Conn. Supreme Reverses Precedent, Revives Medical Malpractice Suit

For more than a decade, Connecticut courts have been dismissing medical malpractice actions if the plaintiff did not submit a proper certificate and opinion letter from “a similar health care provider” that supports the merits of the claim.

The state legislature passed a law in 2005 requiring the supporting documentation as a means of verifying that attorneys have a reasonable basis for their complaints. In 2011, the Connecticut Supreme Court took the tort reform effort a step further by holding that state courts have no “personal jurisdiction” to hear malpractice actions unless a proper certificate and opinion letter is provided.

That means any lawsuits without a proper letter and certificate must be dismissed with prejudice — they cannot be refiled.

The Supreme Court overturned its own precedent last week. In an advance opinion to be published Feb.14, the court said nothing in the statute requires cases to be dismissed if an insufficient opinion letter is submitted.

The 6-0 decision says “we agree with the plaintiff and the trial lawyers that Morgan is clearly wrong and should be overruled to the extent that withholds that the opinion letter implicates the court’s personal jurisdiction.

Shane J. Carpenter brought the issue to the Supreme Court’s attention in a lawsuit he filed in 2018 against his dentist, Bradley J. Daar. Carpenter alleged that during a root canal Daar failed to diagnose and treat an infection in his tooth that required surgery.

Daar attached to his complaint an opinion letter from Charles S. Solomon, an endodontist. Daar’s attorneys argued that the letter was defective because Daar is a general dentist, not an endodontist. The trial court agreed that the opinion letter was defective and dismissed the lawsuit. The Connecticut Appellate Court affirmed the decision.

The Supreme Court accepted an appeal and used the case to overturn not only Morgan but a “body of case law” the decision spawned “that imposed substantially greater burdens on plaintiffs than the legislature intended by allowing potentially curable, technical, pre-litigation defects to defeat otherwise meritorious medical malpractice actions, sometimes after several years of litigation.”

The court said the concept of stare decisis holds that courts should not overturn their own prior decisions without “special justification” but that doesn’t mean precent can never be reexamined. But the court said”Morgan has created roadblocks for otherwise meritorious cases that are squarely at odds with the legislature’s limited goal of ensuring an adequate, good faith investigation and eliminating only frivolous cases.”

Specifically, the court pointed to a 2021 decision, Kissel v. Center for Women’s Health P.C., in which the Appellate Court overturned a jury verdict because the plaintiff, who had obtained an opinion letter, forgot to attach it to the complaint she filed in 2012.

“By elevating the opinion letter to a jurisdictional prerequisite of any kind, it allows a potential pre-litigation defect to defeat a medical malpractice action that a jury has deemed meritorious after several years of litigation,” the opinion says.

As it happens, the Supreme Court said the trial court and Appellate Court had also erred by deciding that the endodontist who wrote Carpenter’s opinion letter was not a similar medical provider. The opinion says while Daar is not technically an endodontist, his website emphasizes his years of experience in the field.

The Supreme Court reversed the Appellate Court and remanded the case to the trial court with instructions to deny Daar’s motion to dismiss.