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.
- 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).
- 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.
- 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.
- 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.
- Chief Justice Rogers granted defendant's petition for certification to appeal pursuant to General Statutes § 52-265a.
- The Supreme Court affirmed the judgment of the trial court.
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 non-similar 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.