Opinion
No. CV 09-5030192-S
January 27, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this malpractice action against a physical therapist, the defendant on June 22, 2009 moved to dismiss on the ground that the opinion letter accompanying the certificate of good faith required by General Statutes § 52-190a did not contain a sufficiently detailed basis for the alleged negligence.
In oral argument on December 14, 2009 defendant also argued that the certificate was insufficient because the affiant was not a "board certified therapist" as was the defendant Anand K. Bishnoi and therefore was not a "similar health care provider."
-I-
The relevant portion of General Statutes § 52-190a, outlining the requirement of producing a good faith certificate, states that "[t]o show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in § 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Emphasis added.) While Connecticut courts, at the appellant level, have, thus far, not analyzed what the necessary contents of this good faith opinion must be in order to comply with this provision of the statute, there is support, at the trial court level, that indicates that a valid opinion need only contain the barest minimum amount of information necessary to establish a deviation from the appropriate standard of care. In Ouellette v. Brook Hollow Health Care Center, Superior Court, judicial district of New Haven, Docket No., CV 06-5002865 (February 16, 2007, Holden, J.). ( 42 Conn. L. Rptr. 863). The standard adopted by the court for determining the sufficiency of a good faith opinion is that the medical professional must indicate (1) they are practicing in the state of Connecticut, (2) they have reviewed the available medical record pertaining to the claimant and (3) the available record indicates a deviation in the standard of care. Id., 865.
Most of the available cases analyzing General Statutes § 52-190a, however, focus on the legislative intent behind the enactment of the statute. Nearly all of the cases allude to the fact that the statute was intended to have a gatekeeper function of ensuring that there is "a good faith belief that there has been negligence in the care or treatment of the claimant," thereby "discourag[ing] the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710 (1990); See also Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 548, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009). That said, in analyzing the legislative history, the superior court has found that the functional purpose of the requirement to provide detail in the opinion was merely to corroborate the good faith certificate that the attorney had conducted a reasonable inquiry into the merits of the claim, not to provide specific information as to the medical basis for the opinion. Andrikis v. Phoenix Internal Medicine, Superior Court, judicial district of Waterbury, Docket No., CV 05-5000482 (April 19, 2006, Matasavage, J.) ( 41 Conn. L. Rprt. 222).
Finally, General Statutes § 52-190a does not, on its face, require similar health care providers to offer an extensive explanation of the defendant's deviation from the standard of care and, in fact, Superior Court cases have noted that "the language of [General Statutes] § 52-190a does not specify the amount of detail required." Walton v. Caffrey, Superior Court, judicial district of Waterbury, Docket No., CV 06-5000857 (May 4, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 341).
As to the first claim, that the opinion letter was not "sufficiently detailed" it is found that this claim is without merit. The two-page single-spaced letter contains details of the total knee replacement prior to the therapy, a detailed description of the therapy which took place from May 17 to May 23, 2007, the plaintiff's subsequent hospitalization with a left patella fracture and a conclusion of negligence by the defendant "evidenced by increased ROM (25 degrees flexion) over a short period of time (4 visits) for a patient of Mr. Menditto's age, previous history of immobility of the knee, and subsequent fracture of the left patella."
-II-
The relevant portion of General Statutes § 52-190a, outlining the requirement of producing a good faith certificate, states that "[t]o show the existence of such good faith, the claimant or the claimant's attorney shall obtain a written and signed opinion of a similar health care provider, as defined in § 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section . . ." (Emphasis added.) Furthermore, General Statutes § 52-184c provides that a similar health care provider is defined, in relevant part, as follows: "(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a similar health care provider is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a similar health care provider."
In the present case, the first prong of this statutory test is undisputed; the signed opinion is made by someone trained and experienced in the same specialty, namely physical therapy. As to the second prong, however, the record indicates that both defendant and the opinion author received their certification from different American boards. The defendant is board certified in orthopedic physical therapy, while the opinion writer is board certified as a physical therapist. General Statutes § 52-184c merely indicates that similar health care providers must be board certified in the same specialty. There is no case law interpreting what consists of a "board certification in the same specialty" within the terms noted in General Statutes § 52-184c.
The defendant cites the case of Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 548, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009), to illustrate that when a defendant and opinion author do not share the same type of American board certification the opinion letter is insufficient. The present case is distinguishable. In Bennett, the defendant was board certified in emergency medicine, while the opinion author was not. Such a dichotomy in the actual board certification, where a physician who was not board certified in emergency medicine authored an opinion on the appropriate standard of care exercised by a physician that was board certified in emergency medicine, was held to be violative of General Statutes § 52-190a. In the present case, however, both the defendant and the opinion author are board certified in the same specialty of physical therapy.
Defendant's claim that the difference in specialization between the defendant and the opinion author, namely that the defendant is board certified specifically in orthopedic physical therapy while the opinion writer is not, persuasive.
In the present case, the procedure that was allegedly performed improperly by the defendant was not of the type that required treatment by a specialist and, fell within the realm of basic physical therapy. General Statutes § 52-184c states: "if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a similar health care provider." The defendant's additional specialization in orthopedic physical therapy is irrelevant in determining whether the opinion author is a similar health care provider within the meaning of General Statutes § 52-184c. Here, the defendant specialist is not providing medical treatment unique to his board certified specialty but, rather, is providing care consistent with a person board certified in physical therapy.
It appears that opinion author and the defendant are each "certified by the appropriate American board in the same specialty," namely, physical therapy within the meaning of General Statutes § 52-184c.
Motion to dismiss is denied.