Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

SB-243

Title:

AN ACT CONCERNING CERTIFICATES OF MERIT.

Vote Date:

3/21/2012

Vote Action:

Joint Favorable

PH Date:

3/7/2012

File No.:

SPONSORS OF BILL:

Judiciary Committee

REASONS FOR BILL:

This bill aims to loosen the requirements concerning the “Certificates of Merit” that must be filed prior to bringing a medical malpractice suit. The existing statutes, Sec. 52-184c and Sec. 52-190a, enacted in 2005 as part of tort reform, were aimed at preventing meritless claims against health care providers. However, courts have read the statutes extremely narrowly. The result is that many claims are dismissed on the basis of minor technicalities prior to conducting any discovery.

RESPONSE FROM ADMINISTRATION/AGENCY:

None Expressed.

NATURE AND SOURCES OF SUPPORT:

Representative Geoff Luxenberg: Supports this bill because the current process to navigate the system and obtain a certificate of merit is often costly and long, which creates an unfair obstacle for working families who may not have the time and resources to prolong the legal process. Representative Luxenberg recommends language be added to this bill to exclude the certificate of merit requirement for medical negligence suits begun in small claims court.

Sylvester Traylor: Supports this bill. The current system deprives citizens of their due process rights, as they force average citizens to seek out and pay for an expert opinion letter if they are the victims of medical malpractice. This effectively bars low-income individuals from seeking redress in the courts for medical malpractice issues. In Mr. Traylor's oral testimony before the committee, he shared his personal story regarding his efforts to establish his deceased wife's doctor had acted negligently. One attorney quoted him a cost of $10,000 to obtain a certificate of merit.

Connecticut Center for Patient Safety, Jean Rexford, Executive Director: Supports this bill which will decrease the risk that legitimate medical malpractice claims are dismissed based on a technicality.

Connecticut Trial Lawyers Association, Kathleen Nastri, Esq., Angelo Ziotas, Esq.: Supports this bill because the current law, 52-190a, frequently leads to unfair and irrational results. This bill addresses the Connecticut Supreme Court's decision in Bennett v. New Milford Hospital, 300 Conn. 1 (2011), which held that Connecticut law imposes a higher standard on an expert used to provide a good faith basis for filing a lawsuit than the standard required for an expert to testify at trial. Additionally, this bill will help to ensure that, while frivolous suits are stopped early in the process, meritorious cases will not be blocked or delayed by unnecessary and burdensome procedural requirements. By eliminating the current burdensome and time consuming process in which defendants file Motions to Dismiss, this bill will save judicial resources. In Wilcox v. Schwartz, 303 Conn. 630 (2012), the Connecticut Supreme Court set forth a reasonable standard for the detail required for the good faith opinion letter, which would be codified by this bill.

Jerome Krasnow: Recommends two amendments to this bill. Amendment 1 proposes that cases begun in small claims court should be excluded from the requirements of 52-190a, and if transferred to superior court may not be dismissed on its grounds. Because only the most egregious cases can afford to pay for the medical opinion required for a medical malpractice suit, this amendment would enable the poor to proceed with a legitimate claim. Amendment 2 replaces the motion to dismiss with a motion to strike. This amendment would maintain the purpose of 52-190a of not clogging the court with frivolous motions, but also gives time to provide the appropriate certificate of merit.

NATURE AND SOURCES OF OPPOSITION:

O'Brien, Tanski & Young, LLP, Michael G. Rigg, Esq.: Opposes this bill and encourages the legislature to prevent this effort to return to the climate of crisis that gave rise to the need for the original reform legislation in 2005. First, the proposed amendments would vitiate the law. The Supreme Court's decision in Bennett has made it clear that it is impossible for a plaintiff, who has a meritorious case, to be deprived of his day in court because a plaintiff can re-file the same lawsuit pursuant to Connecticut's “Accidental Failure of Suit” statute. Furthermore, the requirements of 52-190a are modest, particularly when compared with protections afforded health care providers in other states. Second, the current statute is fulfilling its purposes. Passage of this bill will eliminate the beneficial effects of the current certificate of merit statute. Third, 52-190a is needed to reduce costs incurred in defending frivolous lawsuits.

