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In Lohnes v. Hospital of Saint Raphael, (released November 15, 2011), Justice Borden, writing for the Appellate Court added to the building body of case law interpreting and applying General Statutes §§ 52-190a and 52-184c. The several issues presented in this case were: 1) the time for filing a motion to dismiss under § 52-190a; 2) whether the opinion letter author was a similar health care provider under § 52-584c; 3) whether § 52-190a violated the open court provision of article first, § 10 of the Connecticut constitution; and, 4) whether § 52-190a violated due process of law. The Appellate Court decision upheld the trial court ruling dismissing the plaintiff's claim.

On June 22, 2007, the plaintiff had been admitted to the emergency department at the hospital, complaining of shortness of breath associated with pain and tightness in his chest. The plaintiff informed the hospital and Dr. Vinu Verghese, a board certified emergency room physician, that he was highly allergic to NSAIDs (nonsteroidal anti-inflammatory drugs). Despite these warnings, Verghese administered several pills to the plaintiff, one of which was the NSAID Motrin. As a result, the plaintiff required intubation and mechanical ventilation for respiratory failure.

The plaintiff filed a medical malpractice claim against Verghese and the hospital pursuant to a theory of respondeat superior. Attached to the complaint was an opinion letter from a board certified pulmonologist. Although the return date was September 22, 2009, Verghese filed an appearance 22 days before this on August 31, 2009. His motion to dismiss was not filed until September 21, 2009.

As for whether the motion was timely filed -- Despite that Practice Book § 10-30 states "[a]ny defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance," based on equitable considerations the court held that Verghese "had thirty days from [ the return date] September 22, 2009, which would have been until October 23, 2009, to file his motion to dismiss."

As for the qualifications of the opinion letter author - The plaintiff was required to obtain an opinion letter from a board certified emergency room physician, not a pulmonologist, prior to filing the complaint. Although the plaintiff argued that the Verghese was acting outside his speciality at the time he rendered care to the plaintiff, there were no allegations in the complaint to support this claim. General Statutes § 52-184c (c).

As for the constitutional claims, the court held that the restrictions in § 52-190a are neither onerous not insurmountable. Section 52-190a restricts the right to bring an action for medical negligence only to the extent that it restricts claims that are unsubstantiated and without good faith basis. This is merely a procedural limitation that neither eliminates nor unreasonably burdens the plaintiff's right to legal recourse. Further, there was no violation of the plaintiff's substantive due process rights in that there was a rational basis for § 52-190a, i.e. to prevent the filing of meritless medical malpractice claims. The limitations under § 52-190a are reasonably related to this legitimate state interest.

May 9, 2011

Court Abuses Discretion in Failing to Poll Jury Regarding Newspaper Article

In Kervick v. Silver Hill Hospital, 128 Conn. App. 341 (2011), the Appellate Court held that the existence of an inflammatory newspaper article, coupled with the fact that the jury had not previously been instructed by a judge to avoid media coverage, was sufficient information to indicate the possibility of juror partiality and, as such, the court was required to conduct a preliminary inquiry to this effect.  The trial court's denial of plaintiff’s counsel’s request to poll the jury as to its exposure to the article constituted an abuse of discretion and, at a minimum, jeopardized the plaintiff’s constitutional right to an impartial jury. Therefore, the judgment of the trial court was reversed, and the case was remanded for a new trial according to law.


  1. Over the Thanksgiving weekend, between the time the jury was impaneled and the commencement of evidence, a newspaper article appeared in the New York Times entitled “Lawsuit Over a Suicide at a Hospital for the Elite.”
  2. Although the jury had been impaneled at the time the article was published, a judge had not yet instructed the jury to avoid media coverage of the case.
  3. Four days later, on November 27, 2007, the first day of evidence, counsel for the plaintiff requested that the court poll the jury as to exposure to the article to determine whether any of the jurors had been unduly influenced thereby.
  4. The court denied the request concluding that it would be more prudent simply to instruct the jury to ignore anything in the press or on the media.
  5. The jury returned a verdict for the defendants.
  6. The plaintiff moved to set aside the verdict, which was denied.
  7. The Appellate court reversed the decision of the trial court.


