Wilkins v. Connecticut Childbirth & Women's Center ( 2014 )

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WILKINS v. CONNECTICUT CHILDBIRTH & WOMEN’S CENTER—
DISSENT
ROBINSON, J., with whom ROGERS, C. J., and ZARE-
LLA, J., join, dissenting. I respectfully disagree with
part II of the majority’s opinion, which concludes that
the opinion letter supporting the good faith certification
supplied by the plaintiff Kristin Wilkins1 satisfied Gen-
eral Statutes § 52-190a (a)2 on the ground that, under
General Statutes § 52-184c,3 a board certified obstetri-
cian-gynecologist (obstetrician) is a ‘‘similar health care
provider’’ to the nurse-midwives who were employed by
the defendants, the Connecticut Childbirth & Women’s
Center, and Women’s Health Associates, P.C. In my
view, the majority’s conclusion is contrary to the plain
and unambiguous language of § 52-184c (c), and
amounts to the sub silentio overruling of this court’s
decision in Bennett v. New Milford Hospital, Inc., 300
Conn. 1, 12 A.3d 865 (2011). Instead, I agree with the
Appellate Court that, under § 52-184c (c), the plaintiff
was required instead to ‘‘submit an opinion letter
authored by an individual who is trained, experienced
and certified in [nurse-midwifery] or nursing’’ in order
‘‘to meet the requirements of § 52-190a (a).’’ Wilkins v.
Connecticut Childbirth & Women’s Center, 135 Conn.
App. 679, 690, 42 A.3d 521 (2012). Because I would
affirm the judgment of the Appellate Court, I respect-
fully dissent.4
I begin by noting my agreement with the facts and
procedural history of this case as stated by the majority
and the Appellate Court, as well as the majority’s
description of the parties’ arguments. See id., 683–85.
I also agree with the majority that, given the allegations
in the plaintiff’s complaint, in determining whether the
opinion letter supplied by the plaintiff was authored by
a similar health care provider as defined by § 52-184c,
the applicable portion of that statute is subsection (c),
which applies to specialists or those who hold them-
selves out as specialists. I part company from the major-
ity, however, with respect to its determination that an
obstetrician and a nurse-midwife are similar health care
providers within the meaning of § 52-184c (c).5
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance to
the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . The question of statutory inter-
pretation presented in this case is a question of law
subject to plenary review. . . .
‘‘[I]n interpreting [statutory] language . . . we do
not write on a clean slate, but are bound by our previous
judicial interpretations of this language and the purpose
of the statute.’’ (Citations omitted; internal quotation
marks omitted.) Commissioner of Public Safety v. Free-
dom of Information Commission, 312 Conn. 513, 527,
93 A.3d 1142 (2014). Thus, in determining whether an
obstetrician and a nurse-midwife are similar health care
providers under § 52-184c (c), my analysis begins with
a detailed review of this court’s decision in Bennett v.
New Milford Hospital, Inc., supra, 300 Conn. 1, which
concluded that a board certified general surgeon, with
‘‘added qualifications in [s]urgical [c]ritical [c]are, and
engaged in the practice of trauma surgery’’ who ‘‘regu-
larly evaluate[s] and treat[s] injured patients in the
[e]mergency [d]epartment including those who are dis-
charged from the [emergency department] as well as
those who require inpatient care’’; (internal quotation
marks omitted) id., 8; was not statutorily permitted to
author the opinion letter required by § 52-190a (a) in a
medical malpractice action brought against a physician
specializing in emergency medicine. Id., 4–5. This court
concluded that, because ‘‘the plaintiff brought this
action against the defendant in his capacity as a special-
ist in emergency medicine . . . § 52-190a (a) required
the plaintiff to supply an opinion letter authored by a
similar health care provider as defined by § 52-184c
(c).’’ Id., 6. This court rejected the plaintiff’s argument
that, ‘‘to provide the opinion letter required by § 52-
190a (a), a health care provider need not be a similar
health care provider under § 52-184c (b) or (c) but,
rather, must only qualify to testify as an expert witness
under § 52-184c (d) . . . .’’ Id., 10; see also id., 12.
