Wilcox v. SchwartzWilcox v. Schwartz
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- Before:
- Palmer
Lead Opinion
This certified appeal arises out of a medical malpractice action brought by the plaintiffs, Kristy Wilcox and Timothy Wilcox,
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The [plaintiffs] alleged that on March 12, 2006, Wilcox underwent a laparoscopic cholecystectomy performed by Schwartz for treatment of gallbladder disease. The [plaintiffs] farther alleged that Schwartz performed the procedure negligently, causing Wilcox to suffer ‘severe, painful and permanent injuries.’ The plaintiffs claimed that Schwartz breached the applicable standard of care in that he . . . (1) ‘failed to [ensure] the adequate and accurate identification of [Wilcox’s] internal anatomy prior to proceeding with the laparoscopic cholecystectomy,’ (2) ‘failed to prevent injury to [Wilcox’s] biliary structures during the laparoscopic cholecystectomy’ and (3) ‘failed to accurately document the surgical procedure . . . Wilcox v. Schwartz, supra,
“The [plaintiffs’] two count complaint stated claims sounding in medical negligence and loss of spousal consortium, respectively. Attached to the complaint was a certificate of reasonable inquiry, executed by the plaintiffs’ attorney, and a written and signed medical opinion [by a physician]. The body of the opinion [provides in relevant part]: ‘I have reviewed the relevant records and information that were provided to me with regard to . . . Wilcox.
“ ‘I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of . . . Wilcox provided by [Schwartz] and that the care and treatment provided by [him] was not provided in a manner consistent
“ ‘Specifically [Schwartz] failed to prevent injury to . . . Wilcox’s biliary
“ ‘My opinions are based [on] my education, training and experience as a physician, and my examination of . . . Wilcox’s medical records.’ ” Id., 811-12.
“[T]he defendants filed a motion to dismiss the complaint . . . [on the ground] that the plaintiffs’ written opinion was not detailed enough to satisfy the requirements of
On appeal to the Appellate Court, the plaintiffs claimed that the trial court incorrectly had concluded that the written opinion was insufficiently detailed to meet the requirements of
The Appellate Court concluded that “the [written] opinion [was] sufficiently detailed to satisfy the requirements of
On appeal to this court following our granting of certification, the defendants challenge the determination of the Appellate Court that the plaintiffs’ written opinion contains sufficient detail to pass muster under
The plaintiffs maintain that the Appellate Court correctly concluded that the purpose of the written opinion requirement is to discourage frivolous medical malpractice actions by placing the burden on the person bringing the action to identify a qualified medical professional who is willing to attest to the fact that there appears to be evidence of medical negligence as alleged in the complaint. The plaintiffs further contend that interpreting
The question of whether the statements contained in the written opinion satisfy the “detailed basis” requirement of
As we explained in Dias v. Grady, supra,
“In 2005, the legislature amended
As we also observed in Dias with regard to the legislative history of the 2005 legislation, Michael D. Neubert, an attorney representing the Connecticut State Medical Society at a hearing before the judiciary committee, “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 Committee 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,
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 plaintiffs good faith belief that there had been negligence in the plaintiffs care and treatment. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 18, 2006 Sess., p. 5646, remarks of Senator John A. Kissel (stating that written opinion requirement would greatly improve on then current practice of “[the plaintiffs] attorney just sort of signing off in good faith”); see also 48 S. Proc., Pt. 14, 2006 Sess., p. 4433, remarks of Senator
A review of the pertinent judiciary committee debate on the 2005 legislation, however, reveals no discussion or testimony directly addressing the question of what specific kind of information concerning the defendant’s alleged negligence is necessary to satisfy the “detailed basis” requirement. During floor debate in the House of Representatives, however, Representative Michael P. Lawlor described the written opinion as a “threshold opinion that, in fact, this is medical malpractice.” 48 H.R. Proc., Pt. 31, 2005 Sess., p. 9502. During discussion of the 2005 legislation on the Senate floor, Senator Kissel observed that the written opinion requirement was consistent wrth the legislative goal of expediting medical malpractice actions because the opinion, which is appended to the good faith certificate, would inform the defendant, at the commencement of the action, of the basis of the plaintiffs good faith belief that the defendant had performed negligently. See 48 S. Proc., supra, p. 4428. Senator Kissel explained that, under the prior version of the statute, it could take months, or “even over [one] year, until [the defendant’s] counsel and their clients could really narrow down” the basis for the complaint. Id. Senator Kissel also observed that, by allowing the defendant’s counsel to start gathering information about the claim “right of[f] the bat,” the written opinion requirement would reduce the length of the discovery process and better enable the defendant to assess any settlement offers early in the litigation process. Conn. Joint Standing Committee Healings, Judiciary, Pt. 18, 2005 Sess., pp. 5545-46.