Article first, § 19, of the constitution of Connecticut, as amended, provides in relevant part:  “The right of a trial by jury shall remain inviolate….”  Of course, the right to a jury trial would be a mere nullity were it not for the guarantee of jury impartiality. “To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment [we previously have held, pursuant to our supervisory authority over the administration of justice, that] a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality.”  The form and scope of that preliminary inquiry rests within the sound discretion of the trial court. See State v. Merriam, 264 Conn. 617, 672-73 (2003).

Here, none of the safeguards of jury impartiality identified in Merriam were present:  1) at no time prior to publication of the article were the jurors in this case instructed by a judge to avoid media coverage of the ensuing trial; 2) neither parties' counsel had the opportunity to question prospective jurors as to their exposure to the article, as the article had not yet been published at the time of voir dire; 3) the article here was extensive, factually detailed and so overtly inflammatory that it was difficult to conceive how a juror would remain impartial if exposed to its contents; 4) the plaintiff’s counsel requested that the court make the specific inquiry into whether any juror had read the article.  Indeed, the trial court was unable to address the possibility of jury partiality without inquiring into whether the jury members had even become aware of the article itself.

The court was obligated to conduct a preliminary inquiry to evaluate the extent, if any, of juror bias as caused by exposure to the article.  Of course, by the time the court made this ruling, the article had been published, and the possibility that it had already prejudiced jury members could not be cured with a prophylactic instruction. The fact that the court declined to consider fully the request of the plaintiff’s counsel to poll the jury in the absence of the parties' agreement in this regard was also improper. “Where, as here, the possibility of jury bias is adequately presented to the court, it is the obligation of the court, not the parties, to determine the appropriate procedures to be employed to ensure the jury is impartial.”  (Emphasis added.)

posted by Carey Reilly at 12:02 PM

Tuesday, March 1, 2011

Court Overrules Defendant's Objection to Offer of Compromise Filed Under New Statute

In a recent decision, Judge Maronich, of Danbury Superior Court, overruled the defendants’ objection to plaintiffs’ offers of compromise.  See Weth v. New Fairfield Family Practice, et al., D.N. DBDCV095007125S.  After the plaintiffs had filed offers of compromise, following the new procedures outlined in General Statutes § 52-192a, as amended in 2005, the defendants objected claiming that they had not been given authorizations for and/or received essentially all of plaintiff’s decedent’s medical records.  The plaintiffs filed a reply arguing that: 1) the proper authorizations/records had been provided; 2) the plain meaning of the statute supported plaintiffs’ position; 3) the legislative history supported plaintiffs’ position; and 4) prior case law supported plaintiffs’ position.

Following the guidance of an earlier decision of Judge Scholl in Downs v. Trias, Superior Court, Ct. Sup. 13654 (August 11, 2009), Judge Maronich held that:  “[T]he extent of the records for which an authorization is required [pursuant to General Statutes § 52-192a(b)] is to be determined from the language and the purpose of the statute. The requirement that a plaintiff shall ‘provide the defendant…with an authorization to disclose medical records follows the requirement that an offer of compromise state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.’ Furthermore, it precedes the requirement that the plaintiff file ‘a certification that the plaintiff has provided each defendant…with all documentation supporting such damages.’ Thus, in the context of the entire statute, the authorization for disclosure of ‘medical records’ must relate to medical records that support the plaintiff's claimed damages. Therefore the statute requires that, at least sixty days before the filing of an offer of compromise, the Plaintiffs must have provided the Defendants with authorization to obtain medical records that support the damages they claim.” (Emphasis added.)