In so concluding, the court observed that § 52-190a
(a) ‘‘refers to similar health care providers under § 52-
184c, which utilizes that term as one of art, both to
establish the standard of care that the plaintiff alleges
was breached in a malpractice action; see General Stat-
utes § 52-184c (a); as well as in part to establish a health
care provider’s qualifications to testify as an expert
witness. See General Statutes § 52-184c (d). With
respect to those health care providers who are board
certified or trained and experienced as specialists, or
. . . hold themselves out as specialists, a similar health
care provider is one who: (1) Is trained and experienced
in the same specialty; and (2) is certified by the appro-
priate American board in the same specialty; provided
if the defendant health care provider is providing treat-
ment or diagnosis for a condition which is not within
his specialty, a specialist trained in the treatment or
diagnosis for that condition shall be considered a simi-
lar health care provider.’’ (Emphasis omitted; footnote
omitted; internal quotation marks omitted.) Bennett v.
New Milford Hospital, Inc., supra, 300 Conn. 13–14,
quoting General Statutes § 52-184c (c).
The court further observed that ‘‘the legislature’s use
of the term similar health care provider in § 52-190a,
with a cross-reference to § 52-184c, is significant,
because . . . had the legislature desired to broaden
the pool of physicians permitted to provide an opinion
letter, it could have allowed opinion letters to be
authored by a qualified health care provider, thereby
allowing either similar or nonsimilar health care provid-
ers to author opinion letters in compliance with § 52-
190a (a). Rather, when establishing the guidelines for
the opinion letter, the legislature clearly and unambigu-
ously referred to a similar health care provider.’’
(Emphasis added; internal quotation marks omitted.)
Bennett v. New Milford Hospital, Inc., supra, 300 Conn.
16. This court then emphasized that we ‘‘must not dis-
turb the legislature’s selection of the phrase similar
health care provider and, in cases of specialists . . .
conclude[d] that the author of an opinion letter pursu-
ant to § 52-190a (a) must satisfy the definition of that
term as articulated in § 52-184c (c).’’ Id., 17. Thus, ‘‘in
cases of specialists, the author of an opinion letter pur-
suant to § 52-190a (a) must be a similar health care
provider as that term is defined by § 52-184c (c), regard-
less of his or her potential qualifications to testify at
trial pursuant to § 52-184c (d).’’6 Id., 21; see also id., 23
(‘‘we construe § 52-184c [b] as establishing the qualifica-
tions of a similar health care provider when the defen-
dant is neither board certified nor in some way a
specialist’’).
In light of Bennett, I read the ‘‘similar health care
provider’’ requirement of §§ 52-190a (a) and 52-184c (c)
to require that the author of the opinion letter hold the
same board certification as the health care provider
who is alleged to have been negligent, thus meaning that
they share the same profession. Despite the majority’s
conclusion that both nurse-midwives and obstetricians
practice their professions in the ‘‘same specialty,’’
namely, obstetrics, that commonality does not render
them similar health care providers as defined by § 52-
184c (c). At best, it satisfies the first prong of the similar
health care provider test under § 52-184c (c), namely,
that they be ‘‘trained and experienced in the same spe-
cialty . . . .’’ General Statutes § 52-184c (c) (1). The
analysis under § 52-184c (c) does not end with subdivi-
sion (1), because the test has two prongs, and § 52-
184c (c) (2) expressly requires ‘‘certif[ication] by the
appropriate American board in the same specialty .
. . .’’ (Emphasis added.) This is where I believe that the
majority’s analysis falters, because the ‘‘ ‘conjunctive
‘‘and’’ meaning ‘‘in addition to’’ is employed between
the parts of the two prong test,’ ’’ meaning that ‘‘ ‘both
tests must be met.’ ’’ Pantlin & Chananie Development
Corp. v. Hartford Cement & Building Supply Co., 196
Conn. 233, 240, 492 A.2d 159 (1985).
