2023 Connecticut General Statutes › Title 52 - Civil Actions › Chapter 900 - Court Practice and Procedure › Section 52-190a. - Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider. Ninety-day extension of statute of limitations.

(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 any superior court or any federal district court to recover damages resulting 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.
(P.A. 86-338, S. 12; P.A. 87-227, S. 9; P.A. 03-202, S. 14; P.A. 05-275, S. 2; P.A. 07-65, S. 1; P.A. 19-64, S. 16.)
History: P.A. 87-227 amended Subsec. (a) to replace provision that “No action, accruing on or after October 1, 1986, shall be filed to recover damages for personal injury or wrongful death” with “No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987”; P.A. 03-202 amended Subsec. (a) by deleting provision re form prescribed by rules of the superior court and making technical changes; P.A. 05-275 amended Subsec. (a) to make provisions applicable to an apportionment complaint and the filing thereof, require the opinion of the similar health care provider to be signed and include a detailed basis for the formation of such opinion, require the claimant or the claimant's attorney and any apportionment complainant or apportionment complainant's attorney to retain the original written opinion and attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate and provide that such similar health care provider shall not, without a showing of malice, be personally liable by reason of having provided such written opinion and added new Subsec. (c) to provide that the failure to obtain and file the written opinion shall be grounds for dismissal of the action, effective October 1, 2005, and applicable to actions filed on or after that date; P.A. 07-65 amended Subsec. (b) to substitute “civil action” for “action” and add “to recover damages resulting from personal injury or wrongful death” re extension of statute of limitations; P.A. 19-64 amended Subsec. (b) by replacing “the court where the civil action will be filed” with “any superior court or any federal district court”.
Cited. 214 C. 1. Good faith certificate is not jurisdictional. 215 C. 701. Cited. 236 C. 681; 242 C. 1. In workers compensation case where city sought to intervene in employee's negligence action against physician, the city as a would-be intervenor was not required to file a good faith certificate where employee had filed such a certificate and the city asserted no additional claims. 253 C. 429. Applies only to civil actions to recover damages and does not apply to apportionment complaints under Sec. 52-102b which seek only apportionment of liability. 269 C. 10. Section does not require plaintiffs to attach an opinion from a similar health care provider addressing causation. 292 C. 350. Claim of lack of informed consent is not a medical negligence claim and plaintiff is not required to obtain and attach an opinion from a similar health care provider under section; lay standard is applicable to actions for lack of informed consent. 300 C. 383. Improperly designated motion to strike based on failure to submit attorney's good faith certificate and opinion letters in compliance with Subsec. (a) treated as motion to dismiss under Subsec. (c) and granting of such motion is not a judgment on the merits and does not preclude a second action under the doctrine of res judicata. 308 C. 338.
Cited. 26 CA 497; 33 CA 378; 37 CA 105; 43 CA 397. Fall by person dependent on a wheelchair while transferring from wheelchair to an exercise mat at physical therapy facility during scheduled session, where transfers were a stated goal of therapy, is medical malpractice. 61 CA 353. If a complaint is found to sound of medical malpractice, even if plaintiff claims the complaint sounds of ordinary tort and breach of contract, then failure by plaintiff to include a good faith certificate and an opinion of a similar health care provider shall constitute grounds for dismissal. 113 CA 569. Section does not abridge common law right to pursue judicial remedy under Art. 1, Sec. 10 of Connecticut Constitution because it is merely a procedural limitation that neither eliminates nor unreasonably burdens right to legal recourse, and section does not violate due process because limitations are reasonably related to legitimate state interest of preventing frivolous or meritless medical malpractice claims. 132 CA 68. Opinion letter did not set forth sufficient information to demonstrate that its author was a similar health care provider, as defined in Sec. 52-184c, qualified to render an opinion as to the standard of care owed by defendant. 133 CA 548. Plaintiff not required to attach certificate of good faith or opinion letter from similar health care provider to complaint when claim sounds in ordinary negligence and not in medical malpractice. 145 CA 253. Regardless of the type of procedure a plaintiff elects to employ to cure a defect in an opinion letter filed in accordance with section, that procedure must be initiated prior to the running of the statute of limitations, otherwise the sole remedy available will be to initiate a new action, if possible, pursuant to Sec. 52-592. 182 CA 688.
Cited. 41 CS 169.
