On the “Similar Specialty” Requirement and the Exceptions Thereto

April 24, 2014

Torres v. Carrese, — A.3d —, 2014 WL 1464334 (Conn.App. 2014)

The plaintiff sued her obstetricians/gynecologists for negligent removal of her placenta following a C-section. The placenta invaded the wall of the plaintiff’s bladder causing substantial bleeding and requiring a hysterectomy. The plaintiff claimed that the defendants were unprepared for the required procedure and carried it out without adequate care. As a result, she sustained damage to her bladder and uterus and became incontinent. The defendants moved to dismiss the suit because it was not accompanied by an opinion from a “similar health care provider,” as required under Connecticut statute, Gen. Stat. § 52–190a (a). Specifically, they argued that the suit was accompanied by an expert opinion from a urologist, as opposed to a board certified ob-gyn.  See Bennett v. New Milford Hospital, 12 A.3d 865 (Conn. 2011) (holding that a written opinion letter pursuant to § 52–190a must be from a “similar health care provider,” as defined in § 52–184c, and that an insufficient written opinion letter requires dismissal of action).

The plaintiff relied on the exception to the “similar health care provider” requirement, Gen. Stat § 52–184c (c).  Under this exception, where “the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.” The plaintiff argued in this connection that the treatment she received from the defendants was urological.

The appellate court rejected the plaintiff’s argument. The court explained that, although a substantial part of the plaintiff’s alleged damage was urological, this damage occurred when one of the defendants, an ob-gyn, “was performing a hysterectomy, an obstetric-gynecological procedure, because of the plaintiff’s condition of placenta percreta, an obstetric condition.” The applicability of the Gen. Stat § 52–184c (c) exception – held the court – is determined strictly by the nature of the procedure carried out by the defendant.

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