Labissoniere v. Gaylord Hospital, Inc. , 182 Conn. App. 445 ( 2018 )

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GEORGE LABISSONIERE, COEXECUTOR (ESTATE
OF ROBERT LABISSONIERE), ET AL. v.
GAYLORD HOSPITAL, INC., ET AL.
(AC 39681)
Sheldon, Elgo and Harper, Js.*
Syllabus
The plaintiffs, the coexecutors of the estate of R, sought to recover damages
for the alleged medical malpractice of the defendant hospital and several
individual physicians. The plaintiffs, pursuant to statute (§ 52-190a),
appended to their original complaint an opinion letter stating that there
appeared to be evidence of medical negligence, which was authored by
M, a physician and general surgeon who was board certified in surgery.
Thereafter, the plaintiffs filed an amended complaint in which they
alleged that the defendant physicians were board certified in internal
medicine and that the treatment and diagnosis of R was within the
medical specialty of surgery. The defendants filed motions to dismiss,
with supporting affidavits, in which they claimed that the court lacked
personal jurisdiction over them because M was not a ‘‘similar health
care provider’’ to them as defined by statute (§ 52-184c [c]). The trial
court granted the motions to dismiss and rendered judgment thereon,
from which the plaintiffs appealed to this court. Held:
1. The plaintiffs could not prevail on their claim that the trial court improperly
considered the defendants’ supporting affidavits and thereby applied an
incorrect legal standard in deciding the defendants’ motions to dismiss,
which was based on their claim that the issues here did not involve a
factual dispute concerning personal jurisdiction that was not determin-
able on the face of the record; although the plaintiffs alleged in their
amended complaint that the defendant physicians were board certified
in internal medicine, it was not improper for the court to consider
the affidavits in deciding the motions to dismiss because the affidavits
provided independent evidence of the physicians’ medical specialty, and
the undisputed facts contained in the defendants’ affidavits supple-
mented the allegations contained in the amended complaint.
2. The trial court properly granted the defendants’ motions to dismiss: where,
as here, it was undisputed that the defendant physicians were board
certified in internal medicine and not surgery, § 52-184c (c) required
the plaintiffs to obtain an opinion letter from an expert who was trained
and experienced in internal medicine and was board certified in internal
medicine, which they failed to do, as M was not board certified in
internal medicine, and, contrary to the plaintiffs’ claim, the trial court
did not require that the opinion letter state that the physicians were
acting outside the scope of their medical specialty and, instead, properly
determined that the plaintiffs failed to expressly allege in their amended
complaint that the physicians were acting outside the scope of their
medical specialty so as to qualify for an exception in § 52-184c (c) that
applies when a physician provides treatment or diagnosis for a condition
that is not within the physician’s specialty, and because such an allega-
tion was absent from the amended complaint, the trial court, which
looked to M’s affidavit and the opinion letter only as alternative sources
for such allegation and could not find the necessary evidence in those
documents, properly concluded that the opinion letter was not compliant
with § 52-190a (a); furthermore, the exception in § 52-184c (c) did not
apply here, where R was admitted to the hospital for medical care and
rehabilitation following a hip replacement surgery and nothing contained
in the plaintiffs’ complaint suggested that the physicians were acting as
surgeons and not acting as internists when they diagnosed and treated
R’s postoperative condition.
Argued February 8—officially released June 5, 2018
Procedural History
Action to recover damages for the defendants’ alleged
medical malpractice, and for other relief, brought to
the Superior Court in the judicial district of Tolland,
where the court, Cobb, J., granted the defendants’
motions to dismiss, and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Affirmed.
Keith A. Yagaloff, for the appellants (plaintiffs).
Thomas O. Anderson, with whom were Kyle W.
Deskus and, on the brief, Cristin E. Sheehan, for the
appellees (defendant Eileen Ramos et al.).
Michael G. Rigg, for the appellee (named defendant).
