Dias v. Grady

• Decision Date: 07 July 2009
• Docket Number: No. 18265.,18265.
• Citation: 292 Conn. 350,972 A.2d 715
• Court: Connecticut Supreme Court
• Parties: Lori DIAS et al. v. Steven GRADY et al.

972 A.2d 715

292 Conn. 350

Lori DIAS et al. v. Steven GRADY et al.

No. 18265.

Supreme Court of Connecticut.

Argued March 16, 2009.

Decided July 7, 2009.

Lorinda S. Coon, with whom, on the brief, was William J. Scully, Hartford, for the appellants (defendants).

Matthew Shafner, New London, for the appellees (plaintiffs).

Joram Hirsch, Bridgeport, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and McLACHLAN, Js.

ROGERS, C.J.

The plaintiffs, Lori Dias and John Dias,¹ brought this medical malpractice action against the defendants, Steven Grady, an obstetrician and gynecologist, and Connecticut Women's Obstetrics and Gynecology, LLC, alleging that Grady negligently had performed a laparoscopic hysterectomy on Dias. Pursuant to General Statutes § 52-190a,² the plaintiffs attached to their complaint the written opinion of a surgeon that Grady had violated the standard of care when he performed the surgery. The defendants then filed a motion to dismiss the complaint on the ground that the written opinion did not state that Grady's deviation from the standard of care was the proximate cause of Dias' injuries. The trial court concluded that § 52-190a does not require plaintiffs in medical malpractice actions to attach an opinion addressing causation and denied the defendants' motion. This appeal followed.³ We affirm the judgment of the trial court.

In their complaint, the plaintiffs alleged the following facts, the truth of which we assume for purposes of this appeal. Dias made arrangements with Grady to perform a laparoscopic hysterectomy on December 14, 2005. The surgery was postponed to January 6, 2006, after Grady suffered an injury to his right hand. Dias was discharged from the hospital on January 7, 2006. Two days later, Dias developed abdominal pain, a high fever, "rigors" and difficulty swallowing, and she went to the emergency room of Manchester Memorial Hospital. Dias was admitted to the hospital and was treated with antibiotics and intravenous hydration. Ultimately, she was diagnosed with a pelvic abscess caused by a bowel perforation. She was discharged from the hospital on February 3, 2006.

Thereafter, the plaintiffs filed a complaint alleging that Grady had committed medical malpractice by performing the surgery when he had limited use of his right hand as the result of an injury, and by using surgical instruments that were the wrong size. Pursuant to § 52-190a, the plaintiffs attached to their complaint a written opinion by a surgeon stating that, "[a]ccording to ... Dias' family, after the surgery ... Grady spoke to them and indicated that he had to do a great deal of the surgery with his left hand and that the instruments which he used were designed for a medium-size patient and that [Dias] was on the small side." He further stated that, in his opinion, if these statements were true, Grady had "deviated from the accepted standard of care ...."

The defendants then filed a motion to dismiss the complaint on the ground that the "written opinion [did] not express any opinion as to whether the perceived deviations from the standard of care actually caused [Dias'] claimed damages." After a hearing, the trial court concluded that § 52-190a requires only that a plaintiff provide a written opinion from a similar health care provider that the defendant had breached the standard of care, and does not require an opinion that the breach had caused the plaintiff's injuries. Accordingly, the trial court concluded that the plaintiffs complied with the statute and it denied the defendants' motion to dismiss.

On appeal, the defendants contend that, because § 52-190a requires plaintiffs to provide a written opinion of a similar health care provider that there appears to be evidence of medical negligence, and because proof of proximate cause is an element of medical negligence,⁴ the statute clearly and unambiguously provides that the written opinion must state that the defendant's breach of the standard of care caused the plaintiff's injuries. The plaintiffs counter that the phrase "medical negligence" as used in § 52-190a(a) does not include the element of causation, but means "the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent [person] would use under like circumstances.... It signifies a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it."⁵ (Citations omitted; internal quotation marks omitted.) Brown v. Branford, 12 Conn.App. 106, 108, 529 A.2d 743 (1987). We agree with the plaintiffs.

The meaning of § 52-190a is a question of law over which our review is plenary. State v. Peters, 287 Conn. 82, 87, 946 A.2d 1231 (2008). When this court interprets a statute, "General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007).

We begin our analysis with the language of the statute. Section 52-190a(a) provides in relevant part that, in any medical malpractice action, "the claimant or the claimant's attorney ... shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes § ] 52-184c,⁶ 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...." Section 52-190a(a) does not define medical negligence and the phrase is susceptible to more than one reasonable interpretation. Specifically, the word "negligence" reasonably may be understood, as the defendants claim, as referring to the cause of action consisting of the elements of duty, breach of the standard of care, causation and damages; see footnote 4 of this opinion; or it reasonably may be understood, as the plaintiffs claim, as specifying an attribute of the defendant's conduct, namely, "a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it." (Internal quotation marks omitted.) Brown v. Branford, supra, 12 Conn.App. at 108, 529 A.2d 743. We conclude, therefore, that the phrase is ambiguous. Accordingly, we may "look for interpretive guidance to the legislative history and circumstances surrounding [the statute's] enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, supra, 283 Conn. at 651, 931 A.2d 142.

Section 52-190a originally was enacted as part of the Tort Reform Act of 1986. See Public Acts 1986, No. 86-338, § 12. The original version of the statute required the plaintiff in any medical malpractice action to conduct "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 [plaintiff]" and to file a certificate "that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant." General Statutes (Rev. to 1987) § 52-190a(a). The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence, but permitted the plaintiff to rely on such an opinion to support his good faith belief. The parties in the present case agree that the purpose of the original version of § 52-190a was to prevent frivolous medical malpractice actions. See Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 15, 698 A.2d 795 (1997) ("[t]he purpose of the legislation is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider").

In 2005, the legislature amended § 52-190a(a) to include a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that "there appears to be evidence of medical negligence" and to attach the opinion to the certificate of good faith to be filed with the complaint. See Public Acts 2005, No. 05-275, § 2(a) (P.A. 05-275). In addition, the amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint. See P.A. 05-275, § 2(c), now codified as General Statutes § 52-190a(c). The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 18, 2005 Sess., p. 5553, testimony of Michael D. Neubert.⁷

With this background in mind, we conclude that the phrase "medical negligence," as used in § 52-190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence. Sect...