Weth is an action to recover for damages resulting from the wrongful death of the plaintiff’s decedent from undiagnosed coronary artery disease.  Based on a reasonable application of the statute to the facts of this case, Judge Maronich was “satisfied that the Plaintiffs have provided the Defendants the necessary authorizations such that the defendants have sufficient medical records on which to evaluate the Plaintiffs’ offers of compromise.”

posted by Carey Reilly at 3:13 PM

Wednesday, January 26, 2011

Qualifications of Pre-Suit Opinion Author & Availability of Accidental Failure of Suit

In a pair of soon-to-be released decisions, the Supreme Court decided several significant issues that have arisen under the 2005 amendments to General Statutes § 52-190a, namely:  1) whether a board certified physician who probably would be allowed to testify at trial as an expert witness on the standard of care, but who is not board certified in the same specialty as the defendant, can author the pre-litigation opinion letter, 2) whether § 52-190a (c) requires the trial court to dismiss a medical malpractice action if the opinion letter fails to comply with subsection (a) of § 52-190a; and 3) whether a plaintiff can re-file under accidental failure of suit, § 52-592, if his action is dismissed.  Bennett v. New Milford Hospital, Inc., SC 18502, and Plante v. Charlotte Hungerford Hospital, SC 18573 and 18574.  The court concluded that § 52-190a (a) requires the plaintiff to supply an opinion letter authored by a board certified health care provider with the exact same board certification or specialty as the defendant. In other words, even though a nonsimilar health care provider may testify at trial under § 52-184c (d), only a similar health care provider as defined in § 52-184c (b) and (c) may author a pre-litigation opinion letter.  If the appropriate opinion letter is not attached to the complaint, the trial court is required to dismiss the action. However, the plaintiff may be permitted to re-file under the accidental failure of suit statute if his failure to append the correct opinion letter was a matter of good faith mistake, inadvertence or excusable neglect.

In Bennett, the plaintiff filed suit against, among others, defendant Dr. Frederick Lohse, a specialist in emergency medicine, but not a board certified emergency medicine physician.  The complaint alleged that Lohse failed to diagnose plaintiff’s decedent’s fractured spine and leg.  Pursuant to § 52-190a (a), the plaintiff attached a good faith certificate and a written opinion letter from a board certified general surgeon with added qualifications in surgical critical care who engaged in the practice of trauma surgery.  The defendant moved to dismiss the complaint on the ground that the opinion letter was not from a similar health care provider as defined in § 52-184c because its author was not board certified in emergency medicine.  The trial court granted the dismissal and the plaintiff appealed.  The Appellate Court upheld the trial court’s ruling, Bennett v. New Milford Hospital, Inc.,117 Conn. App. 535 (2009), and the Supreme Court granted cert.

Examining the language of the two related statutes §§ 52-190a and 52-184c, the Supreme Court concluded that the text at issue was not ambiguous.  Specifically, the court concluded that the “similar health care provider” from whom the plaintiff in this case was required to “obtain a written and signed opinion,” was a board certified emergency room physician.  In other words, because plaintiff’s opinion letter author was not a board certified emergency room physician, he was not a similar health care provider and the opinion letter from him was improper.  It was of no consequence that plaintiff’s expert would likely have been able to testify at trial regarding the standard of care applicable to defendant Lohse.  In reaching this conclusion, the court rejected the plaintiff’s argument that this construction yielded an absurd or unworkable result.  To the contrary, the court defended the reasonableness of its conclusion by focusing on the need to make the pre-litigation requirements of § 52-190a “definitive and uniform” insofar as they are based on objective criteria, not subject to the exercise of the trial court’s discretion.

Further in Bennett, the court concluded that the trial court was required to dismiss the plaintiff’s complaint upon determining that a similar health care provider did not author the opinion letter.  It reached this determination after finding that the language of § 52-190a was ambiguous, but that the legislative history supported this conclusion.  In particular, the court noted that the legislative history establishes that the legislature adopted § 52-190a (c) in order to require mandatory dismissal.  Notwithstanding this conclusion, the court noted that “plaintiffs are not without recourse when facing dismissal occasioned by an otherwise minor procedural lapse, like that in this case.”  This is so because, first, a dismissal under § 52-190a is without prejudice and second, even if the statute of limitations has run, “relief may well be available under the accidental failure of suit statute.”