Upon consideration of the statutory language in fight of this legislative history, we agree with the Appellate Court that a written opinion satisfies the “detailed basis” requirement of
The foregoing interpretation of
Our conclusion finds support in Dias, in which we explained that, because “the phrase ‘medical negligence,’ as used in
We also agree with the Appellate Court that the written opinion in the present case meets this standard. See Wilcox v. Schwartz, supra,
The defendants make several arguments in support of their claim that the written opinion in the present case is insufficiently detailed to satisfy
First, we disagree with the defendants that the written opinion in the present case fails to identify the applicable standard of care and a breach of that standard of care. As we previously stated, the opinion provides that the standard of care required Schwartz to protect Wilcox’s biliary structures during the laparos-copic gallbladder surgery and that his failure to do so caused injury to those structures. Although the defendants may disagree with the standard of care identified in the written opinion and with the author’s assertion that Schwartz had deviated from it, that disagreement does not render the opinion insufficient under § 52-190a (a) when the information contained therein was sufficient to place the defendants on notice of the nature of the alleged medical negligence.
We also agree with the plaintiffs that an opinion by a similar health care provider that there appears to be evidence of medical negligence properly may be based on evidence of an ii\jury or outcome that the medical professional believes is highly unlikely to have occurred in the absence of negligence. Such a conclusion may be reasonable when, for example, an injury occurs to an organ that is rarely, if ever, injured during a particular procedure, and the plaintiffs medical records do not reveal an explanation for the injury that does not involve negligence. In such circumstances, the plaintiffs malpractice claim is predicated not on the doctrine of res ipsa loquitur but, rather, on the considered opinion of a medical professional that the injury would not have occurred but for the defendant’s negligence.
We therefore disagree with the defendants and the dissent that a written opinion always must identify the precise manner in which the standard of care was breached to satisfy the requirements of § 52-190a (a). The opinion necessarily is obtained prior to the commencement of the action, before the plaintiff will have had the opportunity to engage in pretrial discovery under the rules of practice governing such discovery. When, as in the present case, a health care professional has opined that the injuries sustained by the plaintiff would not have occurred but for the defendant’s breach of the standard of care, that opinion is sufficient to satisfy § 52-190a (a). Of course, the plaintiff may be able to obtain more particularized information about the alleged negligence during the course of pretrial discovery. But, at least in a case like the present one, in which a similar health care provider opines that, in essence, the injury would not have occurred in the absence of medical negligence, § 52-190a (a) does not require such specificity.
Finally, the defendants take issue with our inteipretation of the pertinent legislative history as supporting the conclusion that the written opinion in the present case is sufficient under § 52-190a (a). In support of their contention that the opinion was insufficient, the defendants maintain that the requirement of a written opinion was intended to reduce medical malpractice insurance premiums by making it more difficult for plaintiffs to bring medical malpractice cases and to expedite the resolution of medical malpractice actions by notifying the defendant or defendants of the basis for the plaintiffs claim when the action is commenced. We do not agree that the legislative history supports the defendants’ claim.
With respect to their first contention, the defendants rely on a statement by Representative Lawlor, who, in discussing the 2006 legislation on the floor of the House of Representatives, remarked that the written opinion requirement would make “it much more difficult to bring a medical malpractice action in court.” 48 H.R. Proc., supra, p. 9445. Our review of Representative Lawlor’s remarks, however, reveals that the foregoing comment was not addressed to the “detailed basis” language of the legislation but, rather, to the fact that the written opinion would have to be attached to the complaint. See id., p. 9501, remarks of Representative Lawlor. In Representative Lawlor’s view, requiring plaintiffs to attach the full text of the opinion to the complaint would make it more difficult to obtain such an opinion because similar health care providers “would be reluctant to render an opinion that another physician had . . . engaged in malpractice . . . [due to] the likelihood that there would be some backlash against [them] from other physicians when it comes to referrals [and the like].” Id., p. 9502. Accordingly, Representative Lawlor’s remarks do not support the defendants’ interpretation of the statute.
