In 1987, by enacting Connecticut General Statute §52-190a our legislature sought to discourage the filing of baseless lawsuits against health care providers, by requiring the plaintiff to conduct a precomplaint inquiry into whether there is a good faith basis to bring an action against the defendant. The plaintiff is required to attach to the complaint a good faith certificate signed by the attorney filing the action certifying that they have made a reasonable inquiry, which gave rise to a good faith belief that grounds exist for an action against each named defendant.

In 2005, the Connecticut legislature significantly amended the requirements for bringing a medical malpractice action. To show the existence of a good faith basis for bringing suit, the plaintiff is required to first obtain a written opinion from a health care provider of the same specialty as the defendant, which states “that there appears to be evidence of medical negligence” and includes a detailed basis for the formation of such opinion. In addition, the plaintiff must attach a copy of the opinion, with the name and signature of the health care provider redacted, to the complaint. Finally, the statute provides that a plaintiff’s failure to obtain and file the written opinion of a similar health care provider along with the complaint shall be grounds for dismissal of the action.

Since its enactment, there has been a great deal of motion practice over the meaning of the physician’s opinion requirement. Superior Court decisions created several splits of authority on a number of questions regarding the opinion letter, including: whether failure to file a physician’s opinion deprived the court of subject matter jurisdiction; whether failure to attach an opinion could be cured by an amended complaint; whether the opinion, in addition to addressing the standard of care, needs to address causation; whether a provider from an unrelated specialty could provide an opinion; and the sufficiency of opinion letters.

The Connecticut Supreme Court recently settled one split of authority regarding whether the opinion letter needed to include an opinion on causation. In Dias v. Grady, 292 Conn. 350 (2009)the Court held that the phrase “medical negligence,” as used in Conn. Gen. Stat. § 52-190a(a), means a breach of the standard of care, and as such was not intended to encompass all of the elements of a cause of action for negligence. The Court reasoned that although a similar health care provider would be qualified to provide an opinion regarding the applicable standard of care, there are many situations in which one would not be qualified to express an opinion as to causation.

In 2008, the Appellate Court in Rios v. CCMC Corp., 106 Conn.App. 822 (2008), clarified the defendant’s remedy when a plaintiff fails to attach an opinion letter to the complaint. The Court recognized that the subsection, added by the legislature in 2005, expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint.

Prior to the Rios decision, several plaintiffs successfully argued that because the lack of a good faith certificate is not a jurisdictional defect depriving the court of subject matter jurisdiction over the case, dismissal was improper. By pointing out that there are both statutory and Practice Book provisions that provide for dismissals on the basis of nonjurisdictional grounds, the Rios Court dispensed with that argument.

Recently, in Votre v. County Obstetrics & Gynecology Group, P.C, 113 Conn.App.585 (2009), the Appellate Court clarified the grounds for a dismissal under the statute, recognizing that the statute creates a nonjurisdictional basis for dismissal of an action. A plaintiff’s failure to comply with the requirements of §52-190a(a) does not destroy the court’s power to hear a medical malpractice action. The Court recognized that dismissal pursuant to §52-190a(c) is a statutorily created remedy available to a defendant in an action in which the required written opinion is not attached to the complaint.

Prior to the Votre decision several plaintiffs argued successfully that they should be allowed to cure the defect of failing to attach an opinion letter to the complaint by filing an amended complaint. The Votre Court made it clear that since the purpose of §52-190a is to require that the opinion be obtained beforethe filing of a lawsuit, allowing a plaintiff to obtain an opinion after the suit has already been filed would vitiate the statute’s purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires. The Court did allow that if the plaintiff had obtained an opinion from a similar healthcare provider prior to filing the complaint and inadvertently failed to attach it to the complaint at the time it was filed, the defect could be cured. The Court emphasized, however, that this was only so provided the opinion had indeed been obtained prior to the filing of the complaint.

Recently, the Court granted a motion to dismiss a case which we filed on behalf of a pain management specialist. The plaintiff initially failed to attach any physician’s opinion letter to the complaint. Prior to arguing the motion to dismiss, the plaintiff amended the complaint and attached an IME report that was indeed obtained pre-suit. The IME physician was indeed a board certified pain specialist like our client. However, the report was generated at the request of a defendant that the same plaintiff had sued in a separate case arising from the same incident. We were successful in arguing that although the opinion was obtained pre-suit, it was not part of any pre-suit good-faith inquiry by the plaintiff regarding the care and treatment rendered by our client. In addition, although the physician who wrote the IME report indicated he would have approached the plaintiff’s problem differently than our client, he did not offer the opinion that our client was negligent.

There still has been no appellate authority on the issue of whether a plaintiff may attach an opinion letter from an expert physician who is board-certified in the specialty other than that of a defendant. However, recent Superior Court decisions that have come in the wake of the aforementioned appellate decisions strongly favor a reading of the statute that would allow only physicians certified by the same specialty board as the defendant to provide an opinion letter.