Bell v. Hospital of Saint Raphael (Concurrence)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** BELL v. HOSPITAL OF SAINT RAPHAEL CONCURRENCE BISHOP, J., concurring. Connecticut s judiciary serves the interests of justice and the public by resolving matters brought before it in a fair, timely, efficient and open manner. Connecticut Judicial Branch, Mission Statement, available at http://www.jud.ct.gov/. This policy finds its genealogy in the constitution of Connecticut which provides, in article first, § 10: All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Decisional law amplifies this basic tenet of our jurisprudence. Our Supreme Court has stated that there exists a judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. (Internal quotation marks omitted.) Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000). The availability of our courts to resolve disputes can, of course, be reasonably limited by jurisdictional as well as prudential constraints. I agree, as well, that the availability of the courthouse may also be made subject to reasonable regulation such as the imposition of reasonable use fees, compliance with behavioral norms, and other policy driven limitations created by the legislature. General Statutes § 52190a (a) represents such a restriction. But, because this statute acts as a limitation on an individual s access to court, I believe its prescriptions must be narrowly construed and not augmented by unlegislated, judicially imposed requirements. In adopting the view that § 52190a requires not only that a complaint be accompanied by a letter from a health care provider similar to the defendant, but that the letter, itself, must also contain a complete exposition of the health care provider s bona fides, I believe that this court has not only written a new requirement into the statute but, by broadly construing the statute, has frustrated Connecticut s tradition of open courts available to all for the resolution of disputes. Section 52-190a (a) provides in relevant part: No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made 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 claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant s attorney, and any apportionment complainant or the apportionment complainant s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant s attorney, and any apportionment complainant or apportionment complainant s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. . . . In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney s fee. . . . (Emphasis added). Nowhere in this statutory language do I find a requirement that the letter from a similar health care provider contain an elucidation of the writer s qualifications. Nonetheless, and as noted by the majority, this court recently has held that § 52-190a mandates that a similar health care provider s opinion letter include a recitation of the author s credentials and qualifications. See Lucisano v. Bisson, 132 Conn. App. 459, 466, A.3d (2011). I agree with the outcome reached by the majority in the case at hand because we are presently bound by this court s ruling in Lucisano. I write separately, however, because I believe that such an interpretation of § 52-190a goes beyond the prescriptions of the statute, imposing an extra hurdle limiting a plaintiff s access to court not warranted either by application of the statute s plain meaning or by the judiciary s promise to openly hear and fairly resolve grievances brought to it for resolution. For the reasons stated, I respectfully concur.
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