Book § 10-60 is discretionary and
depends upon such factors as unreasonable delay, fair-
ness to the opposing party, and negligence of the party
offering the amendment. See Gonzales v. Langdon,
supra, 161 Conn. App. 510. The filing of an affidavit,
accomplished in an essentially unrestricted manner,
avoids the limitations a court must consider before it
allows the filing of an amendment to a complaint.
In enacting § 52-72, the legislature authorized amend-
ments to cure defects in process. ‘‘[I]n the absence of
ambiguity, courts cannot read into statutes, by con-
struction, provisions which are not clearly stated.’’
(Internal quotation marks omitted.) Concept Associ-
ates, Ltd. v. Board of Tax Review, supra, 229 Conn.
622. In enacting § 52-190a, the legislature also expressly
provided in subsection (c) that the failure to obtain and
file the written opinion required under subsection (a),
which must be attached to the attorney’s good faith
certificate, which, in turn, must be part of the complaint,
shall be grounds for dismissal of the action. The legisla-
ture did not include any savings clause relative to defec-
tive opinion letters, which suggests that the statutory
requirements must be more strictly construed. See, e.g.,
Pratt v. Old Saybrook, 225 Conn. 177, 183, 621 A.2d
1322 (1993) (notice requirement in statute providing for
actions against state for highway defects, unlike statute
providing for similar actions against municipalities,
contains no savings clause and may not be as liberally
construed). However much as courts generally strive
to preserve parties’ access to courts by construing reme-
dial legislation liberally, we nonetheless are bound by
the principle that it remains the province of the legisla-
ture, and not the courts, to determine what remedies
other than those already provided by statute could be
used to cure an opinion letter that does not comply
with § 52-190a (a).
The plaintiff’s supplemental affidavit deviated from
the intended allegations in his complaint to establish
that Solomon was a similar health care provider to Daar.
In his complaint, the plaintiff was attempting to allege
that Daar held himself out as a specialist, not that Daar
was a general dentist and a nonspecialist, and the opin-
ion letter was designed to establish that Solomon was
a specialist in the specialty in which Daar purportedly
held himself to be engaged—endodontics. In the face
of the defendants’ motion to dismiss, the supplemental
affidavit was an attempt, in the alternative, to qualify
Solomon as someone teaching in the nonspecialty field
of general dentistry, the type of practitioner Daar
claimed to be in his affidavit. Through Daar’s factual
affidavit, the defendants chose to attack the substance
of the opinion letter as noncompliant with § 52-190a
(a) in that it failed to establish Solomon as a similar
health care provider under §§ 52-184c (b) or (c). The
court’s fair reading of the complaint, however, led to
its conclusion that the complaint did not allege that
Daar was holding himself out to be a specialist but,
rather, that Daar was engaged in the practice of general
dentistry, which includes performing root canal treat-
ment. Accordingly, the opinion letter, in the absence
of the supplemental affidavit, had to establish that Solo-
mon was engaged in the practice of general dentistry
or in the teaching of general dentistry for the five years
preceding the date the alleged malpractice took place.
It did not.
Accordingly, due to a defective opinion letter, there
was a defect in process. As the plaintiff never sought
to amend the allegations in his complaint, including the
opinion letter, from one supporting his initially intended
claim that Daar was holding himself out to be a special-
ist pursuant to § 52-184c (c) to one supporting a claim
that Daar was engaged in the practice of general den-
tistry, the additional, alternative credentialing informa-
tion in the supplemental affidavit could not be used to
correct the deficient opinion letter that was attached
to, and part of, his complaint.25
We conclude that the court’s dismissal of the com-
plaint should be affirmed on the alternative ground that
the court should not have considered the supplemental
affidavit. The opinion letter failed to comply with § 52-
190a (a) because it did not establish that Solomon was
a similar health care provider to Daar pursuant to § 52-
184c (b) or (c).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the opinion letter attached to the complaint in the present
action had the name of the author redacted, which is authorized pursuant
to § 52-190a (a), in their briefs, both the plaintiff and the defendants acknowl-
edge that Solomon was the author.
2
This court may take judicial notice of court files in other cases. See
Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003).
3
The opinion letter and the supplemental correspondence that were
attached to the complaint in the present action, hereafter shall be referred
to as the ‘‘opinion letter.’’
4
General Statutes § 52-184c (b) provides in relevant part that where the
defendant health care provider is not a specialist or holding himself as a
specialist, a ‘‘similar health care provider’’ may be ‘‘trained and experienced
in the same discipline or school of practice’’ as the defendant, and actively
practicing in the same discipline or school of practice or engaged in the
‘‘teaching of medicine within the five-year period before the incident giving
rise to the claim.’’ The alleged negligent root canal procedure was performed
on June 16, 2015. Hence, if Solomon’s teaching qualifies him as a health
care provider similar to the defendant, he had to have been teaching general
dentistry at least from June 16, 2010 through June 16, 2015.
5
Although the plaintiff’s objection to the motion to dismiss indicated
that Solomon’s curriculum vitae had been attached to the complaint, the
complaint did not contain anyone’s curriculum vitae. In fact, no curriculum
vitae appears anywhere in the record.
