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Ashworth v. Branford
ECKER, J., concurring in part and dissenting in part.
One sign that something has gone wrong in our case law
is that a legal precedent produces nonsensical results
over time. The present case illustrates the dangers of
following ill-conceived precedent off the proverbial cliff. A man who cannot stop thinking about an ex-girlfriend
is admitted to a hospital. He reveals to the hospital staff that he is totally obsessed with her, he owns guns, and
he is thinking about killing her, a pathological condition antiseptically known in psychiatric parlance as homicidal ideation. The patient is transferred to an affiliated psychiatric hospital, which then releases him within a matter of days, with no warning to the girlfriend. Obsession fast becomes reality when, the very next day, the man
murders the girlfriend and then kills himself. We hold
today that our case law allows the killer’s estate to sue the psychiatric hospital for medical negligence but bars the victim’s estate from doing so—unless, perhaps, the
victim happens to have been married to her killer at the time of the murder, in which case the statutory prohibition somehow disappears.
We are trapped in this thicket of unreason only because
we must follow the court’s decision in Jarmie v. Troncale, 306 Conn. 578, 50 A.3d 802 (2012), which construes
General Statutes § 52-190a to bar claims brought by a
nonpatient for injuries or death caused by a health care provider’s professional negligence. See id., 587–89. In
my view, Jarmie is a deeply flawed decision that has
created an untenable doctrinal framework, leading to
unjust results, based on a construction of § 52-190a that was never intended by the legislature. The problem is not only that Jarmie was wrongly decided at the time. Its
long shadow has since forced this court to work around
its erroneous holding in a string of subsequent decisions—including the present one—that sows further
doctrinal confusion and inconsistencies.
In the absence of a request to overrule Jarmie,1 the
majority follows that precedent where it leads and, con1
The plaintiff is Angela Ashworth, administratrix of the estate of her daughter, the victim, Caroline Anne Ashworth. In her brief on appeal, the plaintiff makes only a generic request that we “limit or restrict
Ashworth v. Branford
sequently, holds that § 52-190a bars the medical negligence2 claims brought by the plaintiff, Angela Ashworth, administratrix of the estate of her daughter, Caroline
Anne Ashworth (decedent), against the defendant SVMC
Holdings, Inc.3 I agree with the majority that the statute, as it was construed by a majority of this court in Jarmie, precludes the plaintiff, as a nonpatient, from bringing
most of her claims against the defendant arising from
the defendant’s alleged failure to comply with the professional standard of care governing its duty to warn and to otherwise protect the decedent, an identifiable victim,
from the foreseeable homicidal acts of Michael Mollow.4
I therefore concur in the result reached by the majority, which concludes that the plaintiff’s claims are barred to the extent that they are based on allegations of medical negligence. I write separately to explain why Jarmie
any Connecticut authority contrary to the recognition of the cause of action sought by the plaintiff under the circumstances of this case.” Parties often make litigation decisions on the basis of existing law and, understandably, do not lightly assume that the overruling of precedent is in the cards, but a request to overrule precedent ordinarily must be fully briefed to be entertained by this court.
2
To clarify, I primarily will use the term “medical negligence” throughout this opinion to refer to a negligence claim against a health care provider alleging a breach of the applicable professional standard of care. Medical negligence is professional negligence by a health care provider and means the same thing as medical malpractice. I therefore use the terms interchangeably. However, I caution that the latter term may be misunderstood to imply that a medical malpractice claim is a statutory cause of action in Connecticut. It is not. Medical malpractice remains a common-law claim describing a claim of professional negligence against a health care provider, and neither § 52-190a nor any other statute creates a cause of action for medical malpractice in Connecticut. See, e.g., Escobar-Santana v. State, 347 Conn. 601, 624, 298 A.3d 1222 (2023) (“although procedurally circumscribed by statute, medical malpractice claims are [still] brought pursuant to the common law” (internal quotation marks omitted)).
3
The town of Branford and Christopher J. Donlin, administrator of the estate of Michael Mollow, are also defendants in this action. Neither Donlin nor the town is participating in this appeal because separate claims against them remain pending in the trial court. Accordingly, I refer in this opinion to SVMC Holdings, Inc., as the defendant.
4
I also agree that counts two through six of the complaint state a cognizable claim for “ordinary negligence” sufficient, under Jarmie, to survive a motion to strike. See parts I and II of the majority opinion.
Ashworth v. Branford
gravely misconstrued § 52-190a and should be overruled
when the opportunity arises. In addition, I dissent from that aspect of the majority opinion holding that count
seven of the plaintiff’s complaint fails to state a claim of gross negligence. See part III of this opinion; see also part III of the majority opinion.
I
Before conducting the statutory construction that the
majority in Jarmie neglected to undertake, I offer two
introductory observations regarding the dubious precedential value of that case. These remarks are pertinent because the doctrine of stare decisis always deserves
serious attention when precedent is challenged on the
ground that it was wrongly decided. To overcome the
force of stare decisis in the present case, I rely primarily on what I consider to be the overwhelming merits of
the legal analysis pursued in this opinion. The following two preliminary considerations further diminish any
concern about adhering to the holding in Jarmie based
on § 52-190a.
The first and most prominent of these points focuses
on this court’s recent decision in Carpenter v. Daar,
346 Conn. 80, 287 A.3d 1027 (2023). Carpenter also
involved the proper construction of § 52-190a and, of
critical significance for present purposes, overruled this court’s decision in Morgan v. Hartford Hospital, 301
Conn. 388, 21 A.3d 451 (2011). See Carpenter v. Daar,
supra, 84–87. Morgan had construed § 52-190a to impose
a jurisdictional requirement, such that failure to timely submit a fully compliant expert opinion letter5 is fatal to a medical negligence action, however meritorious. See
id., 100–103. It reached that conclusion even though
5
“Opinion letter” is the shorthand term used in our case law to refer to the statutory requirement of “a written and signed opinion of a similar health care provider . . . [stating] that there appears to be evidence of medical negligence and includ[ing] a detailed basis for the formation of such opinion.” General Statutes § 52-190a (a); see, e.g., Carpenter v. Daar, supra, 346 Conn. 84. The opinion letter must be attached to the plaintiff’s complaint in any action to which the statute applies. See General Statutes § 52-190a (a).
Ashworth v. Branford
§ 52-190a does not speak in jurisdictional language; see id., 105–107; and, by all accounts, the legislature’s intention in imposing the requirement was merely to ensure
an adequate, good faith investigation so as to eliminate frivolous cases. See, e.g., id., 124; see also Lynch v. State, 348 Conn. 478, 504 n.18, 308 A.3d 1 (2024); footnote
14 of the majority opinion. In overruling Morgan, the
court in Carpenter unanimously concluded that the legislature never intended § 52-190a to transform “what the
legislature intended to be a simple prelitigation documentation of the plaintiff’s good faith inquiry into, in essence, a trap under which even meritorious suits are
subject to dismissal.” Carpenter v. Daar, supra, 124. As I will discuss in part II of this opinion, Carpenter is only the most recent in a line of decisions holding that overly literalistic interpretations of § 52-190a must be eschewed in favor of more reasonable, commonsense constructions
that comport with the purpose of the statute. See, e.g., Shortell v. Cavanagh, 300 Conn. 383, 388–90, 15 A.3d
1042 (2011); Dias v. Grady, 292 Conn. 350, 359–61,
972 A.2d 715 (2009).
Carpenter is important because Jarmie is another
Morgan era decision, and the majority in Jarmie was
similarly and equally misguided in its construction of
§ 52-190a to impose more than prelitigation procedural
requirements designed to prevent frivolous medical
malpractice claims. After Carpenter, no viable argument
remains that § 52-190a imposes any substantive limitations on such claims. Simply put, Jarmie erroneously
read into a purely procedural statute a substantive bar
prohibiting actions by nonpatients involving allegations of medical negligence.