University of Connecticut Health Center, Barry D. Kels, JD, MD: Opposes this bill because it will have an adverse impact on the financial well-being of the Health Center by making it significantly easier for meritless lawsuits to be filed against health care providers. A plaintiff with a meritorious case will never be prevented from having his day in court even if his claim is originally dismissed due to failure to obtain an opinion form a “similar health care provider”, because he can re-file the action by simply complying with the Good Faith statute.

American Tort Reform Association, Sherman Joyce, President: Opposes this bill because it would increase the chances of doctors having to defend themselves against meritless and frivolous claims by allowing any medical expert to provide a pre-suit expert opinion, regardless of whether the expert was a “similar healthcare provider”. The current system is well-reasoned and balanced and should not be replaced.

The Stamford Hospital (TSH), Hospital of Saint Raphael (HSR), and Connecticut Society for Healthcare Risk Management (CSHRM): Opposes this bill. Current Public Act 05-275, “An Act Concerning Medical Malpractice” requires a plaintiff to seek out experts who are objectively familiar with the standards of care that govern the care rendered by a given defendant. This bill would undo entirely the protections afforded by PA 05-275. TSH, HSR, and CSHRM oppose the language that would allow the opinion of a “qualified” healthcare provider as opposed to a “similar healthcare provider” for three reasons: the inquiry ceases to be objective, the ability of defendants to challenge the sufficiency of the written opinion would be compromised, and the requirement of anonymity under current law would need to be abridged if the qualifications of the “qualified” provider are to be challenged.

Danaher Lagnese, PC, Frank H. Santoro: Opposes this bill. The current statute has been the subject of many interpretive judicial decisions, the cumulative effect of which is that meritorious cases will not be denied entry into the system for “legal technicalities”. If the statute is amended again, there may be yet more litigation to define what the new changes mean. Also, in the absence of some sort of statutory provision allowing a contemporaneous hearing in the event of a challenge to the qualifications of the opinion writer, this bill would reduce the certificate of merit process to an empty formality. A doctor in a malpractice case should be judged by the standards of his own specialty.

Eastern Connecticut Health Network (ECHN), Peter J. Karl, President & CEO: Strongly opposes this bill. This bill would undo all that has been accomplished in recent years to eliminate meritless health care complaints and unjustified jackpot payouts. ECHN has particular concerns regarding the language in the bill that dramatically expands the types of professionals permitted to give pre-suit expert opinions. ECHN urges opposition to the bill because the reform law currently on the books serves its purposes.

Greater New Haven Chamber of Commerce, Louise DiCocco-Beauton, Esq., Director of Governmental Affairs: Opposes this bill. Certificates of merit have not created any obstruction or barriers to the courts, but rather have led to a reduction in the number of frivolous medical malpractice lawsuits that have helped lower malpractice insurance rates. This bill will make it much easier to file a medical malpractice claim without due diligence by a plaintiff's attorney and will increase insurance costs.

Yale New Haven Health System (YNHHS): Opposes this bill. The “similar healthcare provider” requirement under current law serves as a gatekeeping function that eliminates frivolous lawsuits, thereby allowing for a more focused identification of the issues on those cases with merit. This bill will increase health care costs and ultimately harm the public when limited healthcare resources necessary to improve patient care, safety and clinical quality are spent defending claims that, had they been properly investigated before filing, would have proven to be without merit.

Hartford HealthCare, Elliot Joseph, President & CEO: Opposes this bill which would significantly weaken the good faith certificate process. A plaintiff's lawyer should be required to seek advice from a “similar” healthcare provider with the same specialty as the physician he intends to sue just as he would seek the advice of an appropriate specialist for a medical problem he was confronted with. This bill would result in diverting healthcare dollars needed to provide quality patient care to litigation defense costs.

St. Vincent's Health Services: Opposes this bill. Currently, a meritless claim against a health care provider will be dismissed if the party fails to file the good faith certificate with the suit. This bill proposes that the party be able to file the certificate of expert within 30 days after dismissal, causing further delay and defense costs. Health care funds would be better put to use enhancing patient services rather than defending against meritless claims.

Middlesex Hospital: Opposes this bill which would remove the objective standards applicable to qualified experts that were enacted in 2005. Furthermore, this bill would remove the sanction of possible dismissal for failure to obtain a good faith certificate, allowing those who do not comply with their pre-suit obligations to submit the certificate within 30 days after filing suit, which renders the pre-suit obligation meaningless and makes the process discretionary.

