Med-Mal Lawsuit Change Defeated
Plaintiffs bar dealt setback over who can write ‘similar’ provider letter
By THOMAS B. SCHEFFEY

Both defense and plaintiffs lawyers were shocked late last week when the legislature defeated a measure designed to lower the barrier to filing a medical malpractice suit.

During four hours of debate in the House of Representatives, state Rep. Prasad Srinivasan, R- Glastonbury, a Hartford allergy doctor, contended the measure would be bad for doctors, and possibly encourage meritless lawsuits. His arguments may have helped turn the tide for the bill that has been the top item on the agenda of Connecticut’s trial bar. The House defeated the measure 74-69.

That vote came after the Senate, following lengthy negotiations mediated by Sen. Leonard Fasano, R-East Haven, approved the measure April 27 by a vote of 32-3.

At issue was a 2005 law that requires plaintiffs to obtain a “certificate of merit” from a medical provider stating that the defendant doctor in the lawsuit may not have met accepted standards of care. The law requires the certifying doctor to be “similar” to the defendant doctor. But just who constitutes a “similar” provider has been contested time and again in lawsuits over the past seven years, and some consumer advocates and plaintiffs lawyers say such challenges have kept valid malpractice claims from going to court.

A key 2011 state Supreme Court decision, Bennett v. New Milford Hospital Inc., upheld a trial court’s decision to dismiss a medical malpractice case because the defendant was a emergency room doctor, and the expert was a trauma surgeon. The two were deemed to be not sufficiently “similar.”

The proposed bill would have slightly changed the law, allowing plaintiffs to provide letters from “qualified” providers rather than “similar” providers.

The Connecticut Trial Lawyers’ Association made this bill it’s top priority in the current legislative session, and on the eve of the House vote even the proposal’s s staunchest opponents expected it to pass. One opponent, Michael Rigg, a medical malpractice defense lawyer at Hartford’s O’Brien, Tanksy & Young, had spoken with lawmakers negotiating the compromise bill. He said, a day before the voting, “I’m sure there will be some opposition, but it’s expected to pass.”

CTLA President John Kennedy, of New Haven’s Kennedy, Johnson, D’Elia, & Gillooly, is a plaintiff’s medical malpractice attorney. He, too, was involved in the Senate compromise negotiations. “We thought we had a deal. The medical community was involved in all the meetings, and in all the negotiations, so we were kind of surprised.” he said the morning after the vote.

Rigg watched the House debates on his smartphone in a restaurant, intermittently, and tuned in again on his computer at home, after the vote. When he found out the doctors’ side won, he said, “I was absolutely stunned.” He said some of the momentum clearly came from the arguments of Rep. Srinivasan, who goes by “Dr. S.” according to his legislative web site.

Sufficient Knowledge

In the few remaining days of the session, which ends May 9, there may be another effort to raise a similar measure in the House, and save the Senate’s long-negotiated version. Senator Fasano, in an interview, said the compromise requires plaintiffs lawyers to make an initial effort to get a certificate of merit from a “similar” health care provider. If that effort is unavailing, a “qualified” health care provider is allowable, and that expert needs to explain his or her qualifications to offer an opinion of possible medical negligence.

“An example we gave,” said Fasano, “was that a podiatrist could not testify as to the standard of care for an orthopedic doctor. And an orthopedic guy could not testify as to the standard of care of a podiatrist, if that orthopedic doctor could not show that in the last five years he’d done podiatry work.” He said the language is designed to assure the expert has sufficient knowledge to testify about the standard of care of the issue in question in the complaint.

The major objection trial lawyers have in the wake of the Bennett decision, said Kennedy, is that an expert who could legally have been used at trial, can be disqualified for the certificate of merit—and the case is dismissed.

Rigg, an outspoken of the proposed legislative change, says that the dismissal “is always without prejudice. The case can be refiled the next day, with an opinion from a similar expert. In fact, he said, that is what has happened in the Bennett case, which is going forward on the strength of a certificate from a new expert.

And how similar is “similar”?

In Rigg’s view, the two doctors should be in the same specialty. “That is, if you sue an orthopedic surgeon, get an opinion from an orthopedic surgeon,” he said. “If you sue an ER physician, get an opinion from an ER physician. If you sue a nurse, get an opinion from a nurse. A child can understand that standard. That’s how easy it is.”