The second set of preliminary observations focuses on
the fact that Jarmie adjudicated the statutory issue in an unusually casual manner, and its irregular methodology
undoubtedly contributed to the flawed result. To begin
with, the trial court in Jarmie did not purport to rely on § 52-190a when it struck the plaintiff’s complaint; nor
did it conclude that the legislature has barred actions by
Ashworth v. Branford
nonpatients involving allegations of medical negligence. See Jarmie v. Troncale, Superior Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX (December
31, 2008) (46 Conn. L. Rptr. 874, 875–76), aff’d, 306
Conn. 578, 50 A.3d 802 (2012). In their brief to this
court, the defendants in Jarmie argued only in passing
that § 52-190a barred the plaintiff’s medical negligence claims because of his status as a nonpatient. See Jarmie v. Troncale, Conn. Supreme Court Records & Briefs,
March Term, 2012, Defendants’ Brief pp. 3–7. Their
statutory argument covered one and one-half pages of
their brief and consisted largely of quoting out of context a portion of Plainville v. Wheeler Clinic, Inc., Superior Court, judicial district of New Britain, Docket No. HHB-CV-XX-XXXXXXX (December 11, 2008) (46 Conn. L.
Rptr. 812, 813–14), in which the trial court construed
§ 52-190a to mean the very opposite of the result reached by this court in Jarmie. See Jarmie v. Troncale, Conn.
Supreme Court Records & Briefs, supra, Defendants’
Brief pp. 5–6; see also part II A of this opinion.
Of still greater concern is that the Jarmie majority
adopted the defendants’ statutory argument by way
of a truncated analysis incommensurate with the farreaching implications of its conclusion that § 52-190a
established a statutory prohibition against all actions by nonpatients involving allegations of medical negligence. The entire discussion in Jarmie spans a total of three
paragraphs, and the court’s actual analysis of the statute is confined to a single conclusory sentence, followed by citations to three cases having nothing to do with the
issue at hand. See Jarmie v. Troncale, supra, 306 Conn.
587–88. It is fair to say that the Jarmie majority did not engage in the usual methodology applied in Connecticut
to construe a statute.
More specifically, the decision does not mention General Statutes § 1-2z or its common-law antecedents, and
it neglects to apply the highly developed and entrenched principles of statutory construction that guide our analysis in virtually every case in which we are called on to determine the meaning of a statute. See generally id. In
Ashworth v. Branford
Jarmie, that methodology would have required the court
to consider as a threshold matter whether the statutory
text and its context rendered § 52-190a ambiguous with
respect to the question being addressed, namely, whether the statute prohibits a nonpatient from bringing a personal injury or wrongful death action against a health
care provider on the basis of allegations of negligence in the care or treatment of the provider’s patient. As I will discuss in greater detail hereinafter, Jarmie failed even to mention, let alone analyze, such key considerations as (1) whether a plausible alternative construction of the
statute rendered its meaning ambiguous, (2) whether,
applying established principles of statutory construction, that alternative construction was preferable, and (3)
whether, in light of the ambiguity, the intended meaning of the statute can be ascertained by examining the
legislative history of the statute, including the manner in which Florida’s appellate courts have construed the
Florida statute on which § 52-190a was modeled.
These methodological shortcomings extend beyond the
internal mechanics of Jarmie’s statutory construction.
Viewing the opinion from start to finish reveals that the court need not have reached the statutory issue at all.
This is so because the majority in Jarmie concluded, as a matter of Connecticut common law, that the defendants
owed no duty of care to the plaintiff; as a “random pedestrian,” the plaintiff was not an identifiable victim of the alleged negligence. Id., 597. All of the plaintiff’s claims were consequently barred as a matter of law, regardless
of any statutory considerations. Seen in this light, the entire discussion of § 52-190a in Jarmie is dictum. See, e.g., Honulik v. Greenwich, 293 Conn. 641, 645 n.5, 980
A.2d 845 (2009). I will not treat it as such in this opinion because this court has not done so, either in Jarmie or in subsequent decisions, including the present one, but the point remains that Jarmie’s precedential value is doubtful from the beginning because its statutory analysis was unnecessary to the outcome.6
6
The common-law analysis in Jarmie, although dispositive in that case, is inapplicable in the present case because, as the majority in this case correctly observes, Jarmie involved an unidentifiable victim to
Ashworth v. Branford
To summarize these preliminary considerations, the
Jarmie majority reached out unnecessarily to construe
a statute that had not formed the basis of the trial
court’s decision and was not necessary for resolution of the appeal, which, unlike the present case, involved an
unidentifiable victim. The Jarmie majority nonetheless
took the occasion to construe § 52-190a to foreclose, as a matter of law, a broad range of potentially meritorious third-party medical negligence claims.7 The Jarmie
majority offered only the scantest analysis in support of its construction, the implications of which extended well beyond the narrow factual confines of that case. As I will further elaborate in part II A of this opinion, the Jarmie majority did so without acknowledging or addressing
the plausibility of contrary constructions adopted by a
court in Connecticut and one other jurisdiction (Florida) construing a statute identical to § 52-190a in all relevant respects. The flawed methodology inevitably led to flawed results.
II
A
A careful review of § 52-190a reveals the inadequate
nature of Jarmie’s construction of the statute. The
whom no duty was owed under Connecticut common law, whereas the decedent in this case was an identifiable victim. Jarmie also arose outside of the singular context of duties owed to third parties by mental health care professionals.
7
There are various species of third-party (nonpatient) tort claims predicated on underlying allegations of medical negligence. These include, without limitation, Tarasoff type claims; see Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 430–32, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (failure to warn or protect identifiable third party who may be at risk of being harmed by psychiatric patient); Cochran type claims; see Doe v. Cochran, 332 Conn. 325, 327–28, 351–52, 210 A.3d 469 (2019) (failure to notify, educate, or otherwise warn patient or identifiable third party who is at foreseeable risk of harm from contagious or communicable disease); Squeo type claims; see Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 560–61, 581, 113 A.3d 932 (2015) (claim of bystander emotional distress arising from patently and grossly negligent medical care); and claims alleging that a physician failed to educate a patient whose children were at risk from a heritable genetic disease. See, e.g., Pate v. Threlkel, 661 So. 2d 278, 279 (Fla. 1995).
Ashworth v. Branford
language at issue is contained in the initial sentence of § 52-190a (a): “No civil action or apportionment complaint shall be filed to recover damages resulting from
personal injury or wrongful death . . . 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.” This language has remained substantially unchanged
since the legislature enacted the original law in 1986, as part of what is known as Tort Reform I. See Public Acts
1986, No. 86-338, § 12 (P.A. 86-338); see, e.g., Daley v. Kashmanian, 344 Conn. 464, 482, 280 A.3d 68 (2022).
The first thing to notice, even before analyzing the
semantics and syntax of this provision, is that the statute imposes procedural requirements (the need to conduct a
good faith inquiry and to obtain a presuit opinion letter from a qualified health care professional) on a certain
category of professional negligence cases. See part I of this opinion (discussing Carpenter v. Daar, supra, 346
Conn. 80). It is now well established that § 52-190a,
like the other components of the tort reform legislation relating to medical negligence claims, does not purport
to effectuate any substantive or jurisdictional changes in the common law governing such claims. Our post-Jarmie
case law explains that the statute “regulates pleading and service of process . . . [but] has been expressly construed . . . as having no effect on the standard for substantive liability . . . .” (Internal quotation marks omitted.) Carpenter v. Daar, supra, 115; accord Corley v. United
States, 11 F.4th 79, 87 (2d Cir. 2021); see also Dias v. Grady, supra, 292 Conn. 359. The Jarmie majority did
not have the full benefit of these later insights regarding the procedural nature of the statutory scheme, but
the precedential and persuasive value of the decision
nonetheless is diminished by reason of these subsequent
developments.
Ashworth v. Branford
Turning to the statutory text, I note that there are
at least three plausible ways to construe the relevant
language. As we shall see, two of these alternatives were never considered by the Jarmie majority, and the third
was insufficiently vetted.
