The doctrine of res judicata does not preclude a second medical malpractice action when the first action, challenged for failure to attach a good faith certificate or opinion letters required by C.G.S. §52-190a, properly should have been tested, not by way of motion to strike, but, rather by motion to dismiss, the granting of which would not constitute a judgment on the merits. Lawrence Santorso commenced an action against Bristol Hospital, Jeffrey Goldberg and Rainer Bagdasarian, alleging negligence in failing to treat him for a detected lesion in his lung and that when eventually diagnosed, his lung cancer had metastasized. He died while the action was pending. The court ultimately granted the defendants' motions to strike the counts against them due to the absence of opinion letters from similar health care providers required by C.G.S. §52-190a(a), demonstrating a pre-suit inquiry. The decedent's surviving spouse, Patricia Santorso, filed this action, individually and as administratrix of the decedent's estate, seeking damages for wrongful death and loss of consortium, with the required certificate and opinions letters attached. The defendants appealed from the trial court's denial of their motion for summary judgment. The Appellate Court reversed the judgment finding the second action barred by res judicata. The plaintiff appealed. The defendants, granted permission, presented an alternative ground for affirmance. The Supreme Court affirmed the Appellate Court's judgment on the alternative ground that the action was untimely and not saved by the accidental failure of suit statute, C.G.S. §52-592. The doctrine of res judicata did not preclude the second action. The first action, challenged on C.G.S. §52-190a grounds, properly should have been tested, not by way of motions to strike, but, rather by motions to dismiss, the granting of which would not constitute a judgment on the merits. The motions granted were treated as motions to dismiss. Dismissal under these circumstances is without prejudice. But, the first action was not defeated for a "matter of form" within the meaning of the accidental failure of suit statute. Without the savings benefit of C.G.S. §52-592(a), the second action was barred by the statutes of limitations and of repose. The trial court specifically determined that the failure to make the requisite filings in the first action was not the result of "mistake, inadvertence or excusable neglect."

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