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KRISTIN WILKINS ET AL. v. CONNECTICUT

CHILDBIRTH AND WOMEN’S

CENTER ET AL.

(SC 18998)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued March 25—officially released December 9, 2014

Carey B. Reilly, with whom, on the brief, was David

M. Bernard, for the appellants (plaintiffs).

Matthew M. Sconziano, for the appellees

(defendants).
Opinion

EVELEIGH, J. The plaintiff Kristin Wilkins1 appeals

from the judgment of the Appellate Court affirming

the judgment of the trial court dismissing her medical

malpractice action against the defendants, Connecticut

Childbirth & Women’s Center (Connecticut Childbirth)

and Women’s Health Associates, P.C. (Women’s

Health), on the basis of the plaintiff’s failure to comply

with the requirements of General Statutes § 52-190a.2

Because the plaintiff brought this action against the

defendants principally on the basis of vicariously liability for the alleged negligence of specified employees or

agents, namely, certain certified nurse-midwives, we

conclude that § 52-190a (a) required the plaintiff to supply an opinion letter authored by a similar health care

provider as defined by General Statutes § 52-184c (c),

namely, someone who is certified in the same specialty

as those nurse-midwives. Because the plaintiff provided

an opinion letter of a physician who is board certified

in obstetrics, which is the same specialty practiced by

the nurse-midwives, we conclude that the Appellate

Court improperly affirmed the judgment of the trial

court dismissing this action pursuant to § 52-190a (c).

Accordingly, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the

following relevant facts and procedural history. ‘‘On

June 11, 2009, the plaintiff filed this medical malpractice

action based on alleged negligence on the part of

employees or agents of the defendants during the April

17, 2007 delivery of her child, and, subsequently, at

postpartum office visits. The plaintiff alleges in her complaint that Connecticut Childbirth is a medical facility

that is staffed by various health care providers, including physicians, [nurse-midwives], surgeons and nurses,

who specialize in providing obstetrical and gynecological care. Women’s Health owned, operated, controlled

and/or had a financial interest in Connecticut Childbirth. The plaintiff alleges that Katy Maker, Catherine

Parisi and Catherine Gallagher, who are certified

[nurse-midwives], and Carly Detterman, who was a registered nurse and midwife in training at the time treatment was rendered to the plaintiff, were agents or

employees of the [defendants] who negligently failed

to diagnose and to treat a fourth degree tear of the

plaintiff’s vaginal tissue, perineal skin and anal sphincter at the time of delivery and during postpartum checkups. As a result of that alleged negligence, the plaintiff

has allegedly sustained severe and permanent injuries,

and consequently, her husband has sustained a loss of

her consortium.

‘‘With her complaint, the plaintiff submitted a good

faith certificate signed by her attorney, who represented

therein that he had made a reasonable inquiry into the

circumstances of the plaintiff’s claims and that, on the
basis of that inquiry, he believed in good faith that the

defendants and their servants, agents or employees had

been negligent in their treatment of the plaintiff. Additionally, the plaintiff submitted a document entitled

‘Physician’s Opinion Pursuant to [General Statutes §]

52-190a.’ The opinion letter was authored by a board

certified obstetrician and gynecologist, who opined, in

relevant part, that Maker, one of the certified [nursemidwives] who cared for the plaintiff, ‘departed from

the accepted standard of care when she failed to diagnose and repairthe fourth degree tearfollowing delivery

of the fetus and at the postpartum visits.’ In conclusion,

the author of the letter stated: ‘[I]t is my opinion that

there appears to be evidence of medical negligence on

the part of . . . Maker and Connecticut Childbirth and

Women’s Center.’

‘‘On August 6, 2009, the defendants filed a motion to

dismiss the plaintiff’s action, pursuant to § 52-190a (c),

on the ground that the physician opinion letter submitted by the plaintiff failed to satisfy the requirements of

§ 52-190a (a) because the letter was not authored by a

similar health care provider, as defined in § 52-184c (c).

Because the care rendered to the plaintiff was provided

by certified [nurse-midwives] or, as the allegations pertain to Detterman, by a registered nurse, the defendants

argued that the plaintiff was required to submit an opinion letter authored by a certified [nurse-midwife] or a

registered nurse in order to satisfy § 52-184c (c). The

plaintiff filed an objection, claiming that an obstetrician

‘is considered to be a ‘‘similar health care provider’’ for

purposes of . . . § 52-184c (c) when rendering an opinion regarding the standard of care applicable to certified

[nurse-midwives] . . . and registered nurses . . .

engaged in supervising a patient’s labor and delivery

. . . .’ The plaintiff also argued that the defendants are

institutions to which § 52-184c does not apply, because

the definitions of ‘similar health care provider’ set forth

therein refer to individuals, not institutions. The [trial]

court agreed with the defendants, finding that the plaintiff’s action was based on the negligence of the individuals who cared for the plaintiff, and the defendants as

the employers of those individuals. On that basis, the

[trial] court concluded that the plaintiff was required,

pursuant to §§ 52-190a (a) and 52-184c (c), to submit

an opinion letter by an individual who is trained, experienced and certified in [nurse-midwifery] or nursing.

Because the plaintiff failed to do so, the [trial] court

dismissed her action.’’ (Footnote omitted.) Wilkins v.

Connecticut Childbirth & Women’s Center, 135 Conn.

App. 679, 683–85, 42 A.3d 521 (2012). The plaintiff

appealed from the judgment of the trial court to the

Appellate Court.

On appealto theAppellate Court, the plaintiff claimed

that the trial court improperly dismissed her complaint

on the ground that she did not submit an opinion letter

authored by a similar health care provider. Specifically,
the plaintiff claimed that the opinion letter that she

submitted, which was authored by an obstetrician, was

sufficient to meet the requirements of §§ 52-190a (a)

and 52-184c.3

Id., 685–86.