The first plausible reading, which I consider the best of the three, is the commonsense construction that Judge
Patty Jenkins Pittman adopted in Plainville v. Wheeler
Clinic, Inc., supra, 46 Conn. L. Rptr. 812, several years before Jarmie was decided.8 The issue in Plainville, which the trial court described as one of first impression in Connecticut, arose in connection with a medical negligence
claim brought by a police officer against a health clinic after the officer was injured while attempting to subdue a patient at the clinic. Id., 812–13. The plaintiff town alleged that the officer’s injuries were proximately caused by the defendant clinic’s medical negligence relating to its staffing and procedures, as well as its care or treatment of the patient. Id. The court reviewed the text and legislative history of § 52-190a (a), as well as the manner in which sister states such as Florida have construed
similar statutes.9 Id., 813–14. Based on this analysis,
the court concluded that § 52-190a governs only those
medical malpractice actions that are initiated by patients; it simply does not speak, one way or the other, to actions brought by nonpatients. Id., 814.
The second plausible construction resides at the other
end of the spectrum. If one were to read the first sentence of § 52-190a (a) strictly, literally, and in isolation, the result would be to prohibit not only third-party medical malpractice actions but also a wide range of what we
call “ordinary” negligence actions against health care
providers. This construction would emphasize that the
8
For the sake of simplicity, I will hereinafter refer to this construction of § 52-190a (a) as the Plainville construction. I add one caveat to my endorsement of this construction in part II C of this opinion.
9
As I will discuss, the manner in which the Florida courts have construed that state’s version of § 52-190a carries special persuasive force in Connecticut because our legislature almost certainly modeled § 52-190a on the Florida statute. See part II B of this opinion.
Ashworth v. Branford
statutory language, by its terms, does not speak of, and is not limited to, medical malpractice actions. Rather,
the statute applies to any personal injury or wrongful
death action alleging that the injury or death “resulted from the negligence of a health care provider,” a broad
phrase that, on its face, sweeps in ordinary as well as
professional negligence. General Statutes § 52-190a (a). The text purports to bar all such actions, unless they
are supported by a letter from “a similar health care
provider” opining “that there appears to be evidence
of medical negligence . . . .” General Statutes § 52-190a (a). If we read the statutory language verbatim, and
conclude, as Jarmie did, that the literal language of the statute permits only those claims filed by patients, then we must acknowledge that the same text also bars, at
the very least, all manner of ordinary negligence claims brought by hospital visitors and other nonpatients; the
first sentence would preclude everything from the type
of claim that we allowed to proceed in Doe v. Cochran,
332 Conn. 325, 327–28, 336–38, 210 A.3d 469 (2019),
to routine slip and falls. Indeed, reading the statute
literally would preclude even those ordinary negligence
claims brought by patients themselves, insofar as the
first sentence of § 52-190a (a) bars any action alleging the negligence of a health care provider unless there is evidence of medical negligence.
Although these two constructions provide the most
natural readings of the statutory language, Jarmie failed even to mention, let alone adopt, either one. Instead,
without any evident effort to consider other constructions that would make sense of the statutory scheme,
Jarmie adopted a third, alternative construction of the
statute, as if it were the only choice available. This construction reads certain selected portions of the statute strictly and literally, while altogether ignoring any semantic or syntactic indications of a different meaning. Specifically, Jarmie’s interpretation of § 52-190a focused entirely on a single word appearing at the very end of
the statute’s first sentence: “ ‘claimant.’ ” (Emphasis
omitted.) Jarmie v. Troncale, supra, 306 Conn. 587.
Ashworth v. Branford
The Jarmie majority observed that the statute requires,
before the filing of an action seeking damages for personal injury or death resulting from the negligence of a health care provider, “ ‘a good faith belief that there has been negligence in the care or treatment of the claimant’ ”;
(emphasis in original) id.; and concluded, without testing the proposition against common sense or considering
any other standard tools of construction, that the word
“claimant” must mean the plaintiff bringing the negligence action. See id., 587–89. Thus, because the statute stipulates that claimants are patients receiving care or treatment from health care providers, it follows that
nonpatients cannot be plaintiffs in any action alleging
medical negligence against health care providers. Quod
erat demonstratum.
As a cursory reading of the statute’s literal language,
construed in a vacuum, this construction is plausible.
However, it is by no means the only plausible reading of the statute, and its entire weight rests on the sudden and wholly unexpected appearance of a solitary word at the
end of the first sentence. Nothing else in the statutory scheme gives any indication that the legislature intended to bar all nonpatient claims involving allegations of medical malpractice against health care providers, and, if the court in Jarmie had consulted the standard principles of statutory construction, it would have realized that an
alternative reading of § 52-190a was far more plausible.
First, and most broadly, the court would be welladvised in this case to take heed of the admonition that “[the legislature] does not hide elephants in mouseholes.” (Internal quotation marks omitted.) Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U.S. 416,
431, 138 S. Ct. 1061, 200 L. Ed. 2d 332 (2018); see also, e.g., NEMS, PLLC v. Harvard Pilgrim Health Care of
Connecticut, Inc., 350 Conn. 525, 547, 325 A.3d 196
(2024) (“it is unlikely that the legislature would have
enacted a sea change in [a statutory scheme] . . . without acknowledging that change”); New Haven v. Board of
Education, 228 Conn. 699, 719, 638 A.2d 589 (1994)
(“[w]e will not infer that the legislature intended to
Ashworth v. Branford
enact a significant change in existing law without an
unequivocally expressed manifestation of legislative
intent” (internal quotation marks omitted)). If the legislature had intended to use the procedural vehicle of the good faith inquiry requirement to impose a substantive
prohibition on all third-party actions against health care providers, surely, there were clearer, more direct ways
to do so. Other Connecticut statutes make it abundantly
clear when the legislature has intended to foreclose thirdparty liability for a category of plaintiffs, claims, or defendants.10
Of course, there is no requirement that the legislature
use the clearest and most direct language possible when
drafting a statute. But Jarmie reads a major, substantive limitation into a statute that, in all other respects, contains no provisions purporting to define or delimit the substantive components of a lawsuit seeking damages
caused by medical negligence. Indeed, this same misstep
was one of the primary reasons why we overruled Morgan
in Carpenter. We explained that “the absence of jurisdictional language puts § 52-190a in stark contrast to other 10
See, e.g., General Statutes § 21a-286 (f) (“[a] prescribing practitioner or pharmacist who enters into an agreement [with a host agency to provide training to persons who will distribute or administer opioid antagonists for the reversal of opioid overdoses] shall not be liable for damages in a civil action or subject to administrative or criminal prosecution for the administration or dispensing of an opioid antagonist by the host agency who is a party to such agreement”); General Statutes § 31-221e (c) (4) (“[a] professional employer organization shall not be liable for the acts, errors or omissions of a client or of any covered employee of the client when such covered employee is acting under the express direction and control of the client”); General Statutes § 38a-78 (b) (7) (with certain exceptions, qualified actuary submitting opinion as to value of insurance company’s outstanding policies and contracts “shall not be liable for damages to any person, other than the insurance company and the [insurance] commissioner, for any act, error, omission, decision or conduct with respect to the actuary’s opinion”); General Statutes § 52-239 (“[t]he owner, licensee or operator of a visual or sound radio broadcasting station . . . shall not be liable for any damages for any defamatory statement uttered over the facilities of the station . . . by or on behalf of a candidate for public office or by any other person”); General Statutes § 52-572p (a) (“[a] product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless” certain circumstances exist).
Ashworth v. Branford
statutes governing personal jurisdiction and the service of process in a wide variety of contexts”: Carpenter v.
Daar, supra, 346 Conn. 105; and that “[t]he legislature’s failure to use the terms ‘personal jurisdiction’ or ‘service of process’ in § 52-190a, when it so readily uses those
terms in other statutes in the same title governing civil actions, provides strong textual evidence that the legislature did not intend the opinion letter and good faith certificate to implicate the court’s personal jurisdiction.” Id., 107. In my view, it is not reasonable to believe that our legislature intended to wade silently into the waters inhabited by the well-known and controversial Tarasoff11 doctrine, to depart from the prevailing approach by
categorically foreclosing such claims, and then to bury
that policy choice in the connotative shadows of the final word of a procedural statute designed only to prescribe
the contents of the good faith opinion letter that must
accompany a claim for medical negligence.
