Court Distinguishes Recent Wilkins Decision

STRICKLAND v. BRISTOL (Conn. Super. Ct. Nov. 7, 2012)

The plaintiff filed a three-count complaint against Bristol Hospital and one of its emergency physicians, Dr. Cliff Wagner, alleging medical malpractice in connection with the care and treatment of the plaintiff’s decedent. The first count alleged negligence against Bristol Hospital under the theory of respondeat superior based on the actions of its agents, servants, and/ or employees, triage nurse(s), emergency department nurse(s), and/or emergency department technician(s). The second count alleged negligence against Dr. Wagner directly. The third count alleged negligence against Bristol Hospital under the theory of respondeat superior for the alleged negligence of Dr. Wagner.

In an attempt to comply with Conn. Gen. Stat. § 52-190a, the plaintiff attached to his complaint a letter from a board certified emergency medicine physician stating that Dr. Wagner and the staff of Bristol Hospital violated the applicable standard of care in connection with the care and treatment of the decedent. Bristol Hospital filed a motion to dismiss, arguing that the plaintiff’s opinion letter was insufficient as to the first count of the complaint to the extent that said count alleged negligence of hospital personnel other than emergency medicine physicians. The hospital conceded that the plaintiff’s letter was sufficient for the second and third counts. The trial court denied Bristol Hospital’s motion to dismiss, agreeing with the majority of superior court decisions that a written opinion is sufficient for a medical institution if it is sufficient for at least one agent or employee of the institution. Because the letter was sufficient as to Dr. Wagner, the court found that it was sufficient as to the hospital.

Thereafter, Bristol Hospital filed a renewed motion to dismiss (which the trial court treated as a motion to reargue) based on the Connecticut Appellate Court’s decision in Wilkins v. Connecticut Childbirth & Women’s Center, 135 Conn. App. 679 (2012), which was rendered after the hospital’s first motion to dismiss was decided. In Wilkins, the issue was whether a board certified obstetrician could opine as to the standard of care for a certified nurse midwife or a registered nurse. The Connecticut Appellate Court ruled that an obstetrician was not a “similar health care provider” to a certified nurse midwife and dismissed the plaintiff’s action.

In the present case, the Strickland court ruled that Wilkins was distinguishable and did not alter the court’s prior decision denying Bristol Hospital’s motion to dismiss. The court noted that unlike the plaintiff in the present case, the Wilkins plaintiff had no other written opinion other than the one by the board certified obstetrician. Once the Wilkins court determined that the obstetrician was not a “similar health care provider” as the certified nurse, midwife, or registered nurse, the plaintiff had no other means to comply with § 52- 190a. In Strickland, the plaintiff already had a written opinion from a “similar health care provider” as Bristol Hospital, namely, the board certified emergency medicine physician attesting to the negligence of Dr. Wagner. Because the hospital was sued under the theory of respondeat superior for the negligence of Dr. Wagner in addition to the negligence of the other emergency room staff, the opinion of the board certified emergency medicine physician was sufficient as to Bristol Hospital.

Impact: This case demonstrates that a written opinion is sufficient for the medical institution if it is sufficient for at least one agent or employee of the medical institution. Had the plaintiff not claimed that the hospital was vicariously liable for the alleged negligence of Dr. Wagner, and only claimed that the hospital was liable for the alleged negligence of the emergency room nurses and/or technicians, the case likely would have gone the other way.