The Appellate Court affirmed the judgment of the trial

court, concluding that ‘‘[b]ecause the plaintiff failed to

submit an opinion letter authored by an individual who

is trained, experienced and certified in [nurse-midwifery] or nursing, the court properly concluded that

she failed to meet the requirements of § 52-190a (a).’’

Id., 690.

The plaintiff filed a petition for certification to appeal,

which we granted, limited to the following question:

‘‘Did the Appellate Court properly determine that, in

this action against institutional defendants . . . § 52-

190a (a) required that the ‘similar health care provider’

opinion letter be authored by a person trained and experienced in [nurse-midwifery] or nursing, instead of

being written by a board certified obstetrician and gynecologist?’’ Wilkins v. Connecticut Childbirth & Women’s Center, 305 Conn. 921, 47 A.3d 881 (2012).

On appeal to this court, the plaintiff asserts that the

Appellate Court improperly affirmed the judgment of

the trial court and improperly concluded that § 52-190a

(a) required the plaintiff to provide an opinion letter

authored by a person certified in nurse-midwifery or

nursing instead of a board certified obstetrician and

gynecologist. Specifically, the plaintiff claims that § 52-

190a (a) does not require a good faith opinion certification for a claim against an institutional defendant. The

plaintiff further claims that, even if § 52-190a (a)

requires a good faith opinion certification for institutional defendants, the opinion letter submitted from a

board certified obstetrician and gynecologist meets the

requirements of § 52-184c (c). The plaintiff also claims

that the use of a good faith opinion certification from

a physician who is board certified in obstetrics and

gynecology satisfies the purpose of § 52-190a (a). In

response, the defendants assert that theAppellate Court

properly affirmed the judgment of the trial court and

properly concluded that §§ 52-190a (a) and 52-184c (c)

required the plaintiff to provide an opinion letter

authored by a person certified in nurse-midwifery or

nursing. Specifically, the defendants claim that a good

faith opinion certification is required for an institutional

defendant and that, in the present case, a physician

who is board certified in obstetrics and gynecology

does not meet the definition of a ‘‘ ‘similar health care

provider’ ’’ in § 52-184c (c). Although we conclude that

the plaintiff was required to submit an opinion letter

in accordance with § 52-184c (c), we agree with the

plaintiff that her letter satisfied her obligations and,

accordingly, we reverse the judgment of the Appellate Court.

Before addressing the plaintiff’s claims on appeal, we
address the applicable standard of review, which is well

settled. ‘‘A motion to dismiss tests, inter alia, whether,

on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to

dismiss will be de novo. . . . When a . . . court

decides a . . . question raised by a pretrial motion to

dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard,

a court must take the facts to be those alleged in the

complaint, including those facts necessarily implied

from the allegations, construing them in a manner most

favorable to the pleader. . . . The motion to dismiss

. . . admits all facts which are well pleaded, invokes

the existing record and must be decided upon that

alone.’’ (Internal quotation marks omitted.) Gold v.

Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010).

Moreover, when the legal issue presented in connection with a motion to dismiss is one of statutory construction, ‘‘[o]ur fundamental objective is to ascertain

and give effect to the apparent intent of the legislature.

. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language

as applied to the facts of [the] case, including the question of whether the language actually does apply. . . .

In seeking to determine that meaning, General Statutes

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to other statutes. If, after

examining such text and considering such relationship,

the meaning of such text is plain and unambiguous and

does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not

be considered. . . . The test to determine ambiguity is

whetherthe statute, when read in context, is susceptible

to more than one reasonable interpretation.’’ (Internal

quotation marks omitted.) Tayco Corp. v. Planning &

Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290

(2010). Further, in construing statutes, we presume that,

there is a purpose behind every sentence, clause or

phrase used in an act, and that no part of a statute is

superfluous. Lopa v. Brinker International, Inc., 296

Conn. 426, 433, 994 A.2d 1265 (2010).

I

We begin with the plaintiff’s claim that § 52-190a (a)

does not require a good faith opinion certification for

a claim against an institutional defendant. The plaintiff

asserts that there is a ‘‘gap’’ in the statute regarding

institutional defendants. In support of her position, the

plaintiff cites to the definition of ‘‘similar health care

provider’’ in § 52-184c (c), and asserts that it contains

attributes of health care providers that institutions cannot possess, such as board certification, and uses the

pronoun ‘‘himself . . . .’’ In response, the defendants

assert that there is no gap in the statute and that reading

§ 52-190a (a) in a manner that does not require a good
faith opinion certification in cases against institutional

defendants would defeat the legislative purpose of § 52-

190a (a). We agree with the defendants that § 52-190a

(a) applies to claims against institutional defendants.

We begin with the language of § 52-190a (a), which

provides in relevant part as follows: ‘‘No civil action

. . . shall be filed to recover damages resulting from

personal injury or wrongful death occurring on or after

October 1, 1987, whether in tort or in contract, in which

it is alleged that such injury or death resulted from the

negligence of a health care provider, unless the attorney

or party filing the action or apportionment complaint

has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a

good faith belief that there has been negligence in the

care or treatment of the claimant. The complaint, initial

pleading or apportionment complaint shall contain a

certificate of the attorney or party filing the action or

apportionment complaint that such reasonable inquiry

gave rise to a good faith belief that grounds exist for

an action against each named defendant orfor an apportionment complaint against each named apportionment

defendant. To show the existence of such good faith,

the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion

of a similar health care provider, as defined in section

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. . . .’’