6
Practice Book § 10-60 provides in relevant part: ‘‘[A] party may amend
his or her pleading . . . at any time subsequent [to the first thirty days
after the return date if a complaint is being amended; see Practice Book
§10-59] . . . (3) By filing a request for leave to file an amendment together
with: (A) the amended pleading . . . and (B) an additional document show-
ing the portion or portions of the original pleading . . . with the added
language underlined and the deleted language stricken through or bracketed.
. . . If no party files an objection to the request within fifteen days from
the date it is filed, the amendment shall be deemed to have been filed by
consent of the adverse party. If an opposing party shall have objection . . .
such objection in writing . . . shall . . . be filed with the clerk within the
time specified above and placed upon the next short calendar list.’’
Before the plaintiff’s first action was dismissed, he had filed a request
for leave to amend his complaint, which the court denied because the request
had not been filed within the two year statute of limitations applicable to
that action, General Statutes § 52-584.
7
‘‘It is well established, within the medical profession, that a ‘diplomate’
is a person who has received a diploma and has been certified by a board
within the appropriate profession. See Webster’s Third New International
Dictionary (2002) p. 638 (defining diplomate as ‘[o]ne who holds a diploma;
esp; a physician certified as qualified generally or as a specialist by an agency
recognized as professionally competent to grant such certification’. . .)
. . . .’’ (Emphasis in original.) Lohnes v. Hospital of Saint Raphael, 132
Conn. App. 68, 77, 31 A.3d 810 (2011), cert, denied, 303 Conn. 921, 34 A.3d
397 (2012).
8
Gonzales v. Landgon, supra, 161 Conn. App. 497, was a case of first
impression in which this court held that a plaintiff could cure a defective
opinion letter by filing a request for leave to amend the complaint, pursuant
to Practice Book § 10-60, if the request was filed within the applicable
statute of limitations period. Id., 519.
9
As noted previously, the supplemental affidavit was filed with the plain-
tiff’s objection to the motion to dismiss on June 5, 2018.
10
The plaintiff’s complaint alleged that Daar ‘‘[a]t all times’’ presented
himself as ‘‘duly qualified to render proper and adequate dental services to
the public . . . specifically, with a specialty in dental treatment.’’ He further
alleged that, ‘‘[a]t all times herein, [Daar] held himself out as a practitioner
of endodontics . . . .’’ In terms of whether a similar health care provider
must be a specialist or nonspecialist, we are to be guided by the allegations
of the plaintiff’s complaint. See Bennett v. New Milford Hospital, Inc., 300
Conn. 1, 23–24, 12 A.3d 865 (2011).
11
The court noted that the plaintiff in Samsonenko v. Manchester Family
Dental, LLC, Superior Court, judicial district of Hartford, Docket No. CV-
XX-XXXXXXX-S (January 30, 2018) (65 Conn. L. Rptr. 863, 863–64), alleged that
Daar was medically negligent in administering orthodontic treatment to him.
The plaintiff provided the opinion of a general dentist who was also a
specialist in the field of orthodontics. Daar filed a motion to dismiss on the
grounds that the opinion letter was not from a similar health care provider.
The court granted Daar’s motion to dismiss after finding that Daar was a
general dentist and the orthodontic specialist who authored the opinion
was not a similar health care provider.
12
In light of the holding in Plante, any court considering a motion to
dismiss for noncompliance with § 52-190a in a medical malpractice action
that has been filed pursuant to the accidental failure of suit statute should
first determine whether the plaintiff is entitled to the benefit of the sav-
ing statute.
13
Although the record is silent with respect to the court’s rationale, we
nonetheless observe that, perhaps the court, after being advised by counsel
for the defendants that it did not need to decide this issue, may have
determined that it could assume, arguendo, that the extension of the time
limitation the saving statute provided could be applied, and considered the
opinion letter and the supplemental affidavit to be timely filed so that it
could reach the defendants’ main contention—their combined insufficiency
under §§ 52-190a (a) and 52-184c. In the alternative, since the court, Domnar-
ski, J., hearing the motion to dismiss in the present action also had dismissed
the first action, it may have impliedly decided that there was a mistake,
inadvertence, or excusable neglect that had led to the dismissal of the
first action.
14
‘‘[I]t is axiomatic that [we] may affirm a proper result of the trial court
for a different reason.’’ (Internal quotation marks omitted.) Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 63 n.6, 6 A.3d 213 (2010), cert.
denied, 299 Conn. 926, 11 A.3d 150 (2011).
15
A claim may be so inextricably linked to another that deciding one
necessarily requires a resolution of both. Johnson v. Commissioner of Cor-
rection, 330 Conn. 520, 540–42, 198 A.3d 52 (2019).
16
We need not address whether the opinion letter, if properly supple-
mented by the affidavit, was compliant with § 52-190a (a), although the trial
court held it was not.
17
Connecticut law does not permit a person to obtain some training and
education and hold oneself out as practicing in a limited dental specialty.