In Plante v. Charlotte Hungerford, Inc., the court considered the circumstances under which the accidental failure of suit statute, § 52-592, may save an otherwise time barred medical malpractice action commenced after dismissal of a prior action pursuant to § 52-190a for failure to attach to the complaint a written opinion letter by a similar health care provider stating that there is evidence of medical negligence.

In Plante, the plaintiff filed suit against, among others, Dr. Eleanor Stutz, a board certified psychiatrist, and Karen Nash, a licensed clinical social worker.  In the complaint, the plaintiff alleged that his decedent committed suicide because she was prematurely discharged from the hospital.  The defendants moved to dismiss the action on the ground that the plaintiff had failed to attach an opinion letter to the complaint.  The plaintiff objected and attached thereto an opinion letter purportedly from an “experienced and qualified health care professional in a similar field.”  Plaintiff’s counsel represented that this opinion letter had not been attached to the original complaint due to a “simple mistake.”  Defendant’s motion to dismiss was granted and the plaintiff brought suit under § 52-592.  Attached to the second complaint was an opinion letter from a board certified psychiatrist.  The trial of this matter was bifurcated, with the first part of the claim to be tried to the court being the question of whether the action was saved by § 52-592.  After hearing from the registered nurse who had authored the opinion letter in the initial action, as well as plaintiff’s counsel, the trial court concluded that:  1) counsel had the opinion at the time the initial action was filed; 2) but that the registered nurse who authored that letter was not a “similar health care provider” to any of the defendants; and 3) that this opinion was “worthless as the opinion of a similar health care provider.” The trial court then concluded that the deficiency under § 52-190a was not a “matter of form” entitling the plaintiff to bring a new suit under § 52-592.  “The plaintiff’s lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct.”  This latter factual finding by the trial court was not challenged on appeal.

In Plante, the Supreme Court reasoned as follows:  1) a plaintiff’s failure to comply with the requirements of § 52-190a (a) does not destroy the court’s subject matter jurisdiction over the claim of medical malpractice; 2) accordingly, any relief for a plaintiff under § 52-592 must lie under the “matter of form” provision of that statute; 3) the use of the phrase “matter of form” is ambiguous so extratextual sources may be considered; 4) 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 it was due to a good faith mistake, inadvertence or excusable neglect.  In other words, only egregious conduct by an attorney or party precludes resort to § 52-592 (a); 5) therefore, the factual determination regarding whether there was “egregious” conduct in any given case requires consideration of the qualifications of the opinion letter’s author.  “Indeed, that the opinion letter author might well be qualified to testify at the trial of the action pursuant to § 52-184c (d), regardless of the fact that he or she is not a ‘similar health care provider’ as strictly defined by § 52-184c (b) or (c)…is one such factor that a trial court reasonably might consider in making the factual determinations attendant to a plaintiff’s invocation of the protections of § 52-592 (a).”

“Thus, we conclude that 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 attorney.”

In Plante, given the unchallenged finding of the trial court that the plaintiff’s actions were “blatant and egregious,” the Supreme Court agreed with the defendants that the plaintiff was not permitted to bring a new action under § 52-592 following dismissal of the initial claim.

posted by Carey Reilly at 7:36 PM

Thursday, January 13, 2011

High Court Analyzes Theory of Differential Diagnosis

In an important medical malpractice decision, the Supreme Court reversed the Appellate Court’s finding of harmless error when the trial court (Tobin, J.) precluded plaintiff’s expert from testifying that the defense theory of causation was wrong.  In other words, plaintiff’s expert should have been allowed to testify regarding what was and what was not the cause of plaintiff’s injuries. Klein v. Norwalk Hospital, 299 Conn. 241 (2010).