Indeed, as we previously indicated, although the legislative history makes clear that the written opinion requirement was intended to reduce the number of frivolous lawsuits, there is nothing in that history to suggest that the legislature intended to achieve this salutary result through the “detailed basis” requirement of the statute. To the contrary, as we previously noted, the legislative history strongly suggests that the written opinion requirement was not intended to impose any additional burden on those plaintiffs seeking redress for reasonably investigated, potentially meritorious claims. The purpose of the requirement, rather, was to eliminate those claims that are so lacking in merit that no similar health care provider would be willing to express even a preliminary opinion that the plaintiffs injuries were the result of medical negligence.
With respect to their second contention, the defendants rely on Senator Kassel’s statement that the written opinion would
Finally, the defendants contend that the failure of the legislature, in 2010, to pass a bill entitled, “An Act Concerning Certificates of Merit,” supports their claim that the “detailed basis” language of § 52-190a (a) requires greater detail than that which is contained in the written opinion in the present case. See House Bill No. 5537, 2010 Sess. According to the defendants, that bill would have amended § 52-190a (a) by replacing the phrase “includes a detailed basis for the formation of such opinion” with the phrase “which states one or more specific breaches of the prevailing professional standard of care.” Id. In the defendants’ view, because this bill “would have watered down the ‘detail’ requirement” of the present statute, it is apparent that the written opinion in the present case does not satisfy § 52-190a (a). We are not persuaded.
“Although we have relied on the failure to amend a statute as an indication of legislative intent regarding that statute or statutes within the same legislative scheme; see, e.g., Anderson v. Ludgin,
For the foregoing reasons, we conclude that the written opinion in the present case satisfies the “detailed basis” requirement of § 52-190a (a). We therefore agree with the Appellate Court that the judgment of the trial court must be reversed.
In this opinion McLACHLAN, EVELEIGH and VERTEFEUILLE, Js., concurred.
Notes
We refer to Kristy Wilcox and Timothy Wilcox collectively as the plaintiffs.
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“(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.”
Because we conclude that the written opinion attached to the complaint in accordance with
See footnote 2 of this opinion.
“Statutory interpretation presents a question of law, over which we exercise plenary review. . . . The principles that govern statutory construction are well established. When construing a statute, [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,
“This court repeatedly has recognized that testimony before legislative committees regarding proposed legislation sheds light on the problem or issue that the legislature sought to resolve, and the purpose it sought to serve, in enacting a statute.” (Internal quotation marks omitted.) Dias v. Grady, supra,
We note that the dissent reaches the same essential conclusion predicated on the “plain meaning” of the terms “detailed” and “basis” as set forth in Webster’s Ninth New Collegiate Dictionary (1983). Specifically, the dissent states that, when the “terms [‘detailed’ and ‘basis’ are read] together [in light of their dictionary definitions and] in the context of the statute . . . the author [of the written opinion] should elaborate on the particular standard of care involved in the medical treatment at issue, the manner in which he or she believes it likely was breached and the facts that led to his or her conclusion.”