Examining the plain language of § 52-184c (c) (2), it
is apparent that the legislature’s use of the article ‘‘the,’’
rather than the more expansive ‘‘an,’’ in modifying the
phrase ‘‘appropriate American board’’ demonstrates
that the defendant and the opinion letter author must,
in fact, be certified by the same board and, ergo, mem-
bers of the same profession. See, e.g., State v. Brown,
310 Conn. 693, 704, 80 A.3d 878 (2013) (‘‘when statutory
language is framed, as a whole, in the singular, it sug-
gests that the statute contemplates the relevant terms
in the singular’’). This reading is consistent with the
legislature’s addition of uniformity to the prelitigation
requirements by eliminating the need for a subjective
determination of who is qualified to author the opinion
letter through the use of the statutorily defined term
‘‘similar health care provider,’’ rather than, for example,
a more expansive ‘‘qualified health care provider.’’7 See,
e.g., Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 21; see also footnote 6 of this dissenting opinion.
Thus, I conclude that the majority’s holding that a nurse-
midwife and an obstetrician both ‘‘practice obstetrics’’
and, therefore, are similar health care providers,
improperly disregards the plain and unambiguous lan-
guage of § 52-184c (c), by rendering superfluous the
conjunctively added subdivision (2) of the provision.
To this end, I further disagree with the majority’s
reliance on the Connecticut statutory scheme governing
nurse-midwives in support of the proposition that ‘‘[t]he
statutory requirement that a nurse-midwife work in con-
junction with an obstetrician . . . combined with the
explicit representation in the good faith opinion certifi-
cation that the obstetrician in the present case had
experience supervising nurse-midwives, demonstrates
that the obstetrician satisfied the requirements for a
‘similar health care provider’ under § 52-184c (c).’’
Although there is an obvious relationship between the
practices of obstetrics and nurse-midwifery, given that
the statute defining the profession of nurse-midwifery
requires a team oriented approach and ‘‘collaboration
with qualified obstetrician-gynecologists’’; General Stat-
utes § 20-86a (1);8 the statutory scheme nevertheless
establishes nurse-midwifery as an entirely separate pro-
fession with distinct licensing and certification require-
ments, requiring, inter alia, the ‘‘successful completion
of an educational program accredited by the American
College of Nurse-Midwives’’ and certification ‘‘by the
American College of Nurse-Midwives . . . .’’ General
Statutes § 20-86a (2); see also General Statutes § 20-86c
(licensure for nurse-midwifery requires candidate to [1]
be eligible ‘‘for registered nurse licensure in this state,’’
[2] ‘‘[hold] and [maintain] current certification from the
American College of Nurse-Midwives,’’ and [3] ‘‘[com-
plete] thirty hours of education in pharmacology for
nurse-midwifery’’); cf. General Statutes § 20-10
(describing requirements for licensure to practice medi-
cine and surgery under General Statutes § 20-13).9
Indeed, in defining a nurse-midwives’ scope of practice,
our state statutes expressly contemplate the applicable
standard of care as that ‘‘established by the American
College of Nurse-Midwives.’’ General Statutes § 20-
86b.10 Thus, although the clinical relationship between
obstetricians and nurse-midwives indicates that an
obstetrician might well qualify to testify as an expert
witness at a trial in a case involving the alleged malprac-
tice of a nurse-midwife; see General Statutes § 52-184c
(d); our decision in Bennett demonstrates that that rela-
tionship nevertheless does not render them ‘‘similar
health care providers’’ as defined by § 52-184c (c) for
purposes of the opinion letter required by § 52-190a (a).
See Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 21 (‘‘in cases of specialists, the author of an
opinion letter pursuant to § 52-190a [a] must be a similar
health care provider as that term is defined by § 52-
184c [c], regardless of his or her potential qualifications
to testify at trial pursuant to § 52-184c [d]’’).
Finally, given the statutory language at issue in this
case and in Bennett, the majority’s conclusion that a
nurse-midwife and an obstetrician are similar health
care providers overrules, sub silentio, those aspects of
Bennett holding that, ‘‘in cases of specialists, the author
of an opinion letter pursuant to § 52-190a (a) must be
a similar health care provider as that term is defined
by § 52-184c (c), regardless of his or her potential quali-
fications to testify at trial pursuant to § 52-184c (d).’’11
Id. This, of course, is highly troubling insofar as the
‘‘doctrine of stare decisis counsels that a court should
not overrule its earlier decisions unless the most cogent
reasons and inescapable logic require it. . . . In
assessing the force of stare decisis, our case law has
emphasized that we should be especially cautious about
overturning a case that concerns statutory construc-
tion.’’12 (Citation omitted; internal quotation marks
omitted.) Waterbury v. Washington, 260 Conn. 506, 538,
800 A.2d 1102 (2002).
I would, therefore, affirm the judgment of the Appel-
late Court on the basis of its conclusion that the trial
court properly dismissed this action because the ‘‘plain-
tiff failed to submit an opinion letter authored by an
individual who is trained, experienced and certified in
[nurse-midwifery] or nursing,’’ and therefore, ‘‘failed
to meet the requirements of § 52-190a (a).’’ Wilkins v.
