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October 1, 2021
By Robert Storace | Connecticut Law Tribune (September 15, 2021) -- Legal medical malpractice experts are divided over whether the rule that an opinion letter written and signed by a similar health care provider be attached to a medical malpractice lawsuit is fair, following a Connecticut Appellate Court ruling upholding the dismissal of a case against Greenwich Hospital for that very reason.
The Appellate Court, in a 3-0 Sept. 10 ruling, upheld a trial court’s ruling that dismissed the case in Barnes v. Greenwich Hospital.
The Appellate Court, in a ruling Judge Eliot Prescott wrote, stated the simple fact that because plaintiffs counsel forgot to include the letter the court had no choice but to side with the defendant hospital. Connecticut state statute 52-190a, enacted in 2011, mandates the letter be attached to any medical malpractice lawsuit.
The judge’s ruling states: “The plaintiffs did not comply with the requirement clearly set forth in 52-190a and such non-compliance mandates dismissal of the action under 52-190a, when timely raised by the defendants as in this case.”
Plaintiffs counsel did, eventually, submit the opinion letter, but after the statute of limitations had expired. The opinion letter was dated Oct. 6, 2019, but the statute of limitations expired Sept. 12, 2019.
In her August 2019 lawsuit, Lori Barnes alleged her colonoscopy procedure was botched. The lawsuit says Felice Zwas, the hospital’s chief of gastroenterology, accidentally punctured Barnes’ colon. The lawsuit maintains the puncture led to a large tear and that the plaintiff “suffered bouts of memory loss, fever, and delirium while at Greenwich Hospital.”
Experts are divided on the necessity of the opinion letter.
Medical malpractice attorney Kelly Reardon of The Reardon Law Firm in New London said Wednesday: “I think it would be wonderful to get rid of it [statute mandating inclusion of opinion letter]. It has created a morass of litigation and given rise to probably dozens, if not hundreds, of lawsuits with merit being dismissed.”
Reardon said she knows and appreciates that part of the state Legislature’s intent in requiring the opinion letter was to counter frivolous lawsuits.
“The intention behind it is good, as we do not want frivolous cases,” Reardon said. “However, the complexity of the statute and the requirement placed on it in terms of finding a similar health care provider that meets the statute has resulted in a field day for defense lawyers trying to find ways to dismiss legitimate cases.”
Reardon said consulting with a health expert should be enough.
“I think there is no reason why plaintiffs lawyers should be required to attach a letter to a lawsuit if they have consulted with an expert in advance of filing the lawsuit and have determined that there was negligence based on the consultations,” Reardon said.
“I do think this is a fair ruling,” said Teitell, who also co-teaches a medical malpractice course at the Quinnipiac University School of Law. “He [attorney] got the opinion letter after the motion to dismiss was filed; which was very late in the game. Looking at this objectively, and putting my teacher hat on because I am also a plaintiff attorney, I understand how this hurts. But, I do think, based on the statute and the legislative purpose and the precedent, that it was the right decision.”
While Teitell said his guess is that “I do not see hope” for a successful appeal to the Connecticut Supreme Court, plaintiffs counsel said they’ll do just that.
“The case is not over,” said plaintiffs counsel Frank Peluso of the Law Offices of Frank N. Peluso in Greenwich. “We will continue to pursue the matter in another court.” Assisting Peluso is Paul Ciarcia from the same firm.
Megan Bryson and Carol Doty, attorneys for the hospital, didn’t respond to a request for comment Wednesday. Both attorneys work for Kaufman Borgeest & Ryan in Stamford.
Attorney Diana Carlino represents Zwas.
“We are pleased that the Appellate Court unanimously upheld Judge [Robert] Genuario’s decision,” said Carlino of Rosenblum Newfield in Stamford. “It would disregard the purpose of the statute of limitations and Connecticut General Statutes 52-190a if plaintiffs could bring a malpractice action without a good faith letter.”
Zwas didn’t respond to a request for comment Wednesday. In addition, no one from Greenwich Hospital’s media relations team responded to a request for comment.