52 Conn. Supp. 463
Conn. Super. Ct.2011Background
- Weyman and Connecticut Maxillofacial Surgeons, LLC move to dismiss a medical malpractice action against them three times.
- First motion (May 27, 2009) argued § 52-190a requires an opinion by a similar health care provider; dismissal denied.
- Following Bennett v. New Milford Hospital, Inc., the second motion (Dec. 4, 2009) was denied; court discussed discretionary grounds and ordered supplementation.
- Third motion (April 29, 2011) again argued lack of a § 52-190a opinion by a similar health care provider; Bennett controlling since 2011.
- Plaintiff contends law of the case and prior rulings should govern; defendant argues Bennett requires reconsideration.
- Court concludes the Bennett decision controls and the opinion attached is not authored by a similar health care provider, warranting dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bennett governs and warrants dismissal if the opinion is not by a similar provider | Nestico argues law of the case precludes reconsideration. | Weyman/Practice contend Bennett requires dismissal for lack of proper opinion. | Yes; dismissal is proper due to nonconforming opinion. |
| Whether § 52-190a’s similar health care provider requirement is met | Exception for plastic surgery applies; opinion suffices. | Opinion not by a similar provider under § 52-184c(c); fails requirement. | Not met; opinion not authored by a similar health care provider. |
| Whether the exception in § 52-184c(c) can salvage the claim | Complaint alleges plastic surgery treatment or diagnosis outside the defendant’s specialty. | No evidence defendants treated a plastic surgery condition; exception not triggered. | Inapplicable; defendants did not treat outside their specialty. |
| Whether the court may reconsider prior motions in light of Bennett | Law of the case and prior rulings should stay intact. | Bennett allows reevaluation and retroactive application; not bound by earlier rulings. | Court may reconsider and apply Bennett; not bound by prior motions. |
Key Cases Cited
- Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011) (requires § 52-190a opinion by a similar health care provider; strict standard)