Sergio Batista v. Henry Eli Jacobs, M.D.

Reset A A Font size: Print

Superior Court of Connecticut.

Sergio Batista v. Henry Eli Jacobs, M.D.

HHDCV096006080S

Decided: June 23, 2010

MEMORANDUM OF DECISION ARTICULATING FACTUAL AND LEGAL BASES FOR GRANTING DEFENDANT'S MOTION TO DISMISS

On December 7, 2009, the plaintiff, Sergio Batista, commenced this action by service of process upon the defendant, Henry Eli Jacobs, M.D. The defendant appeared in the action through counsel on December 22, 2009.   In his two-count Complaint, which sounds in negligent and intentional infliction of emotional distress, the plaintiff alleges the following facts.   On or about July 17, 2007, the defendant, a medical doctor residing and practicing medicine in West Hartford, Connecticut, conducted a physical examination of the plaintiff as part of the process by which the plaintiff sought to become a naturalized United States citizen.   The examination, which included the collection of a blood sample from the plaintiff for the purpose of diagnosing diseases, including the human immunodeficiency virus (HIV), was so arranged that its results would be sent directly to the Federal Government for immigration purposes.

After collecting the plaintiff's blood sample, the defendant or one of his agents, servants or employees submitted it to a laboratory, Quest Diagnostics (Quest), for evaluation.   Shortly thereafter, on July 23, 2007, Quest issued a report stating:  (1) that the plaintiff's HIV 1/2 Ab Screen, EIA was reactive;  but (2) that his HIV-1 antibodies and Western Blot results were still pending.   Three days after receiving this report, the defendant wrote the plaintiff a letter dated July 26, 2007,1 in which he stated that the plaintiff's HIV-1/HIV-2 antibody result was reported as positive,2 and advised the plaintiff to follow up immediately with an infectious disease physician.

The plaintiff further alleges that on July 27, 2007, Quest issued a second report stating that the result of the Western Blot test performed on the plaintiff's blood sample was indeterminate.   This report explained that an indeterminate result should not be considered positive or negative, and thus advised that further testing should be performed to determine if the plaintiff had HIV. On that same day, however, Quest issued a third report stating that the plaintiff's HIV-2 antibodies and ELISA test results were nonreactive.

On July 27, 2007, the plaintiff sought a second blood test through the State of Connecticut.   On August 1, 2007, the State of Connecticut Department of Public Health reported that the results of the plaintiff's HIV-1 antibody test were negative.

The plaintiff alleges that the defendant knew, or should have known, that a reactive test result for HIV 1/2 Ab Screen, EIA is not a definitive positive result, and that further test results must be obtained to confirm the result.   Furthermore, the plaintiff claims that the defendant knew, or should have known, that informing a patient that he has an incurable terminal disease would cause severe emotional distress.   The defendant's actions in negligently informing the plaintiff of the false positive were allegedly extreme and outrageous.   As a result of the defendant's alleged negligence in informing the plaintiff that he had HIV before the testing was complete, the plaintiff suffered severe emotional distress and resulting damages.   Additionally, the plaintiff claims that the defendant jeopardized his chances of becoming a United States citizen by reporting the false positive to the Federal Government.

On January 21, 2010, the defendant filed a timely motion to dismiss the plaintiff's Complaint pursuant to General Statutes § 52-190a(c), on the ground that the plaintiff failed to obtain and file with his Complaint the written opinion of a similar health care provider that the defendant committed medical malpractice, as required by subsection (a) of that statute.3  A supporting memorandum of law accompanied that motion.   On February 4, 2010, the plaintiff filed an objection to the defendant's motion, to which the defendant replied by filing a supplemental memorandum of law on February 8, 2010.   On the latter date, the Court heard the matter on the short calendar and invited supplemental memoranda by the parties.   In response to that invitation, supplemental memoranda were filed, by the plaintiff and the defendant, respectively, on February 16, 2010 and February 22, 2010.

The Court formally granted the defendant's Motion to Dismiss on June 22, 2010 by issuing a short-form order stating that a full opinion explaining its ruling would follow at once.   The instant Memorandum of Decision is filed to articulate the factual and legal bases for the Court's ruling.

I

MOTION TO DISMISS

The issue before the Court is whether the plaintiff's Complaint is subject to dismissal for failure to attach a written opinion of a similar health care provider under General Statutes § 52-190a.   More specifically, the disposition of this case turns on whether the plaintiff's Complaint alleges medical malpractice, for which a written opinion of a similar health care provider is required, or ordinary negligence, which does not require such an opinion.

