2011 Connecticut Code
Title 52 Civil Actions
Chapter 900 Court Practice and Procedure
Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider. Ninety-day extension of statute of limitations.

      Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider. Ninety-day extension of statute of limitations. (a) 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. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. 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. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.

      (b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.

      (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.

      (P.A. 86-338, S. 12; P.A. 87-227, S. 9; P.A. 03-202, S. 14; P.A. 05-275, S. 2; P.A. 07-65, S. 1.)

      History: P.A. 87-227 amended Subsec. (a) to replace provision that "No action, accruing on or after October 1, 1986, shall be filed to recover damages for personal injury or wrongful death" with "No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987"; P.A. 03-202 amended Subsec. (a) by deleting provision re form prescribed by rules of the superior court and making technical changes; P.A. 05-275 amended Subsec. (a) to make provisions applicable to an apportionment complaint and the filing thereof, require the opinion of the similar health care provider to be signed and include a detailed basis for the formation of such opinion, require the claimant or the claimant's attorney and any apportionment complainant or apportionment complainant's attorney to retain the original written opinion and attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate and provide that such similar health care provider shall not, without a showing of malice, be personally liable by reason of having provided such written opinion and added new Subsec. (c) to provide that the failure to obtain and file the written opinion shall be grounds for dismissal of the action, effective October 1, 2005, and applicable to actions filed on or after that date; P.A. 07-65 amended Subsec. (b) to substitute "civil action" for "action" and add "to recover damages resulting from personal injury or wrongful death" re extension of statute of limitations.

      P.A. 86-338 cited. 214 C. 1. Good faith certificate is not jurisdictional. 215 C. 701. Cited. 236 C. 681. Cited. 242 C. 1. In workers compensation case where city sought to intervene in employee's negligence action against physician, the city as a would-be intervenor was not required to file a good faith certificate where employee had filed such a certificate and the city asserted no additional claims. 253 C. 429. Applies only to civil actions to recover damages and does not apply to apportionment complaints under Sec. 52-102b which seek only apportionment of liability. 269 C. 10. Section does not require plaintiffs to attach an opinion from a similar health care provider addressing causation. 292 C. 350.

      Cited. 26 CA 497. Cited. 33 CA 378. Cited. 37 CA 105. Fall by person dependent on a wheelchair while transferring from wheelchair to an exercise mat at physical therapy facility during scheduled session, where transfers were a stated goal of therapy, is medical malpractice. 61 CA 353. If a complaint is found to sound of medical malpractice, even if plaintiff claims the complaint sounds of ordinary tort and breach of contract, then failure by plaintiff to include a good faith certificate and an opinion of a similar health care provider shall constitute grounds for dismissal. 113 CA 569.

      Cited. 41 CS 169.

      Subsec. (a):

      Section establishes objective criteria, not subject to the exercise of discretion, making prelitigation requirements more definitive and uniform than requirements to testify at trial and arguably sets the bar higher to get into court than to prevail at trial; as to defendant health care provider who is a physician, the similar health care provider contemplated here is one defined in either Sec. 52-184c(b) or (c). 117 CA 535. Good faith opinion submitted sufficiently addressed allegations of negligence by indicating evidence of a breach of the standard of care, was not required to address causation, and, therefore, was sufficiently detailed for purposes of this Subsec. 119 CA 808. Because defendant is a board certified specialist, a similar health care provider must be one trained and experienced in same specialty as defendant and certified by appropriate American board in same specialty. 122 CA 597.

      Detailed basis for written opinion must enable defendant to ascertain basis of claim. 50 CS 385.

      Subsec. (b):

      Ninety-day extension provided in Subsec. applies equally to both the two-year statute of limitation and three-year statute of repose in Sec. 52-584. 269 C. 787.

      Cited. 43 CA 397. The term "filed", for purposes of effective date of a public act, refers to the bringing of a complaint or other pleading to the clerk of the court, not a state marshal for service. 106 CA 810.

      Subsec. (c):

      Failure to comply with this Subsec. renders complaint subject to motion to dismiss and not motion to strike. 106 CA 810. Action subject to dismissal not only for lack of opinion letter but also if opinion letter is not from similar health care provider or does not give detailed basis for the opinion. 117 CA 535.

      Failure to provide written opinion required by Subsec. (a) does not result in automatic dismissal under Subsec. (c), but rather dismissal is discretionary and based upon facts. 50 CS 385.