In Lohnes v. Hospital of Saint Raphael, (released November 15, 2011), Justice Borden, writing for the Appellate Court added to the building body of case law interpreting and applying General Statutes §§ 52-190a and 52-184c. The several issues presented in this case were: 1) the time for filing a motion to dismiss under § 52-190a; 2) whether the opinion letter author was a similar health care provider under § 52-584c; 3) whether § 52-190a violated the open court provision of article first, § 10 of the Connecticut constitution; and, 4) whether § 52-190a violated due process of law. The Appellate Court decision upheld the trial court ruling dismissing the plaintiff's claim.

On June 22, 2007, the plaintiff had been admitted to the emergency department at the hospital, complaining of shortness of breath associated with pain and tightness in his chest. The plaintiff informed the hospital and Dr. Vinu Verghese, a board certified emergency room physician, that he was highly allergic to NSAIDs (nonsteroidal anti-inflammatory drugs). Despite these warnings, Verghese administered several pills to the plaintiff, one of which was the NSAID Motrin. As a result, the plaintiff required intubation and mechanical ventilation for respiratory failure.

The plaintiff filed a medical malpractice claim against Verghese and the hospital pursuant to a theory of respondeat superior. Attached to the complaint was an opinion letter from a board certified pulmonologist. Although the return date was September 22, 2009, Verghese filed an appearance 22 days before this on August 31, 2009. His motion to dismiss was not filed until September 21, 2009.

As for whether the motion was timely filed -- Despite that Practice Book § 10-30 states "[a]ny defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance," based on equitable considerations the court held that Verghese "had thirty days from [the return date] September 22, 2009, which would have been until October 23, 2009, to file his motion to dismiss."

As for the qualifications of the opinion letter author - The plaintiff was required to obtain an opinion letter from a board certified emergency room physician, not a pulmonologist, prior to filing the complaint. Although the plaintiff argued that the Verghese was acting outside his speciality at the time he rendered care to the plaintiff, there were no allegations in the complaint to support this claim. General Statutes § 52-184c (c).

As for the constitutional claims, the court held that the restrictions in § 52-190a are neither onerous not insurmountable. Section 52-190a restricts the right to bring an action for medical negligence only to the extent that it restricts claims that are unsubstantiated and without good faith basis. This is merely a procedural limitation that neither eliminates nor unreasonably burdens the plaintiff's right to legal recourse. Further, there was no violation of the plaintiff's substantive due process rights in that there was a rational basis for § 52-190a, i.e. to prevent the filing of meritless medical malpractice claims. The limitations under § 52-190a are reasonably related to this legitimate state interest.

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