Connecticut Childbirth & Women’s Center, supra, 135
Conn. App. 690. Accordingly, I respectfully dissent.
1
Like the majority, I note that Kristin Wilkins’ husband, Billy Wilkins,
filed a claim for loss of consortium. Given the derivative nature of his claim,
and the fact that their claims on appeal are identical, for the sake of clarity,
I, like the majority, refer in this dissenting opinion to Kristin Wilkins as
the plaintiff.
2
General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action
or apportionment complaint shall be filed to recover damages resulting from
personal injury or wrongful death occurring on or after October 1, 1987,
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. The complaint, initial pleading or apportionment
complaint shall contain a certificate of the attorney or party filing the
action or apportionment complaint that such reasonable inquiry gave rise
to a good faith belief that grounds exist for an action against each named
defendant or for an apportionment complaint against each named appor-
tionment defendant. To show the existence of such good faith, the claimant
or the claimant’s attorney, and any apportionment complainant or the
apportionment complainant’s attorney, shall obtain a written and signed
opinion of a similar health care provider, as defined in section 52-184c,
which similar health care provider shall be selected pursuant to the provi-
sions of said section, that there appears to be evidence of medical negligence
and includes a detailed basis for the formation of such opinion. Such
written opinion shall not be subject to discovery by any party except for
questioning the validity of the certificate. The claimant or the claimant’s
attorney, and any apportionment complainant or apportionment complain-
ant’s attorney, shall retain the original written opinion and shall attach a
copy of such written opinion, with the name and signature of the similar
health care provider expunged, to such certificate. . . .’’ (Emphasis added.)
3
General Statutes § 52-184c provides: ‘‘(a) In any civil action to recover
damages resulting from personal injury or wrongful death occurring on or
after October 1, 1987, in which it is alleged that such injury or death resulted
from the negligence of a health care provider, as defined in section 52-184b,
the claimant shall have the burden of proving by the preponderance of the
evidence that the alleged actions of the health care provider represented a
breach of the prevailing professional standard of care for that health care
provider. The prevailing professional standard of care for a given health
care provider shall be that level of care, skill and treatment which, in light
of all relevant surrounding circumstances, is recognized as acceptable and
appropriate by reasonably prudent similar health care providers.
‘‘(b) If the defendant health care provider is not certified by the appropriate
American board as being a specialist, is not trained and experienced in a
medical specialty, or does not hold himself out as a specialist, a ‘similar
health care provider’ is one who: (1) Is licensed by the appropriate regulatory
agency of this state or another state requiring the same or greater qualifica-
tions; and (2) is trained and experienced in the same discipline or school
of practice and such training and experience shall be as a result of the
active involvement in the practice or teaching of medicine within the five-
year period before the incident giving rise to the claim.
‘‘(c) If the defendant health care provider is certified by the appropriate
American board as a specialist, is trained and experienced in a medical
specialty, or holds himself out as a specialist, a ‘similar health care provider’
is one who: (1) Is trained and experienced in the same specialty; and (2) is
certified by the appropriate American board in the same specialty; provided if
the defendant health care provider is providing treatment or diagnosis for
a condition which is not within his specialty, a specialist trained in the
treatment or diagnosis for that condition shall be considered a ‘similar health
care provider’.
‘‘(d) Any health care provider may testify as an expert in any action if
he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c)
of this section; or (2) is not a similar health care provider pursuant to
subsection (b) or (c) of this section but, to the satisfaction of the court,
possesses sufficient training, experience and knowledge as a result of prac-
tice or teaching in a related field of medicine, so as to be able to provide
such expert testimony as to the prevailing professional standard of care in
a given field of medicine. Such training, experience or knowledge shall be
as a result of the active involvement in the practice or teaching of medicine
within the five-year period before the incident giving rise to the claim.’’