Subsec. (a):
A surgeon, who likely would be qualified to testify as an expert witness at the trial of a medical malpractice action against a specialist physician, but who is not a “similar health care provider” as defined in Sec. 52-184c(c), may not provide the prelitigation opinion letter that must accompany the certificate of good faith attached to the complaint. 300 C. 1. A written opinion satisfies the “detailed basis” requirement if it sets forth the basis of the similar health care provider's opinion that there appears to be evidence of medical negligence by express reference to what defendant did or failed to do to breach the applicable standard of care; written opinion need not identify the precise cause of the injury; written opinion must state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care. 303 C. 630. Opinion letter of physician who is board certified in obstetrics meets “similar health care provider” requirement in action alleging negligence of certified nurse-midwives; good faith opinion certification required for claim against institutional defendant. 314 C. 709.
Section establishes objective criteria, not subject to the exercise of discretion, making prelitigation requirements more definitive and uniform than requirements to testify at trial and arguably sets the bar higher to get into court than to prevail at trial; as to defendant health care provider who is a physician, the similar health care provider contemplated here is one defined in either Sec. 52-184c(b) or (c). 117 CA 535. Good faith opinion submitted sufficiently addressed allegations of negligence by indicating evidence of a breach of the standard of care, was not required to address causation, and, therefore, was sufficiently detailed for purposes of Subsec. 119 CA 808. Because defendant is a board certified specialist, a similar health care provider must be one trained and experienced in same specialty as defendant and certified by appropriate American board in same specialty. 122 CA 597. Judgment against plaintiff on a motion to strike for failure to comply with requirements re certificate of good faith is a judgment on the merits subject to doctrine of res judicata. 127 CA 606; judgment affirmed on alternate grounds, see 308 C. 338. Section requires the qualifications of the opinion letter author to be disclosed in the opinion letter in manner sufficient to determine whether author is a similar health care provider; claim of lack of informed consent against multiple providers does not trigger requirement for opinion letter. 132 CA 459. Plaintiff was required to file certificate of good faith under Subsec. for claim based on fall suffered after blood draw because claim sounded in medical malpractice, and not ordinary negligence, under test in 61 CA 353, of whether (1) defendants are sued in their capacities as medical professionals, (2) alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. 141 CA 707. Trial court's determination that certificate of good faith that was attempted to be filed in malpractice action was insufficient did not equate to determination that there was lack of probable cause to bring such action. 144 CA 100. Subsec. contains no express language prohibiting plaintiff from amending opinion letter after action is commenced; plaintiff may cure defect in original opinion letter by amending complaint to attach an amended or entirely new opinion letter within the statute of limitations. 161 CA 497. Plaintiff's author of opinion letter does not fall within definition of “similar health care provider” under Sec. 52-184c(c) because, unlike defendant physician, the author of the opinion letter is not board certified in emergency medicine. 168 CA 47. Author of plaintiff's opinion letter does not fall within definition of “similar health care provider” under section because, unlike defendant who is an anatomic pathologist, the author of the opinion letter is a clinical pathologist. 187 CA 555.
Detailed basis for written opinion must enable defendant to ascertain basis of claim. 50 CS 385. Exception in Sec. 52-184c(c)(2) to board certification requirement for similar health care provider who authors opinion letter does not apply unless it is alleged that defendant physician actually undertook the diagnosis and treatment of a condition not within his specialty such that his conduct should be judged against the standards of care applicable to that specialty. 52 CS 463; judgment affirmed, see 140 CA 499.
Subsec. (b):
90-day extension provided in Subsec. applies equally to both the 2-year statute of limitation and 3-year statute of repose in Sec. 52-584. 269 C. 787.
The term “filed”, for purposes of effective date of a public act, refers to the bringing of a complaint or other pleading to the clerk of the court, not a state marshal for service. 106 CA 810.
Subsec. (c):
Trial court must dismiss action if opinion letter fails to comply with Subsec. (a). 300 C. 1. When a medical malpractice action has been dismissed pursuant to Subsec. for failure to supply opinion letter by a similar health care provider required by Subsec. (a), plaintiff may commence an otherwise time barred new action pursuant to the matter of form provision of Sec. 52-592(a) only if that failure was caused by simple mistake or omission, rather than egregious conduct or gross negligence attributable to plaintiff or his attorney. Id., 33. Defendant's right to file motion to dismiss is waived if motion is not filed within time frames in rules of practice. 301 C. 388.
Failure to comply with Subsec. renders complaint subject to motion to dismiss and not motion to strike. 106 CA 810. Action subject to dismissal not only for lack of opinion letter but also if opinion letter is not from similar health care provider or does not give detailed basis for the opinion. 117 CA 535.
Failure to provide written opinion required by Subsec. (a) does not result in automatic dismissal under Subsec. (c), but rather dismissal is discretionary and based upon facts. 50 CS 385.