WINSTON MORGAN et al. v. HARTFORD HOSPITAL et al., SC 18469

Judicial District of Hartford

 

Torts; Medical Malpractice; Whether the Plaintiffs' Action was Properly Dismissed Because the Expert Opinion Letter Attached to the Complaint Failed to Satisfy the Requirements of General Statutes 52-190a; Whether 52-190a Barred the Amended Complaint. The plaintiffs commenced this medical malpractice action against, among others, Robert Lowe, a thoracic surgeon with a subspecialty in vascular surgery, and Lowe's employer, Connecticut Surgical Group, P.C., under the doctrine of respondeat superior. In an attempt to comply with General Statutes 52-190a, which requires a plaintiff in a medical malpractice action to attach to the complaint a written opinion of a "similar health care provider" attesting to a good faith basis for the action, the plaintiffs attached an opinion letter from a board certified internist/cardiologist to their complaint. The plaintiffs later amended their complaint and attached an additional opinion letter from a vascular surgeon. Lowe and his employer moved to dismiss the claims against them, arguing that the letter from the internist/cardiologist was not a letter from a similar health care provider and that the subsequently obtained vascular surgeon's letter, which was attached to the amended complaint, did not cure the deficiency because it had not been obtained prior to the filing of the original complaint. The trial court agreed and dismissed the action as to Lowe and his employer. In so ruling, it stated that the plain and unambiguous meaning of 52-190a and General Statutes 52-184c (c), when read together, is that a health care provider similar to Lowe is one who is trained and experienced in vascular surgery and board certified in the same categories of surgery for which Lowe is certified. It found that the internist/cardiologist was not a vascular surgeon and not board certified in general and thoracic surgery. The court found that the subsequently obtained opinion letter attached to the amended complaint did not cure the deficiency in the original complaint. It also rejected the plaintiffs' argument that a similar health care provider did not have to be board certified in the same specialty as the defendant. To support this contention, the plaintiffs relied on General Statutes 52-184c (d) (2), which permits a health care provider to testify as an expert if he or she is not a similar health care provider, when, "to the satisfaction of the court, [he or she] possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine." The court found that 52-184c (d) did not support the plaintiffs' argument because the statute explicitly provides that not all medical experts testifying at trial must be similar health care providers, whereas 52-190a expressly limits the authorship of the requisite opinion letters to similar health care providers. The court also declined to consider, on inadequate briefing grounds, the plaintiffs' claim that 52-190a is unconstitutional in that it violates the separation of powers doctrine by interfering in an area exclusively under the control of the courts. In this appeal, the Supreme Court will determine whether the trial court properly dismissed the action as to Lowe and his employer.