Under section 52-190a of the General Statutes, a failure to obtain a written and signed opinion of a similar health care provider in any “civil action ․ 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” shall be grounds for dismissal of the action.   See General Statutes § 52-190a(a), (c)).  It is well settled that the motion to dismiss is the proper vehicle to challenge a plaintiff's failure to attach a written opinion of a similar health care provider to the complaint in a medical malpractice action;  see General Statutes § 52-190a(c));  Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008);  although the defect does not implicate the Court's subject matter jurisdiction.  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   A motion to dismiss for alleged failure to comply with § 52-190a must be decided under the same rules and standards as those that apply to other motions to dismiss presenting challenges to the court's jurisdiction.   See Duran v. Alias, Superior Court, judicial district of Waterbury, Docket No. CV 09 5014109 (February 25, 2010, Gallagher, J.) (49 Conn. L. Rptr. 394, 395).   That is, “[t]he motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”   Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).   Nevertheless, the court is to construe the facts alleged in the complaint in a manner most favorable to the pleader.  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).

II

MEDICAL MALPRACTICE ACTIONS

The purpose of section 52-190a of the General Statutes was “to discourage the filing of baseless lawsuits against health care providers” and assure “that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence.”  LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990).   Our Appellate Court addressed the issue of which causes of action require a written opinion under section 52-190a in Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   There, the Court determined that only claims based on medical malpractice, as opposed to ordinary negligence, are subject to § 52-190a.

“The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred.  [P]rofessional negligence or malpractice ․ [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.   Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, ․ the relevant considerations in determining whether a claim sounds in medical malpractice are 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 professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”  (Internal quotation marks omitted.)  Id.4

The standard adopted by our Appellate Court in Votre effectively distinguishes between claims that allege ordinary negligence and those that allege medical malpractice as their basis, regardless of the label placed on them by the plaintiff.   Thus, in Votre, the Court found that the plaintiff's claims of emotional distress, both intentional and negligent, were subject to the requirements of section 52-190a where the underlying allegations required proof of a deviation from the standard of care.   Like the plaintiff in Votre, the plaintiff in the present case cannot escape the written opinion requirement of § 52-190a by alleging emotional distress if the factual allegations require proof of the defendant's deviation from the applicable standard of care.

A

The Parties' Arguments

The defendant argues that the plaintiff's Complaint must be dismissed under section 52-190a(c) because it alleges professional negligence.   In support of this argument, the defendant argues that all three prongs of the Votre test are satisfied by the plaintiff's allegations because the plaintiff's claims been brought against the defendant in his capacity as a physician;  the plaintiff alleges negligence of a specialized medical nature that arose out of the defendant's examination of and communication of medical advice to the plaintiff;  and the proper analysis of the plaintiff's HIV test results and procedure for communicating such results to the plaintiff requires the exercise of medical judgment.

The plaintiff claims that he alleges ordinary negligence, not medical malpractice, because the second and third prongs of the Votre test are not met.5  In particular, the plaintiff argues that the second prong is not met because, under the facts as he has alleged them, there was no medical professional-patient relationship between himself and the defendant when the defendant engaged in the conduct here claimed to constitute negligence.   In support of this argument, the plaintiff points to the allegations of his Complaint which state that the defendant performed the physical examination upon him solely for the purpose of supporting his application to become a naturalized United states citizen, under an arrangement whereby the results of the examination were to be sent directly to the Federal Government for immigration purposes.   The plaintiff argues that the third prong of the Votre test is not satisfied because the defendant's alleged communication of the misinterpreted test results to him did not require the exercise of medical judgment.   Instead, because the defendant informed the plaintiff that he had tested positive for HIV and instructed him to follow up immediately with an infectious disease physician before confirming the initial positive result with the other tests he had ordered, his negligence does not implicate an established standard of care for physicians.

