NUZZO & ROBERTS PROFESSIONAL LIABILITY NEWSLETTER

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1 NUZZO & ROBERTS PROFESSONAL LABLTY NEWSLETTER Volume 7 No. 2 April 2010 MEDCAL MALPRACTCE Appellate Court Held Medical Opinion was Sufficient to Comply with the Requirements of C.G.S a n Wilcox v. Schwartz, 119 Conn. App. 808 (2010), a medical malpractice action alleging that the defendant doctor negligently performed a laproscopic cholecystectomy to treat the plaintiff s gallbladder disease, the Connecticut Appellate Court reversed the trial court s decision dismissing the plaintiff s action because the written medical opinion was insufficiently detailed. n Wilcox, the medical opinion concluded that, to a reasonable degree of medical probability, there were deviations from the applicable standards of care. The opinion specified that the defendant failed to prevent injury to Ms. Wilcox s biliary structures during the surgery and to accurately document the procedure. The Appellate Court found that the medical opinion sufficiently notified the reader that a similar health care provider was of the opinion that the medical negligence consisted of the failure to protect Mrs. Wilcox s bile ducts from injury during surgery and that it was a breach of the prevailing standard of care. The Court noted that the medical opinion must include a statement that there appears to be evidence of a breach of the standard of care, but need not be as comprehensive as a disclosure of expert witness later on in the case. MEDCAL MALPRACTCE Purported Medical Malpractice Action Barred by Prior Pending Action Doctrine EDTOR S NOTE: This is the first appellate case specifically addressing whether a written opinion submitted by a claimant pursuant to C.G.S a(a) is sufficiently detailed for the purposes of the statute. Prior to Wilcox, in Dias v. Grady, 292 Conn. 350 (2009), the Connecticut Supreme Court held that such medical opinions need not address causation. n Selimoglue v. Phimvongsa, 119 Conn. App. 645 (2010), the court dismissed the plaintiff s malpractice action because the plaintiff already had a similar action pending. The plaintiff, a supervisor for the Department of Children and Families ( DCF ), brought two similar actions against the defendant company that DCF

2 hired to provide case management services and one of that company s employees. n the first suit, the plaintiff alleged that the employee brought a client to a prohibited office area at DCF, and that while in the prohibited area, the DCF client allegedly chased and attacked the plaintiff causing her severe personal and emotional injuries. The plaintiff further alleged that the employee was negligent and that that the company was both vicariously liable for the employee s negligence and negligent in training its employee. n the second lawsuit, brought about three months later, the plaintiff attempted to bring a medical malpractice action. This lawsuit was identical to the first lawsuit except for a few new allegations regarding the company s negligence and regarding the plaintiff s claimed injuries and economic damages. The most notable difference was the Statement of a Licensed Professional Counselor and a Good Faith Certificate attached to the second lawsuit, which is required for a medical malpractice action. The trial court granted the defendants motion to dismiss the second action on the ground that the plaintiff had a prior pending action against the defendants involving identical factual allegations. The plaintiff appealed. n affirming the trial court, the Appellate Court rejected the defendants arguments that the two lawsuits differed because the first action was solely based on negligence and the second action was based on medical malpractice. The Appellate Court found that the inclusion of the good faith certificates and expert opinion was not sufficient to demonstrate that the two actions were dissimilar. The Court noted that the second action did not mention a standard of care nor did it concern a medical diagnosis or treatment and, like the first action, focused on allegations that the defendants ignored DCF protocol by bringing the client to the office after hours. Accordingly, the Court concluded that both actions sounded in simple negligence and were nearly identical, adjudicating the same underlying rights based on the same set of facts. EDTOR S NOTE: n determining whether a claim sounds in medical malpractice, courts consider whether (1) the defendants are sued in their capacities as medical professionals; (2) the alleged negligence is of a specialized medical nature that arises out of the medical professionalpatient relationship; and (3) the alleged negligence is substantially related to medical diagnosis/treatment involving the exercise of medical judgment. NOTES Plaintiff s Legal Malpractice Claim Barred by Three Year Statute of Limitations in C.G.S n Churma v. Kellogg, 2010 WL (April 13, 2010, Brazzel- Massaro, J.), the court granted the defendant attorney s summary judgment 2