Section 52-190a (a) does not contain a definition of

‘‘health care provider.’’ Section 52-190a (a)incorporates

the definition of ‘‘similar health care provider,’’ provided in § 52-184c, but § 52-184c does not contain a

definition of ‘‘health care provider.’’ Instead, § 52-184c

(a) begins with the following phrase: ‘‘In any civil action

to recover damages resulting from personal injury or

wrongful death occurring on or after October 1, 1987,

in which it is alleged that such injury or death resulted

from the negligence of a health care provider, as defined

in section 52-184b . . . .’’ General Statutes § 52-184b

(a), in turn, defines health care provider as follows:

‘‘For the purposes of this section, ‘health care provider’

means any person, corporation, facility or institution

licensed by this state to provide health care or professional services, or an officer, employee or agent thereof

acting in the course and scope of his employment.’’ The

definition of ‘‘health care provider’’ in § 52-184b (a)

indicates that, by the use of the term ‘‘health care provider’’ in § 52-190a (a), the legislature intended to

include institutions within its requirements.

In construing statutes, courts also are ‘‘guided by the

principle that the legislature is always presumed to have
created a harmonious and consistent body of law . . . .

[T]his tenet of statutory construction . . . requires us

to read statutes together when they relate to the same

subject matter . . . . Accordingly, [i]n determining the

meaning of a statute . . . we look not only [to] the

provision at issue, but also to the broader statutory

scheme to ensure the coherency of our construction.’’

(Internal quotation marks omitted.) In re Jusstice W.,

308 Conn. 652, 663, 65 A.3d 487 (2012).

With this principle in mind, we turn to the definition

of ‘‘health care provider’’ in other related statutes. General Statutes § 52-184d, which is concerned with the

inadmissibility of an apology, also indicates that the

legislature intended to include institutions when it

chose the term ‘‘health care provider’’ for § 52-190a (a).

Section 52-184d (a) (1) provides as follows: ‘‘ ‘Health

care provider’ means a provider, as defined in subsection (b) of section 20-7b, or an institution, as defined

in section 19a-490, and includes a health care institution

or facility operated by the state . . . .’’ This definition

of ‘‘health care provider’’ supports the understanding

that, by its use of the term ‘‘health care provider’’ in

§ 52-190a (a), the legislature intended to include claims

of medical malpractice against institutional defendants

within the good faith certificate requirements of § 52-

190a (a).

The plaintiff asserts, however, that the fact that § 52-

184c contains attributes of health care providers that

institutions cannot possess, such as board certification,

and uses the pronoun ‘‘himself’’ demonstrates that the

legislature did not intend it to apply to institutional

defendants. As this court recognized in DiLieto v.

County Obstetrics & Gynecology Group, P.C., 265

Conn. 79, 92–93, 828 A.2d 31 (2003), ‘‘§ 52-184c reveals

that the statute consistently addresses two different

types of health care providers. The first is the ‘defendant

health care provider,’ that is, a health care provider

against whom the plaintiff makes a claim of professional

negligence. The second type is the ‘similar health care

provider.’ A similar health care provider is identified

as both the professional with reference to whom the

applicable standard of care is established, as set forth

in § 52-184c (a), (b) and (c), and as the expert who may

testify as a witness, as set forth in § 52-184c (d). The

definition of health care provider found in § 52-184b is

incorporated into § 52-184c only in subsection (a) with

reference to a defendant health care provider. There is

no explicit incorporation of the definition in § 52-184b

with reference to a similar health care provider anywhere in § 52-184c. This suggests to us that the legislature intended to incorporate the § 52-184b definition

only with reference to defendant health care providers,

and not with reference to similar health care providers.’’

(Emphasis omitted.)

Although we agree with the plaintiff that the statute
is not as clear as it could be in regards to claims brought

against institutions, the language cited by the plaintiff

reflects the practical reality that medical malpractice

can be committed only through the acts or omissions

of people, specifically, medical professionals. Thus,

when a medical malpractice action is brought against

an institution, the malpractice necessarily is committed

by the institution’s officers, employees or agents.

Accordingly, the ‘‘defendant health care provider’’ for

purposes of § 52-184c is the person who allegedly committed the medical malpractice, not the person or institution that ultimately may be held liable for that

malpractice. Indeed, such a focus conforms to the standard of care in a malpractice action, under which the

applicable standard of care is that of the professional

who committed the negligence, not the person or entity

ultimately liable for that negligence, such as when an

action is brought against a physician for the negligence

of his employee, a nurse.4

Furthermore, we reject the interpretation of § 52-190a

(a) urged by the plaintiff because it leads to absurd

results. Specifically, the position urged by the plaintiff

is that the requirement that a plaintiff submit a good

faith opinion certification may be avoided by naming

an institution as the defendant. It is axiomatic that ‘‘[w]e

must interpret the statute so that it does not lead to

absurd or unworkable results. See State v. Courchesne,

296 Conn. 622, 710, 998 A.2d 1 (2010) (‘it is axiomatic

that those who promulgate statutes . . . do not intend

to promulgate statutes . . . that lead to absurd consequences or bizarre results’ . . .).’’ State v. Drupals, 306

Conn. 149, 165, 49 A.3d 962 (2012). The principal purpose of § 52-190a is to avoid frivolous actions against

health care providers. It would frustrate the purpose

of the statute to allow an action to proceed against a

medical institution or facility in the absence of a good

faith certificate and opinion letter. Further, the plaintiff’s interpretation of § 52-190a (a), as it reads in conjunction with related statutes, would render the

legislature’s use of the terms ‘‘institution,’’ ‘‘facility’’ or

‘‘corporation’’ superfluous. Accordingly, we conclude

that the requirements of § 52-190a (a) apply to claims

of medical malpractice brought against institutional

defendants.

