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.

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.