Connecticut statutes intended to protect defendants from meritless claims of medical negligence are being threatened by a bill pending before the State’s Joint Committee on Judiciary, H.B. No. 5537, “An Act Concerning Certificates of Merit.” The text of H.B. No. 5537 may be found here.

In 2005, General Statutes § 52-190a, the statute governing certificates of merit in medical malpractice actions, was amended to add greater protections for defendants from meritless claims of medical negligence. Under the current state of the law, § 52-190a requires plaintiffs alleging claims of medical negligence to attach to complaints a certificate of good faith and a written opinion letter from a “similar health care provider,” as defined by General Statutes § 52-184c, stating that there appears to be evidence of medical negligence, and providing a detailed basis for the formation of that opinion. Section 52-190a(c) allows defendants to seek dismissal of plaintiffs’ claims for failure to comply with this requirement. General Statutes § 52-184c sets forth the standard of care in medical negligence actions and governs the qualifications of expert witnesses. The statute expressly permits experts who fall within the definition of the term “similar health care provider” in subsections (b) and (c) of the statute to testify at trial regarding the applicable standard of care.

Since the amendment to § 52-190a in 2005, there has been extensive debate among members of the bar regarding the meaning of the written opinion letter requirement. In the last year, the State Supreme and Appellate courts have issued three important decisions clarifying the written opinion letter requirement. However, significant issues of statutory interpretation continue to remain unresolved. Augustus R. Southworth III of Carmody & Torrance LLP, with whom on the brief is Lauren J. Taylor, are presently litigating an appeal before the Connecticut Supreme Court involving many issues of first impression, including the meaning of § 52-190a’s use of the term “similar health care provider”; whether a complaint that fails to attach a written opinion letter can be “cured” by subsequent amendment; and whether the remedy of dismissal for failure to attach a written opinion letter is mandatory or discretionary in nature.

H.B. No. 5537, if enacted, would change General Statutes §§ 52-190a and 52-184c to substantially weaken the requirements for filing a written opinion letter, effective October 1, 2010. For example, the proposed bill would expand § 52-184c’s definition of the term “similar health care provider” to include experts that do not practice in the same specialty or hold the same board certifications as the defendant. In addition, the proposed bill would prohibit challenges to the qualifications of a similar health care provider until after the completion of discovery. It also would make dismissal for failure to comply with the written opinion letter requirement a matter of judicial discretion, and would afford plaintiffs the opportunity to cure a deficient complaint within thirty days following a court order. In sum, the proposed amendments would make it nearly impossible for defendants to obtain dismissal of plaintiffs’ medical negligence claims for failure to attach a written opinion letter.

A public hearing on H.B. No. 5537 is scheduled to be held at the Legislative Office Building in Hartford this Wednesday, March 24, 2010, at 10:00 a.m. If you have questions about this proposed legislation or about the current requirements of General Statutes §§ 52-190a or 184c, please contact Augustus R. Southworth or Kristin Connors or any member of the Carmody & Torrance LLP Health Care Practice Group.

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