Our conclusion also finds support in the fact that, in the view of the trial court and the defendants, a written opinion that does not satisfy the requirements of
The defendants and the dissent contend that it was improper for the Appellate Court to conclude that the written opinion indicated that the “negligence consisted of [Schwartz’] failure to protect Wilcox’s bile ducts from injury during surgery”; (emphasis added) Wilcox v. Schwartz, supra,
The defendants also assert that the Appellate Court improperly relied on the fact that the written opinion addresses the allegations of negligence pleaded in the complaint in assessing the sufficiency of that opinion under
“The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced. . . . The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect. . . . When both of these prerequisites are satisfied, a fact finder properly may conclude that it is more likely than not that the injury in question was caused by the defendant’s negligence.” (Citation omitted; internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C.,
The dissent asserts that we are “attempting to rehabilitate” the otherwise “inadequate written opinion ... by paraphrasing it, speculating as what is implied and supplying additional explanation that the opinion simply does not contain.” Footnote 7 of the dissenting opinion. In particular, the dissent claims that it is unreasonable to read the opinion as stating that Schwartz would not have damaged Wilcox’s biliary structures unless he had been negligent in performing the laparoscopic gallbladder surgery. See id. We disagree with the dissent’s assertion because we cannot perceive how the written opinion reasonably may be read to connote anything else. The opinion expresses the author’s belief, based on “a reasonable degree of medical probability,” that Schwartz “deviat[ed] from the applicable [standard] of care” in that he “failed to prevent injury to . . . Wilcox’s biliary structures during laparoscopic [gallbladder] surgery,” and, that, “[a]s a result of [this] negligent treatment . . . Wilcox suffered severe, painful and permanent injuries.” Thus, the written opinion states that, in the author’s view, Schwartz was negligent because Schwartz caused injury to—that is, he failed to protect—Wilcox’s biliary structures. In other words, it is the author’s opinion that, but for Schwartz’ negligence, the biliary structures would not have been injured. The dissent, however, asserts that this constitutes an insufficient statement of negligence because it fails to indicate “what. . . led the author to reach [his or her] conclusion.” On the contrary, the explanation that Schwartz was negligent because he failed to prevent injury to Wilcox’s biliary structures necessarily reflects the author’s view that the standard of care governing the performance of laparoscopic gallbladder surgery requires that the patient’s biliary structures remain free from injury during the surgery. Although the author might have expressed this opinion in more direct or explicit terms, there is no need to “rehabilitate” the opinion or to speculate about its conclusion in order to understand the author’s professional opinion as to why Schwartz was negligent: the opinion is sufficient for purposes of § 52-190a (a) because it conveys the author’s opinion that Schwartz was negligent due to the fact that he performed the surgery without protecting Wilcox’s biliary structures from injury.
The dissent further contends that the written opinion is inadequate, first, because “[i]t is axiomatic that the fact of a bad result, standing alone, does not prove wrongdoing by a physician” and, second, because “inadvertent injury to a patient during surgery may, or may not, constitute negligence,” and “[i]t may be the case that the injury at issue is a necessary risk accompanying the surgical procedure during which the injury occurred, in which case there is no malpractice.” We have no quarrel with these general propositions, for they merely reflect the uncontroversial principle that the doctrine of res ipsa loquitur, which permits the jury to infer negligence although no direct evidence of negligence has been adduced, ordinarily does not apply to medical malpractice claims. Contrary to the dissent’s contention, however, the inapplicability of that doctrine to the present case does not support the contention that the written opinion in the present case is inadequate because it expressly provides that Schwartz was negligent in performing the laparoscopic gallbladder surgery on Wilcox.
The dissent ignores the fact that, according to the author of the written opinion, Schwartz also was negligent because he “failed to accurately document the surgical procedure” that he performed on Wilcox. In evaluating the sufficiency of the written opinion in the present case, we consider the fact that when, as is alleged in the present case, the surgical procedure is inadequately documented, it may be difficult or even impossible for a similar health care provider to ascertain the precise cause of the patient’s injuries. Thus, we disagree with the dissent that the written opinion in the present case is deficient because it contains no statement “specifying which, if any, precautions Schwartz apparently failed to take . . . Under the circumstances, it is perfectly understandable that the author of the opinion could not discern, at this stage of the case, which precaution or precautions Schwartz negligently failed to take. We also disagree with the dissent that, because § 52-190a (a) “seems to allow for some measure of speculation” by the similar health care provider who authors the written opinion; footnote 5 of the dissenting opinion; the author in the present case was required to engage in such conjecture with respect to the precautions that Schwartz did not take. We see no reason why the written opinion is rendered insufficient under § 52-190a (a) merely because it does not speculate as to the precautions that Schwartz failed to take, especially when, as in the present case, the opinion states that Schwartz did not document the surgery properly. Put differently, for present purposes, we do not believe that conjectural observations about what might or might not have occurred during the surgery are necessary to satisfy the “detailed basis” requirement of § 52-190a (a).
