Zulick v. Melnick
Connecticut General Statutes §52-190a requires that a "similar healthcare provider" furnish a written opinion that negligence took place. The plaintiff mother brought suit on behalf of her minor child, alleging that the defendant, Dr. Mark Melnick, performed a root canal on tooth number 7, when he should have performed the procedure on tooth number 8. The plaintiff's suit alleged medical negligence, ordinary negligence, breach of contract and failure to obtain informed consent. The defendant moved to dismiss, because the plaintiff mother lacks standing to sue. The minor is the real party in interest. A minor may commence a civil action only by a guardian or next friend, and any person can serve as the next friend for the minor. The defendant was not misled, and the court granted the plaintiff mother's motion to amend the complaint, to substitute the minor child as the plaintiff, pursuant to Connecticut General Statutes §52-109. The defendant also moved to dismiss, because the written medical opinion that accompanied the complaint and that opined that there was negligence was written by a dentist who specializes in endodontics and who is not board certified. If the defendant doctor is board certified, the medical opinion writer must be board certified in the same specialty, pursuant to C.G.S. §52-184c. The court granted the defendant's motion to dismiss the plaintiff's negligence counts, because the individual who wrote the medical opinion was not board certified. The court rejected the plaintiff's argument that a written opinion from a "similar healthcare provider" is not required, to allege ordinary or gross negligence. The plaintiff's complaint, which alleges negligence against the defendant in his capacity as a medical professional and that arose out of the medical professional-patient relationship, alleges medical negligence, as opposed to ordinary negligence. The court denied the plaintiff's motion to amend the complaint, to add a board-certified endodontist's written opinion. A plaintiff should not be allowed to amend, to add a written opinion obtained after the complaint was filed. Allegations that the defendant breached a contract and failed to obtain informed consent to perform a root canal on tooth number 7 survived.