Second, we repeatedly have emphasized that “[s]trict
construction does not mean that a statute must be read
in isolation.” (Internal quotation marks omitted.) State v. John F.M., 285 Conn. 528, 547, 940 A.2d 755 (2008).
“[C]ontext matters in statutory construction, as do practical consequences . . . .” Blondeau v. Baltierra, 337
Conn. 127, 137, 252 A.3d 317 (2020). Jarmie concluded
that the statute established a substantive limitation,
precluding actions by nonpatients involving allegations
of medical negligence, on the basis of one single, isolated word. See Jarmie v. Troncale, supra, 306 Conn.
587–89. But a contextualized reading tells a different
story. Section 52-190a is codified in chapter 900 of the General Statutes, which governs “[c]ourt [p]ractice and
[p]rocedure.” The remainder of the statute is addressed
to various purely procedural concerns, including the
intricacies of the good faith certificate requirement; see General Statutes § 52-190a (a); and the availability of a ninety day extension to allow for a reasonable inquiry.
See General Statutes § 52-190a (b). Neighboring statutes 11
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976); see, e.g., Plainville v. Wheeler Clinic, Inc., supra, 46 Conn. L. Rptr. 813 (discussing Tarasoff).
Ashworth v. Branford
govern things like the proper form of bonds and recognizance for prosecution; General Statutes §§ 52-185 and
52-189; the routing of actions to the complex litigation docket; General Statutes § 52-190b; mandatory mediation procedures; General Statutes § 52-190c; and the
precedence of certain civil actions over others. General Statutes §§ 52-191 through 52-192. Not surprisingly,
given the subject area, the word “claimant” is used in
various contexts throughout chapter 900. The word
“patient” is not. Similarly, “claimant” is used more than forty times in P.A. 86-338, the tort reform statute, with respect to various categories of torts, whereas “patient” does not appear a single time in the act. These observations strongly support the notion that § 52-190a, like
the statutes surrounding it, sets forth purely procedural rights, and the legislature simply did not consider that its use of the same word (“claimant”) throughout like
statutes could, in this particular instance, be misunderstood to have the unforeseen and unintended effect of
foreclosing common-law actions in which the claimant
is not the direct victim of negligence.
A third, corollary principle is that statutory words
are confined to the subject matter that the legislature
had in view, and, therefore, we must be wary lest generalized words such as “any” or “no” be given an overly
broad, literal sweep that extends beyond the types of
core cases that the statute was written to address. This is a canon of statutory construction with historical roots that reach back to the earliest days of the republic; see, e.g., United States v. Palmer, 16 U.S. (3 Wheat.) 610,
631, 4 L. Ed. 471 (1818); see also Holy Trinity Church
v. United States, 143 U.S. 457, 458–59, 12 S. Ct. 511,
36 L. Ed. 226 (1892); and it retains vitality today. See, e.g., Yates v. United States, 574 U.S. 528, 546, 135 S. Ct. 1074, 191 L. Ed. 2d 64 (2015); American Civil Liberties
Union v. Dept. of Defense, 543 F.3d 59, 68–69 (2d Cir.
2008), vacated on other grounds, 558 U.S. 1042, 130 S.
Ct. 777, 175 L. Ed. 2d 508 (2009). The principle has been invoked by this state’s appellate courts as well. See, e.g., State v. Salamon, 287 Conn. 509, 524, 540, 949 A.2d
Ashworth v. Branford
1092 (2008); Fairchild Heights, Inc. v. Dickal, 118 Conn. App. 163, 177, 983 A.2d 35 (2009), aff’d, 305 Conn. 488, 45 A.3d 627 (2012). Its application to § 52-190a helps
us see that one way to understand the error in Jarmie’s
reasoning is that the case construed the statute’s opening phrase, “[n]o civil action or apportionment complaint,”
in the broadest possible sense, whereas the context indicates that the good faith certificate requirement was
never intended to apply to actions involving allegations of medical negligence brought by nonpatients. But see
part II C of this opinion.
Fourth, statutes in derogation of the common law are
to be strictly construed and should not be interpreted
to limit or impair a common-law interest, unless “the
language of the legislature plainly and unambiguously
reflects such an intent . . . .” (Internal quotation marks omitted.) Kumah v. Brown, 307 Conn. 620, 630, 58 A.3d
247 (2013). In Lostritto v. Community Action Agency of
New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004),
this court explained that § 52-190a is “in derogation of the common law” and, for that reason, should be narrowly construed. Id., 37; see also Dias v. Grady, supra, 292 Conn. 359–60.
Indeed, Jarmie itself acknowledged that our common
law has been open to recognizing third-party medical
negligence claims when the claimant is an identifiable
victim of the negligent act or omission. See Jarmie v.
Troncale, supra, 306 Conn. 594 (referring to “past cases in which this court has limited foreseeable victims of
a health care provider’s negligence to identifiable persons”); id., 586 (“there [is] nothing in . . . the case law of this state that precludes the plaintiff from bringing an action against the defendants on negligence grounds”);
see also id., 595–97 (discussing Connecticut common-law
precedent involving identifiable victims). This principle of construction also counsels in favor of a meaning that does not produce a result in tension with the common law.
With respect to professional negligence actions against
health care providers in particular, common-law causes
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of action by nonpatients had been recognized in many of
our sister states prior to the adoption of § 52-190a. See generally F. Buckner & M. Firestone, “ ‘Where the Public Peril Begins’: 25 Years After Tarasoff,” 21 J. Legal Med. 187 (2000). Significantly, even after the enactment of
§ 52-190a, this court analyzed a Tarasoff type case without any indication whatsoever that the statute would
stand as an impediment. See Fraser v. United States,
236 Conn. 625, 632, 674 A.2d 811 (1996) (rejecting
claim by estate of nonpatient because decedent was not
identifiable victim, “our decisions defining negligence
do not impose a duty to those who are not identifiable
victims,” and, “in related areas of our common law, we
have concluded that there is no duty except to identifiable persons”); see also Jacoby v. Brinckerhoff, 250 Conn. 86, 96, 735 A.2d 347 (1999) (“To protect the integrity of the therapeutic relationship, we held [in Fraser] that a duty to disclose the substantial risk of . . . an act of violence would arise only if the third person was an identifiable victim or a member of a class of identifiable victims. . . . Such an exception was warranted, we held, in the event
of an imminent risk of serious personal injury to identifiable victims.” (Citations omitted.)).12 Prior to the enactment of tort reform in 1986, moreover, Connecticut
also had recognized third-party professional negligence
claims in other contexts. See, e.g., Licata v. Spector, 26 Conn. Supp. 378, 378–79, 383–84, 225 A.2d 28 (1966)
(allowing third-party negligence claim against attorney and observing, with respect to rejection of privity
12
Notably, under Connecticut law, a plaintiff’s status as an identifiable victim subject to imminent harm gives rise to a duty of care when none otherwise existed, and that duty is sufficiently well-defined to overcome even the defense of governmental immunity. See, e.g., Grady v. Somers, 294 Conn. 324, 331–349, 984 A.2d 684 (2009) (discussing identifiable person, imminent harm, common-law exception to municipal employees’ qualified immunity and holding that such exception was not extinguished by codification of that immunity in General Statutes § 52-557n). See generally Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) (decision often cited as establishing identifiable person, imminent harm exception to governmental immunity). Jarmie thus reads § 52-190a to silently establish a newfangled immunity that is broader in scope than the immunity historically enjoyed by municipalities and their agents.
