Med-Mal Lawsuit Change Defeated [CTLawTribune.com]

May 9, 2012

Article as it appeared on CTLawTribune.com

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.”•