Furthermore, although the bill would have eliminated the “detailed basis” language from § 52-190a (a), the bill would have amended the statute to require that a written opinion identify “specific breaches of the prevailing professional standard of care.” House Bill No. 5537, 2010 Sess. It is not clear whether this language was intended to ease or liberalize the written opinion requirement or merely to clarify the meaning of the “detailed basis” requirement. For that reason, as well, we refrain from attaching any significance to the fact that the bill ultimately was not passed.
Dissenting Opinion
with whom NORCOTT and ZARELLA, Js., join, dissenting.
After examining the legislative history and purpose of
I begin with the key statutory phrase, “detailed basis,” by considering the plain meaning of the terms that comprise it.
To the extent that ambiguity remains as to the degree of detail required, the legislative history of
In 2005, the requirement of filing the written opinion of a similar health care provider was added to
Closer examination of the legislative history underlying P.A. 05-275 reveals that the amendment to
The wording of
“[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital,
For the reasons explained herein, I respectfully dissent.
See footnote 1 of the majority opinion.
In the absence of statutory guidance regarding the definition of a word used in a statute, we “may appropriately look to the meaning of the . . . [word] as commonly expressed in the law and in dictionaries.” (Internal quotation marks omitted.) State v. Silas S.,
This requirement complemented §§ 3 and 4 of P.A. 05-275, which also were aimed at promoting speedier resolution of medical malpractice claims by, respectively, providing a mechanism to have certain claims transferred in timely fashion to the complex litigation docket and adding provisions to foster early settlement of cases.
When interpreting statutes, we presume that “the legislature did not intend to enact meaningless provisions. . . . [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services,
I recognize that the information available to a similar health care provider who provides a written opinion pursuant to § 52-190a (a) necessarily is limited in comparison to the information that becomes available once discovery is completed. It is important to recognize, however, that § 52-190a (a) requires the author to opine only that there “appears to be evidence of medical negligence”; (emphasis added); and, in so doing, seems to allow for some measure of speculation given the timing of the requirement. Thus, an opinion need not include every detail that later might emerge via discovery or establish negligence definitively, but at the same time, it should be adequate to put a defendant on notice of the nature of the plaintiffs claims and, thereby, facilitate discovery or settlement. If a similar health care provider is unable to articulate the foundation for his or her theory that there apparently was negligent treatment or care, the existence of a good faith basis for the action is questionable, and the action begins to resemble a fishing expedition. Notably, without a showing of malice, § 52-190a (a) exempts the author of a written opinion from personal liability for damages to a defendant by reason of having provided an opinion that later proves to be incorrect.
Compare, e.g., Landi v. Wertheim, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5001608-S (October 2, 2006). In Landi, the trial court held the following written opinion to be sufficiently detailed under § 52-190a (a): “On [June 16, 2004] [the plaintiff] underwent a total abdominal hysterectomy plus bilateral [salpingo-oophoreetomy]. On review of the notes associated with this procedure, I find that the injury suffered by [the plaintiff] is directly related to the lack of appropriate caution practiced by the operating surgeon. The absence of uteral stents being placed prior [to] the surgery, as well as the inadequate evaluation once an injury was suspected, resulted in the unfortunate outcome." (Emphasis added; internal quotation marks omitted.)
It appears that the majority is attempting to rehabilitate the inadequate written opinion supplied by the plaintiffs by paraphrasing it, speculating as to what is implied and supplying additional explanation that the opinion simply does not contain. For instance, the majority changes “failed to prevent injury” to “failed to protect,” and avers that a similar health care provider in the present case “opine[d] that, in essence, the injury would not have occurred in the absence of medical negligence . . . As I have explained, our legislators when mandating attachment of a written opinion envisioned that it be “explicit”; 48 H.R. Proc., supra, p. 9446; and “presented in a detailed fashion”; 48 S. Proc., supra, p. 4411; and that it would enable a defendant to “narrow down exactly what was the basis for the determination of . . . the plaintiffs claim that there was medical malpractice and why they had brought that case.” Id., pp. 4428-29. If the written opinion in the present case complied with these requirements, it would obviate the need for any judicial reconstruction.