A birth injury lawsuit was revived recently by the Connecticut Supreme Court, which reversed an earlier trial court opinion deeming plaintiff’s expert medical witness unqualified. The state high court reversed because although the two health care providers did not hold the exact same job, both were certified in the same specialty.
Specifically, plaintiffs were suing the health care provider/employer for vicarious liability stemming from negligence by employee/nurse-midwives. The expert witness opinion plaintiff provided was from that of a board-certified obstetrics physician.
Thus, the trial court erred in its decision in Wilkins v. Conn. Childbirth & Women’s Ctr., and the appellate court erred in affirming it, the state high court held.
Our Lehigh Acres birth injury lawyers know Connecticut laws pertaining to expert witness requirements predicating medical malpractice claims are similar to those required of Florida plaintiffs.
Here, F.S. 766.102 requires, firstly, any action rooted in the death or personal injury of another due to health care provider negligence has the greater burden of proof in showing provider breached the prevailing professional standard of care for his or her level of education, training and skills in light of all relevant circumstances and as considered reasonably prudent by health care providers who are similar situated. So in order to prove this breach, one must provide expert witness testimony from a health care provider of similar training and expertise, and that testimony must indicate defendant breached the prevailing care standard, proximately leading to plaintiff injury.
In order for testimony of that expert witness to be considered, he or she must:
- Specialize in the same area as the defendant provider or in a similar area that includes evaluation, diagnosis or treatment of the medical condition at issue in the underlying claim, with prior experience treating such patients;
- Have devoted at least 3 years immediately preceding the date of occurrence to the active practice of that specialty, instruction of students in that specialty or have involvement in clinical research in that specialty.
There are some other requirements too. Given the specificity of these rules, you want to make sure your attorney gets it right.
In Wilkins, plaintiff alleges while she was giving birth, nurse-midwife employees of defendant health care center failed to diagnose and treat a fourth-degree tear of the vaginal tissue, perineal skin and anal sphincter at the time of delivery. Neither was the issue addressed at postpartum check-ups. As a result, plaintiff suffered severe and permanent injuries, and her husband too filed a claim for loss of consortium.
Defendant/health care institution argued plaintiff failed to submit expert testimony by someone trained/experienced certified in nurse-midwifery or nursing. Trial court agreed, and thus dismissed the complaint.
Plaintiff appealed, arguing the written opinion of a board-certified gynecologist met this requirement. The appellate court affirmed, but state high court reversed. Here, the term “similar health care provider” means someone trained and experienced in the same medical specialty as defendant. While the defendant was an institution, the claim was for vicarious liability by its agents, who were nurse-midwives. Thus, plaintiff’s submission of opinion by a gynecologist met the standard of proof.
The case was remanded, and will now proceed to the trial phase.
If you have been a victim of medical malpractice in Lehigh Acres, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Wilkins v. Conn. Childbirth & Women’s Ctr., Dec. 9, 2014, Connecticut Supreme Court
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