4
I do, however, agree with the majority’s conclusion in part I of its opinion
that ‘‘the requirements of § 52-190a (a) apply to claims of medical malpractice
brought against institutional defendants.’’
5
As the majority acknowledges, the plaintiff’s claims against the defen-
dants, which are institutions, sound solely in vicarious liability for their
employees’ alleged negligence, and the only ‘‘employees whose actions are
specifically named in the plaintiff’s complaint are certified nurse-midwives
and a registered nurse.’’ Thus, I agree with the majority that our focus in
determining whether the plaintiff’s opinion letter complied with § 52-190a
(a) is on whether that letter is legally adequate with respect to allegations
of negligence against a certified nurse-midwife or registered nurse. Cf. Ali
v. Community Health Care Plan, Inc., 261 Conn. 143, 151–53, 801 A.2d 775
(2002) (when plaintiff’s theory of case against health maintenance organiza-
tion was one of vicarious liability for negligence of its nurse-midwife
employee, and ‘‘[t]his was not a case regarding any purported institutional
negligence on the part of the defendant, nor has the plaintiff cited any
evidence to support that theory,’’ trial court properly instructed jury that
relevant standard of care under § 52-184c was that of reasonably prudent
nurse-midwife).
6
In Bennett, the court consulted the legislative history of § 52-190a, upon
deeming reasonable the plaintiff’s argument ‘‘that adhering to the plain
language of the statute and the narrow definition of similar health care
provider yields the absurd result of potentially precluding highly qualified
expert witnesses from participating in the prelitigation inquiry by authoring
opinion letters.’’ Bennett v. New Milford Hospital, Inc., supra, 300 Conn.
17. The court concluded, however, that the relevant extratextual sources
indicated ‘‘that hewing closely to the term similar health care provider,
rather than expansively reading § 52-190a (a) to allow any physician who
might qualify as an expert under § 52-184c (d) to author an opinion letter,
best effectuates the purpose of § 52-190a (a) . . . .’’ Id. In observing that
the legislature enacted § 52-190a intending to prevent frivolous medical
malpractice actions, the court noted that the legislature had relied on testi-
mony from an attorney representing the state medical society emphasizing
‘‘the need for an opinion from a similar health care provider prior to the
commencement of a medical malpractice action, in order to ‘help [e]nsure
that there is a reasonable basis for filing a medical malpractice case under
the circumstances and . . . eliminate some of the more questionable or
meritless cases filed under the present statutory scheme.’ ’’ Id., 20.
The court further determined that, although ‘‘strictly adhering to the legis-
lature’s articulation of who is a similar health care provider may be harsh
to would-be plaintiffs,’’ it is ‘‘not absurd or unworkable. . . . Specifically,
the text of the related statutes and the legislative history support the . . .
determination that, unlike § 52-184c (d), which allows for some subjectivity
as it gives the trial court discretion in determining whether an expert may
testify, § 52-190a establishes objective criteria, not subject to the exercise
of discretion, making the prelitigation requirements more definitive and
uniform and, therefore, not as dependent on an attorney or self-represented
party’s subjective assessment of an expert’s opinion and qualifications.’’
(Citation omitted; internal quotation marks omitted.) Id., 21.
7
Accordingly, I disagree with the majority’s criticism of the defendants’
interpretation of § 52-190a (a) as ‘‘impos[ing] a requirement in the statute
that the opinion letter be authored by an identical ‘health care provider’
and not a ‘similar health care provider.’ Such a definition would frustrate
the wording of the statute.’’ (Emphasis added.)
8
General Statutes § 20-86a (1) defines nurse-midwifery as ‘‘the manage-
ment of women’s health care needs, focusing particularly on family planning
and gynecological needs of women, pregnancy, childbirth, the postpartum
period and the care of newborns, occurring within a health care team and
in collaboration with qualified obstetrician-gynecologists.’’
