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January 2011 Archives

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 non-similar 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.

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).