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requirement, that “Connecticut was one of the states at
the vanguard of this legalistic revolution”). Far from
conducting an analysis in accordance with a clear statement requirement, the majority in Jarmie failed even
to consider whether it was sensible to conclude that the legislature would foreclose a myriad of common-law
claims without clearly signaling its intent to do so.13
Fifth, Jarmie is predicated on the assumption that a
strict, literal reading of § 52-190a is to be favored over a reasonable, commonsense construction. That is not the
approach we usually take. See, e.g., Casey v. Lamont,
338 Conn. 479, 493, 258 A.3d 647 (2021) (“[i]n construing a statute, common sense must be used and courts
must assume that a reasonable and rational result was
intended” (internal quotation marks omitted)). And,
in this case, the literalist approach is demonstrably
misguided. As I have discussed, a literal reading of the language of the statute would require us to conclude
that it bars even “ordinary” negligence claims brought
by patients themselves because the text applies to any
action seeking damages for injury or death resulting
from “the negligence of a health care provider . . . .”
13
For related reasons, the Supreme Court of Florida, in construing that state’s substantially similar statute; see part II B of this opinion; repeatedly has eschewed overly strict interpretations of the statutory language that would have the effect of preventing the litigation of meritorious medical malpractice claims. See, e.g., Musculoskeletal Institute Chartered v. Parham, 745 So. 2d 946, 952 (Fla. 1999) (“[O]ur decision is in accord with our repeated interpretations of this unique statutory framework so as to effectuate its intended [purpose of promoting] presuit investigation and screening of claims without unconstitutionally impeding a citizen’s access to the courts . . . . [R]estrictions on access to the courts must be construed in a manner that favors access . . . .” (Citations omitted; internal quotation marks omitted.)); Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996) (“[T]he medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses. . . . [T]he purpose of the . . . presuit requirements is to alleviate the high cost of medical negligence claims through early determination and prompt resolution of claims, not to deny access to the courts to plaintiffs . . . .” (Citation omitted; internal quotation marks omitted.)).
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General Statutes § 52-190a (a). I trust that no one seriously believes that the legislature intended the good
faith certificate requirement to preclude recovery in
such cases, as Jarmie itself recognized. See Jarmie v.
Troncale, supra, 306 Conn. 586 (“nothing in the relevant statutory authority . . . of this state . . . precludes the plaintiff from bringing an action against the defendants on [ordinary] negligence grounds”). But that is where the logic of Jarmie’s literal and all-encompassing construction of the statute’s first sentence leads.14
This court has twice rejected as implausible interpretations of § 52-190a that were, if anything, less bizarre than results like this that follow from Jarmie’s literal reading of the statute. In Dias v. Grady, supra, 292 Conn. 350, this court rejected the argument that the statute
requires an expert opinion letter as to causation. See id., 359–61. Because a similar health care provider is not
required to give such an opinion at trial, we reasoned, it would be bizarre for the legislature to have required it at the pleading stage. Id., 361. Subsequently, in Shortell v. Cavanagh, supra, 300 Conn. 383, this court concluded
that it would be absurd to interpret § 52-190a to require an opinion letter from a similar health care provider in an informed consent case, when no such testimony is necessary at trial. See id., 388–90. We reached this conclusion even though informed consent is a species of negligence; see, e.g., Sherwood v. Danbury Hospital, 278 Conn. 163,
181, 896 A.2d 777 (2006); and, therefore, would seem to
be encompassed within a literal reading of the statute.15
In the same way that a blindered reading of one portion of § 52-190a does not justify the conclusion that the
14
It is not necessary for present purposes to determine whether such results rise to the status of being “absurd or unworkable” for purposes of § 1-2z.
15
The Florida courts have likewise construed the substantially similar Florida statute broadly so as to avoid absurd results. See, e.g., Pavolini v. Bird, 769 So. 2d 410, 412–14 (Fla. App. 2000) (explaining that “[t]he notice requirement under the [Florida Medical Malpractice] Act is inextricably intertwined into the fabric of an overall statutory scheme designed to weed out meritless medical malpractice claims and [to] promote the prompt resolution of valid claims,” and concluding that it
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statute bars ordinary negligence or informed consent
claims against health care providers, the same approach
to construing a single word of the text cannot easily lead to the conclusion that the legislature intended silently to erect a bar to actions by nonpatients involving allegations of medical negligence. Dias and Shortell teach
that the broad terms of the first sentence of the statute are qualified by its setting, which, in the present case, demonstrates that the statute is only addressed to claims of medical negligence brought by patients; it doesn’t
prohibit nonpatient claims any more than it prohibits
ordinary negligence claims or informed consent claims.16
The bizarre results of a strict, literalist construction of § 52-190a are seen in other ways as well. Under Jarmie, a killer can bring a claim against his negligent health care provider, but his victim cannot, despite the fact that
both deaths were proximately caused by the very same
medical negligence and the additional fact that the homicide victim would, in the view of many, have a stronger
case in principle for tort compensation. Likewise, under Jarmie, the homicide victim may have a Tarasoff type
claim if she were the estranged wife of the killer such
that her wrongful death claim could be brought in the
would be absurd to subject parties seeking damages for loss of consortium arising from medical malpractice to statutory requirements), review denied, 790 So. 2d 1102 (Fla. 2001); see also part II B of this opinion (discussing close connection between Florida and Connecticut statutes).
16
If we were to travel further afield from the issue at bar, Jarmie’s literalist approach to § 52-190a would quickly ensnare us in additional interpretive difficulties. For example, the statute purports to regulate only “civil action[s],” not individual claims. Taken literally, this phraseology means that, even under Jarmie’s construction, nothing in § 52-190a would bar a supplemental Tarasoff type claim by a nonpatient if that claim were brought as part of an “action” in which one of the plaintiffs—a “claimant”—also alleged that he or she had been subject to medical negligence as a patient. Under this reading, the decedent, who was not a patient, cannot bring a Tarasoff type action separate from Morrow’s action against the defendant. But, if their claims had been brought as part of the same action—if, for example, the couple had been married and the executor of Morrow’s estate had brought a single action on behalf of both estates—nothing in the statute would have barred the decedent’s nonpatient claim (because the action would have alleged negligence in the care or treatment of a claimant).
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same action as the killer’s wrongful death claim, but an estranged girlfriend is without recourse. See footnote 16 of this opinion. One can imagine reasons why a legislature might opt to foreclose all nonpatient medical negligence claims or some meaningful subset of such claims. But it
is inconceivable to me that the legislature intended to
allow some Tarasoff claims, and to foreclose others, on
the basis of arbitrary distinctions that bear no relation to the statutory purpose.
To summarize, Jarmie embodies many of the same
vices that compelled us to overrule Morgan. The decision construed a purely procedural statute as curtailing, sub silentio, litigants’ substantive rights. It did so in the face of, and without considering, plausible alternative
constructions more consistent with a holistic reading of the statutory scheme. It ignored numerous principles of
statutory construction: the importance of context and
common sense, the perils of overgeneralization, the idea that the legislature typically conveys its intent expressly (especially when it has done so in like circumstances) and does not hide elephants in mouseholes, and the rule that statutes in derogation of the common law are strictly
construed. Jarmie instead adopted a novel, forced construction that, taken to its logical conclusion, would
lead to results bordering on the absurd. Even without
recourse to the legislative history, then, I would conclude that Jarmie’s construction of the statute must be repudiated. At the very least, these various factors render the statute ambiguous with respect to the issue at hand.17
B
The foregoing analysis leads me to examine the legislative history of § 52-190a for additional guidance. See 17
Yet another source of potential textual ambiguity, worthy of mention but not necessary to explore for present purposes, arises from the qualifying language in § 52-190a (a) providing that the requisite inquiry to establish good faith must be “reasonable . . . as permitted by the circumstances . . . .” Because a patient’s medical records generally are subject to confidentiality rules under federal and state law, it seems plausible to understand this language as accommodating the
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General Statutes § 1-2z. The parties and the majority
agree that the lengthy legislative debates regarding
Tort Reform I make no reference to nonpatient claims.
See footnote 14 of the majority opinion. This omission
in itself adds force to my concern about elephants hidden in mouseholes. Just as one would reasonably expect a
plain statement in the statutory text that the legislature intended to foreclose an entire category of claims to an entire class of plaintiffs, it is virtually unthinkable that such a bold, substantive innovation would have passed
without any comment in the lengthy legislative history of tort reform. See, e.g., Chisom v. Roemer, 501
U.S. 380, 396 n.23, 111 S. Ct. 2354, 115 L. Ed. 2d 348
(1991) (articulating “the dog that did not bark” canon of statutory construction); see also Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 26–28, 12 A.3d 865 (2011)
(applying principle in context of § 52-190a); King v.
