Judicial District of Litchfield


      Torts; Medical Malpractice; Whether the Plaintiffs Could Bring a Second Action Under the Accidental Failure of Suit Statute, § 52-592, After the First Action was Dismissed for Failure to Attach an Opinion of a Similar Health Care Provider. Joanne Plante committed suicide shortly after being released from Charlotte Hungerford Hospital's emergency room.  Plante's estate and family sued the hospital, three emergency room doctors and an emergency room nurse alleging medical malpractice.  The hospital, nurse and one of the doctors (the hospital defendants) moved that the action be dismissed as to them, citing the plaintiffs' failure to attach to the complaint, as required by General Statutes § 52-190a (a), a written opinion of a "similar health care provider" that there appeared to be evidence of medical negligence.  The trial court granted the motion to dismiss.  The plaintiffs then brought a second action against the hospital defendants under the accidental failure of suit statute, General Statutes § 52-592, claiming that the first action had been dismissed as to those defendants "as a matter of form."  Attached to the new complaint was a written opinion from a doctor that the defendants had been negligent.  After conducting an evidentiary hearing, the trial court found that the plaintiffs could not avail themselves of § 52-592 and rendered judgment for the defendants.  The court noted that, while the plaintiffs had obtained a written opinion from a registered nurse prior to bringing the first suit, the nurse could not be considered a "similar health care provider," as defined by General Statutes §§ 52-184c (b) and (c), with respect to any of the hospital defendants.  The court held that the plaintiffs' failure to obtain the opinion of a similar health care provider was not merely a "matter of form" because even a cursory reading of the statutes would have revealed that the proffered nurse did not qualify as a similar health care provider.  The court concluded that the plaintiffs' lack of diligence in selecting a qualified individual to review the case for malpractice could only be characterized as "blatant and egregious conduct which was never intended to be condoned and sanctioned by the `matter of form' provision of § 52-592."  The remaining defendants to the first action, two board certified doctors specializing in emergency room medicine, then moved that that action be dismissed as to them, claiming that the nurse who had authored the plaintiffs' opinion was not a similar health care provider.  The trial court granted their motion to dismiss.  The plaintiffs appeal from that judgment and from the judgment in favor of the hospital defendants in the § 52-592 action.  They claim that the § 52-592 action was proper because the statute allows the bringing of a new action where a previous action was dismissed for "want of jurisdiction" and that their first suit against the hospital defendants was dismissed on jurisdictional grounds.  The plaintiffs also argue that, as the dismissal of their suit against the hospital defendants was facially premised on either a lack of jurisdiction or a matter of form, both as contemplated by § 52-592, there was no need for the trial judge in their second suit to conduct an evidentiary inquiry to determine whether the plaintiffs had been diligent in pursuing the first lawsuit.