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Caron v. Connecticut Pathology Group, P.C.

Court of Appeals of Connecticut

January 29, 2019

NORMAND CARON ET AL.
v.
CONNECTICUT PATHOLOGY GROUP, P.C.

          Argued September 20, 2018

         Procedural History

         Action to recover damages for, inter alia, medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the court, Domnarski, J., granted the defendant's motion to dismiss and rendered judgment thereon, from which the plaintiffs appealed to this court. Affirmed.

          Gerald S. Sack, with whom, on the brief, was Jonathan A. Cantor, for the appellants (plaintiffs).

          James F. Biondo, with whom, on the brief, was Diana M. Carlino, for the appellee (defendant).

          Lavine, Prescott and Harper, Js.

          OPINION

          PRESCOTT, J.

         This appeal arises out of a medical malpractice action brought by the plaintiffs, Normand Caron and Donna Caron, [1] against the defendant, Connecticut Pathology Group, P.C., after a false positive cancer diagnosis. The plaintiffs appeal from the judgment of the trial court dismissing their complaint against the defendant for failure to attach to their complaint a legally sufficient opinion letter authored by a similar health care provider as required by General Statutes § 52-190a (a). On appeal, the plaintiffs, who attached to their complaint an opinion letter authored by a board certified clinical pathologist, claim that the court found that anatomic pathology is a medical specialty distinct from clinical pathology and, on the basis of that finding and the allegations in the complaint, improperly determined that the plaintiffs were required to submit an opinion letter authored by a board certified anatomic pathologist. We disagree and conclude that the court properly granted the defendant's motion to dismiss. Accordingly, we affirm the judgment of the trial court.

         The following facts, as alleged in or necessarily implied from the plaintiffs' complaint and affidavits submitted by the plaintiffs and the defendant, and procedural history are relevant to our resolution of the plaintiffs' claim. On March 25, 2014, Caron underwent an endoscopy at Middlesex Hospital in Middletown. During the endoscopy, a biopsy was performed. Tissue samples extracted during the biopsy were placed on a slide by Middlesex Hospital personnel.[2] The slide containing the tissue samples was then sent to the defendant for analysis. On the basis of their interpretation of the samples, physicians employed by the defendant determined that Caron had cancer. Caron was then informed of the diagnosis.

         From March 25 to August 15, 2014, Caron underwent medical treatment for cancer. On August 15, 2014, Caron was informed that the sample upon which his cancer diagnosis was based had been contaminated and that he did not, in fact, have cancer.

         The plaintiffs commenced the present action on August 30, 2016. In paragraph 6 of their complaint, the plaintiffs alleged: ‘‘The conduct of the defendant . . . its agents, servants, and/or employees, including, but not limited to, its pathologists and other professional staff, violated the applicable standard of care . . . in the following ways: (a) in that pathologists employed by [the defendant] failed to consider contamination error in the initial pathology finding or in subsequent consultations when, in the exercise of reasonable care, they could and should have done so; (b) in that pathologists employed by [the defendant] failed to diagnose a contamination error in a timely manner when, in the exercise of reasonable care, they could and should have done so; (c) in that pathologists employed by [the defendant] failed to perform or request a nucleic acid identification of the tissue from the initial biopsy, when, in the exercise of reasonable care, they could and should have done so; and (d) in that pathologists employed by [the defendant] failed to properly interpret the plaintiff's biopsy sample.'' The plaintiffs alleged that, as a result of the defendant's negligence, they incurred expenses for medical care and medicines and that Caron suffered physical and emotional injuries.

         As required by § 52-190a, [3] the plaintiffs attached a good faith letter and an opinion letter to their complaint. The opinion letter was authored by Samuel Reichberg, a board certified clinical pathologist, who opined that ‘‘the erroneous false positive cancer results obtained in [Caron's] biopsy was caused by the failure to follow prevailing standards of care, both in the handling of the specimen by the staff of [the defendant], and in the interpretation of the biopsy findings by the [defendant's] pathologists.'' (Emphasis added.) Reichberg is not board certified as an anatomic pathologist.

         On October 26, 2016, the defendant filed a motion to dismiss the action for lack of personal jurisdiction because the opinion letter that the plaintiffs attached to their complaint was not authored by a similar health care provider as required by § 52-190a (a). Specifically, the defendant argued that because their complaint alleged negligence in the interpretation of the samples for the purpose of diagnosing cancer, the plaintiffs were required to obtain an opinion letter from an anatomic pathologist, not a clinical pathologist.

         In support of the motion to dismiss, the defendant attached an affidavit from Jonathan Levine, a board certified clinical and anatomic pathologist, averring: ‘‘Clinical [p]athology and [a]natomic [p]athology are primary board certifications, each with their own separate and distinct training protocol and board examinations. They are not sub-specialties of one another. . . . Anatomic [p]athology involves the examination of surgical tissue specimens to diagnose disease. . . . Prior to becoming eligible to sit for the [a]natomic [p]athology board examination, a physician must complete specialized training in [a]natomic [p]athology. . . . Clinical pathology involves the direction of divisions of the laboratory which may include the blood bank, clinical chemistry, microbiology, hematology, and other special divisions. . . . Prior to becoming eligible to sit for the [c]linical [p]athology board examination, a physician must complete specialized training ...


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