Sultar, 253 Conn. 429, 451, 754 A.2d 782 (2000) (same).
The drafting history of the statute provides strong evidence for the conclusion that no such meaning should be
attributed to it. Two aspects of that history in particular support my conclusion that Plainville got it right and
that the legislature, in imposing a good faith certificate requirement, did not intend to foreclose Tarasoff
type claims involving allegations of medical negligence
brought by nonpatients.
1
First, and most tellingly, § 52-190a was modeled on
a Florida statute that had been enacted the year before
§ 52-190a was enacted. See Fla. Stat. Ann. § 766.104
(West 2024). The Florida statute uses almost identical language,18 and a report contained in the bill file to circumstances of a nonpatient who has only limited presuit access to such records.
18
The Florida statute, as it existed in 1986, provided in relevant part: “No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation 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. . . .” Fla. Stat. § 768.495 (1) (Supp. 1986).
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P.A. 86-338 confirms that the Law Review Committee of the Governor’s Task Force on Insurance Costs
and Availability was inspired by Florida law in recommending that our legislature consider “allowing
attorneys to obtain a so-called ‘certificate of merit’ . . . to satisfy the ‘reasonable inquiry’ and ‘good faith’
responsibilities.”19 For this reason, our construction
of § 52-190a, to the extent it relates to language drawn from the Florida model, should give serious consideration to the construction accorded to that language by
Florida courts. See, e.g., State v. Carter, 350 Conn. 43, 58, 323 A.3d 297 (2024) (“when [a] Connecticut statute
has been modeled on that of another jurisdiction, the
judicial interpretation . . . accorded [to that other jurisdiction’s] act is of great assistance and persuasive force in the interpretation of our own act” (internal quotation marks omitted)).
It was understood from the outset in Florida that
Fla. Stat. Ann. § 766.104 was purely procedural in
nature.20 Accordingly, and notwithstanding that
§ 766.104 (1) contains language identical to § 52-190a
(a) requiring “a good faith belief that there has been
negligence in the care or treatment of the claimant,” the Florida statute has never been interpreted to bar actions by nonpatients alleging medical negligence. See, e.g.,
Pate v. Threlkel, 661 So. 2d 278, 281–82 (Fla. 1995)
(noting that “the plaintiffs have pled [good faith] compliance with [§] 766.104,” allowing third-party action to proceed, and holding that, “when the prevailing standard
19
See Report of the Law Review Committee of the Governor’s Task Force on Insurance Costs and Availability (1986), ex. 2. The legislative history of P.A. 86-338 indicates that another contemporaneous malpractice reform statute, No. 85-574 of the 1985 Public Acts, also had been “modeled after similar Florida legislation . . . .” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1986 Sess., p. 2167.
20
See, e.g., F. Hawkes, “The Second Reformation: Florida’s Medical Malpractice Law,” 13 Fla. St. U. L. Rev. 747, 760, 778 (1985); see also Nash v. Humana Sun Bay Community Hospital, Inc., 526 So. 2d 1036, 1038–39 (Fla. App.) (good faith certificate requirement is not “an essential element” of medical malpractice cause of action), review denied sub nom. Schneider v. Nash, 531 So. 2d 1354 (Fla. 1988).
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of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician’s duty runs to those third parties”); see also J.B. v. Sacred Heart Hospital of Pensacola, 635 So. 2d 945,
946–47, 949 (Fla. 1994) (allowing Cochran type claim to
proceed). But cf. Boynton v. Burglass, 590 So. 2d 446,
447 (Fla. App. 1991) (declining to adopt Tarasoff duty
under state common law).
The Florida District Court of Appeals explained why
the Florida statute does not bar third-party medical
negligence claims: “[T]o be a claimant under the [Florida Medical Malpractice] Act, the person presenting the
claim must have received negligent medical care and
treatment from a medical care provider that resulted
in the person’s injury or death. . . . If the person making the claim did not receive negligent medical care or
treatment, the person does not qualify as a claimant
under the [a]ct by definition and hence cannot be required to comply with the [presuit] notice and investigation
requirements of the [a]ct.” (Citation omitted; emphasis
added.) Pavolini v. Bird, 769 So. 2d 410, 413 (Fla. App. 2000), review denied, 790 So. 2d 1102 (Fla. 2001).21 In
other words, Florida courts construe the same statutory text—the very language on which § 52-190a was
modeled—to draw a distinction between plaintiffs and
claimants (i.e., patients) and to hold that the statute
applies only to those cases in which personal injury or
wrongful death of a claimant is alleged.
2
Also instructive is the history of our legislature’s
efforts to address the perceived problem of frivolous
medical negligence claims. Prior to the enactment of Tort Reform I in 1986, Connecticut law provided a mechanism
by which the parties to a medical negligence action could, at their option, convene a malpractice screening panel
21
Although Pavolini involved a derivative claim; see Pavolini v. Bird, supra, 769 So. 2d 411; the quoted analysis is equally applicable to independent actions brought by nonpatients.
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comprised of doctors and lawyers to opine as to the merits of the plaintiff’s claims. See General Statutes (Rev. to 1985) §§ 38-19b through 38-19f. However, parties rarely
if ever availed themselves of that option. See Report of the Law Review Committee of the Governor’s Task Force
on Insurance Costs and Availability (1986) p. 22.
As initially drafted, the bill that ultimately became
P.A. 86-338 would have retained the screening panel
mechanism but made its use mandatory in all medical
malpractice actions. See Raised Bill No. 6134, 1986
Sess., § 13; Substitute House Bill No. 6134, 1986 Sess., § 10. The initial draft provided in relevant part that “[n]o civil action for medical malpractice shall be commenced
. . . until a written notice of the intention to commence such action has been filed” with the screening panel and the panel has made a finding as to liability. Substitute House Bill No. 6134, supra, § 10. For present purposes,
the important point is that nothing in the language of
the draft legislation would even arguably have precluded actions by nonpatients involving allegations of medical
negligence.
Substitute House Bill No. 6134 was referred back to
the Judiciary Committee on March 31, 1986. The committee held hearings on the bill, and, in late April, it recommended an amended version (subsequently adopted
as House Amendment A) that omitted the mandatory
screening panel provision.22 Instead, that amendment
contained the good faith certificate requirement, borrowed from Florida, that was subsequently codified at
§ 52-190a (a). Both the House and the Senate adopted
the amendment the following week, without any debate
22
Although it is not clear from the legislative record why this provision was removed, the decision may have been a response to prior testimony before the committee in which concerns were expressed that use of a mandatory screening panel would (1) function to exclude some meritorious medical malpractice claims, and (2) fail to lower defense costs, insofar as each case would have to be litigated twice, once before a panel and a second time before a jury. See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., p. 239.
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or discussion regarding the new good faith certificate
requirement.
It is undisputed that “the purpose of the original
version of § 52-190a was to prevent frivolous medical
malpractice actions.” Dias v. Grady, supra, 292 Conn.
