132 Conn. App. 68
Conn. App. Ct.2011Background
- Lohnes sues Verghese and Hospital for medical malpractice and respondeat superior liability.
- Lohnes alleges allergy to NSAIDs; Verghese allegedly administered Motrin in contravention of warnings, requiring intubation and subsequent cardioversion.
- Lohnes attached a pulmonologist’s opinion letter to support a good faith belief of negligence under §52-190a.
- Verghese and Hospital moved to dismiss, arguing the letter was authored by a non-similar health care provider and the suit failed §52-190a/§52-184c requirements.
- Trial court dismissed; on appeal, issue is whether Morgan v. Hartford Hospital affects timeliness and whether the expert was a similar health care provider.
- Key dates: return date Sept. 22, 2009; appearance Aug. 31, 2009; motion to dismiss Oct. 21, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to dismiss | Morgan requires timely motion within 30 days of appearance. | Timeliness measured from return date; Morgan not controlling here. | Motion timely; thirty days from return date applied. |
| Whether expert was a similar health care provider | Letter from pulmonologist could suffice as similar provider. | Verghese was an emergency medicine specialist; pulmonologist letter not appropriate. | Affirmed that author must be trained/experienced in same specialty and board certified; pulmonologist letter insufficient. |
| Verghese practicing outside his specialty | Verghese treated pulmonary symptoms; outside emergency medicine. | Emergency department treatment of pulmonary symptoms falls within emergency medicine; no basis to deem outside specialty. | No basis to find treatment outside Verghese's emergency medicine specialty. |
| Open courts/due process implications of §52-190a | Statute unreasonably restricts common-law rights; violates article I, §10 and federal due process. | Statute rationally related to preventing frivolous claims; permissible policy. | Statute withstands rational basis review; no constitutional violation. |
| §52-123 and pleadings defects | Defect in pleadings should not bar action. | Courts may dismiss for circumstantial pleading defects under §52-123. | Claim unpreserved; no Golding-based relief; affirmed dismissal on other grounds. |
Key Cases Cited
- Gold v. Rowland, 296 Conn. 186 (2010) (Golding analysis guides review of unpreserved constitutional claims)
- Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011) (purpose of §52-190a; amendments targeting meritless claims)
- Morgan v. Hartford Hospital, 301 Conn. 388 (2011) (proper written opinion letter required; affects jurisdiction and waiver)
- Sanborn v. Greenwald, 39 Conn. App. 289 (1995) (statutory time limits resemble open courts concerns; not abolishing rights)
- Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518 (2001) (statutes restrict, not abolish, common-law rights; time/place limitations)
- State v. Winter, 117 Conn. App. 493 (2009) (standard for reviewing trial court denial of motions to dismiss)
- Dias v. Grady, 292 Conn. 350 (2009) (provision discussing good faith inquiry for §52-190a)