April 10, 2013

Legislators Consider Bills To Change Malpractice Law

Legislators Consider Bills To Change Malpractice Law

Based upon proposed Legislation the Hartford Courant’s staff Writer William Weir recently identified details of changes to Malpractice Insurance that may impact the Physician practice. Please consider the following:

Two bills that would change medical malpractice laws are making their way through the legislature: one to make it easier to sue a physician, and one to make it more difficult.

A public hearing of the judiciary committee will be held Monday on a bill that would lessen the requirement for filing such a suit. Current law requires that a plaintiff receive the signature of a “similar health care provider” stating that the case is a valid one. The proposal would change “similar” to “qualified.”

Currently, if a plaintiff wants to sue an orthopedist, another orthopedist would be needed to sign the certificate of merit for the case to proceed. If this bill becomes law, plaintiffs would only need a health care provider in a similar field.

Opposing the bill, Dr. Michael Carius, director of the emergency department at Norwalk Hospital, said easing the requirements for filing a lawsuit would have “a number of consequences.” Malpractice suits are such an “incredibly emotionally draining process and a time-consuming process” that they sometimes cause doctors to leave the state, he said.

“They do a number of things that, in the end result, are not good for health care,” Carius said, and making it easier to sue would only make matters worse.

The provision to require a “similar” health care provider was created in 2005. Sen. John Kissel, R-Enfield, who supports the bill, said that requirement was intended to “create balance” in medical malpractice suits. Since then, though, Kissel said he has become concerned that some valid cases are being thrown out because they don’t meet the letter of the law.

“While we want to make sure that there are no frivolous lawsuits, we don’t want to make the bar so high that maybe some serious claims would not be heard,” he said.

Another bill, currently being decided by the public health committee, would raise the burden of proof required in a medical malpractice lawsuit against emergency medical care providers. Currently, plaintiffs are required to provide a “preponderance” of evidence that a health care was negligent. The proposal would raise that to “clear and convincing evidence” of negligence.

Mike Walsh, president of the Connecticut Trial Lawyers Association, said raising the burden of proof would make it “nearly impossible” for patients to successfully sue.

“A preponderance of evidence is the standard that’s used in 99.9 percent of all negligence cases,” he said. “It’s a time-honored standard that’s been around a long time.”

“Clear and convincing” is a standard used in only very few types of cases — cases dealing with fraud and termination of parental rights, for instance, he said.

Walsh questioned the timing of the bill. Not only has there not been a glut of malpractice suits in the state, he said, the number has gone down considerably in the past 15 years or so.

According to state judicial records, 385 medical malpractice suits were filed in 1994-95, while 261 were filed for 2011-12.

Filing a medical malpractice lawsuit is already so time- and money-consuming, he said, “you’d be crazy to bring a frivolous lawsuit.”

“It’s to our interest to make sure that we have a rock-solid case before we even file suit,” Walsh said.

A supporter of the bill, Dr. Frank Illuzzi, chairman and vice president of Emergency Medicine at St. Vincent’s Medical Center in Bridgeport, said the current risk of being sued for treatment done in emergency departments has caused some specialists to refuse to be on call for emergency treatment. A bill that would raise the burden of proof might alleviate this problem, which he said has had a greater impact on smaller hospitals.

“One of the problems we’re having is that in the state of Connecticut some facilities are having trouble filling their emergency call schedules,” he said. “A small hospital in the eastern part of the state might not have a neurologist or a hand surgeon or a orthopedist on call and what that does is it creates a shortage.”

If someone comes into the emergency department of a community hospital with severe hand injuries, he said, there’s a good chance the hospital will have to transport the patient to a larger facility such as Yale-New Haven or Hartford Hospital and lose crucial time in beginning treatment.

Emergency doctors are more likely to get sued for malpractice, he said, because they work under less-than-optimal circumstances. They don’t have a relationship with the patient, they have very limited information about the patient’s medical history, and often they have to rely partly on the patient’s faulty recollection.

“You’re making critical decisions with the best data you have at that point, and it’s not always the best data,” he said.

The judiciary committee’s public hearing on the bill regarding certificates of merit will be held at the Legislative Office Building at 10 a.m. A hearing date on the public health bill had not been posted as of late last week.

Related Industry