Unlike an expert testifying at trial, the “certificate” doctor isn’t subject to cross-examination, and his or her identity isn’t available to the defense. That’s a feature of the 2005 law, designed to shield “certificate” doctors from the scorn of their peers, for offering testimony against someone in their profession.

Kennedy, the CTLA president, said the backers of the med-mal bill, specifically designed to cure the Bennett decision, are considering the remaining legislative options.

He said it is not always easy to find a certificate expert who is available and willing to evaluate a case. “There are certain specialties that are smaller than others, and certain specialties that consider disciplining their member for testifying in medical malpractice cases,” Kennedy said. “Why should an expert who is clearly qualified to testify at trial not be allowed to sign a certificate to allow a case to get into court in the first instance? It’s just backwards.”

In no other type of lawsuit, Kennedy said, are parties required to prove in advance that they have a good case before getting through the courthouse doors. And as a medical malpractice lawyer himself, he said a truly frivolous suit would be extremely costly to the lawyer with the bad judgment to bring one. He said his firm turns away the great majority of cases it reviews from potential clients, largely because the cost of preparing a case is so high.

Unlike the atmosphere in 2005, Connecticut is not in the grips of a medical malpractice insurance crunch today. Rigg, the med-mal defense lawyer, said there were three companies offering medical malpractice coverage in Connecticut in 2005; today there are 15. Premiums have stabilized, or come down, depending on the specialty.

Kennedy explained that the certificate of merit measure was created as a kind of “speed bump” to assure an orderly process in filing a medical malpractice suit, not to wall off access to the courts. He said the adjustment to the qualifications of the certificate expert were not a radical change — more like taking sandpaper to the speedbump — and hardly grounds to fear doctors would start leaving the state or retiring due to malpractice insurance woes.

Incoming CTLA president Michael Walsh, of Hartford’s Moukowsher & Walsh, said Friday he wasn’t sure about the future of the measure this year. “There are a lot of phone calls being made,” he said.

For Rigg, the med mal defense lawyer, it was a moment of satisfaction. “Sometimes,” he said, “it seems that ordinary common sense occasionally prevails.”•

“I’m proud that my proposal passed the Senate with bipartisan support and will result in immediate relief for the people living along the shoreline. Families in my district were devastated by Tropical Storm Irene, a rare powerful storm that hasn’t been seen in more than 70 years.

“Some have been able to rebuild, but others don’t have the resources. A few families have had to remove the debris and put their property up for sale. But it is their right to sell the property or to rebuild – protecting that land for the future.

“A lot of these homes have been passed down from generation to generation. I’ve lived down on the shoreline literally all my life and when residents started to contact me after the storm I knew exactly what they were going through.

“I have testified before several committees at the Capitol to make sure the voices of our residents on the shoreline were being heard. And many of the families and business owners who live in East Haven on Cosey Beach traveled to Hartford to stand with me.

“With bipartisan effort and months of meetings on the language in this bill, I am confident shoreline residents now have some direction for the future. The Department of Energy and Environmental Protection, The Nature Conservancy and Save The Sound have all been crucial in crafting this very important legislation.

“We all have common goals in mind which include following a path of responsible protection of the environment, while maintaining the property rights of residents.

“I want to make sure we help residents move forward in a way that protects their ownership rights as private property owners. This bill does that.

SB 376 will do the following:

“The bill passed the Senate 35 to 0 on the consent calendar. It now awaits approval from the House.

“I know Representative James Albis (D-East Haven) is in favor of this bill. I will work with him and other representatives in the House to pass this legislation before the end of Session May 9th. In the hopes the Governor will sign it before Memorial Day, the official start of the summer season so many on the shoreline cherish.”

Christopher Capozziello for The New York Times

IRENE WAS HERE Tropical Storm Irene damaged many shoreline houses on Cosey Beach Avenue in East Haven last August. Some owners have rebuilt; others lack the wherewithal.

By LISA PREVOST
Published: May 3, 2012
“Some have been able to rebuild, but others don’t have the resources,” said State Senator Len Fasano, a Republican whose district includes East Haven. “A lot of these homes have been passed down from generation to generation. A few people have cleaned up their lot, removed the debris and put their property up for sale.”

