Conn. SC: Physician's opinion in med mal case detailed enough

Jessica M. Karmasek Feb. 1, 2012, 3:54pm



HARTFORD, Conn. (Legal Newsline) - The Connecticut Supreme Court has ruled that a written opinion in a medical malpractice case satisfies the "detailed basis" requirement of a state statute.

The Court, in a majority opinion to be officially released Tuesday, affirmed the judgment of an appellate court.

Plaintiffs Kristy and Timothy Wilcox sued defendants Daniel S. Schwartz, a general surgeon, and his employer, CBS Surgical Group PC, alleging that Schwartz negligently performed laparoscopic gallbladder surgery on Kristy.

A trial court granted the defendants' motion to dismiss, concluding that the written opinion of a "similar health care provider" that accompanied the certificate of good faith, as mandated by a state statute, did not satisfy the "detailed basis" requirement.

The trial court said the written opinion failed to explain the "particular manner" in which Schwartz had breached the standard of care.

The plaintiffs appealed to an appellate court, which reversed the judgment of the trial court.

The state's high court then granted the defendants' petition for certification to appeal, limited to the "detailed basis" question.

The majority, in an 18-page ruling written by Justice Richard N. Palmer, affirmed the appellate court's judgment.

"We therefore disagree with the defendants and the dissent that a written opinion always must identify the precise manner in which the standard of care was breached to satisfy the requirements of §52-190a (a)," Palmer wrote.

"The opinion necessarily is obtained prior to the commencement of the action, before the plaintiff will have had the opportunity to engage in pretrial discovery under the rules of practice governing such discovery."

The majority said it did not believe the Legislature intended to bar "potentially meritorious" medical malpractice claims simply because it is impossible for the plaintiff to identify, prior to discovery, the particular act or omission that caused the injury.

"If such expert testimony is sufficient to permit the case to go to the jury at the conclusion of the plaintiff's evidence, it would be unreasonable -- indeed, it would be bizarre -- to conclude that the same expert opinion nevertheless is insufficient to satisfy the 'detailed basis' requirement of §52-190a (a) at the very inception of the litigation," it wrote.

Chief Justice Chase T. Rogers, along with Justices Flemming L. Norcott Jr. and Peter T. Zarella, dissented.

Rogers called the written opinion "little more than an unadorned statement" that Schwartz failed to prevent injury to Kristy Wilcox.

The chief justice put particular emphasis on the word "detailed."

"The written opinion does not explain with any particularity the standard of care, namely, what precautions normally are taken by physicians skilled in laparoscopic gallbladder surgery to prevent injuries to nearby anatomical structures," she wrote in her six-page dissent.

"Nor does the written opinion purport to assess how the standard was breached by specifying which, if any, precautions Schwartz apparently failed to take, and what, in the available information, led the author to reach this conclusion."

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