3 finding that the pro se plaintiff s claim was barred by the three statute of limitations for legal malpractice claims (C.G.S ). The plaintiff s claim arose from allegations that the defendant committed malpractice by permitting default to enter against her. n response to the defendant s motion for summary judgment, the plaintiff claimed that the action was one for breach of contract, in an apparent attempt to benefit from the six-year statute of limitations. To support this, she filed an affidavit that included a heading entitled breach of contract. The court concluded, however, that the allegations of the complaint sounded in negligence and not contract. The court also noted that in her affidavit, the plaintiff specifically stated that she refused to sign the retainer agreement for legal services because she wanted the defendant to revise it. As such, the court concluded that even if there was an agreement, it would be an oral agreement, which, like a legal malpractice action, carries a three year statute of limitations. The court determined that under C.G.S , the plaintiff s malpractice action was time barred. The court found that the defendant s services ended when the plaintiff terminated him on August 30, Therefore, the court concluded that the limitations period ended on August 30, 2007, several months prior to the commencement of the action on June 2, Breach of Contract and CUTPA Claims Against Attorney Fail to State Causes of Action n Savoy Linen Services, nc. v. US nsurance Services of Connecticut, nc., 2010 WL (Feb. 9, 2010, Tyma, J.), the court granted the defendant insurance agency s motion to strike the plaintiffs breach of contract and CUTPA claims arising from the defendant s alleged failure to procure necessary insurance coverage. The court determined that the breach of contract claim failed to allege that the defendant promised a specific result in obtaining the insurance and sounded in professional negligence, not breach of contract. As to the CUTPA claim, the court stated that to have a viable CUTPA claim against an insurance agency the complaint must include allegations implicating the entrepreneurial or commercial aspects of the profession, similar to claims made against medical and legal professionals. The court concluded that the plaintiff s allegation that the defendant misrepresented that the insurance policy adequately protected the plaintiff so that the agency could receive a fee was inadequate to state a cause of action for violations of CUTPA. 3

4 Medical Opinion Pursuant to C.G.S a Not Required Where Medical Malpractice is Grossly Apparent n Diduca v. Longo, 2010 WL (Feb. 8, 2010, Corradino, J.), the court held that C.G.S a does not require the written opinion of a similar health care provider in the limited category of medical malpractice cases where negligence is so grossly apparent that a layperson would have no trouble deciding fault. n this case, the plaintiff alleged that the defendant extracted the wrong teeth. The court analogized the plaintiff s claim to where a surgeon amputates the wrong leg, which does not require expert testimony. Accordingly, the court determined that a written opinion was not required and denied the defendant s motion to dismiss the complaint. Court Permits Widow s Claim of nterference With Dead Bodies Against Hospital n Ginsberg v. Manchester Memorial Hospital, 2010 WL (Feb. 2, 2010, Peck, J.), the court denied the hospital s motion to strike the plaintiff s claim of interference with dead bodies. The plaintiff, the decedent s widow, claimed that the defendant hospital had custody and control over the decedent s body after his death and that while in the defendant s custody, it caused the body to be damaged by a gash on the forehead, bruised eyes and a broken nose. The court held that hospitals have a duty preserve corpses and that a breach of that duty is actionable. The court further held that the duty is owed to the family member of the deceased who is entitled to the disposition of the body. The court concluded that since the plaintiff was the decedent s widow and alleged the necessary elements of negligence, she sufficiently pled a cause of action for interference with dead bodies. WE ARE READY TO HELP N uzzo & Roberts has highly skilled and trained lawyers eager to serve you in the following areas. Please call us or send us an . Uninsured Motorist: Tony Nuzzo at [email protected] Professional Liability: contact Tony Nuzzo at [email protected]; Rick Roberts at [email protected]; Nadine Pare at [email protected] or Jennifer Cavalier Mozzer at [email protected] Bad Faith and Coverage ssues: contact Tony Nuzzo at [email protected]; Michele C. Camerota at [email protected] or Amber J. Hines at [email protected] Product Liability: contact Rick Roberts at [email protected] 4

5 Premises Liability: contact Rick Roberts at or Robert J. Chomiak, Jr. at Third-Party Claims and ndemnity: State and Federal Appellate Work: Workers' Compensation: contact David Weil at WHEN N DOUBT, CALL US We are only a phone call away. f you have any questions, call us!! NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT Phone: (203) Fax: (203) or Employment Law: contact Rick Roberts at [email protected] or Nicole Chomiak at [email protected] Fraud and Strategic nvestigation: Trials: Rick Roberts at [email protected]; Tony Nuzzo at [email protected]; Robert Chomiak, Jr. at [email protected] or Nicole Chomiak at [email protected] Complex Litigation: Tony Nuzzo at [email protected] or Rick Roberts at [email protected] 5