What's Required in an Expert’s Opinion for Medical Malpractice

What your expert needs to allege in a report to commence a medical malpractice case.

In Connecticut, in order to commence an action against a doctor, hospital or healthcare provider for medical malpractice, the injured party’s lawyer must first obtain a written and signed opinion of a similar healthcare provider, which states that there appears to be evidence of medical negligence. Within this opinion, the similar health care provider needs to include a detailed basis for the formation of such an opinion.

However, this month, the Connecticut Supreme Court further defined what was required in the report of the similar health care provider in Wilcox v. Schwartz, which decision limited the ability of defense attorneys to bar potentially meritorious medical malpractice claims in certain instances.

In Wilcox, the plaintiff sued her surgeon alleging he negligently performed laparoscopic gall bladder surgery on her. The trial court dismissed her case because the opinion of the “similar health care provider” did not sufficiently explain the particular manner in which the defendant breached the standard of care which included: (a) failing to ensure the adequate and accurate identification of the plaintiff’s internal anatomy prior to proceeding with surgery; (b) failing to prevent injury to the plaintiff’s biliary structures during surgery; and (c) failing to adequately document the surgical procedure.

The defendants in filing their Motion To Dismiss alleged that the plaintiff’s expert’s opinion provided a conclusory statement of negligence, but failed to provide an opinion as to how the doctor was negligent or how he deviated from the standard of care. Thereafter, the trial court granted the defendant’s Motion to Dismiss and subsequent appeals ensued.

The Connecticut Appellate Court reversed the judgment of the trial court in holding that the written opinion was sufficiently detailed to meet the requirements of Connecticut General Statute Section 52-190a (a) and that the statement need only opine as to the breach of the standard of care.

Thereafter, the Connecticut Supreme Court reviewed the legislative history of our Medical Malpractice Statute 52-190 (a), which was originally enacted as part of the Tort Reform Act of 1986. The original statute did not require the plaintiff to obtain a written opinion of a similar health care provider but permitted the plaintiff’s attorney to file a Good Faith Affidavit relying on the opinion of a similar health care provider to support her/his good faith belief.

In 2005, the legislature amended the statute to require the plaintiff to obtain a written opinion of a similar health care provider stating that there appears to be medical negligence. The 2005 legislation was part of a comprehensive effort to control significant and continued increases in malpractice insurance premiums by reforming aspects of tort laws, the insurance system and the public health regulatory system.

Our Supreme Court stated there is no evidence that the legislature intended to bar meritorious claims merely because a similar health care provider is not qualified to provide an opinion as to both the applicable standard of care and proximate causation. The Court continued by stating a written opinion need not identify the precise manner in which the standard of care was breached to satisfy the requirements of § 52-190(a).

Therefore, as was stated in Wilcox, a health care professional need only opine that the injuries sustained by the plaintiff would not have occurred but for the defendant’s breach of the standard of care which opinion is sufficient in satisfying the requirements of § 52-190(a).

This decision will help reduce the specificity imposed upon the plaintiff’s expert when drafting the opinion required prior to the institution of a medical malpractice lawsuit.

Richard P. Hastings is a Connecticut personal injury lawyer at Hastings, Cohan & Walsh, LLP, with offices throughout the state.  A graduate of Fordham Law School, he has been named a New England Super Lawyer and is the author of the books: "The Crash Course on Child Injury Claims"; "The Crash Course on Personal Injury Claims in Connecticut" and "The Crash Course on Motorcycle Accidents."  He has also co-authored the best selling book "Wolf in Sheep's Clothing- What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late!" He can be reached at 1(888)CTLAW-00 or by visiting www.hcwlaw.com.



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