February 8, 2022

In its opinion filed on January 13, 2022 in a Connecticut medical malpractice case that was dismissed by the lower court, the Connecticut Supreme Court stated: “we must determine whether the plaintiff met her burden of proving that her attorney’s admitted failure to know of two Appellate Court decisions, issued six years before she initiated the first action, was a mistake, inadvertence, or excusable neglect rather than egregious conduct or gross negligence. We agree with the trial court that the plaintiff has not met her burden and, therefore, affirm its judgment.”

The Underlying Facts

The plaintiff, the executor of Theresa Riccio’s Estate, filed a Connecticut medical malpractice action against the defendant hospital, alleging that certain of its employees had negligently caused the decedent’s death. The trial court dismissed that action, concluding that the plaintiff’s attorney had failed to file legally sufficient medical opinion letters with the plaintiff’s complaint, as required by § 52-190a (a) and prior Appellate Court case law interpreting that statutory provision, as those opinion letters did not disclose the professional qualifications of their authors. The plaintiff did not appeal from the trial court’s judgment of dismissal but, instead, commenced a new Connecticut medical malpractice action under § 52-592, which was based on the same malpractice claims asserted in her prior action, approximately five months after the statute of limitations expired.

The trial court rendered judgment dismissing the action as time barred, concluding that § 52-592 did not apply because the plaintiff’s attorney’s failure to include in the opinion letters the qualifications of their authors was not a matter of form due to mistake, inadvertence, or excusable neglect.

Connecticut Supreme Court Opinion

The Connecticut Supreme Court held that the trial court correctly concluded that § 52-592 did not save the plaintiff’s otherwise time-barred action because the plaintiff failed to meet her burden of proving that her attorney’s failure to file legally sufficient medical opinion letters in the first action was the result of a mistake, inadvertence, or excusable neglect, rather than egregious conduct or gross negligence, based on the evidence in the record (the attorney had been practicing medical malpractice law for more than ten years before he filed the plaintiff’s first action; the adequacy of an opinion letter is one of the most frequently litigated pretrial issues in medical malpractice actions; the two Appellate Court cases of which the attorney was unaware were decided at least six years before the plaintiff’s first action was filed; in the six-year period after those two cases were decided, the attorney filed five medical malpractice actions in which he had failed to comply with the requirement established by those cases; and, the attorney acknowledged that, prior to filing the plaintiff’s first action, he had not read those Appellate Court cases).

Nonetheless, the Connecticut Supreme Court stated: “We note that plaintiffs whose time barred actions are not saved by § 52-592 due to their attorney’s gross negligence are not left without recourse. In certain circumstances, a plaintiff may have recourse in a legal malpractice action.”

Source Riccio v. The Bristol Hospital, Inc., SC 20529.

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