Wilcox v. Schwartz

elderly-woman-nursing-home-connecticut-300x200Articles: Connecticut

Wilcox v. Schwartz

Wilcox v. Schwartz
Plaintiff (Appellee) – Wilcox
Defendant (Appellant) – Schwartz
Appellate Court of Connecticut (2010)

Plaintiffs filed a complaint for medical malpractice and loss of spousal consortium on June 9, 2008. Defendant moved to have the claim dismissed on the grounds the written medical opinion attached to the complaint lacked sufficient detail for the purposes of § 52-190(a). The trial court granted the defendant’s motion. Plaintiff appealed.


On March 12, 2006, plaintiff underwent a laparoscopic cholecystectomy in order to treat gallbladder disease. Schwartz was the surgeon that performed the procedure. Plaintiff alleges that Schwartz performed the procedure negligently, causing plaintiff to suffer “severe, painful and permanent injuries.” Plaintiffs allege that Schwartz breached the applicable standard of care in that he (1) “failed to assure the adequate and accurate identification of Plaintiff’s internal anatomy prior to proceeding with laparoscopic cholecystectomy,” (2) “failed to prevent injury to Plaintiff’s biliary structures during the laparoscopic cholecystectomy, and (3) “failed to accurately document the surgical procedure…”

Attached to the plaintiff’s complaint was a certificate of reasonable inquiry and a written and signed medical opinion.  The medical opinion certifies that “to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the treatment of Kristy Wilcox provided by Daniel S. Schwartz, M.D.…”


The trial court dismissed the plaintiff’s complaint, ruling that the medical opinion did not satisfy the minimum amount of detail required to bring such a complaint.


Must a medical opinion in a complaint for medical malpractice specify the evidence of the alleged malpractice?


The court relied on Dias v. Grady, 292, Conn. 350, 972 A.2d  715 (2009)

“It is clear that in order to fulfill the requirement of  § 52- 190a (a) and to provide assurance that “there appears to be evidence of medical negligence,” a claimant’s written opinion from a similar health care provider need not address the issue of causation. Further, the opinion must indicate that there appears to be evidence of a breach of the standard of care.

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