Opinion
HARPER, J. This appeal arises out of a medical mal-
practice action brought by the plaintiffs, George Labis-
soniere and Helen Civale, coexecutors of the estate of
Robert Labissoniere (decedent), against the defendants,
physicians Moe Kyaw, Madhuri Gadiyaram, and Eileen
Ramos (physicians), and their employer, Gaylord Hospi-
tal, Inc. (hospital). The plaintiffs appeal from the judg-
ment of the trial court dismissing their amended
complaint for lack of personal jurisdiction. On appeal,
the plaintiffs claim that the court erred by (1) failing
to apply the appropriate legal standard for a motion
to dismiss, and (2) determining that the author of the
plaintiffs’ opinion letter was not a similar health care
provider on the basis of their related claim that they
had alleged that the defendants were acting outside of
their medical specialty such that their conduct should
be judged against the standard of care applicable to
that specialty. We disagree and, accordingly, affirm the
judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our disposition of this appeal. The
plaintiffs commenced this action against the defendants
on April 28, 2015. In their original complaint, the plain-
tiffs alleged that the decedent was admitted to the hospi-
tal on February 14, 2013, for medical care and
rehabilitation following hip replacement surgery that
had been performed at St. Francis Hospital. The plain-
tiffs alleged that while under the care of the physicians,
the decedent suffered from a retroperitoneal hema-
toma, a postoperative condition that resulted in irre-
versible nerve damage, as well as hemorrhagic shock
and multiorgan failure, requiring the decedent to be
transferred back to St. Francis Hospital as an emer-
gency admission on March 11, 2013.1
In an attempt to comply with General Statutes § 52-
190a (a),2 the plaintiffs appended to their original com-
plaint an opinion letter authored by David A. Mayer, a
physician and general surgeon who was board certified
in surgery. The physicians and the hospital subse-
quently filed motions to dismiss pursuant to Practice
Book § 10-30 (a) (2). In their respective motions, the
defendants argued that because Mayer was board certi-
fied in surgery and not internal medicine, he was not
a ‘‘similar health care provider,’’ as defined in General
Statutes § 52-184c,3 and, therefore, the court lacked per-
sonal jurisdiction over them.4 Included with the defen-
dants’ motions were affidavits,5 which established that
the physicians are board certified in internal medicine
and are not surgeons, that surgeries are not performed
at the hospital, and that there are no surgeons on staff
at the hospital.
On November 20, 2015, the plaintiffs filed a request
for leave to file an amended complaint together with a
proposed amended complaint in which they alleged that
the physicians were board certified in internal medicine
and that the treatment and diagnosis of the decedent
was within the medical specialty of surgery. The plain-
tiffs did not attach to their amended complaint a new
or amended opinion letter, nor did they explicitly allege
that the defendants had acted outside the scope of their
specialty of internal medicine.
The physicians and the hospital subsequently filed
amended motions seeking dismissal of the plaintiffs’
amended complaint. The defendants again alleged that
Mayer was not a similar health care provider under § 52-
184c. The plaintiffs objected, arguing that the physicians
were acting as surgeons during their diagnosis and treat-
ment of the decedent’s retroperitoneal hematoma.
Attached to their objection was Mayer’s affidavit, in
which he stated that the decedent’s condition was a
postoperative condition that required consultation with
a surgeon. The plaintiffs argued that their amended
complaint and Mayer’s affidavit demonstrated that the
decedent’s condition was within the specialty of surgery
and, therefore, that the physicians had acted outside
the scope of their medical specialty and that Mayer was
a similar health care provider under § 52-184c (c).
During oral argument on the defendants’ motions,
the court asked the plaintiffs’ counsel several times
to identify where the plaintiffs had alleged that the
defendants acted outside the scope of their specialty
of internal medicine. The plaintiffs’ counsel then cited
multiple paragraphs from the amended complaint,
which stated that the physicians are board certified
in internal medicine and provided the decedent with
treatment and diagnosis for a postoperative condition
that was within the specialty of surgery. The court
responded that the amended complaint ‘‘doesn’t say
that the doctors were acting outside of their specialty
[of internal medicine]. It just says that this happened
to be a surgery issue.’’