Facts:  The plaintiff, Eric Klein, a dentist, was in the hospital for an emergency appendectomy.  In the post-op period, he needed intravenous antibiotics.  On March 3, 2003, Patricia DePaoli, a nurse employed by the defendant Norwalk Hospital, determined that the existing IV line needed changing.  She began to replace the existing line in Klein’s left hand with a new line farther up his arm.  During the procedure, Klein shouted out in pain several times.  After DePaoli’s third failed attempt, Klein’s whole left hand went dead and he told her to remove the needle.  Klein’s father, Morton, witnessed the entire event.  After Klein’s release he was diagnosed with anterior interosseous nerve palsy caused by an improper attempted intravenous line insertion.  Klein's injury had a negative impact on his dental practice and overall quality of life.

On Jan 11, 2006, the plaintiff disclosed Dr. Gevirtz, an anesthesiologist specializing in pain management, as his expert.  According to the disclosure, Gevirtz was to testify on matters concerning the standard of care, causation and damages.  The plaintiff’s theory of negligence was that DePaoli departed from the standard of care in placing the IV line and that this caused Klein’s injuries.

The defendant then disclosed Dr. Strauch, an orthopedic surgeon, to testify that the plaintiff’s injury was caused by a condition called Parsonage Turner Syndrome (PST). Gevirtz was not specifically disclosed as an expert on PTS, nor was it disclosed that he would testify about the disease.  During his direct examination of Gevirtz, plaintiff’s counsel asked him if he was familiar with PTS.  The trial court sustained the defendant’s objection to this question on the ground that the plaintiff’s disclosure of Gevirtz did not encompass his testifying about the syndrome.  In a proffer, plaintiff’s counsel established that Gevirtz would have described PTS, established his familiarity with it and stated his opinion that the syndrome was not the cause of Klein’s injury and explained the basis for that conclusion.

Later in the trial, defense counsel called Strauch to testify on standard of care & causation. At plaintiff’s counsel’s request, the trial court conducted a Porter hearing to determine what scientific methodology would allow Strauch to diagnose – without an examination – Klein’s injury as being caused by PTS.  The court allowed Strauch to testify, on the basis of his review of Klein’s medical records and deposition testimony that the plaintiff’s condition was caused by PTS.

The case was submitted to the jury with interrogatories.  The first one asked whether the plaintiff had proven by a preponderance of the evidence that the defendant had breached the standard of care in any way stated in the complaint in her care and treatment of Klein.  The jury answered this interrogatory in the negative.

In its decision, affirming the defense verdict, the Appellate Court did not reach the evidentiary issues raised by the plaintiff because it found that any claimed impropriety was harmless.

Supreme Court Decision:

Causation – The plaintiff’s disclosure of Gevirtz on the issue of causation was sufficient to permit him to testify that PTS was not the cause of Klein’s injury.  “Insofar as the plaintiff's disclosure of Gevirtz made clear that he would testify as to what was the cause of the plaintiff's alleged injury, the disclosure implicitly indicated that Gervitz [sic] also could be expected to testify about what was not the cause of the plaintiff's alleged injury. ‘Critical to establishing specific causation is exclusion of other possible causes of symptoms.’…As this court recently acknowledged, ‘differential diagnosis is a method of diagnosis that involves a determination of which of a variety of possible conditions is the probable cause of an individual's symptoms, often by a process of elimination. In the present case, Gevirtz was permitted to testify that, in his expert opinion, the plaintiff's alleged injury ‘can only happen as a result of negligence as a result of deviating from the standard of care.’  To the extent that this conclusion was the result of Gevirtz' differential diagnosis, it necessarily was based on his consideration and elimination of the other possible causes for the alleged injury, including the theory of causation advanced by the defendant. This court never has articulated a requirement that a disclosure include an exhaustive list of each specific topic or condition to which an expert might testify as the basis for his diagnosis; disclosing a categorical topic such as ‘causation’ generally is sufficient to indicate that testimony may encompass those issues, both considered and eliminated, necessary to explain conclusions within that category.”  (Italics in original.)

