Carey's Case Review


Wednesday, October 28, 2009

First Impression - Expert Opinion for Good Faith Certificate Need Not Include Causation

In Dias v. Grady, 292 Conn. 350 (2009) (July 7, 2009; Rogers, C. J.; Trial Court - Sferrazza, J.), the Supreme Court ruled that the phrase “medical negligence,” as used in General Statutes § 52-190a (a), means breach of the standard of care only and was not intended to encompass all of the elements of a cause of action for medical malpractice.  Thus, the written expert opinion that must be filed with the complaint in such a case does not have to include an opinion by a similar health care provider that the defendant's negligence was the cause of plaintiff's injuries.

Facts:

  1. The plaintiff brought this medical malpractice action to recover for personal injuries suffered during a laparoscopic hysterectomy performed by Dr. Steven Grady, an obstetrician and gynecologist. (Ob/Gyn).
  2. Pursuant to General Statutes § 52-190a, the plaintiff attached to her complaint the written opinion of a surgeon that Grady had violated the standard of care when he performed the surgery.
  3. The defendant then filed a motion to dismiss plaintiff’s complaint on the ground that the written opinion did not state that Grady’s deviation from the standard of care was the proximate cause of Dias’ injuries.
  4. The trial court concluded that § 52-190a does not require a plaintiff in a medical malpractice action to attach an opinion addressing causation and denied defendant’s motion to dismiss.
  5. Chief Justice Rogers granted defendant’s petition for certification to appeal pursuant to General Statutes § 52-265a.
  6. The Supreme Court affirmed the judgment of the trial court.

Reasoning:

The language of § 52-190a provides in relevant part that, in any medical malpractice action, “the claimant or the claimant’s attorney…shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes §] 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….”

Section 52-190a does not define the phrase “medical negligence,” which is susceptible to more than one reasonable interpretation.  Because the phrase is “ambiguous,” the court may look for interpretive guidance to the statute’s legislative history, to the policy it was designed to implement, to its relationship to existing legislation, etc.

Section 52-190a originally was enacted as part of the Tort reform Act of 1986.  The original version of the statute required the plaintiff in any medical malpractice action to conduct a reasonable pre-complaint inquiry that there was grounds for a good faith belief that there had been negligence in the care or treatment of the plaintiff.  Plaintiff or his attorney was required to file a certificate of good faith that grounds existed for the action.  The purpose of the original version of § 52-190a was to prevent frivolous medical malpractice actions.

In 2005, § 52-190a was amended to require the plaintiff is a medical malpractice action to obtain the written opinion of a similar health care provider, as defined in General Statutes § 52-184c, that there appeared to be evidence of medical negligence and to attach the opinion to the certificate of good faith to be filed with the complaint.  In addition, the amendment provided that failure to file the written opinion would be grounds for dismissal of the complaint.  The legislative history of the amendment indicates that it was designed to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts.

The phrase “medical negligence,” as used in General Statutes § 52-190a (a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.  Although a similar health care provider would be qualified to provide an opinion regarding the applicable standard of care, there are many situations in which a similar health care provider would not be qualified to express an opinion as to causation.  Further, there is no statutory mechanism by which a plaintiff can introduce the written opinion of a nonsimilar health care provider regarding causation.  A requirement that the plaintiff attach a written opinion of a similar health care provider that there appears to be evidence of proximate cause would, in many cases, be an insurmountable obstacle to bringing an action.  Requiring a similar health care provider to give an opinion as to causation at the prediscovery stage of litigation pursuant to § 52-190a when a similar health care provider is not required to give such an opinion at trial pursuant to § 52-184c would bar some plaintiffs who could prevail at trial from ever filing a complaint. Because this would be a bizarre result, the court rejected this claim.

posted by Carey Reilly at 1:06 PM


Monday, October 26, 2009

"Overlap" Section Does Not Apply to Pre-Litigation Written Opinion - First Impression

In Bennett v. New Milford Hospital, Inc., 117 Conn. App. 535 (2009) (October 13, 2009; Bishop, J.; Trial Court - Sheedy, J.) the Appellate Court held that, under General Statutes § 52-190a, the opinion letter attached to a complaint must be from a “similar health care provider” as defined in § 52-184c.  For a physician who is board certified or holds himself out as a specialist, § 52-184c (c) defines a “similar health care provider” as “one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty….”