In response, the defendant argues that the plaintiff's claim adequately alleges a medical professional-patient relationship sufficient to satisfy the second prong of Votre because the alleged breach arises from a duty only present in a medical professional-patient relationship.   That is, in the absence of rendering professional services, a physician only owes a duty to avoid causing harm to the examinee during examination.   In contrast, where a medical professional-patient relationship exists, the physician owes a higher duty-a duty to diagnose or treat in compliance with the prevailing professional standard of care for that health care provider.   Because the plaintiff is not alleging that he was physically harmed during the examination, and instead is claiming that “a reasonably prudent physician, properly interpreting the results of the HIV 1/2 Ab Screen, would not have notified the patient of the results of that test until the physician had received the results of a separate test,” his claim is premised on breach of a professional duty arising out of a medical professional-patient relationship, thereby satisfying the second prong of Votre.   Furthermore, the defendant argues that the third prong of Votre is satisfied because the plaintiff's claim implies the exercise of medical judgment by inquiring whether a reasonably prudent physician, properly interpreting the test results, would have notified the patient of the positive result of the HIV 1/2 Ab Screen.

B

The Second Prong:  The Existence of a Medical Professional-Patient Relationship

Under the second prong of Votre, “[a] claim for medical malpractice does not exist in the absence of a physician/patient relationship.”  Williams v. National Railroad Passenger Corp., 16 F.Sup.2d 178 (D.Conn.1998) (applying Connecticut law).  “The physician/patient relationship is consensual ․ It arises where an individual seeks and obtains medical treatment or advice from a health care professional.”  (Citation omitted.)  Id., citing Pokorny v. Shafer, Superior Court, judicial district of Hartford, Docket No. CV 93 0528375 (February 28, 1994, Wagner, J.) (11 Conn. L. Rptr. 151).

Two relationships have been identified by our courts as falling short of a medical professional-patient relationship for purposes of determining the requirement of General Statutes § 52-190a applies.   The first is the relationship that exists when a physician is retained solely to examine an employee on behalf of an employer.   See, e.g., Williams, supra, 16 F.Sup.2d 181;  Tenerow v. Concerta Health Services, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5004011 (June 24, 2009, Fischer, J.) (48 Conn. L. Rptr. 55, 57).   In such cases, the consensual element of a medical professional-patient relationship is lacking because the employer compels the employee to submit to the testing (usually as a condition of employment);  the testing is performed solely for the benefit of the employer;  and the employee is instructed to go to a particular medical professional or location to receive the testing.   See Williams, supra, 16 F.Sup.2d 181;  see also Tenerow, supra, 48 Conn. L. Rptr. 57.

The second relationship which our courts have declined to recognize as a medical professional-patient relationship is when a physician hired by an opposing party in a lawsuit conducts an independent medical examination of the patient.   See Pokorny, supra, 11 Conn. L. Rptr. 151;  see also Rumbin v. Baez, Superior Court, judicial district of New Haven, Docket No. CV 95 0378968 (December 8, 1997, O'Keefe, J.), aff'd, 52 Conn.App. 487, 727 A.2d 744 (1999).   Where an independent medical examination is conducted, a plaintiff is not seeking medical treatment and advice from the defendant, and professional services are not rendered or accepted for purposes of medical treatment.   See Pokorny, supra, 11 Conn. L. Rptr. 152.   Additionally, with both independent examinations and employee testing, someone other than the patient furnishes compensation to the physician.   See, e.g., Rumbin, supra, Superior Court, Docket No. CV 95 0378968.

Although the relationship between the plaintiff and the defendant, as alleged in the Complaint, was conducted for purposes of applying to become a naturalized United States citizen, it is not as clear-cut as those cases in which our courts have previously declined to recognize a medical professional-patient relationship.   In particular, there is no allegation that the plaintiff was instructed to go to the particular defendant for that purpose or that compensation was furnished to the defendant physician by someone other than the plaintiff.   Nevertheless, even if the court were to find that the relationship between the plaintiff and defendant was similar to those above, it would fall within an exception to the nonexistence of a medical professional-patient relationship by virtue of the plaintiff's allegation that the defendant went beyond the scope of his preliminary professional engagement to provide the plaintiff affirmative treatment or advice.