II

Having concluded that § 52-190a (a) requires a good

faith opinion certification from a similar health care

provider in the present case, we next turn to the plaintiff’s claim that the Appellate Court improperly concluded that her good faith opinion certification from a

board certified obstetrician and gynecologist did not

satisfy the requirements of § 52-184c. The plaintiff

asserts that the Appellate Court improperly applied the

requirements of § 52-184c (c) to her claim, whereas it

should have applied § 52-184c (b) or § 52-184c (d) to
her claim, both of which were satisfied. In response,

the defendants assert that the plaintiff was required to

meet the requirements of § 52-184c (c) and the good

faith opinion certification from a physician who is board

certified in obstetrics and gynecology does not meet

the requirements of § 52-184c (c) in the present case

because the claims related to care given by certified

nurse-midwives and a registered nurse. We agree with

the defendants that § 52-184c (c) applies, but agree with

the plaintiff that the good faith opinion certification in

the present case satisfied the requirements of § 52-184c

(c) and, in turn, § 52-190a.

As we explained previously in this opinion, § 52-190a

(a) requires in relevant part 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 section

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. . . .’’

First, we must address the threshold question of what

subsection of § 52-184c; see footnote 3 of this opinion;

applies in evaluating the good faith opinion certification

in the present case. In Bennett v. New Milford Hospital,

Inc., 300 Conn. 1, 23, 12 A.3d 865 (2011), we concluded

that § 52-184c (b) establishes ‘‘the qualifications of a

similar health care provider when the defendant is neither board certified nor in some way a specialist, and

§ 52-184c (c)[establishes] those qualifications when the

defendant is board certified, ‘trained and experienced

in a medical specialty, or holds himself out as a specialist . . . .’ General Statutes § 52-184c (c).’’ In Bennett

v. New Milford Hospital, Inc., supra, 23–24, we relied

on the allegation in the plaintiff’s complaint ‘‘that the

defendant ‘specializes in the field of emergency medicine,’ ’’ to conclude that the good faith opinion certification had to be authored by a similar health care provider

as defined by § 52-184c (c). Subsection (d) of § 52-184c,

however, addresses whether a health care provider may

testify as an expert in a medical malpractice action. In

Bennett v. New Milford Hospital, Inc., supra, 21, we

further concluded that ‘‘in cases of specialists, the

author of an opinion letter pursuant to § 52-190a (a)

must be a similar health care provider as that term is

defined by § 52-184c (c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-

184c (d).’’

In the present case, the plaintiff alleged in her complaint that the defendants ‘‘specializ[e] in obstetrics

. . . .’’ More significantly, it is undisputed that the certified nurse-midwives whose actions form the basis of the

plaintiff’s complaint held themselves out as specialists.

Following our reasoning in Bennett, we conclude that
the good faith opinion certification had to be authored

by a similar health care provider as defined by § 52-

184c (c).

Having concluded that § 52-184c (c) applies to the

present case, we must look at who constitutes a ‘‘similar

health care provider’’ for purposes of § 52-184c (c).

Section 52-184c (c) provides as follows: ‘‘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 plaintiff brought claims of

medical malpractice against Connecticut Childbirth and

Women’s Health, two institutional defendants, under a

theory of vicarious liability, for the alleged actions of

their employees. The employees whose actions are specifically named in the plaintiff’s complaint are certified

nurse-midwives and a registered nurse. The plaintiff’s

complaint asserts that she suffered injuries related to

pregnancy, childbirth and postpartum care due to the

negligence of the defendants and their ‘‘servants,

agents, apparent agents and/or employees . . . .’’ The

plaintiff alleged in her complaint that the defendants

‘‘specializ[e] in obstetrics . . . .’’ See Bennett v. New

Milford Hospital, Inc., supra, 300 Conn. 21.

The defendants assert, and the Appellate Court concluded, that, ‘‘the plain language of §§ 52-190a (a) and

52-184c (c) dictates that a ‘similar health care provider’

with respect to the plaintiff’s health care providers

would be one who is trained and experienced in [nursemidwifery] or nursing and is certified in [nurse-midwifery] or nursing.’’ Wilkins v. Connecticut Childbirth & Women’s Center, supra, 135 Conn. App. 687–88.

The plaintiff counters that, even if § 52-184c (c) applies

to her claim, in light of the purpose behind §§ 52-190a

and 52-184c (c), the good faith opinion certification in

the present case from an physician who is board certified in obstetrics and gynecology and who has trained

and supervised nurse-midwives satisfies the requirements of the statute. We conclude that the text of the

statute accommodates a circumstance in which two

different types of medical professionals are board certified in the same medical specialty. To the extent that

the statute is ambiguous as to this question, we agree

with the plaintiff that a construction that deems a medical professional who is board certified in the same

specialty but has greater training and experience, satisfies the purpose of the requirement of the opinion letter.
Under this construction, a board certified obstetrician

and gynecologist is a similar health care provider for

purposes of § 52-184c (c).

Our understanding of the terms of § 52-184c (c) are

informed by the purpose of the opinion letter requirement in § 52-190a. In Wilcox v. Schwartz, 303 Conn.

630, 640–42, 37 A.3d 133 (2012), this court explained

as follows: ‘‘§ 52-190a originally was enacted as part of

the Tort Reform Act of 1986. See Public Acts 1986, No.

86-338, § 12. The original version of the statute required

the plaintiff in any medical malpractice action to conduct a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good

faith belief that there has been negligence in the care

or treatment of the [plaintiff] and to file a certificate

that such reasonable inquiry gave rise to a good faith

belief that grounds exist for an action against each

named defendant. General Statutes (Rev. to 1987) § 52-

190a (a). The original statute did notrequire the plaintiff

to obtain the written opinion of a similar health care

provider that there appeared to be evidence of medical

negligence . . . but permitted the plaintiff to rely on

such an opinion to support his good faith belief. . . .

[T]he purpose of the original version of § 52-190a was

to prevent frivolous medical malpractice actions. See

Bruttomesso v. Northeastern Connecticut Sexual

Assault Crisis Services, Inc., 242 Conn. 1, 15, 698 A.2d

795 (1997) ([t]he purpose of the legislation is to inhibit

a plaintiff from bringing an inadequately investigated

cause of action, whether in tort or in contract, claiming

negligence by a health care provider).