“A disclosure generally complies with the requirements of Practice Book § 13-4 (4) so long as it adequately alerts the defendant to the basic nature of the plaintiff’s case.”  There was no need for the plaintiff to file a supplemental disclosure.

Harm – Although the court acknowledged some recent confusion concerning the standard of harmfulness in a civil case, it took this opportunity to clarify the standard.  An evidentiary ruling will result in a new trial only if the ruling was harmful.  An evidentiary impropriety in a civil case is harmless only if “we have a fair assurance that it did not affect the jury’s verdict.  A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.”  Herein, the court concluded that there was “no fair assurance that the evidentiary impropriety did not affect the jury’s verdict because the improperly excluded testimony was essential to the central issue in this case and was not wholly cumulative of other testimony or evidence.”

The issue of breach of the standard of care was essential to the case, as it was wholly dispositive of the outcome.  The court rejected the defense argument that Gevirtz’ excluded testimony dealt only with the question of causation and that, therefore, the excluded testimony was irrelevant.  The basis for the court’s rejection of this argument was that it “fail[ed]…to account for the nature of a differential diagnosis.…Because the present case essentially presented a choice as to the causation of the plaintiff's alleged injury between the defendant's theory of Parsonage Turner Syndrome and the plaintiff's theory of an intravenous needle stick, breach of the standard of care and causation were intertwined not only in Gevirtz' differential diagnosis, but also in the framing of the case generally.  The determination of whether the defendant had breached the standard of care could be reduced to the question of what caused the plaintiff's alleged injury, and the only possible causes presented to the jury were Parsonage Turner Syndrome or the defendant's alleged breach of the standard of care. Consequently, whether Parsonage Turner Syndrome could have caused the plaintiff's alleged injury was therefore central to the question of not only causation, but breach as well.”

The court also noted that, “it is significant, in our view, to consider that Gevirtz' excluded testimony also would have aided in establishing his credibility as an expert and the reliability of his ultimate conclusions in the eyes of the jury.  In other words, but for the trial court's improper exclusion, Gevirtz could have explained not only that he had rejected the defense theory of Parsonage Turner Syndrome as a cause, but also why he had done so.”

Porter:  Finally, the court addressed the Porter issue raised by the plaintiff because it was likely to arise on retrial.  That issue concerned a claim that the trial court improperly admitted expert testimony by Strauch, regarding the cause of Klein’s injury.  Strauch was permitted to testify, solely on the basis of his review of the plaintiff's medical records and deposition testimony, that the plaintiff's injury had been caused by Parsonage Turner Syndrome. The plaintiff contended that, under State v. Porter, 241 Conn. 57 (1997), cert. denied, 523 U.S. 1058 (1998), the defendant did not sufficiently demonstrate that Strauch's opinion was based on reliable methodology.  The Supreme Court concluded that the trial court's admission of that portion of Strauch's testimony was improper.

During the plaintiff's voir dire of Strauch at the Porter hearing, Strauch acknowledged that diagnosis by review of medical records would not be his normal method of diagnosis, that the only peer review of the method he used was a single article that considered diagnoses made both by examination and by consideration of medical records, and that he could not speculate as to the rate of error in diagnoses by this method.

The Supreme Court concluded that, although the trial court conducted a Porter hearing to consider the admissibility of Strauch's testimony, the defendant did not demonstrate at the hearing the reliability of the methodology upon which Strauch relied. “Notably, the defendant made no showing that Strauch's methodology had been subjected to peer review, nor was Strauch able to identify a likely rate of error for his chosen methodology. While neither of these determinations is a talismanic requirement for satisfaction of the Porter requirements, their absence is, in this case, determinative of the inadequacy of the defendant's proof of the methodology's reliability…Without these or any other meaningful indicia of reliability, Strauch's conclusion was without basis in an assuredly reliable methodology; without any stated support for its reliability other than his own personal expertise, it was nothing more than his ipse dixit.”

posted by Carey Reilly at 4:09 PM

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