Although Connecticut law is silent on this issue, many states adhere to the principle that an affirmative act by a medical professional in furnishing advice or treatment creates a medical professional-patient relationship even where one would not otherwise exist.   See, e.g., Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 813-14, 830 A.2d 752 (2003) (applying New York law).   In Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 812, 830 A.2d 752 (2003), our Supreme Court, applying New York law, looked at whether a medical professional-patient relationship existed between an employee of the Yonkers Fire Department (the Fire Department) and the defendant, who had contracted with the Fire Department to provide physical “fitness for duty” examinations for employees of the Fire Department.   In assessing whether the relationship existed to support the plaintiff's claim as a medical malpractice action, the Court acknowledged that the plaintiff had submitted to the examination, which included an EKG, as a condition of his employment and that the defendant had been hired by the Fire Department.   The Court explained that “when a physician is employed or retained by a third party to conduct an examination for the benefit of the third party, there must be something more than a mere examination in order to find a physician-patient relationship ․ There must be some showing that the physician affirmatively treated the patient or affirmatively advised him to be treated ․ When a physician or other medical services provider performs a fitness for duty examination, but otherwise remains silent, there is no affirmative action upon which to base a finding of a duty ․ Thus, in the absence of any treatment or advice on the part of [the medical professional] ․ a physician-patient relationship could not have existed between the plaintiff and [medical professional] such that [the medical professional] would have owed the plaintiff a duty of care.”  (Citations omitted;  internal quotation marks omitted.)  Id., 813.

The Court then looked at whether the medical professional had provided any affirmative advice to the plaintiff that could support the existence of a medical professional-patient relationship.   In concluding that the relationship existed, the Court relied on the medical professional's statement, following administration of the EKG, that “Everything looks fine.   We only found one irregular heartbeat.”  (Internal quotation marks omitted.)  Id., 814.   By providing this affirmative statement to the plaintiff that his EKG results were fine, the physician gave him medical advice of the sort that transformed their relationship, with respect to the giving of such advice, into a medical professional-patient relationship.

In the present case, a medical professional-patient relationship was created by the defendant's affirmative advice whereby he communicated to the plaintiff that his HIV-1/HIV-2 antibody result was reported as positive and that he should follow up immediately with an infectious disease physician.   Accordingly, the second prong of the Votre inquiry, that the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, is satisfied.

C

The Third Prong:  Whether the Alleged Negligence was Substantially Related to Medical Diagnosis or Treatment and Involved the Exercise of Medical Judgment.

In determining whether the third prong of Votre is satisfied, the relevant inquiry is whether “the factual allegations underlying the claims require proof of the defendant['s] deviation from the applicable standard of care of a health care provider.”  Votre, supra, 113 Conn.App. 580.   Where such proof is required, the third prong is satisfied.   See id.

In Votre, our Appellate Court was confronted with the issue of whether the defendants' negligence in failing to refer the plaintiff to a high risk physician or consult and follow the instructions of a high pregnancy risk group during her hospitalization, in accordance with her stated wishes, involved the exercise of medical judgment.   In her complaint, the plaintiff pleaded that “the defendants ignored the recommendations of the Yale high risk physicians group and that they disregarded her requests ‘for no valid medical reasons.’   “ Id. In holding that the plaintiff's claim involved the exercise of medical judgment, the Court explained that the plaintiff's claim involved an “evaluation of the Yale high risk group's recommendations and whether valid medical reasons supported the defendants' actions.”  Id., 578.   Because the crux of the plaintiff's complaint was whether the defendants' actions were warranted under the prevailing standard of care, the Court concluded that the alleged negligence involved the exercise of medical judgment.

The Court in Votre contrasted the plaintiff's allegations in that case with the allegations made by the plaintiff in Couri v. Gardner, 173 N.J. 328, 801 A.2d 1134 (2002), which did not require proof of a deviation from the standard of care.   In Couri, the plaintiff hired the defendant, a licensed psychiatrist, as a potential witness in connection with visitation rights in the plaintiff's divorce proceeding.  Couri v. Gardner, 173 N.J. 328, 331, 801 A.2d 1134 (2002).   Without the plaintiff's permission, the defendant released his preliminary report to the plaintiff's wife and their child's guardian ad litem.  Id. Because such conduct involved dissemination of the report without his permission, the plaintiff argued that his claim did not sound in medical malpractice, but in breach of contract.  Id. The defendant argued that the plaintiff's claim against him was a malpractice claim, which required an affidavit of merit under the statute.

