Riccio v. Bristol Hospital, Inc.

Excerpt

Pursuant to the accidental failure of suit statute (§ 52-592 (a)), ''[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been . . . avoided or defeated . . . for any matter of form,'' the plaintiff may commence a new action for the same cause within one year after the determination of the original action. Pursuant to this court's decision in Plante v. Charlotte Hungerford Hospital (300 Conn. 33), a plaintiff may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592 (a) only when the trial court finds that the failure in the first action to provide a legally sufficient opinion letter from a similar health care provider pursuant to statute (§ 52-190a (a)) was the result of mistake, inadver- tence, or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his or her attorney. The plaintiff, the executor of R's estate, filed a medical malpractice action against the defendant hospital, alleging that certain of its employees had negligently caused R's death. The trial court dismissed that action, concluding that the plaintiff's attorney, Z, had failed to file legally suffi- cient medical opinion letters with the plaintiff's complaint, as required by § 52-190a (a) and prior Appellate Court case law interpreting that statutory provision, as those opinion letters did not disclose the profes- sional qualifications of their authors. The plaintiff did not appeal from the trial court's judgment of dismissal but, instead, commenced the present action under § 52-592, which was based on the same malpractice claims asserted in her prior action, approximately five months after the statute of limitations expired. The trial court rendered judgment dismissing the action as time barred, concluding that § 52-592 did not apply because Z's failure to include in the opinion letters the qualifica- tions of their a