‘‘In 2005, the legislature amended § 52-190a (a) to

include a provision requiring the plaintiff in a medical

malpractice action to [show the existence of the claimant’s good faith belief that grounds exist for an action

by] obtain[ing] the written opinion of a similar health

care providerthat there appears to be evidence of medical negligence . . . . See Public Acts 2005, No. 05-275,

§ 2 . . . . Dias v. Grady, [292 Conn. 350, 357, 972 A.2d

715 (2009)]. The 2005 legislation was part of a comprehensive effort to control significant and continued

increases in malpractice insurance premiums by

reforming aspects of tort law, the insurance system and

the public health regulatory system. Bennett v. New

Milford Hospital, Inc., [supra, 300 Conn. 18].

‘‘As we also observed in Dias with regard to the

legislative history of the 2005 legislation, Michael D.

Neubert, an attorney representing theConnecticut State

Medical Society at a hearing before the [J]udiciary

[C]ommittee, stated that the [written opinion requirement] was intended to ensure that there’s a reasonable

basis for filing a medical malpractice action under the

circumstances. It would help eliminate some of the

more questionable and meritless claims filed under the

present statutory scheme. Conn. Joint Standing Com-
mittee Hearings, [Judiciary, Pt. 18, 2005 Sess.], p. 5539.

[Neubert] also stated that the [requirement obviously

was not going to impact the majority of cases and] was

targeting [only the cases on the margins] . . . where

attorneys, based on their own judgment and maybe in

good faith have misread what an [expert has] told them

. . . . Very often you hear what you want to hear as

an attorney, or interpret [what has] been told to you

as you want to interpret it. . . . [I]f the [physician is]

not willing to sign on the dotted line, maybe [that is]

a good indication that this [is not] a good case to bring.

. . . If part of what [we are] trying to do here is eliminate those cases [that] should not be in the system then

I think this serves to do it. Id., p. 5553; see also Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 19,

2005 Sess., p. 5743, written testimony of Neubert (the

present statutory scheme does not adequately [e]nsure

that an attorney filing a medical malpractice action has

a reasonable basis to believe that the defendants have

violated the standard of care in causing the plaintiff

injury). Dias v. Grady, supra, 292 Conn. 358 n.7.

‘‘Two legislators echoed Neubert’s view that the written opinion requirement was intended primarily to

reduce the number of frivolous medical malpractice

actions by requiring a plaintiff to obtain an opinion

from a similar health care provider substantiating the

plaintiff’s good faith belief that there had been negligence in the plaintiff’s care and treatment. See Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 18,

2005 Sess., p. 5545, remarks of Senator John A. Kissel

(stating that written opinion requirement would greatly

improve on then current practice of [the plaintiff’s]

attorney just sort of signing off in good faith); see also

48 S. Proc., Pt. 14, 2005 Sess., p. 4433,remarks of Senator

Edward Meyer (observing that written opinion requirement would deal with . . . [the] bad cases). Relying in

large measure on Neubert’s testimony, we concluded

in Dias that the legislative history indicates that [the

written opinion requirement] was intended to address

the problem that some attorneys, either intentionally

or innocently, were misrepresenting in the certificate

of good faith the information that they had obtained

from experts. Dias v. Grady, supra, 292 Conn. 357–58.’’

(Footnote omitted; internal quotation marks omitted.)

As the foregoing demonstrates, §§ 52-190a and 52-

184c (c) were implemented to prevent frivolous medical

malpractice actions by requiring a medical professional

with expertise in the particular medical field involved

in the claim to offer his or her professional opinion

that the standard of care was breached in a particular

instance. In the present case, the plaintiff submitted a

good faith opinion certification from an obstetrician

and gynecologist who certified that he has instructed

and supervised certified nurse-midwives and is familiar

with the standard of care applicable to them and that

the plaintiff’s claims fell within his realm of expertise
as a board certified obstetrician and gynecologist.

In the complaint, the plaintiff alleged that Connecticut Childbirth is ‘‘a professional corporation licensed

to do business by the state of Connecticut comprised

of physicians, [nurse-midwives], surgeons, nurses and

other professional health care providers specializing in

obstetrics . . . .’’ The plaintiff further alleged that

Women’s Health is ‘‘a professional corporation licensed

to do business by the state of Connecticut comprised of

physicians, [nurse-midwives], [and] other professional

health care providers specializing in obstetrics . . . .’’

This court has previously determined that it is appropriate to look to the allegations of the plaintiff’s complaint to frame the requirements for who constitutes a

similar health care provider for purposes of the good

faith opinion certification. See Bennett v. New Milford

Hospital, Inc., supra, 300 Conn. 23–24 (‘‘[b]ecause the

plaintiff brought this action against the defendant in

his capacity as a specialist in emergency medicine, we

conclude that § 52-190a [a] required the plaintiff to supply an opinion letter authored by a similar health care

provider as defined by § 52-184c [c]’’). Thus, the question is whether a board certified obstetrician and gynecologist and a certified nurse-midwife practice and are

certified in the same medical specialty.5

Stedman’s Medical Dictionary defines obstetrics as

‘‘[t]he specialty of medicine concerned with the care

of women during pregnancy, parturition [while giving

birth], and the puerperium [after birth].’’ Stedman’s

Medical Dictionary (28th Ed. 2006) p. 1354; see also

Merriam-Webster’s Collegiate Dictionary (11th Ed.

2003) (defining ‘‘obstetrics’’ as ‘‘a branch of medical

science that deals with birth and with its antecedents

and sequels’’). Stedman’s Medical Dictionary defines a

midwife as ‘‘[a] person qualified to practice midwifery,

having received specialized training in obstetrics and

child care.’’ Stedman’s Medical Dictionary, supra, p.