357; see also Carpenter v. Daar, supra, 346 Conn. 124
(“Morgan has created roadblocks for otherwise meritorious cases that are squarely at odds with the legislature’s limited goal of ensuring an adequate, good faith investigation and eliminating only frivolous cases” (emphasis
added)). It is clear from the legislative history that the Judiciary Committee inserted the relevant language
into the bill at the eleventh hour, and it was approved
with little apparent scrutiny. In my view, there is simply no reasonable possibility that, when the legislature abandoned the idea of the mandatory screening panel
and found a ready replacement in Florida’s good faith
certificate requirement, it meant to incorporate thereby hidden restrictions on plaintiffs’ substantive rights that Florida itself has never found in the source statute.23
C
A word is needed regarding the proper application of
the statutory construction adopted in Plainville, which I
23
This historical account is consistent with the various summaries and explanations of the good faith inquiry provision contained in the bill file to P.A. 86-338. Not only do those summaries fail to note any implications for third-party or nonpatient claims, in most cases, they do not even include the key statutory language on which Jarmie relied: “‘negligence in the care or treatment of the claimant.’” (Emphasis in original.) Jarmie v. Troncale, supra, 306 Conn. 587. For example, a memo from the Judiciary Committee to Representative Richard D. Tulisano summarizing House Amendment A stated that a “[p]laintiff’s counsel must file a certificate stating that there are grounds for a good faith belief that there has been negligence.” (Emphasis added.) Memorandum from the Judiciary Committee to Representative Richard D. Tulisano (April 28, 1986) p. 14. An Office of Legislative Research bill analysis stated that “[t]he bill prohibits the filing of a medical malpractice lawsuit unless the attorney or party 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.” (Emphasis added.) Office of Legislative Research, Amended Bill Analysis, Substitute House Bill
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believe is the correct one. Because there is no indication that the legislature, in enacting § 52-190a, contemplated or considered the class of cases involving allegations of medical negligence brought against health care providers by nonpatients, a court seeking to apply the statute to such cases under the Plainville construction has two
options.
The first option is the one that Judge Pittman adopted
in Plainville; see Plainville v. Wheeler Clinic, Inc., supra, 46 Conn. L. Rptr. 813–14; and that Florida courts have
embraced. See, e.g., Pavolini v. Bird, supra, 769 So. 2d 413. These courts concluded that, because the statute
was intended to encompass only those claims brought by
patients, nonpatient plaintiffs asserting claims involving allegations of medical negligence are not required to comply with the good faith certificate and opinion letter requirements. This approach makes sense to the extent
that one views the statute as part of a larger compromise, pursuant to which legislators agreed in this part
of the tort reform package to address the chief cause of the perceived problem relating to medical malpractice,
which was frivolous medical malpractice actions brought
by patients. Claims by nonpatients are relatively rare,
and nonpatients in any event typically will not have
access to the confidential patient medical records that
would be the focus of a good faith inquiry, at least not at the initial, prefiling stage of the litigation process. Accordingly, requiring a good faith inquiry in those
cases, which account for a tiny fraction of all medical
negligence claims, could place an undue burden on plaintiffs while doing little to advance the statutory purpose No. 6134, as amended by House Amendments A, C, and G, and Senate Amendments B and E, An Act Concerning Tort Reform (1986) p. 12. A third, unidentified summary of the amendment stated that the bill “provides that an attorney or party filing a medical malpractice action may satisfy the reasonable inquiry standard . . . by obtaining a certificate from a physician evidencing malpractice.” (Emphasis added.) Although such summaries are hardly dispositive of the intent of the drafters, let alone the question of the statute’s meaning, they do reinforce the impression that no one at the time appeared to be focused on what the Jarmie majority considered to be a key consequence of the statute.
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of winnowing the meritorious claims from the frivolous
ones. See, e.g., Pavolini v. Bird, supra, 413–14. This
approach would construe the statute to exclude altogether the special case of nonpatient suits and leave it to the legislature to amend the statute if it wishes to fill in the gap.
The second option is to adopt, as a common-law rule
applicable to nonpatients who bring claims alleging
medical negligence against health care providers, the
same procedural requirements that § 52-190a imposes on
patients who bring such claims. The procedural requirement would not be imposed as a matter of statutory
construction, but as a judge made, common-law rule
designed to implement a procedure in medical negligence
cases that serves current social interests at the same time it creates a uniform and harmonious system consistent
with the procedures imposed by § 52-190a on patients
bringing such claims.
Either approach is reasonable, and I see no need to
express my preference at this point. We need not choose
between them for present purposes, insofar as the plaintiff complied with § 52-190a by attaching a good faith
certificate and opinion letter to her complaint. If nothing else, this concurring and dissenting opinion highlights
the need for further legislative attention to the statute.
III
I dissent from part III of the majority opinion, in which the majority holds that the plaintiff has inadequately
briefed her claim on appeal that the trial court had erroneously struck count seven of the operative complaint,
alleging a claim of gross negligence against the defendant. I agree that the argument is not presented in the
robust fashion that is optimal, and sometimes necessary, for proper determination of an issue on appeal.24 I believe, 24
Lawyers briefing a complex appeal involving multiple issues must make difficult decisions about how best to allocate their words in light of the aggregate limitations under our rules of practice. See, e.g., Practice Book § 67-3A (limiting primary briefs to 13,500 words). A party may by motion seek to expand the permissible word count. See
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however, that we should exercise our discretion sparingly to deem a claim forfeited due to inadequate briefing,
and should do so only when the particular legal grounds
supporting the argument cannot reasonably and readily be discerned, or when the court determines that the
party’s failure to more fully elaborate the argument is the result of a lack of concern or substance rather than word limitations. “[T]he rules of practice are to be construed liberally, rather than narrowly and technically, in order to facilitate judicial business and to advance justice. . . . Courts usually favor a party’s right of appeal and construe statutes and rules to protect that prerogative . . . . The essential policy animating this broad judicial
approach is . . . that courts should consider cases on
their merits and in terms of a party’s substantive rights and not defeat them on mere technicalities.” (Citations
omitted; internal quotation marks omitted.) In re Taijha H.-B., 333 Conn. 297, 310–11, 216 A.3d 601 (2019).
The plaintiff’s argument is simple and straightforward: her claim of gross negligence is cognizable, notwithstanding the holding in Jarmie, for the same reasons that this court concluded that the plaintiffs’ personal
injury claims were cognizable in Squeo v. Norwalk
Hospital Assn., 316 Conn. 558, 113 A.3d 932 (2015),
a unanimous decision issued three years after Jarmie.
The majority deems this argument inadequately briefed
because the plaintiff fails to explain why Squeo cannot
be distinguished, inasmuch as Squeo involved a “derivative” personal injury claim by nonpatients for bystander emotional distress, whereas the present case involves
a nonpatient’s wrongful death claim. Part III of the
majority opinion.
No doubt it would be preferable to know the plaintiff’s
response to possible points of distinction. But there is a difference between an argument that is directionless or
indecipherable on its own terms, on the one hand, and
an argument that may prove unpersuasive on the merits
Practice Book § 67-3A (setting forth procedures to request permission to exceed word limitations).
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because it fails to anticipate or rebut countervailing
arguments, on the other. In my view, the plaintiff’s
gross negligence claim is sufficiently clear and legally grounded to warrant review on the merits.
It does not take a great feat of imagination to apprehend the plaintiff’s argument. Squeo expressed its holding as follows: “We are unable to conclude, as a matter of law, that a hospital that discharges a potentially suicidal patient under the circumstances alleged could not have
demonstrated gross negligence in so doing, when the
patient then proceeded to take his own life shortly after discharge.” Squeo v. Norwalk Hospital Assn., supra,
316 Conn. 581. Changing two inessential words of this
holding illuminates the plaintiff’s argument that the
reasoning of Squeo permits her claim of gross negligence to go forward in the present case: “We are unable to conclude, as a matter of law, that a hospital that discharges a potentially [homicidal] patient under the circumstances alleged could not have demonstrated gross negligence
in so doing, when the patient then proceeded to take his [ex-girlfriend’s] life shortly after discharge.” Id.
This court is perfectly capable of taking the argument presented by the plaintiff and determining for
itself whether the holding in Squeo is, and should be,
distinguishable in the present circumstances. Indeed,
the majority’s treatment of the plaintiff’s Squeo based
argument indicates that it fully apprehends the issues,
because the majority identifies and even adverts to the
merits of the potentially distinguishing features that
the majority considers inadequately briefed, i.e., the fact that a bystander emotional distress claim is a “derivative” claim whereas a wrongful death claim is not, and the
legal sufficiency of the allegations on which the plaintiff bases her gross negligence claim. Part III of the majority opinion. I believe that the plaintiff’s gross negligence argument, read in the light of her entire brief, warrants adjudication on the merits. I would reach the merits
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and, for the following reasons, reverse the trial court’s decision striking the gross negligence count.