The New Jersey Supreme Court's rationale in agreeing with the plaintiff, which our Supreme Court adopted in Votre, was that “[i]t is not the label placed on the action that is pivotal but the nature of the legal inquiry.   Accordingly, when presented with a tort or contract claim asserted against a professional specified in the statute, rather than focusing on whether the claim is denominated as tort or contract, attorneys and courts should determine if the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession.   If such proof is required, an affidavit of merit is required for that claim, unless some exception applies.”  Id., 340.   Using that reasoning, the Court concluded that the plaintiff's complaint sounded in contract, and thus did not require an affidavit of merit.  Id., 342.  “Plaintiff is not claiming that defendant erred in respect of the conclusions that he drew concerning psychiatric/medical matters or that defendant acted improperly from a psychiatric/medical standpoint in interviewing plaintiff's child.   Instead, the crux of the plaintiff's complaint is that defendant acted improperly as an expert witness by disseminating the report to others without the knowledge or consent of plaintiff.   Although defendant's unauthorized dissemination of the report also might implicate a deviation from prevailing professional standards of practice, proof of that deviation is not essential to the establishment of plaintiff's right to recover based on breach of contract.”  Id.

Using the standard articulated by Couri and approved in Votre, the issue in the present case is whether the plaintiff's cause of action requires proof of a deviation from the applicable standard of care.   The relevant paragraphs of the plaintiff's complaint allege that the report issued by Quest stated that the HIV 1/2 Ab Screen, EIA was reactive and that the other tests were pending.   Nevertheless, before the pending results were final, the defendant wrote the plaintiff to inform him that his HIV-1/HIV-2 antibody result was positive and that he should follow up immediately with an infectious disease physician.   The plaintiff further alleges that “[t]he defendant knew, or should have known, that a reactive test on the HIV 1/2 Ab Screen, EIA is not a definitive positive result, and that further test results must be obtained to confirm the results of the HIV 1/2 Ab Screen, EIA test.”   This necessarily requires proof of a deviation from the applicable standard of care by a physician.   In particular, in order to succeed on his claim, the plaintiff will have to prove that the defendant deviated from the standard of care by misinterpreting the preliminary results of the testing of his blood for HIV before the confirmatory HIV-1 Antibodies, Western Blot results were received, then by informing him of that misinterpreted result and advising him to follow up immediately with an infectious disease physician on the basis of it.   Likewise, the plaintiff's claim would also require evidence that the contents of the letter written by the defendant to the plaintiff informing him of the results deviated from the standard of care.6

In fact, the plaintiff's allegations fall precisely within one of the claims identified by the Couri Court as requiring proof of a deviation from the standard of care.   See Couri, supra, 173 N.J. 342.   That is, the plaintiff is claiming “the defendant erred in respect of the conclusions that he drew concerning [medical] matters” because he is claiming the defendant erred by drawing the conclusion that the plaintiff was HIV positive from the reactive results of the first test.   In particular, in his Complaint, the plaintiff alleges that “[t]he defendant knew, or should have known, that informing a patient that he was infected with an incurable disease [when he was not] would cause severe emotional distress.” 7  Accordingly, the plaintiff's claims, as pleaded, satisfy the third Votre requirement for the requirement of a written opinion under § 52-190a.

CONCLUSION

For the foregoing reasons, the plaintiff's Complaint, as pleaded by him, must be dismissed due to the plaintiff's failure to append thereto the opinion of a similar health care provider that the defendant's challenged conduct constituted a breach of the prevailing standard of care.

IT IS SO ORDERED this 23rd day of June 2010.

Michael R. Sheldon, J.

FOOTNOTES

FN1. The plaintiff received the letter dated July 26, 2007, on July 27, 2007..  FN1. The plaintiff received the letter dated July 26, 2007, on July 27, 2007.

FN2. It is not clear whether the defendant was incorrect in stating that the plaintiff's HIV-1/HIV-2 antibody result was reported as positive.   The plaintiff alleges that the Quest report indicated his HIV 1/2 Ab Screen, EIA as reactive.   If a test is reactive, the result may be reported as positive.   See, e.g., Centers for Disease Control and Prevention, HIV Testing Implementation Guidance for Correctional Institutions;  Section IV, available at http:// www.cde.gov/hiv/topics/testing/resources/guidelines/correctional-settings/section4.htm (using “reactive” and “positive” interchangeably when referring to the results of an EIA test)..  FN2. It is not clear whether the defendant was incorrect in stating that the plaintiff's HIV-1/HIV-2 antibody result was reported as positive.   The plaintiff alleges that the Quest report indicated his HIV 1/2 Ab Screen, EIA as reactive.   If a test is reactive, the result may be reported as positive.   See, e.g., Centers for Disease Control and Prevention, HIV Testing Implementation Guidance for Correctional Institutions;  Section IV, available at http:// www.cde.gov/hiv/topics/testing/resources/guidelines/correctional-settings/section4.htm (using “reactive” and “positive” interchangeably when referring to the results of an EIA test).

