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Health care providers should take note of a recent decision of the Connecticut Supreme Court that may make it easier for individuals to bring medical malpractice actions. In Carpenter v. Daar, 346 Conn. 80 (2023), the court considered the state statute requiring a written opinion letter from a “similar health care provider” in medical malpractice actions--CGS §52-190a. The court decided that even if the required letter is legally insufficient or defective, the trial court may permit amendments or supplementation in response to a defendant’s motion to dismiss.
The plaintiff in this case brought a medical malpractice action against a dentist and his practice, claiming that during a root canal procedure the dentist failed to diagnose and treat an infection in the plaintiff’s tooth and as a result the plaintiff required surgery and other follow-up care. The plaintiff claimed that the dentist was a specialist in the field of endodontics and obtained an opinion letter from a professor of endodontics. The dentist filed a motion to dismiss, arguing that he performed root canals in the course of his general practice and that the author of the opinion letter, therefore, was not a similar health care provider because it was written by an endodontic specialist. In response to the motion to dismiss, the plaintiff submitted a supplemental affidavit executed by the same endodontist which included support for the opinion writer’s work in the area of general dentistry. The trial court determined that the affidavit was permissible but granted the motion to dismiss because the opinion author was a specialist and therefore not a similar health care provider to the defendant, whom it found was a general dentist. The Appellate Court of Connecticut affirmed. The Appellate Court found that the opinion letter was part of the “civil process” for the purpose of obtaining personal jurisdiction over the defendant and was akin to a “pleading.” Therefore, an amendment to the opinion letter could only be made by amending the lawsuit or refiling the action.
The Connecticut Supreme Court reversed the decision of the Appellate Court. The court found that the opinion writer was a similar health care provider to the defendant because, although the defendant was a non-specialist, he held himself out as a specialist in the field of endodontics. The court noted, for example, that he stated on his dental practice’s website that he had completed hundreds of hours of training in endodontics.
Importantly, the court went beyond the facts of this case and considered the more fundamental issue of whether the opinion letter requirement implicates the court’s exercise of jurisdiction over the defendant. Overturning its own precedent, the court held that it did not. After reviewing the text of CGS §52-190a and its legislative history, the court determined that the requirement for a corroborating expert opinion was intended only as a device to weed out frivolous lawsuits and found that “categorizing the opinion letter in any way as jurisdictional has… turned what the legislature intended to be a simple prelitigation documentation of the plaintiff’s good faith inquiry into, in essence, a trap under which even meritorious suits are subject to dismissal.” The court found that prior case law deviated from the purpose of the statute “due to curable technical flaws unrelated to the actual merits of the claim” and imposed greater burdens on plaintiffs than intended by the legislature.
The court also clarified two points regarding the adjudication of motions to dismiss under CGS §52-190a that guided its analysis. It first noted that the only question at the motion to dismiss stage is whether the author of the opinion letter is a similar health care provider to the defendant “as their respective qualifications are pleaded in the complaint and described in the opinion letter.” Second, the court confirmed that it is still good law that a motion to dismiss for failure to file an opinion letter is waivable, including by inaction, and that the motion to dismiss must be filed early in the action. The court also mentioned, in a footnote, that the legislature is free to provide guidance as to more specific procedures governing motions to dismiss
Should you have any questions, please contact one of our Health Care Law attorneys.
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Alerts, commentary and insights from the attorneys of Pullman & Comley’s Health Care practice on legal developments affecting hospitals, physician groups, pharmaceutical and medical device companies as well as other health care providers and suppliers.