General Statutes § 20-106a, which is part of the Connecticut Dental Practice
Act, provides in relevant part: ‘‘No licensed and registered dentist shall
designate in any manner that he has limited his practice to one of the
specialty areas of dentistry expressly approved by the American Dental
Association unless such dentist has completed two years of advance or
postgraduate education in the area of such specialty and has notified the
Dental Commission of such limitation of practice. . . .’’
18
Lohnes v. Hospital of Saint Raphael, 132 Conn. App. 68, 31 A.3d 810
(2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012), is informative on
this point. The plaintiff in Lohnes brought a medical malpractice action
against an emergency medical physician and the hospital at which he
received treatment for pulmonary symptoms. Id., 71. In bringing the action,
the plaintiff submitted an opinion letter from a pulmonologist. Id., 72. The
defendants moved to dismiss the action on the ground that the treating
physician was board certified in emergency medicine and the author of the
opinion letter was not a similar health care provider within the meaning of
§§ 52-190a and 52-184c. This court upheld the judgment dismissing the action
and rejected the argument advanced by the plaintiff on appeal that, at the
time he treated the plaintiff, the treating physician had been practicing
outside of his specialty of emergency medicine. Id., 79. This court noted:
‘‘[I]n light of the fact that emergency medicine physicians are charged with
rendering care to and treating patients with a potentially limitless variety
of symptoms or injuries, the plaintiff’s argument, namely that the defendant
was acting outside his area of specialty, potentially could yield a situation
where no condition or illness would be considered within the scope of
emergency medicine. Accordingly, there is no basis for the claim that, in
treating the plaintiff for his symptoms in the emergency department of the
hospital, [the defendant] was acting outside his specialty of emergency
medicine.’’ Id., 79.
In the present case, it is undisputed that dentists engaged in the practice
of general dentistry similarly treat patients for a variety of conditions that
are also treated by dentists who are board certified in a dental specialty.
There should be no basis, then, for the claim that in treating the plaintiff
with a root canal procedure, a procedure commonly accepted as part of
the practice of general dentistry, the defendant was holding himself out to
be a specialist.
19
We conclude, as did the trial court, that, despite the plaintiff’s contention
that he properly alleged that Daar was holding himself out to be a specialist,
a plain reading of the allegations in his complaint failed to properly invoke
reliance upon the definition of a similar health care provider under the
specialist definition in § 52-184c (c) but, rather, leaves one with the distinct
impression that Daar was engaged only in the practice of general dentistry,
a nonspecialty as defined in § 52-184c (b).
20
Practice Book § 67-3 provides in relevant part: ‘‘The appellant may within
twenty days after the filing of the appellee’s brief file a reply brief which
shall not exceed fifteen pages. . . .’’
21
As noted in Peters v. United Community & Family Services, Inc., supra,
182 Conn. App. 703–704, certain Superior Court decisions have permitted
a plaintiff to cure a defective opinion letter by supplemental affidavit rather
than by following the amendment procedures set forth in Practice Book
§§ 10-59 and 10-60. These lower courts have relied on the theory that, if a
plaintiff is permitted to correct a defective opinion letter by amending his
complaint, it would be equally reasonable for a court to permit and consider
an affidavit that clarifies a defect in an existing opinion letter, especially
when a plaintiff is acting in response to a motion to dismiss, which is
governed by Practice Book § 10-31 (a) and permits affidavits to establish
facts necessary for the adjudication of the motion. Id. The persuasiveness
of the Superior Court cases cited in Peters, however, is greatly discounted
by the fact that they were decided before our Supreme Court issued its
decisions in Bennett and Morgan, both of which emphasize that an insuffi-
cient opinion letter constitutes defective process.
22
Bennett also discussed the fact that although the remedy of dismissal
might lead to harsh results for plaintiffs, plaintiffs are not without recourse
when facing dismissal, even in circumstances in which the statute of limita-
tions has run, because they may be able to avail themselves of the relief
available under the accidental failure of suit statute. Bennett v. New Milford
Hospital, Inc., supra, 300 Conn. 30–31.
23
In Hartford National Bank & Trust Co. v. Tucker, supra, 178 Conn.
478–79, our Supreme Court stated: ‘‘The purpose of [§ 52-72] is to provide
for amendment of otherwise incurable defects that go to the court’s jurisdic-
tion. . . . Those defects which are merely voidable may, in the trial court’s
discretion, be cured by amendment, and do not require new service and
return date, so long as the defendant was not prejudiced.’’ (Citation omitted.)
24
The court in Gonzales also relied on General Statutes § 52-128, which
provides in relevant part: ‘‘The plaintiff may amend any defect, mistake or
informality in the writ, complaint declaration or petition . . . within the
first thirty days after the return day and at any time afterwards on the
payment of costs at the discretion of the court. . . .’’
25
As previously noted, the plaintiff, when faced with a motion to dismiss
based on a deficient opinion letter in his first action, attempted to amend
his complaint, but the statute of limitations already had run. Thus, he was
aware of the proper procedural route by which to rectify any defects related
to the opinion letter in the present case.