FN3. General Statutes § 52-190a provides in relevant part:(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 ․(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..  FN3. General Statutes § 52-190a provides in relevant part:(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 ․(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.

FN4. Even before Votre, our Supreme Court used the three-prong test to determine whether expert testimony was necessary.   See Boone v. William W. Backus Hospital, 272 Conn, 551, 562-63, 864 A.2d 1 (2005).   The Votre decision, however, represented the first use by our Appellate Court to determine whether section 52-190a applies..  FN4. Even before Votre, our Supreme Court used the three-prong test to determine whether expert testimony was necessary.   See Boone v. William W. Backus Hospital, 272 Conn, 551, 562-63, 864 A.2d 1 (2005).   The Votre decision, however, represented the first use by our Appellate Court to determine whether section 52-190a applies.

FN5. The plaintiff concedes that the first prong of Votre is met, i.e., that the defendant is sued in his capacity as a medical professional.   Accordingly, the Court does not address that prong..  FN5. The plaintiff concedes that the first prong of Votre is met, i.e., that the defendant is sued in his capacity as a medical professional.   Accordingly, the Court does not address that prong.

FN6. The crux of the plaintiff's claim appears to be that the defendant's letter, in advising him to follow up immediately with an infectious disease physician before receipt of all test results, provided a definitive diagnosis of HIV. This claim would require evidence of the standard of care for a physician in reporting the results of the preliminary HIV test.   In particular, the questions to be answered would include:  (1) whether a reasonably prudent physician interpreting the preliminary test results received from Quest would have notified a patient of the results;  (2) and if so, the manner in which the reasonably prudent physician would do so (e.g., whether to recommend immediate follow up with an infectious disease physician, whether to explain that a positive preliminary result is not a definitive diagnosis for HIV).Although there are theories under which the plaintiff may not be required to submit proof of the standard of care in order to succeed on his claim;  see, e.g., General Statutes § 19a-582(c) (establishing certain requirements for communication of HIV test results to the subject of the test);  the plaintiff did not submit the defendant's letter into evidence or affirmatively plead any deficiencies sufficient to place his claim within the ambit of these theories..  FN6. The crux of the plaintiff's claim appears to be that the defendant's letter, in advising him to follow up immediately with an infectious disease physician before receipt of all test results, provided a definitive diagnosis of HIV. This claim would require evidence of the standard of care for a physician in reporting the results of the preliminary HIV test.   In particular, the questions to be answered would include:  (1) whether a reasonably prudent physician interpreting the preliminary test results received from Quest would have notified a patient of the results;  (2) and if so, the manner in which the reasonably prudent physician would do so (e.g., whether to recommend immediate follow up with an infectious disease physician, whether to explain that a positive preliminary result is not a definitive diagnosis for HIV).Although there are theories under which the plaintiff may not be required to submit proof of the standard of care in order to succeed on his claim;  see, e.g., General Statutes § 19a-582(c) (establishing certain requirements for communication of HIV test results to the subject of the test);  the plaintiff did not submit the defendant's letter into evidence or affirmatively plead any deficiencies sufficient to place his claim within the ambit of these theories.

FN7. By alleging an improper interpretation of the test results as opposed to allegations of improper communication, the plaintiff ensured that proof of a deviation from the applicable standard of care is required.   Contra Caplin v. Laser Center of Northeastern Connecticut, Superior Court, judicial district of Windham, Docket No. CV 09 5003976 (April 27, 2009, Riley, J.) (section 52-190a does not apply to informed consent claim because an action for informed consent is based on the physician's communication with the patient and exists irrespective of adherence to or deviation from the standard of care)..  FN7. By alleging an improper interpretation of the test results as opposed to allegations of improper communication, the plaintiff ensured that proof of a deviation from the applicable standard of care is required.   Contra Caplin v. Laser Center of Northeastern Connecticut, Superior Court, judicial district of Windham, Docket No. CV 09 5003976 (April 27, 2009, Riley, J.) (section 52-190a does not apply to informed consent claim because an action for informed consent is based on the physician's communication with the patient and exists irrespective of adherence to or deviation from the standard of care).

Sheldon, Michael R., J.

Copied to clipboard