Gale Silverberg, who owns one of the few houses on the lower end of the avenue to have suffered only minor damage, says the whole area would be better protected against storms if the beach were built back up. But property owners don’t have the money to truck in all that sand.

“And that’s the question,” Ms. Silverberg said. “When it’s all said and done, who’s going to pay for this?”
State lawmakers have begun to grapple with that question as they consider how to plan for the effects of climate change and rising sea levels on coastal development. But they have temporarily put aside the more delicate question of whether homeowners in Connecticut’s most vulnerable shoreline areas ought to rebuild at all, after a bill before the Environment Committee prompted a great deal of concern.

That legislation, proposed by the Connecticut chapter of the Nature Conservancy, called for “a fair and orderly legal process to foster strategic retreat of property ownership, over a period of several decades,” in coastal areas subject to erosion or repetitive structural damage.

The words “retreat” and “orderly legal process” sparked suspicions that the bill was laying the groundwork for the seizure of private homes by eminent domain. Says Mr. Fasano, who owns shoreline property himself, “I thought it was a forced taking by government.”

Seizing private property was never the Nature Conservancy’s intent, and “retreat” was not its language, said David Sutherland, the conservancy’s director of government relations.

“We very purposely did not put any specific process in there,” Mr. Sutherland said. “We were thinking of a variety of techniques for dealing with the potential threats from rising sea levels to both natural resources and coastal infrastructure.”

One technique being explored in other states is the establishment of a fund for voluntary buyouts of coastal property owners leery of rebuilding, he said.

State Senator Edward Meyer, who co-chairs the Environment Committee, amended the wording to encourage the “strategic realignment” of development instead. That drew objections from the Connecticut Marine Trades Association, which represents recreational boating interests. The language was still so ambiguous that municipal authorities might have interpreted it to mean they could “take somebody’s property because they think it’s going to get wet down the line,” said Grant Westerson, the association’s president.

Lawmakers have removed the reference altogether and left the question of retreat versus rebuild to a newly formed Shoreline Preservation Task Force. In the meantime, compromise legislation that was scheduled for a vote in the Senate on Thursday amends the Coastal Management Act to promote mitigation measures like moving structures farther back, elevating structures, and restoring or creating dunes to act as a barrier.

“This compromise recognizes the rights of private property owners to be in coastal areas,” Mr. Fasano said.
The legislation also aims to keep future homes and businesses out of harm’s way by authorizing state and local regulatory officials to consider rising sea levels when evaluating plans for new development.

Projections vary for the rate of sea-level rise in Long Island Sound, but a new report from Climate Central, a nonprofit research organization, predicts a rise of 12 inches by 2050. Maine and Rhode Island already include sea-level rise as a factor in their coastal management statutes, Mr. Sutherland said.

Another significant change included in this legislation is the definition of the high tide line, the boundary used to determine which authority has power to grant a permit in the coastal zone. The state Department of Energy and Environmental Protection has jurisdiction over structures on the water side of the line; towns have jurisdiction over structures on the land side.

High tide is currently defined as the debris line along the shore, which is subject to fluctuation. The new definition uses set elevations for each community, “which will make it much easier for someone applying for a permit, because the debris line can be highly variable,” said Brian Thompson, the director of the department’s Office of Long Island Sound Programs.

The bill represents the very beginning of a discussion that will last years, policymakers say.
In the meantime, Mr. Fasano is rebuilding the Silver Sands Beach and Tennis Club in East Haven, which he owns. Irene wiped out the building, which dated to the 1940s. Flood insurance did not begin to cover the cost of a new building that complies with flood codes and requirements for handicapped access. Despite the predictions of a rising flood risk, Mr. Fasano is confident in his decision to rebuild.

“I’ve lived down on the shoreline literally all my life,” he said. “Storms like Irene seem to be a very rare occurrence.”

Senator Fasano talks with “State and Church”

“The family unit is so important to the survival of a young child’s well being,” said state Senator Len Fasano (R-North Haven), who is another co-sponsor of the bill. “These kids are going through an extremely tough time. Anything we can do to give them control of their own well being is powerful to their success. Nothing can replace the love and protection siblings give to one another.”

