Connecticut Appellate Court Affirms Dismissal Of Medical Malpractice Complaint Filed Without An Opinion Letter

In its opinion released on September 14, 2021, the Connecticut Appellate Court held in a medical malpractice case, “we agree with the trial court’s decision to grant the defendants’ motions to dismiss, as it is undisputed that the plaintiffs failed to comply with § 52-190a (a), and the rule articulated in Gonzales does not apply in the present case to permit the plaintiffs to remedy their defective complaint.”

Connecticut General Statutes § 52-190a (a)

Connecticut General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. . . . [T]he claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .’’

Moreover, § 52-190a (c) provides: ‘‘The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.’’

The plaintiffs appealed from the judgment of the trial court dismissing their Connecticut medical malpractice complaint for failure to attach a written opinion letter authored by a similar health care provider as required by General Statutes § 52-190a (a). On appeal, the plaintiffs claimed that the trial court improperly granted the defendants’ motions to dismiss for failure to comply with § 52-190a because the amended complaint filed by the plaintiffs as of right pursuant to Practice Book § 10-59,3 to remedy their prior failure to attach a written opinion letter was filed after the statute of limitations had expired and sought to attach an opinion letter that did not exist at the time the action was commenced.

The Connecticut Appellate Court held: “In the present case, it is undisputed that there was no opinion letter attached to the original complaint, and the plaintiffs did not obtain an opinion letter prior to filing the action. No opinion letter existed until October 6, 2019, after the expiration of the statute of limitations on September 12, 2019, and the plaintiffs filed an amended complaint on October 8, 2019, also after the statute of limitations had expired on September 12, 2019. As such, the plaintiffs did not comply with the requirement clearly set forth in § 52-190a (a), and such noncompliance mandates dismissal of the action under § 52-190a (c) when timely raised by the defendants as in this case. As this court pointed out in Votre, which is factually analogous to the present case in that the plaintiff there did not attach any opinion letter to her original complaint and one did not exist at the time the action was commenced, ‘‘allowing a plaintiff to obtain . . . [an] opinion after the action has been brought would vitiate the statute’s purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires.’’”

Source Barnes v. Greenwich Hospital, AC 44055.

If you or a loved one may have been injured as a result of medical malpractice in Connecticut or in another U.S. state, you should promptly find a Connecticut medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you and/or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Wednesday, November 3rd, 2021 at 5:22 am. Both comments and pings are currently closed.

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