1212. That dictionary, in turn, defines midwifery as

‘‘[i]ndependent care of essentially normal, healthy

women and infants by a midwife, prepartally, intrapartally, postpartally and/or obstetrically in a hospital, birth

center, or home setting . . . .’’ Id. Similarly, the Dictionary of Modern Medicine indicates that the field of

medicine relevant to a midwife is obstetrics and, in

turn, defines a midwife as ‘‘[a] formally-trained person,

usually a registered nurse, who assists in childbirth;

midwifery is undergoing a renaissance, and provides

obstetric services for lower income women, and is a

delivery option chosen by some upper income women

who desire a greater involvement in childbirth . . . .’’

Dictionary of Modern Medicine (J. Segen ed., 1992)

p. 450.

It is also important to look at the statutory scheme

governing nurse-midwives in Connecticut. The statutory scheme requires that a nurse-midwife work in con-
junction with a certified obstetrician and gynecologist.

Specifically, General Statutes § 20-86b provides in relevant part as follows: ‘‘Nurse-midwives shall practice

within a health care system and have clinical relationships with obstetrician-gynecologists that provide for

consultation, collaborative management or referral, as

indicated by the health status of the patient. . . .’’ General Statutes § 20-86a (1) also provides as follows:

‘‘ ‘Nurse-midwifery’ means the management of women’s

health care needs, focusing particularly on family planning and gynecological needs of women, pregnancy,

childbirth, the postpartum period and the care of newborns, occurring within a health care team and in

collaboration with qualified obstetrician-gynecologists.’’ (Emphasis added.) The statutory requirement

that a nurse-midwife work in conjunction with an obstetrician and gynecologist, combined with the explicit

representation in the good faith opinion certification

that the obstetrician in the present case had experience

supervising nurse-midwives, demonstrates that the

obstetrician satisfied the requirements for a ‘‘similar

health care provider’’ under § 52-184c (c). The defendants would have us impose a requirement in the statute

that the opinion letter be authored by an identical

‘‘health care provider’’ and not a ‘‘similar health care

provider.’’ Such a definition would frustrate the wording

of the statute. The statutory scheme requiring a nursemidwife to have clinical relationships for consultation

and collaboration with an obstetrician-gynecologist

indicates that an obstetrician-gynecologist who has

worked with nurse-midwives would be able to provide

a medical opinion as to whether there is a good faith

basis for believing that the standard of care for nursemidwives was not followed.6

Furthermore, the defendants conceded at oral argument before this court that nurse-midwives practice

obstetrics.7 The defendants also were unable to identify

any obstetrical procedure that a nurse-midwife is

trained and board certified to perform that an obstetrician is not trained and board certified to perform.

Instead, the defendants pointed to the fact that a physician is certified by the American Board of Obstetrics

and Gynecology, whereas a nurse-midwife is certified

by the American College of Nurse-Midwives and, more

specifically, the American Midwifery Certification

Board. In addition, the defendants pointed to the fact

that an obstetrician can perform certain procedures

that are beyond a nurse-midwife’s scope of practice.

See General Statutes § 20-86b (recognizing possible

referral to obstetrician when care of patient is not

within nurse-midwives’ scope of practice). We are not

persuaded that these considerations are relevant to

determining whether an obstetrician is a similar health

care provider to a certified nurse-midwife under § 52-

184c (c). First, § 52-184c (c) simply provides that the

similar health care provider must be ‘‘certified by the
appropriate American board in the same specialty

. . . .’’ It does not provide that the author of the opinion

letter must be certified by the same board as the defendant health care provider, butratherthe same specialty.

Both the American Midwifery Certification Board and

the American Board of Obstetrics and Gynecology provide certification in the same specialty, obstetrics.

Although it is possible that the legislature never considered whether two boards could provide certification in

the same specialty, to construe the statute to permit

such a result seems wholly consistent with the purpose

of the opinion letter requirement. Second, although an

obstetrician’s training in that specialty undoubtedly

exceeds that of a certified nurse-midwife in terms of

the type of procedures that may be performed and the

type of patients that may be treated, there is nothing

in the record that would indicate that the standard of

care for the two professionals would differ substantively with respect to those matters that fall within the

scope of both professionals’ certification. Accordingly,

it is wholly consistent with statute’s purpose to allow

an opinion letter to be provided from a medical professional whose qualifications in a specialty exceed those

of the medical professional alleged to be negligent.8

Thus, the present case is wholly distinguishable from

Bennett v. New Milford Hospital, Inc., supra, 300 Conn.

17. In that case, the physician who was alleged to have

been negligent and the author of the opinion letter were

not certified in the same specialty. Id., 23–24. In the

present case, the author of the opinion letter and the

allegedly negligent medical professional were both

board certified in the same specialty, obstetrics.9

On the basis of the foregoing, we conclude that the

plaintiff fulfilled the requirements of §§ 52-184c (c) and

52-190a by submitting a good faith opinion certification

from a board certified obstetrician and gynecologist.10

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment of the trial court and to remand

the case to the trial court with direction to deny the

defendants’ motion to dismiss and for further proceedings according to law.

In this opinion PALMER, McDONALD and

ESPINOSA, Js., concurred.

1 As noted by the Appellate Court: ‘‘Kristin Wilkins’ husband, Billy Wilkins,

filed a claim for loss of consortium. [That] claim is derivative of his wife’s

malpractice claims, and, consequently, their claims on appeal are identical

. . . .’’ Wilkins v. Connecticut Childbirth & Women’s Center, 135 Conn.

App. 679, 680 n.1, 42 A.3d 521 (2012). For the sake of clarity, we hereafter

refer in this opinion to Kristin Wilkins as the plaintiff.