The court granted the defendants’ amended motions
to dismiss. In so doing, the court reasoned that ‘‘neither
the amended complaint (filed after the court allowed
discovery on the issues involved in the motion to dis-
miss) nor the surgeon’s written opinion letter allege
or state that the defendants were acting outside their
specialty of internal medicine in treating the [decedent]
or that they undertook the diagnosis and treatment of
a condition outside of their specialty such that their
conduct should be judged against the standards of care
applicable to that specialty. Such an allegation and
expert opinion is necessary to fall within the exception
contained in [§ 52-184c (c)]. . . . Therefore, there
being no such allegation or expert opinion, this case
must be dismissed as to all defendants.’’ (Citation omit-
ted.) This appeal followed.
Before we address the plaintiffs’ claims on appeal,
we set forth the well settled standard of review. ‘‘A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
[O]ur review of the court’s ultimate legal conclusion
and resulting [determination] of the motion to dismiss
will be de novo. . . . When a . . . court decides a
. . . question raised by a pretrial motion to dismiss, it
must consider the allegations of the complaint in their
most favorable light. . . . In this regard, a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the
existing record and must be decided upon that alone.’’
(Internal quotation marks omitted.) Bennett v. New Mil-
ford Hospital, Inc., 300 Conn. 1, 10–11, 12 A.3d 865
(2011).
‘‘In reviewing a challenge to a ruling on a motion to
dismiss . . . [w]hen the facts relevant to an issue are
not in dispute, this court’s task is limited to a determina-
tion of whether, on the basis of those facts, the trial
court’s conclusions of law are legally and logically cor-
rect. . . . Because there is no dispute regarding the
basic material facts, this case presents an issue of law,
and we exercise plenary review.’’ (Internal quotation
marks omitted.) Doyle v. Aspen Dental of Southern CT,
PC, 179 Conn. App. 485, 491–92, 179 A.3d 249 (2018).
‘‘Our review of a trial court’s ruling on a motion to
dismiss pursuant to § 52-190a is plenary.’’ Torres v. Car-
rese, 149 Conn. App. 596, 608, 90 A.3d 256, cert. denied,
312 Conn. 912, 93 A.3d 595 (2014).
I
The plaintiffs’ first claim is that the trial court applied
an incorrect legal standard in deciding the defendants’
motions to dismiss. The plaintiffs argue that it was
improper for the court to consider the affidavits that
the defendants attached to their motions because ‘‘the
issues here do not involve factual issues concerning
personal jurisdiction that are not determinable on the
face of the record.’’ The plaintiffs aver that ‘‘the correct
standard on [these] motion[s] is that the court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader.’’ (Citation omitted; internal quotation
marks omitted.) We disagree that the court erred by
considering the defendants’ affidavits.
Practice Book § 10-30 (a) provides in relevant part:
‘‘A motion to dismiss shall be used to assert . . . (2)
lack of jurisdiction over the person . . . .’’ A motion
to dismiss ‘‘shall always be filed with a supporting mem-
orandum of law and, where appropriate, with support-
ing affidavits as to facts not apparent on the record.’’
Practice Book § 10-30 (c). ‘‘[I]f the complaint is supple-
mented by undisputed facts established by affidavits in
support of the motion to dismiss . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations in
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings.’’ (Citations omitted; internal quotation marks omit-
ted.) Dorry v. Garden, 313 Conn. 516, 522–23, 98 A.3d
55 (2014).
The court did not err when it considered the defen-
dants’ affidavits in deciding their motions to dismiss.
