187 Conn. App. 555
Conn. App. Ct.2019Background
- In 2014 Normand Caron underwent endoscopy with biopsy; tissue slides were sent to Connecticut Pathology Group, whose pathologists reported a positive cancer diagnosis that later proved to be from a contaminated sample.
- Caron underwent treatment from March to August 2014 and was later told the diagnostic sample was contaminated; plaintiffs sued the pathology group in August 2016 for medical malpractice alleging failures in consideration of contamination, diagnosis, testing, and interpretation of the biopsy.
- Plaintiffs attached a § 52-190a(a) opinion letter authored by Samuel Reichberg, a board‑certified clinical pathologist (not board‑certified in anatomic pathology), asserting negligence in specimen handling and interpretation.
- Defendant moved to dismiss for lack of personal jurisdiction, arguing the opinion letter was not from a “similar health care provider” because the complaint alleged negligence within the field of anatomic pathology, which requires an anatomic pathologist’s opinion under § 52‑184c and § 52‑190a.
- Trial court (and on appeal) found clinical and anatomic pathology are distinct specialties; the complaint alleged negligent interpretation of biopsy samples (anatomic pathology), so Reichberg’s clinical pathology opinion letter was legally insufficient and dismissal was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the opinion letter satisfied § 52‑190a’s requirement that it be authored by a “similar health care provider” | Reichberg (clinical pathologist) was qualified to assess the relevant standard of care and the complaint did not exclusively allege anatomic‑pathology negligence | The complaint alleges negligent interpretation of tissue (anatomic pathology); therefore the opinion must come from an anatomic pathologist | Opinion letter insufficient; dismissal affirmed |
| Whether the complaint alleged negligence in interpretation (anatomic pathology) vs. lab operation/handling (clinical pathology) | Complaint could be read to implicate lab operation and clinical pathology duties | Complaint’s allegations (failed to consider/diagnose contamination, failed to order nucleic acid ID, failed to properly interpret biopsy) implicate interpretation duties of anatomic pathology | Complaint construed as alleging interpretation failures within anatomic pathology |
| Whether affidavits created a material factual dispute requiring an evidentiary hearing before dismissal | Reichberg’s affidavit asserted the acts were also within clinical pathology; plaintiffs later sought hearing | Defendant relied on Levine’s affidavit and medical dictionary definitions showing specialties are distinct; plaintiffs did not timely seek hearing | No genuine disputed material fact; hearing not required; plaintiffs may have waived timely request |
| Whether experience or familiarity can substitute for board certification under § 52‑184c(c) | Reichberg’s experience in clinical pathology made him a similar provider for purposes of this case | § 52‑184c requires training, experience and American Board certification in the same specialty as the defendant | Court requires same specialty training and board certification; Reichberg’s clinical certification insufficient |
Key Cases Cited
- Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 104 A.3d 671 (Conn. 2014) (standard for considering a motion to dismiss and construing pleadings)
- Conboy v. State, 292 Conn. 642, 974 A.2d 669 (Conn. 2009) (trial court may consider undisputed affidavits on jurisdictional motions; evidentiary hearing required when critical factual disputes exist)
- Grenier v. Commissioner of Transportation, 306 Conn. 523, 51 A.3d 367 (Conn. 2012) (pleadings construed broadly and realistically; interpretation of pleadings is a question of law)
- Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (Conn. 2011) (requirements for similar health care provider under § 52‑184c when defendant is a specialist)
- Gonzales v. Langdon, 161 Conn. App. 497, 128 A.3d 562 (Conn. App. 2015) (an authoring provider must be trained and board certified in the same specialty)
- Angersola v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 193 A.3d 520 (Conn. 2018) (timeliness and waiver considerations for requesting evidentiary hearings)
- Marcus v. Cassara, 142 Conn. App. 352, 66 A.3d 894 (Conn. App. 2013) (unfairness of failing to timely request hearing and then challenging lack of hearing on appeal)