2 General Statutes § 52-190a provides: ‘‘(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal

injury or wrongful death occurring on or after October 1, 1987, whether in

tort or in contract, in which it is alleged that such injury or death resulted

from the negligence of a health care provider, unless the attorney or party

filing the action or apportionment complaint has made a reasonable inquiry

as permitted by the circumstances to determine that there are grounds for

a good faith belief that there has been negligence in the care or treatment
of the claimant. The complaint, initial pleading or apportionment complaint

shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith

belief that grounds exist for an action against each named defendant or for

an apportionment complaint against each named apportionment defendant.

To show the existence of such good faith, the claimant or the claimant’s

attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar

health care provider, as defined in section 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. Such written opinion shall

not be subject to discovery by any party except for questioning the validity

of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the

original written opinion and shall attach a copy of such written opinion,

with the name and signature of the similar health care provider expunged,

to such certificate. The similar health care provider who provides such

written opinion shall not, without a showing of malice, be personally liable

for any damages to the defendant health care provider by reason of having

provided such written opinion. In addition to such written opinion, the court

may consider other factors with regard to the existence of good faith. If

the court determines, after the completion of discovery, that such certificate

was not made in good faith and that no justiciable issue was presented

against a health care provider that fully cooperated in providing informal

discovery, the court upon motion or upon its own initiative shall impose

upon the person who signed such certificate or a represented party, or both,

an appropriate sanction which may include an order to pay to the other

party or parties the amount of the reasonable expenses incurred because

of the filing of the pleading, motion or other paper, including a reasonable

attorney’s fee. The court may also submit the matter to the appropriate

authority for disciplinary review of the attorney if the claimant’s attorney

or the apportionment complainant’s attorney submitted the certificate.

‘‘(b) Upon petition to the clerk of the court where the civil action will be

filed to recover damages from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to

allow the reasonable inquiry required by subsection (a) of this section. This

period shall be in addition to other tolling periods.

‘‘(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.’’

3 General Statutes § 52-184c provides: ‘‘(a) In any civil action to recover

damages resulting from personal injury or wrongful death occurring on or

after October 1, 1987, in which it is alleged that such injury or death resulted

from the negligence of a health care provider, as defined in section 52-184b,

the claimant shall have the burden of proving by the preponderance of the

evidence that the alleged actions of the health care provider represented a

breach of the prevailing professional standard of care for that health care

provider. The prevailing professional standard of care for a given health

care provider shall be that level of care, skill and treatment which, in light

of all relevant surrounding circumstances, is recognized as acceptable and

appropriate by reasonably prudent similar health care providers.

‘‘(b)Ifthe defendant health care provideris not certified by the appropriate

American board as being a specialist, is not trained and experienced in a

medical specialty, or does not hold himself out as a specialist, a ‘similar

health care provider’ is one who:(1)Is licensed by the appropriate regulatory

agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school

of practice and such training and experience shall be as a result of the

active involvement in the practice or teaching of medicine within the fiveyear period before the incident giving rise to the claim.

‘‘(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 forthat condition shall be considered a ‘similar health

care provider’.

‘‘(d) Any health care provider may testify as an expert in any action if

he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c)

of this section; or (2) is not a similar health care provider pursuant to
subsection (b) or (c) of this section but, to the satisfaction of the court,

possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide

such expert testimony as to the prevailing professional standard of care in

a given field of medicine. Such training, experience or knowledge shall be

as a result of the active involvement in the practice or teaching of medicine

within the five-year period before the incident giving rise to the claim.’’

4

It is important to note that § 52-190a applies only to claims of medical

malpractice, not ordinary negligence. See, e.g., Shortell v. Cavanagh, 300

Conn. 383, 393, 15 A.3d 1042 (2011) (‘‘If an expert is needed to establish

the standard of care, a fortiori, an opinion letter is required from a similar

health care provider. It is likewise both consistent and logical to hold that

if an expert is not required to establish the medical standard of care, an

opinion letter is not required under § 52-190a.’’); Multari v. Yale New Haven

Hospital, Inc., 145 Conn. App. 253, 259–61, 75 A.3d 733 (2013) (examining

allegations in complaint to determine whether plaintiff alleged ordinary

negligence, not subjectto opinion letterrequirement, or medical malpractice,

subject to opinion letter requirement); Nichols v. Milford Pediatric Group,

P.C., 141 Conn. App. 707, 711–16, 64 A.3d 770 (2013) (same); Votre v. County

Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 575–80, 966 A.2d

813 (2009) (same). Accordingly, not every claim against a medical institution

necessarily is subject to the good faith opinion certification requirement.

In the present case, the plaintiff alleges: (a) negligent provision of medical

care and treatment by medical personnel; and (b) negligent hiring/supervision and negligent failure to promulgate policies by the defendant institutions. There is no doubt that the former sounds in medical malpractice. The

plaintiff has not claimed that her allegations of institutional negligence do

not sound in medical malpractice and, therefore, are not subject to the

opinion letter requirement. Accordingly, we need not consider whether,

even if the opinion letter is insufficient as to the allegations based on

vicarious liability,the plaintiff would be entitled to proceed on her allegations

of institutional negligence.

5 The dissenting justice states that ‘‘[t]he analysis under . . . § 52-184c

(c) (2) expressly requires certif[ication] by the appropriate American board

in the same specialty . . . .’’ (Emphasis in original; internal quotation marks

omitted.) The dissenting justice further states ‘‘that the legislature’s use of

the article ‘the,’ rather than the more expansive ‘an,’ in modifying the phrase

‘appropriate American board’ demonstrates that the defendant and the opinion letter author must, in fact, be certified by the same board and, ergo,

members of the same profession.’’ We disagree. The legislature did not use

the term ‘‘same board,’’ rather it used the term ‘‘the appropriate American

board . . . .’’ General Statutes § 52-184c (c). It could have easily used the

term ‘‘same board’’ but chose not to do so. Indeed, it did use the term

‘‘same’’ when referring to ‘‘same specialty . . . .’’ General Statutes § 52-

184c (c). Accordingly, we conclude that § 52-184c (c) does not require the

similar health care provider to be certified by the same board as the health

care provider who is alleged to have been negligent.

