Change to Connecticut Medical Malpractice Law in Dispute

March 26, 2012

State lawmakers are moving ahead with legislation they say will fix a problem with Connecticut’s medical malpractice law that has kept some legitimate lawsuits out of the courts, despite heavy opposition from the medical industry.

The current law, enacted in 2005, forces people who want to sue health care providers to get an opinion from a similar provider supporting their malpractice allegations before they can file their lawsuits. If plaintiffs don’t submit such an opinion with their lawsuits, or the opinion doesn’t meet the requirements, judges can dismiss the cases before the merits are even heard.

Legislators passed the law under pressure from doctors in an effort to prevent frivolous lawsuits and drive down skyrocketing malpractice insurance rates. But lawmakers say they never intended for the 2005 law to spark hosts of court fights over the credentials of the pre-lawsuit opinion writers and have proposed a bill that would increase the types of health care providers who can write the opinions.

The Judiciary Committee approved the legislation last Wednesday that would change who could write the opinions from “similar” health care providers to “qualified” health care providers. It would also give plaintiffs 60 days to fix problems with the opinions after being ordered to by a judge. Lawmakers took up a similar bill last year that was approved by the House but died in the Senate.

An Associated Press review of the 2005 law published in January found that the number of medical malpractice cases filed in the state has dropped about 20 percent to about 290 a year since the law took effect and that it has led to the dismissal of lawsuits involving patient deaths and serious injuries. Some legal experts also say the opinion requirement, which has been declared unconstitutional in several other states, imposes an unfair and costly hurdle to accessing the justice system for citizens who can’t afford lawyers.

“To stop anyone from at least having their day in court is not justice,” state Sen. John Kissel said during a Judiciary Committee hearing this month on the opinion bill. He supports it.

A host of doctors, hospital officials and industry groups, including the American Medical Association, submitted testimony against the legislation, saying it would undo the 2005 reform that curbed the skyrocketing malpractice insurance rates. They also said getting rid of the requirement for similar providers would open the legal system to faulty opinions and more legal challenges to those opinions, as well as deter doctors from practicing in Connecticut.

Heather Smith, an obstetrician-gynecologist completing her training at Yale University, told the committee that medical students are burdened with an average of $150,000 in education debt and avoid places to practice that have high malpractice insurance rates.

“In theory, I am the kind of physician you want to attract here. I am young, I care about the health of Connecticut’s women and infants and I want to be here,” Smith said. “But passing (the bill) sends a signal loud and clear that it’s OK if we find somewhere else that’s offering us a better practice environment. … It will virtually guarantee more medical residents leave Connecticut than stay.”

The Connecticut Trial Lawyers Association and people affected by medical mistakes spoke in favor of the bill, but were far outnumbered by opponents.

Attorney Kathleen Nastri, a member of the trial lawyers’ group, said the proposed bill would address the problem of defendants’ lawyers filing challenges to the opinions in nearly every single malpractice case.

Nastri said the bill “will help to ensure that while frivolous lawsuits are stopped early in the process, meritorious cases will not be blocked or delayed by unnecessary and burdensome procedural requirements.”

Malpractice victims shouldn’t face obstacles to having their day in court, said Jean Rexford, executive director of the Connecticut Center for Patient Safety. She cited a recent federal government report that said 130,000 adverse events happen each month to the country’s Medicare patients.

The bill awaits action by the Senate.

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