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.
- 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.
- Bennett, Sr. suffered a diabetic seizure while driving his car, which left the road and collided with a concrete wall.
- 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.
- Lohse "specialized" in emergency medicine, but was not board certified in the same.
- 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.
- 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.
- 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.
- The trial court granted Lohse's motion to dismiss and this appeal followed.
- 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.
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.
- 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.