Thus, with regard to the defendant doctor in this case, an emergency medicine specialist, a similar health care provider would be a doctor who is trained and experienced in emergency medicine and is board certified in emergency medicine. Because plaintiff’s expert who authored the pre-litigation written opinion was not board certified in emergency medicine, he was not a similar health care provider and the complaint was properly dismissed as to the defendant doctor.

Facts:

  1. The plaintiff, Richard Bennett, Jr., administrator of the estate of his father, Richard Bennett, Sr., filed this medical malpractice action on the latter’s behalf against the named defendant and Dr. Frederick Lohse.
  2. Bennett, Sr. suffered a diabetic seizure while driving his car, which left the road and collided with a concrete wall.
  3. Bennett, Sr. was taken to the New Milford Hospital emergency department, where he was treated by Dr. Lohse, who stabilized Bennett, Sr.’s blood sugar, medicated him for pain, and released him with instructions to follow up with his primary care physician.
  4. Lohse “specialized” in emergency medicine, but was not board certified in the same.
  5. When Bennett, Sr. followed up with his primary care physician, it was then discovered that he had sustained a fracture of the spine and leg. As a consequence of these untreated conditions, Bennett, Sr. died six weeks later.
  6. When plaintiff filed suit, pursuant to General Statutes § 52-190a, he attached a certificate of good faith and the written opinion of a board certified general surgeon with a certificate of added qualifications in surgical critical care.
  7. Lohse moved to dismiss plaintiff’s complaint under § 52-190a on the basis that, inter alia, the author of the opinion letter was not a similar health care provider to the defendant. The defendant argued that the opinion author had to have been a board certified emergency medicine physician.
  8. The trial court granted Lohse’s motion to dismiss and this appeal followed.
  9. The Appellate Court upheld the motion to dismiss because it concluded that the opinion letter submitted by the plaintiff was not from a similar health care provider.

Reasoning:

Since 2005, a complaint must include a written opinion of a similar health care provider attesting to a good faith basis for the medical malpractice action. See § 52-190a (a). The statute, as of 2005, also states that failure to obtain and file the written opinion required by subsection (a) shall be grounds for dismissal of the action. See § 52-190a (c). For a physician who is board certified or holds himself out as a specialist, § 52-184c (c) defines a “similar health care provider” as “one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty….”

With regard to defendant Lohse, an emergency medicine specialist, a similar health care provider is one who is trained and experienced in emergency medicine and is board certified in emergency medicine. Because the plaintiff’s expert was not board certified in emergency medicine, he was not a similar health care provider and the complaint was properly dismissed as to Lohse.

In arriving at its conclusion, the court dismissed plaintiff’s argument that § 52-184c (d), the so-called “overlap” section, applies to opinion letters under § 52-190a. In other words, it did not matter in this case that plaintiff’s expert would have been sufficiently qualified to testify in court that Lohse deviated from the prevailing professional standard of care. Under the plain language of the § 52-184c, this expert was not a similar health care provider and, thus, was not qualified to author an opinion letter under § 52-190a. The court acknowledged that this result “may seem incongruous” but stated “[i]f the legislature intended to include this category of health care providers within the parameters of § 52-190a (a), it easily could have done so.”

Finally, the court concluded that although this result may seem “harsh to would-be plaintiffs,” it was neither absurd nor unworkable.

Practice Note:

  1. In resolving only the issue before the court, Judge Bishop pointed out that “there may be a gap in § 52-190a regarding [institutional] defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation.” See n.10.

posted by Carey Reilly at 1:38 PM


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