The bill seeks to resolve a critical issue with children in DCF care: when they are taken into custody because of parental abuse or neglect, their connections with their siblings are often traumatically interrupted.

“This bill will be instrumental in improving the lives of thousands of foster youth who yearn to be able to grow up with their brothers and sisters,” said Alixes Rosado, 23, of Manchester, who experienced such separation from his three siblings while he was in foster care.

Senate Bill 156 (LCO 3989) establishes a minimum baseline of an average one visit per week between siblings who are in DCF care in Connecticut and who live within 50 miles of each other, unless such visits are deemed to be not in the best interest of each sibling.

The bill also directs DCF to meet with youth representatives to draft a ‘Sibling Bill of Rights’ which would be incorporated into DCF policy, shared with children in DCF care, and presented to the legislature’s Select Committee on Children.

Senator Terry Gerratana (D-New Britain), who is Senate Chair of the Select Committee on Children said, “This bill unites perhaps the only family that these children have left – their siblings. It guarantees that they will have a family life which heretofore has been denied.”

“Being placed into foster care is traumatic for any child, and that trauma is only compounded when siblings are separated,” said DCF Commissioner Joette Katz.

The bill now heads to the House of Representatives for consideration.

Senator Fasano talks with Ray Dunaway

Please click here to listen to the interview ]]>

Senator Fasano talks with Ray Dunaway

Please click here to listen to the interview ]]> http://ctsenaterepublicans.com/2012/04/sen-fasano-on-wtic-re-death-penalty-repeal-vote-audio/feed/ 0 http://ctsenaterepublicans.com/2012/04/senate-minority-leader-pro-tempore-len-fasano-r-north-haven-released-the-following-statement-today-re-forming-of-the-long-island-sound-caucus-steering-committee/ http://ctsenaterepublicans.com/2012/04/senate-minority-leader-pro-tempore-len-fasano-r-north-haven-released-the-following-statement-today-re-forming-of-the-long-island-sound-caucus-steering-committee/#comments Wed, 04 Apr 2012 21:41:25 +0000 admin http://ctsenaterepublicans.com/?p=12171 “Tropical Storm Irene has emphasized the need for Connecticut to pay close attention to the needs of those who live and work on Long Island Sound. I am working right now to enhance our statutes concerning the shoreline and will push to clarify language that allows people to protect their business and home with a seawall if necessary. I want to make sure we help residents move forward in a way that protects their ownership rights as private property owners.”

Background: A 12-member, bipartisan group of Connecticut state legislators have teamed up to form the steering committee for the new Long Island Sound caucus that will address environmental, energy and economic issues impacting the Sound. The steering committee is comprised of six representatives and six senators. Caucus membership will be open to all legislators.

The legislators forming the LIS caucus steering committee are:

The original 12 members of the caucus represent shoreline communities; others have worked in the past with New York to defeat the Broadwater floating Liquid Natural Gas plant proposed for Long Island Sound. The Broadwater issue will serve as a model for future caucus efforts to address regional differences, solve regional problems and meet regional needs.

“Connecticut is the only state in the nation to have two gas taxes. One tax is the state excise tax of 25 cents and the second a petroleum gross receipts tax. The petroleum gross receipts tax is a percentage tax that rises every time the price of a gallon of gas goes up. Many call it a hidden gas tax.

“Republicans have been pushing for this cap for six years. I am glad the majority party came around and agreed to pass our suggested proposal to cap this hidden gas tax.

“With the passage of this bill, the 7 percent gross receipt tax will be applied to a $3.00 capped price of wholesale gas, but only until June 30, 2013.

“The 7 percent tax is still scheduled to increase to 8 percent the very next day (July 1, 2013) and could under cut the tax benefit just achieved in this legislation.

“Republicans had offered an amendment to the bill which would have stopped this scheduled increase and saved consumers more money, but the idea was voted down along party lines.

“I will continue to fight this scheduled increase and I thank all of our constituents who emailed, called and signed our petition to cap the gas tax. Your voices were heard and will continue to be heard.”

Senator Len Fasano represents District 34 towns of North Haven, East Haven and Wallingford.