RICHARD BENNETT, JR., ADMINISTRATOR (ESTATE OF RICHARD BENNETT, SR.) v. NEW MILFORD HOSPITAL et al., SC 18502

Judicial District of Danbury

Torts; Medical Malpractice; Whether Action was Properly Dismissed for Plaintiff's Failure to Comply with General Statutes § 52-190a Because Author of Plaintiff's Opinion Letter was Not a "Similar Health Care Provider."  The plaintiff brought this medical malpractice action against New Milford Hospital and Dr. Frederick Lohse in connection with treatment that his decedent received in the hospital's emergency room following a motor vehicle accident.  Lohse filed a motion to dismiss the action against him on the ground that the opinion letter attached to the plaintiff's complaint failed to comply with General Statutes § 52-190a (a) because it was not written by a "similar health care provider."  Section 52-190a (a) requires a plaintiff in a medical malpractice action to attach to his complaint "a written and signed opinion of a similar health care provider that there appears to be evidence of medical negligence."  Under      § 52-190a (c), "[t]he failure to obtain and file the written opinion required by subsection (a) . . . shall be grounds for the dismissal of the action."  According to the plaintiff's complaint, Lohse is a specialist in emergency medicine.  The author of the opinion letter is a board certified general surgeon.  The trial court granted the motion to dismiss, and the plaintiff appealed from the decision.  The Appellate Court (117 Conn. App. 535) first determined that under the plain language of § 52-190a, the dismissal sanction applies not only where the plaintiff fails to file an opinion letter but also where the plaintiff files an opinion letter that is inadequate.  The court also determined that, with respect to Lohse, a "similar health care provider," as defined by General Statutes § 52-184c (c), is one who is trained and experienced in emergency medicine and is board certified in emergency medicine.  Because the plaintiff's expert was not certified in emergency medicine, the court determined that he was not a "similar health care provider."  The plaintiff argued that his opinion letter, nonetheless, was adequate because, under § 52-184c (d), his expert would have been qualified to testify at trial as to the standard of care.  Section 52-184c (d) allows a health care provider to give expert testimony at trial as to the prevailing standard of care if he "possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine. . . ."  The court concluded that it was clear from the plain language of § 52-184c that subsection (d) permits experts who are not "similar health care providers" to testify at trial as to the standard of care so long as they are qualified, while the legislature, in establishing the guidelines for opinion letters, clearly and unambiguously required that they be authored by a "similar health care provider," as defined under a separate subsection of § 52-184c.  In this appeal, the Supreme Court is presented with the question of whether the Appellate Court properly affirmed the trial court's dismissal of the present case for failure to comply with General Statutes § 52-190a.