Although the plaintiffs alleged in their amended com-
plaint that the physicians were board certified in inter-
nal medicine, it was not improper for the court to
consider the affidavits in deciding the amended motions
because the affidavits provided independent evidence
of the physicians’ medical specialty. See Bennett v. New
Milford Hospital, Inc., supra, 300 Conn. 21. Thus, the
undisputed facts contained in the defendants’ affidavits
supplemented the allegations contained in the amended
complaint. The plaintiffs also were able to conduct dis-
covery and submit Mayer’s counteraffidavit, which did
not undermine the conclusion established by the defen-
dants’ affidavits that the court lacked jurisdiction.
Therefore, it was appropriate for the court to consider
the defendants’ affidavits in granting their motions to
dismiss for lack of personal jurisdiction.
II
The plaintiffs next raise the interrelated claims that
the court erred in determining that (1) the opinion letter
did not comply with § 52-190a, and (2) the exception
under § 52-184c (c) was not applicable. The defendants
argue that because the plaintiffs did not allege that
the physicians were acting outside the scope of their
medical specialty of internal medicine, the exception
under § 52-184c (c) did not apply, and the plaintiffs
were thus obligated to obtain an opinion letter authored
by a physician board certified in internal medicine. We
agree with the defendants.
We begin by discussing the relevant statutory provi-
sions. ‘‘Section 52-190a (a) provides that before filing
a personal injury action against a health care provider,
the attorney or party filing the action must make 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. . . . To show a good faith
belief, the complaint must be accompanied by a written
and signed opinion of a similar health care provider,
as defined in § 52-184c, stating that there appears to be
evidence of medical negligence and including a detailed
basis for the formation of that opinion. . . . To deter-
mine if an opinion letter meets the requirements of § 52-
190a (a), the letter must be read in conjunction with
§ 52-184c (c), which defines the term similar health care
provider. . . . For health care providers who are board
certified or who hold themselves out as specialists . . .
§ 52-184c (c) defines similar health care provider as
one who: (1) [i]s trained and experienced in the same
specialty; and (2) is certified by the appropriate Ameri-
can board in the same specialty . . . .’’ (Citations omit-
ted; footnote omitted; internal quotation marks
omitted.) Torres v. Carrese, supra, 149 Conn. App.
608–609.
Here, it is undisputed that the physicians were board
certified in internal medicine and not surgery. On the
basis of the physicians’ board certification, § 52-184c
(c) required the plaintiffs to obtain an opinion letter
from an expert who: (1) is trained and experienced in
internal medicine; and (2) is board certified in internal
medicine. The plaintiffs failed to obtain an opinion letter
from a similar health care provider because Mayer is
not board certified in internal medicine. Therefore, the
opinion letter that the plaintiffs appended to their origi-
nal complaint did not comply with the requirements of
§ 52-190a (a) and dismissal was required. See Bennett
v. New Milford Hospital, Inc., supra, 300 Conn. 28–30.
The plaintiffs rely on the exception in § 52-184c (c),
which provides that ‘‘if the defendant health care pro-
vider 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.’’ The trial
court properly determined that the plaintiffs failed to
expressly allege in their amended complaint that the
physicians were acting outside the scope of their medi-
cal specialty.
The trial court did not, as the plaintiffs claim on
appeal, create a requirement that the opinion letter
state that the physicians were acting outside the scope
of their medical specialty. As the plaintiffs point out,
doing so would require an expert to opine on the stan-
dard of care for a specialty not within his or her exper-
tise. What the court sought, however, was some basis
from which it could glean that the physicians here were
acting outside the scope of internal medicine. Because
such an allegation was absent from the amended com-
plaint, the court looked to Mayer’s affidavit and the
opinion letter only as alternative sources for the allega-
tion that the defendants were acting outside the scope
of their medical specialty. The court could not find
the necessary evidence in these documents and thus
properly concluded that the opinion letter was not com-
pliant with § 52-190a (a).
The plaintiffs further argue that the exception in § 52-
184c (c) applies because they alleged that the treatment
and care the physicians rendered to the decedent fell
‘‘within the specialty of surgery’’ and, therefore, the
physicians were acting outside of their specialty of
internal medicine. This court’s opinion in Lohnes v.