Moreover, we disagree with the dissent’s conclusion that the similar health

care provider and the health care provider who is alleged to have been

negligent must be ‘‘members of the same profession.’’ The term ‘‘profession’’

is not used anywhere in § 52-190a or § 52-184c. We refuse to add terms to

the statutory language.

Accordingly, we reject the dissent’s construction of § 52-184c (c) so as

to require that the similar health care provider be licensed by the same

board and be in the same profession as the health care provider who is

alleged to have been negligent because such a construction alters the language of the statute.

6 The dissent discounts the statutory scheme requiring nurse-midwives to

‘‘practice within a health care system and have clinical relationships with

obstetrician-gynecologists that provide for consultation, collaborative management or referral . . . .’’ General Statutes § 20-86b. Instead, the dissent

relies on the fact that the licensing and board certification requirements for

nurse-midwives are separate and distinct from those required for obstetrician-gynecologists. We disagree. The fact remains that nurse-midwives cannot practice independently in Connecticut, but, are required to practice with

a certified obstetrician-gynecologist. This legislative mandate supports our

conclusion that the obstetrician-gynecologist who provided the good faith

certificate in the present case was a similar health care provider.

7

Indeed, that such a proposition is indisputable is reflected in case law.

In Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 150, 801 A.2d
775 (2002), wherein a certified nurse-midwife had been found negligent, this

court considered whether the trial court properly had instructed that jury

that the standard of care to be applied in the case was that of a ‘‘reasonably

prudent nurse-midwife engaged in the practice of obstetrics and gynecology.’’ (Emphasis altered.) Although this court’s resolution of that question

turned on the evidence presented in that case, it is instructive that the

plaintiff’s expert, a board certified obstetrician and gynecologist, testified

that a certified nurse-midwife is a practitioner of obstetrics and gynecology.

Id., 151. Apparently, the defendant in that case did not offer evidence to

call this characterization into question. Thus, the issue in the case was not

whether the certified nurse-midwife practiced in this field. Rather, it was

whether, by stating the standard of care in relation to a ‘‘reasonably prudent

nurse-midwife,’’ rather than a ‘‘reasonably prudent professional,’’ the trial

court instructed the jury that it was to hold the certified nurse-midwife to

a lower standard than other practitioners engaged in the field of obstetrics

and gynecology. Id., 149–50; see also Robbins v. Physician for Women’s

Health, LLC, Superior Court, judicial district of New London, Docket No.

5002633 (October 16, 2007) (44 Conn. L. Rptr. 315, 316–17) (The defendant,

a certified nurse-midwife ‘‘is trained and experienced in the same specialty

as the opinion writer in this case, an obstetrician-gynecologist. Both are

trained and experienced in providing prenatal care for pregnant women and

providing assistance/medical care to women during childbirth. Furthermore,

both are certified in the same specialty of providing medical care to women

prior, during, and after childbirth. Lastly, the court is persuaded by the

opinion writer’s assertion that he/she has ‘supervised midwives’ and that

he/she is ‘informed about the level of obstetric care they are expected

to furnish.’ ’’).

8 The defendants seem to suggest that reading the statutes so as to allow

an obstetrician and gynecologist to provide a good faith certificate for a

claim of medical malpractice involving a certified nurse-midwife would lead

to an absurd result because a certified nurse-midwife could then provide

a good faith certificate for a claim of medical malpractice involving an

obstetrician and gynecologist. As we explained in this opinion, the statutory

scheme in Connecticut requires a nurse-midwife to be supervised by and

practice in conjunction with an obstetrician and gynecologist, there is no

statute requiring that an obstetrician and gynecologist work in conjunction

with a nurse-midwife. Accordingly, there may be a basis to distinguish

between these two professionals for purposes of the opinion letter, at least

insofar as those patients and procedures for which an obstetrician is

required. In the present case, however, we need not decide whether a nursemidwife would be able to opine as to the appropriate standard of care for

an obstetrician and gynecologist.

9 The dissent also relies on Bennett v. New Milford Hospital, Inc., supra,

300 Conn. 17, to argue that, while an obstetrician-gynecologist may be able

to testify in a case of this nature, he or she could not provide the good faith

certification. Bennett is simply not applicable to this case because it involved

a good faith certification authored by a general surgeon that related to the

alleged malpractice of a physician whom the plaintiff had alleged was a

specialist in emergency medicine. The dissent appears to agree with us that

the specialty at issue in the present case is obstetrics, and that obstetriciangynecologists and nurse-midwives both have the same specialty—obstetrics.

Therefore, the discussion in Bennett regarding whether two health care

providers practice in the same specialty is not applicable to the present case.

Moreover, as this court has recognized many times, the purpose of § 52-

190a was to prevent frivolous malpractice actions. See, e.g., id., 12. It was not

intended to serve as a sword to defeat otherwise facially meritorious claims.

10 The fact that the plaintiff’s complaint leaves open the possibility of

negligence of other employees of the defendants or specifically alleges

negligence on the basis of the institution’s failure to promulgate policies

and procedures is not relevant to our present analysis. The plaintiff need

not address every allegation of negligence in the opinion letter. Under § 52-

190a (a), the attorney or claimant must obtain a written and signed opinion

of a similar health care provider as defined in § 52-184c to show the existence

of a good faith belief that there has been negligence in the treatment of the

claimant. Section 52-190a (a) does not specify that the attorney or claimant

must obtain a good faith opinion certification regarding every defendant.

Therefore, a good faith opinion certification of someone who qualifies as

a similar health care provider for purposes of any of the defendants satisfies

the requirements of § 52-190a (a).