There Is No Substitute for Experience in Handling Dental Malpractice Cases:

Handling Dental Malpractice Cases

Medical malpractice cases in Connecticut are unique; in that, unlike other personal injury actions our state requires, as a predicate to starting a lawsuit, that the plaintiff attach to his/her complaint a good faith letter obtained from what the law refers to as a “similar healthcare provider” indicating that there is a reasonable basis to believe that the defendant healthcare professional has deviated from the accepted, applicable standards of care. The statute that requires this is section 52-190a(a) of the Connecticut Gen. Statutes.  The statute was created by the legislature to avoid frivolous lawsuits against health professionals. Although it was intended to ensure that there was a medical basis for malpractice claim, it is becoming a pitfall for the inexperienced attorney. The failure to attach an appropriate letter to the required attorney good-faith certificate, is grounds for dismissal of the lawsuit. Section 52-190a provides: “(a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . whether in tort or 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 . . . 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 . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . . To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c,. . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.” See Carpenter v. Daar, 199 Conn. App. 367, 378-79 (2020)

Malpractice Cases

The law defines a “similar healthcare provider” under another statute, section 52-184c.  Depending on whether or not the target health care provider, “ . . . is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications, and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.”

The statute goes on to state: “(c) [i]f the defendant healthcare provider is certified by the appropriate American Board as a specialist, is trained and experienced in medical specialty, or holds himself out as a specialist,” then the good faith letter must be provided by one certified by the appropriate American Board in the same specialty.

In the medical arena the issue is not as complicated as it is when dealing with dental malpractice.  The reason is that in most instances in medicine these days doctors are seeking specialty certification by the appropriate American Board in their field. In contrast, in dentistry many specialty practitioners have completed the requisite specialty residency program, and are considered board eligible, but have not seen the necessity to complete the board certification process by sitting for the examination, which is written and oral. For example, one can advertise as a specialist in periodontics, under the rules of the American dental Association, who has completed a postgraduate residency in periodontics. That individual does not have to sit for the American board examination to refer to himself as a specialist. The same is true in the fields of endodontics, orthodontics, and prosthodontics. In the specialties of oral surgery, and oral and maxillofacial pathology, board certification is necessitated for hospital credentialing.

For these reasons although a board-certified oral surgeon may be familiar with the standards of care that apply to general dentists in a particular procedure, that oral surgeon cannot serve as a good faith expert for purposes of starting suit against the general dentist. What makes it even more confusing and complicated for the uninitiated attorney is that under the same statute that oral surgeon can be qualified to testify at trial to the standards of care that applied to general dentistry provided the court is satisfied that the surgeon has the appropriate background and training and is familiar with those standards of care.

As was recently stated in a Connecticut appellate court decision, to determine whether the author of an opinion letter qualifies under the statute the court must examine the allegations of the complaint. “. . . keeping in mind that “the actual board certification of the defendant is not what matters; the appropriate similar health care provider is defined by the allegations of the complaint.” Carpenter v. Daar, 199 Conn. App. 367, 383 (2020)

Malpractice Cases

The landmine for the inexperienced lawyer is the situation where a client comes in with complaints about a procedure by a periodontist who is not board certified but is board eligible, and produces an opinion letter from a subsequent treating periodontist, who is also only board eligible, but not board certified. To that inexperienced lawyer it appears that the client’s letter sets forth in detail the malpractice of the prior periodontist. Even though it appears that the evaluating dentist has the same credentials and training as the target dentist, that opinion letter will not satisfy the statutory definition of “similar healthcare provider” for purposes of the good faith opinion.  Common sense would suggest otherwise; but, the letter of the law does not.  That case will be dismissed. If the applicable statute of limitations has not expired the matter can be cured by the lawyer obtaining an opinion letter from a board-certified specialist. If the statute of limitations has expired there are limited circumstances under what is called the “accidental failure of suit” statute, where the case can be refiled with an opinion letter from an appropriate specialist. The problem for that attorney exists were the circumstances do not justify resurrecting the claim under the “accidental failure of suit” statute. That attorney now faces a legal malpractice claim.

We instruct our evaluating experts to begin every opinion letter by stating their area of practice, or in the case of evaluation of specialty care, their area of specialization, together with an acknowledgment that the evaluator has been actively involved in the practice or teaching of that field of dentistry within the five-year period before the incident giving rise to the claim. The five-year requirement is to ensure that the opinion is being provided by one who has stayed abreast of the evolving standards in that area of practice. This is another land mine for the inexperienced lawyer. One could retain an appropriately credentialed evaluator who is clearly aware of the standards of care but does not articulate the prerequisite five year treating or teaching requirement, and a dismissal will result.

In choosing a malpractice attorney the client needs to be mindful of the level of experience of that attorney. At MeehanLaw, LLC, as dental malpractice lawyers, we pride ourselves on our experience and attention to details in selecting an evaluating expert. We take the time to ensure that the expert understands the requirements of our statutes in drafting a good faith letter to support a dental malpractice claim.