Hospital of Saint Raphael, 132 Conn. App. 68, 31 A.3d
810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397
(2012), informs our resolution of this claim. In Lohnes,
the plaintiff was admitted to the emergency department
of the defendant hospital for respiratory issues. Id.,
71. The plaintiff suffered an allergic reaction to the
medication the defendant physician administered to
him, and filed suit for medical negligence. Id., 71–72.
The plaintiff attached to his complaint an opinion letter
from a pulmonologist, and the defendants moved to
dismiss on the ground that the opinion letter was not
authored by a similar health care provider within the
meaning of §§ 52-190a and 52-184c. Id. In support of
his motion, the defendant physician submitted an affida-
vit in which he stated that he was board certified in
emergency medicine. Id. The trial court subsequently
granted the defendants’ motions. Id.
On appeal in Lohnes, the plaintiff argued, inter alia,
that the defendant physician acted outside of his medi-
cal specialty of emergency medicine when he rendered
care to the plaintiff. Id., 75. This court rejected this
claim, stating that the plaintiff conceded before the trial
court that ‘‘his complaint did not contain an express
allegation that [the defendant physician] was practicing
outside of his field of practice. In light of that conces-
sion, the [trial] court declined to infer from the plain-
tiff’s single and fleeting reference to treatment of [the
plaintiff’s] pulmonary symptoms that the complaint
contained any specific allegations of negligence based
on [the defendant physician’s] having acted outside of
his area of specialty.’’ (Internal quotation marks omit-
ted.) Id., 78. This court further reasoned that it was
undisputed that (1) the plaintiff sought treatment from
the emergency department, not a pulmonologist; (2)
the plaintiff complained of shortness of breath and tight-
ness in his chest, and was treated for those symptoms;
and (3) nothing on the face of the complaint suggested
the defendant physician rendered pulmonology treat-
ment as opposed to emergency medical treatment. See
id., 78–79.
Similarly, in the present case, the decedent was
admitted to the hospital for ‘‘medical care and rehabili-
tation’’ following a hip replacement, the actual surgical
procedure having been performed at another hospital,
by an independent surgeon. While under the defendants’
care, the decedent developed complications, which
required treatment and diagnosis by the physicians.
Although the physicians appear to have initially misdi-
agnosed the decedent’s postoperative condition, noth-
ing contained in the plaintiffs’ complaint or opinion
letter suggests that the physicians were not acting as
internists. In fact, the crux of the plaintiffs’ complaint
was that the physicians were negligent in their initial
assessment of the decedent’s condition, not that the
physicians were negligent in performing a surgical pro-
cedure.
The plaintiffs have alleged that the condition from
which the decedent suffered was a postsurgical compli-
cation, and thus that the physicians were acting within
the specialty of surgery and outside their specialty of
internal medicine. The plaintiffs overlook, however,
that a broad specialty such as internal medicine often
overlaps with other medical specialties. Under the
plaintiffs’ argument, there likely never would be a situa-
tion where a physician’s treatment of a patient falls
within the specific specialty of internal medicine, as
physicians who are board certified in that specialty are
often called upon to diagnose and treat a variety of
conditions that could fall within a variety of medical
specialties.6 Our case law has declined to create such
scenarios. See, e.g., Lohnes v. Hospital of Saint
Raphael, supra, 132 Conn. App. 79 (‘‘[I]n light of the
fact that emergency medicine physicians are charged
with rendering care to and treating patients with a
potentially limitless variety of symptoms or injuries, the
plaintiff’s argument, namely, that the defendant was
acting outside his area of specialty, potentially could
yield a situation where no condition or illness would
be considered within the scope of emergency medicine.
Accordingly, there is no basis for the claim that, in
treating the plaintiff for his symptoms in the emergency
department of the hospital, [the defendant physician]
was acting outside his specialty of emergency
medicine.’’)