Saint Francis Hospital and Medical Center: Opposes this bill. Connecticut is already viewed as a physician unfriendly state; this bill could place further hurdles in front of Connecticut hospitals trying to recruit physicians. The measures implemented in 2005- which require a meaningful, pre-suit inquiry- should not be dismantled.

The Charlotte Hungerford Hospital, Dan McIntyre, President and Executive Director: Opposes this bill. Current Connecticut law is well-reasoned and balanced and this bill would disrupt this system by making it dependent on the plaintiff's attorney's subjective assessment of who is a “qualified expert”.

Saint Mary's Hospital, Chad Wable, President & CEO: Opposes this bill which would significantly weaken the good faith certificate process. In 2005, the General Assembly purposefully made changes to the good faith certificate statute to require that a pre-suit evaluation be performed by a similar healthcare provider and this system should not be dismantled.

Danbury Hospital, Western Connecticut Health Network, William Begg, MD, President of the Medical Staff: Opposes this bill. Dramatically expanding the types of professionals permitted to give pre-suit expert opinions significantly weakens the good faith certificate process. Changing the very reasonable current law just doesn't make sense.

The Fairfield County Medical Association, Edward J. Volpintesta, MD: Opposes this bill, specifically where “qualified” is to be substituted for “similar”. “Qualified” is overly broad and would allow any licensed physician to provide an opinion on whether medical malpractice has occurred even if he lacks the knowledge or experience to do so, thereby increasing the number of ill-founded malpractice suits.

Property Casualty Insurers Association of America (PCI): Opposes this bill. Current requirements are necessary to ensure that the required opinion is rendered by a health care provider with sufficient training and experience so as to be legitimate and meaningful. This bill would greatly reduce the value of these opinions in ensuring that only meritorious medical malpractice claims go forward.

Connecticut Medical Insurance Company, Denise Funk, CEO: Strongly opposes this bill. This bill does not simply ameliorate harsh effects of Bennett v. New Milford, 300 Conn. 1 (2011), but rather completely eviscerates the expert report requirement by removing all barriers to the qualifications of experts who author those reports and creating insurmountable obstacles to challenging those experts in court. This bill would remove an important obstacle to the filing of frivolous cases and raise the cost of defending such cases, ultimately increasing the premiums that health care providers are required to pay for malpractice protection.

Women's Health Connecticut, Mark DeFrancesco, MD, Chief Medical Officer: Opposes this bill. This bill would undo part of the current Certificate of Merit statute, making it easier to file frivolous lawsuits that ultimately drive up the cost of health care. Also, this bill allows a plaintiff to not disclose the identity of the expert who provided the certificate of merit, so it would be impossible for a defendant to challenge the expert to see if he is “qualified”, adding a new layer of complexity. Ultimately, this bill allows the plaintiff multiple “bites at the apple” by allowing the plaintiff extensions in order to obtain a certifying letter.

Connecticut State Medical Society, Heather A. Smith, MD, MPH: Opposes this bill. Passage of this bill would send a signal to new physicians that it is okay to practice somewhere else- somewhere that is offering a better practice environment, with loan forgiveness programs, significantly lower medical liability insurance, or a better liability climate. This bill will virtually guarantee more medical residents leave Connecticut than stay.

Norwalk Hospital, Michael R. Marks, MD, MBA: Opposes this bill. It is not fair for physicians to go through the stress of defending oneself when there truly is no expert to state there was a deviation from the standard of care. Many states are looking to the Connecticut regulations on Certificate of Merit as an example of how to make the system better, therefore it does not make sense to relax those standards now.

The Connecticut Society of Eye Physicians, The American Academy of Ophthalmology, Andrew J. Packer, MD: Opposes this bill. Passage of this bill would force ophthalmologists to reconsider how they practice medicine and which, if any, difficult cases they would take on, knowing that their exposure to frivolous lawsuits would increase. This bill would lessen the standards for a qualified expert, and doctors might not be as motivated or likely to tackle difficult cases.