9
General Statutes § 20-10 provides: ‘‘Except as provided in section 20-12,
each person applying for a license under section 20-13 shall certify to the
Department of Public Health that the applicant: (1) (A) Is a graduate of a
medical school located in the United States or Canada accredited by the
Liaison Committee on Medical Education or of a medical education program
accredited by the American Osteopathic Association, or (B) is a graduate
of a medical school located outside the United States or Canada and has
received the degree of doctor of medicine, osteopathic medicine or its
equivalent and satisfies educational requirements specified in regulations
adopted pursuant to this chapter and has either (i) successfully completed
all components of a ‘fifth pathway program’ conducted by an American
medical school accredited by the American Medical Association or the
American Osteopathic Association, or (ii) received certification from the
Educational Commission for Foreign Medical Graduates; (2) has successfully
completed not less than two years of progressive graduate medical training
as a resident physician in a program accredited by the Accreditation Council
for Graduate Medical Education, the American Osteopathic Association
or an equivalent program approved by the board with the consent of the
department; and (3) has passed an examination prescribed by the department
with the advice and consent of the appropriate examining board. Examina-
tions required under this section shall be administered by the Department
of Public Health under the supervision of the appropriate examining board.
Passing scores shall be established by said department with the consent of
the appropriate examining board. The department may, under such regula-
tions as the Commissioner of Public Health may adopt, with the advice and
assistance of the appropriate board, deny eligibility for licensure to a gradu-
ate who has been found to have provided fraudulent or inaccurate documen-
tation regarding either the graduate’s school’s educational program or
academic credentials or to have failed to meet educational standards as
prescribed in such regulations.’’
10
General Statutes § 20-86b provides in relevant part: ‘‘Nurse-midwives
shall practice within a health care system and have clinical relationships
with obstetrician-gynecologists that provide for consultation, collaborative
management or referral, as indicated by the health status of the patient.
Nurse-midwifery care shall be consistent with the standards of care estab-
lished by the American College of Nurse-Midwives. Each nurse-midwife
shall provide each patient with information regarding, or referral to, other
providers and services upon request of the patient or when the care required
by the patient is not within the midwife’s scope of practice. . . .’’
11
Although I agree with the majority that, under Bennett, ‘‘it is appropriate
to look to the allegations of the plaintiff’s complaint to frame the require-
ments for who constitutes a similar health care provider for purposes of
the good faith opinion certification,’’ I believe the majority extends this
aspect of Bennett beyond its bounds in holding that the allegations contained
within the plaintiff’s complaint and the definition of obstetrics indicate that
a board certified obstetrician is a similar health care provider for a claim
involving alleged malpractice by certified nurse-midwives and a registered
nurse practicing in obstetrics. In Bennett v. New Milford Hospital, Inc.,
supra, 300 Conn. 23–24, this court relied on the allegations in the plaintiff’s
complaint to determine that the action was ‘‘brought . . . against the defen-
dant in his capacity as a specialist in emergency medicine,’’ in holding that
subsection (c) of § 52-184c furnished the relevant definition of ‘‘similar
health care provider,’’ rather than subsection (b) of that statute. Bennett,
however, turned on a comparison between two physicians, namely an emer-
gency medicine specialist and a general surgeon, whereas the disparity in
this case is even greater insofar as it involves a comparison between two
entirely different health care professions, namely, an obstetrician and a
nurse-midwife, despite the fact that both practice in the same general area
of medicine.
12
See also Commissioner of Public Safety v. Freedom of Information
Commission, supra, 312 Conn. 551 n.35 (‘‘[T]he doctrine of legislative acqui-
escence leaves us generally reluctant to disturb decisions interpreting stat-
utes. . . . We are, however, more likely to reexamine a case interpreting
a statute if [1] the rule to be discarded may not be reasonably supposed to
have determined the conduct of the litigants, such as a criminal law or tort
principle; [2] the issue presented . . . is not one that is likely to have
reached the top of the legislative agenda or attract legislative sponsorship;
[3] the issue is not one previously subject to extensive analysis by this court;
[4] the prior interpretation has arguably led to unconscionable, anomalous
or bizarre results; and [5] the legislature has been silent on the matter, as
compared to cases wherein we have employed the [legislative acquiescence]
doctrine not simply because of legislative inaction, but because the legisla-
ture affirmatively amended the statute subsequent to a judicial or administra-
tive interpretation, but chose not to amend the specific provision of the
statute at issue.’’ Citations omitted; internal quotation marks omitted.]).