First, I consider it highly significant that the court in Squeo did not see Jarmie or § 52-190a as foreclosing, as a matter of law, the court’s conclusion that Connecticut recognizes a claim of bystander emotional distress
grounded in the defendant health care providers’ medical negligence in the care or treatment of someone other than the nonpatient plaintiffs. See Squeo v. Norwalk
Hospital Assn., supra, 316 Conn. 568, 574. Squeo was
decided three short years after Jarmie and was authored
in plain view of § 52-190a by a member of the panel that decided Jarmie. The decision mentions Jarmie only in
passing; see id., 574; and does not so much as mention
the statute, which, if applicable, would have required
the court to reject the plaintiffs’ claim without further analysis. In the language of the statute, as construed in Jarmie, the parents’ claim in Squeo would be barred by
§ 52-190a because the parents (1) sought to recover damages in tort for “personal injur[ies]” sustained by them (2) as a result of the alleged “negligence of a health care provider” (3) whose “care or treatment” was provided,
not to the parents (“the claimant[s]”) themselves, but
to their son.
I see no good response to this point. It is true that the defendants in Squeo evidently did not raise Jarmie or
§ 52-190a as a bar to the parents’ claim, but I consider it well-nigh impossible to imagine that this court would spend pages upon pages analyzing and adjudicating a
common-law issue of first impression—whether Connecticut common law recognizes a bystander emotional
distress claim based on allegations of medical negligence—when that very claim is barred by statute under
the unequivocal holding of a case decided by the court
just three years earlier. See Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 568–81. Viewing Squeo in
such a manner would render its elaborately reasoned,
novel holding a dead letter of little or no precedential value because any defendant citing Jarmie in response
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to a Squeo type claim would prevail as a matter of law
regardless.
It is also unavailing to suggest that Squeo is distinguishable because a claim for bystander emotional distress is “derivative” in nature and therefore somehow
avoids the Jarmie prohibition of nonpatient claims. Part III of the majority opinion. First, nothing in the court’s analysis in Squeo states or suggests that its outcome
depends in the slightest on the derivative nature of the nonpatients’ claim. The opinion contains a single reference to that term, which appears in the background
discussion prior to the analysis of the plaintiffs’ legal claims. See Squeo v. Norwalk Hospital Assn., supra,
316 Conn. 564. The legal analysis itself, which spans
more than ten pages, never mentions that the claim is a
derivative one, and its reasoning does not rely on that
fact. See id., 568–81. Second, nothing in the court’s
analysis in Jarmie states or suggests that its construction of § 52-190a as barring all actions by nonpatients would not extend to bystander emotional distress and other
claims that are derivative of a patient’s primary injury. As construed in Jarmie, the text of § 52-190a bars any
claim in which the plaintiff (i.e., “the claimant”) is not the patient but nevertheless seeks “to recover damages
resulting from personal injury . . . [and] in which it is alleged that such injury or death resulted from the negligence of a health care provider . . . .” General Statutes § 52-190a (a). A claim of bystander emotional distress in this context does not seek recovery for injuries or harm sustained by the patient; it seeks damages for personal
injuries sustained by the nonpatient plaintiff and, as
such, falls squarely within the statutory prohibition, as construed in Jarmie, regardless of whether the claim is
“derivative” in nature.
Finally, glancing up for a moment from the doctrinal
technicalities to view the legal landscape being regulated, it is counterintuitive, to say the least, to believe that the legislature intended § 52-190a to permit a claim by
nonpatients (the parents in Squeo) for the emotional
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harm they suffered as a result of witnessing the consequences of medical malpractice, but to bar a claim by
a nonpatient (the decedent in the present case) for the
mortal, physical harm she suffered as a result of being a direct victim of the consequences of medical negligence. To illustrate the point, consider how today’s holding
would adjudicate a case in which the parents in Squeo
sought damages for emotional distress after witnessing
their son kill his girlfriend (instead of himself) upon
release from a hospital for having homicidal (instead of suicidal) thoughts. I am unwilling to accept the notion
that a well pleaded “derivative” claim of emotional distress is permitted but that the nonderivative wrongful
death claim of the decedent’s executor is barred. I trust that this court would not allow our self-created doctrinal jumble to require it to impute such a bizarre and unjust intention to our legislature.
Two questions remain. First, does Connecticut law
recognize a claim in tort for gross negligence? And,
second, if so, does § 52-190a, as construed in Jarmie,
bar a claim by a nonpatient for damages sustained as a
result of the gross negligence of a health care provider? In my view, the answer to both questions is found by
necessary implication in Squeo, which held that the
nonpatient plaintiffs could maintain a personal injury
claim arising from the gross negligence of a health care provider. Squeo v. Norwalk Hospital Assn., supra, 316
Conn. 581. Gross negligence in the care or treatment of
the patient was the specific standard of liability identified by the court.25 Gross negligence is not the same as negli25
I understand that this court has stated in other contexts that “Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability.” Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 337, 885 A.2d 734 (2005). However, this court has specifically defined a gross negligence standard as applied to medical malpractice actions; see Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 813, 945 A.2d 955 (2008); and Squeo went a step further by recognizing a claim of gross negligence for bystander emotional distress arising from medical negligence. See Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 568, 574. Squeo, for its part, did not alter the legal standard for
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gence, as Squeo makes clear. Id., 579–80. Connecticut
law more generally defines gross negligence “to mean no
care at all, or the omission of such care [that] even the most inattentive and thoughtless seldom fail to make
their concern, evincing a reckless temperament and
lack of care, practically [wilful] in its nature.” (Internal quotation marks omitted.) Hanks v. Powder Ridge
Restaurant Corp., 276 Conn. 314, 352, 885 A.2d 734
(2005) (Norcott, J., dissenting); see also C & H Electric, Inc. v. Bethel, 312 Conn. 843, 869, 96 A.3d 477 (2014)
(“[g]ross negligence requires conduct that ‘betokens a
reckless indifference to the rights of others’ ”); 57A Am. Jur. 2d 296–97, Negligence § 227 (2004) (“ ‘Gross negligence’ means more than momentary thoughtlessness,
inadvertence or error of judgment; hence, it requires
proof of something more than the lack of ordinary care. It implies an extreme departure from the ordinary standard
of care, aggravated disregard for the rights and safety
of others, or negligence substantially and appreciably
greater than ordinary negligence.” (Footnotes omitted.)). Considered in the proper light under the standard applicable at this stage, the allegations contained in count seven of the plaintiff’s complaint plainly state a claim of gross negligence.
IV
In the relatively short time since Jarmie has been on
the books, it has already done significant damage to the development of our common law relating to the liability
of health care professionals for harm caused to others
resulting from medical negligence in the care or treatment of a patient. This distorting effect is attributable to the simple fact that Jarmie construed § 52-190a to
bar any third-party medical negligence claim requiring
establishing a bystander emotional distress claim; it altered the legal standard of medical negligence necessary for a nonpatient to recover damages for bystander emotional distress arising from the care or treatment provided by a health care provider to a patient. I cannot think of a reason why the same reasoning would not, at the very least, permit a nonpatient’s wrongful death claim to proceed based on allegations of gross negligence by the patient’s medical care providers.
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expert testimony to establish the standard of care. This holding has cast a long shadow over the development
of related common-law doctrine over the past fourteen
years, including the decision in the present case, because of the perceived need to evade the apparent strictures
of § 52-190a that have required the court to formulate
theories of liability that can be established without expert medical testimony. I agree with the majority that, if
Jarmie were to be overruled, this court would be required to decide anew what common-law path to follow, unfettered by the constraints imposed by Jarmie. In the context of a Tarasoff type claim in particular, the question will be what affirmative duty of care mental health care providers owe to identifiable victims at risk of harm
from a patient. See, e.g., 2 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 41 (b) (4),
p. 65 (2012); see also Fraser v. United States, supra,
236 Conn. 633–34 (discussing common-law identifiable
victim doctrine in this context).
Because Jarmie still controls, I concur in the result
reached in parts I and II of the majority opinion. I respectfully dissent from part III of that opinion.