EMAIL TO A FRIEND COMMENT

 

OB/GYN “Similar Health Care Provider” to Midwife for Expert Certification


A woman filed a medical malpractice action against the medical facility and its owner and operator based on alleged negligence on the part of its employees or during the delivery of her child, and, subsequently, at postpartum office visits. Specifically, the complaint alleged that two of the facility’s certified nurse-midwives (CNMs), a registered nurse, and a midwife in training negligently failed to diagnose and to treat a fourth degree tear of her vaginal tissue, perineal skin, and anal sphincter at the time of delivery and during postpartum checkups. As a result of that alleged negligence, the woman allegedly sustained severe and permanent injuries, and consequently, her husband sustained a loss of her consortium. With her complaint, the woman submitted an opinion letter authored by a board certified obstetrician and gynecologist, who opined that one of the CNMs who cared for the woman departed from the accepted standard of care when she failed to diagnose and repair the fourth degree tear following delivery of the fetus and at the postpartum visits. In conclusion, the physician-author of the letter stated that in his opinion there appeared to be evidence of medical negligence on the part of the medical facility and its owner and operator.

 

The medical facility and its owner and operator filed a motion to dismiss the woman's action on the ground that the physician opinion letter submitted by the woman failed to satisfy the statutory expert opinion requirements because the letter was not authored by a similar health care provider. Because the care rendered to the woman was provided by CNMs, or a registered nurse, the medical facility and its owner and operator argued that the woman was required to submit an opinion letter authored by a CNM or a registered nurse. The woman filed an objection, claiming that an obstetrician was considered to be a similar health care provider for purposes of the statutory expert opinion requirements when rendering an opinion regarding the standard of care applicable to CNMs and registered nurses engaged in supervising a patient's labor and delivery. The woman also argued that the medical facility and its owner and operator are institutions to which the statutory expert opinion requirements do not apply, because the definitions of “similar health care provider” referred to individuals, not institutions.

 

The Danbury Superior Court dismissed the action due to the woman’s failure to comply with the expert opinion requirements. The trial court found that the woman’s action was based on the negligence of the individuals who cared for her, and the medical facility and its owner and operator as the employers of those individuals. The trial court concluded that the woman was required to submit an opinion letter by an individual who was trained, was experienced, and was certified in nurse-midwifery or nursing. The Connecticut Court of Appeals affirmed.

 

The Supreme Court of Connecticut reversed and remanded. The court held that the good faith opinion certification requirement applied in malpractice actions against institutional defendants, and a board certified obstetrician and gynecologist was a similar health care provider as nurse-midwives within the meaning of the good faith opinion certification requirement.

 

The good faith opinion certification requirement applied in malpractice actions against institutional defendants. The court reasoned that because the woman brought this action against the medical facility and its owner and operator principally on the basis of vicariously liability for the alleged negligence of its employees or agents, the good faith opinion certification requirement mandated the woman to supply an opinion letter authored by a similar health care provider, namely, someone who was certified in the same specialty as those CNMs. The statutory definition of “health care provider” in related statutes expressly included institutions. The statutory requirements differentiated between a defendant health care provider, which could include an institution, and a health care provider that committed the malpractice, because of the practical reality that medical malpractice could only be committed through acts or omission of individuals. A plaintiff being able to avoid the good faith opinion certification requirement by naming an institution as a defendant would have led to absurd results.

 

A board certified obstetrician and gynecologist was a similar health care provider to the CNMs within the meaning of the good faith opinion certification requirement. The text of the statute accommodated a circumstance in which two different types of medical professionals were board certified in the same medical specialty. The physician who wrote the letter was board certified in the same specialty as the CNMs, but had greater training and experience. The statutory scheme governing CNMs required that a CNM work in conjunction with a certified obstetrician and gynecologist.

 

The Supreme Court of Connecticut reversed the trial court’s dismissal of the woman’s claims for failure to comply with the expert opinion requirements.

 

See: Wilkins v. Connecticut Childbirth and Women's Center, 2014 WL 6804197, 314 Conn. 709 (Conn., December 9, 2014) (not designated for publication).

 

See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability (to be published January 7, 2015).

 

 

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