Because the plaintiffs here have not alleged that the
physicians acted outside the scope of their specialty of
internal medicine, the exception to the definition of
similar health care provider in § 52-184c (c) does not
apply. Accordingly, the plaintiffs were required to
obtain an opinion letter from an expert who (1) had
training and experience in internal medicine, and (2)
was board certified in internal medicine. Torres v. Car-
rese, supra, 149 Conn. App. 609. The plaintiffs did not
provide such a letter and, therefore, the court properly
granted the defendants’ motions to dismiss for lack of
personal jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
* This case was argued before a panel of this court consisting of Judge
Sheldon, Judge Bright, and Justice Harper. Thereafter, Judge Bright recused
himself from consideration of this case and Judge Elgo was added to the
panel. Judge Elgo has read the briefs and the record, and has listened to a
recording of the oral argument prior to participating in this decision.
1
Unrelated medical issues caused the death of the decedent. The plaintiffs
claim malpractice only in regard to the defendants’ diagnosis and treatment
of the retroperitoneal hematoma and associated injuries.
2
General Statutes § 52-190a provides in relevant part: ‘‘(a) No civil action
. . . 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 . . . 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 . . . shall contain a
certificate of the attorney or party filing the action . . . that such reasonable
inquiry gave rise to a good faith belief that grounds exist for an action
against each named defendant . . . . To show the existence of such good
faith, the claimant or the claimant’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 provisions 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 . . . 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. . . .
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
3
General Statutes § 52-184c provides in relevant part: ‘‘(a) In any civil
action to recover damages resulting from personal injury or wrongful death
. . . in which it is alleged that such injury or death resulted from the negli-
gence 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. . . .
‘‘(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. . . .’’ (Internal quotation marks omitted.)
4
Similar health care provider status of an institution is determined by the
specialty of its alleged agent. See Wilkins v. Connecticut Childbirth &
Women’s Center, 314 Conn. 709, 719–21, 104 A.3d 671 (2014).
5
Each of the physicians submitted an affidavit in support of their motion
to dismiss. Attached to the motion of the hospital was the affidavit of Stephen
Holland, the Vice President and Chief Medical Officer of the hospital.
6
Cases from our Superior Court have highlighted similar concerns. In
Kroha v. LaMonica, Superior Court, judicial district of Waterbury, Docket
No. X02-CV-98-0160366-S (July 29, 2002), the court explained that, under an
argument similar to the one advanced by the plaintiffs’ here, ‘‘the statute
would unfairly impose a form of strict liability upon any physician who
agreed to treat or diagnose a patient with an unknown ailment or condition.
If, for example, a patient seeking treatment for what appeared to be a
common cold was actually suffering from a rare tropical disease, the internist
who treated him would unwittingly expose himself to post hoc criticism
and evaluation under the standard of care for doctors specializing in tropical
diseases. . . . The obvious problem with the foregoing interpretation of
the statute is that it would discourage medical practitioners from doing what
they do best—that is, gathering information about their patients’ unsolved
medical problems and finding solutions for those problems by applying
professional skill and judgment to what they learn. It is highly unlikely that
the legislature intended to create such a strong disincentive for doctors to
accept challenging cases. In fact, an alternative reading of the statute would
avoid creating this disincentive while protecting patients from risky dabbling
by physicians in specialties not their own. . . . So understood, the statute
would subject a physician to evaluation under the standard of care for a
different medical specialist only if he undertook to treat or diagnose a
patient after he learned or should have learned that the patient was suffering
from a condition that was not within his own medical specialty.’’ (Emphasis
in original.) See also Nestico v. Weyman, 52 Conn. Supp. 463, 471–73, 473, 59
A.3d 338 (2011) (court agreed with and extensively quoted Kroha, concluding
that ‘‘[t]he exception provision of § 52-184c does not apply unless it is alleged
that the defendant physician actually undertook the diagnosis and treatment
of a condition not within his specialty such that his conduct should be
judged against the standards of care applicable to that specialty’’), aff’d,
140 Conn. App. 499, 59 A.3d 337 (2013).