The Connecticut Society of Eye Physicians, The American Academy of Ophthalmology, Ronald Margolis, MD: Opposes this bill, specifically lines 28-34 which allow the name of the expert to be expunged. This language would make it impossible for a defendant to demand a hearing to determine if the expert is really qualified and would allow the qualifications of the expert to go unchallenged, which would create an unfair and unbalanced process.

Connecticut Orthopaedic Society, F. Scott Gray, MD: Opposes this bill which will diminish the credibility of the expert witness. Compared to other states, Connecticut's Certificate of Merit is modest and would only be weakened by this bill which would eliminate important thresholds, threatening the vibrancy of medical practice and healthcare delivery in this state. The Certificate of Merit should be made stronger by requiring at the time of filing, complete disclosure of who the expert is as well as their training.

The Connecticut Society of Eye Physicians, Connecticut ENT Society, Connecticut Dermatology and Dermatologic Surgery Society, Connecticut Urology Society, Steven Thornquist, MD: Opposes this bill. Passage of this bill will undermine every aspect of tort reform embodied in CGS 52-190a and PA 05-275 while retaining everything the medical community conceded in order to obtain the modest protections these laws have provided from lawsuits without merit. Current law, which requires an expert whose identity is hidden from the defendant, ensures that a basic standard for an expert in that medical specialty is established.

Connecticut Business & Industry Association (CBIA), Eric George: Opposes this bill which would undo the sound public policy achieved by reforms in 2005. This bill would make it easier to frivolously sue doctors, which will likely increase doctors' practice of “defensive medicine” in turn increasing healthcare costs.

The Connecticut Society of Plastic & Reconstructive Surgeons, Ed Beam, MD, President: Opposes this bill. Passage of this bill may exacerbate an already difficult malpractice environment and remove any assurance that a case is reviewed by an expert qualified to render an appropriate opinion.

The Connecticut College of Emergency Physicians, Gregory L. Shangold, MD, FACEP: Opposes this bill. Because Connecticut is an unfavorable state to practice medicine in due to the malpractice environment, there is a severe lack of access to medical services and Connecticut's emergency care system is at a critical juncture. This bill would only worsen the already poorly ranked malpractice environment in Connecticut and would decrease access to medical services while increasing costs.

The Connecticut Psychiatric Society, Jackie Coleman, Executive Director: Opposes this bill. The entire medical malpractice system should be considered by the legislature, not just mere pieces of it. Amendments to the current statute are unnecessary. It is unreasonable to assume that all medical professions in the psychiatric field are able to comment on the standard of care that was supposedly breached.

Connecticut State Medical Society, Connecticut Chapter of the American College of Physicians, Connecticut Chapter of the American College of Surgeons, Claudia Gruss, MD: Strongly opposes this bill which has the potential to unleash a torrent of lawsuits that will make it harder for Connecticut to retain the primary care physicians it has, much less attract physicians to the state. This bill will make it easier to sue physicians and as a result, there will be fewer physicians left to sue. Connecticut patients will suffer, experiencing longer wait times for appointments and having a harder time finding physicians who are accepting new patients.

Connecticut State Medical Society, Connecticut Chapter of the American College of Physicians, Connecticut Chapter of the American College of Surgeons, Michael M. Krinsky, MD: Opposes this bill. In medical malpractice litigation, a judge should rely on the opinion of a physician with the same background as the physician who is involved in the litigation. If the patient needed a specialist, the judge should have one too. One of the consequences of passage of this bill will be that an already tired physician workforce is going to start retiring much faster than it is replaced.

Connecticut State Medical Society, Connecticut Chapter of the American College of Physicians, Connecticut Chapter of the American College of Surgeons, Courtland Lewis, MD: Strongly opposes this bill. The practice of medicine is becoming increasingly specialized and at many times it is only physicians practicing in the same specialty or subspecialty who will have the necessary medical education, training and practice experience to be able to offer a sound opinion whether a physician breached the standard of care in a particular case. Physicians are concerned that this bill tinkers with only one portion of the comprehensive reform of 2005 without a complete review of the medical malpractice system.

American Medical Association, James L. Madara, MD, Executive Vice President, CEO: Opposes this bill. It would be a major mistake for the state to reverse course with its medical liability provisions, especially at a time of transition for the health care system. Based on the highly technical nature of many medical liability lawsuits, physicians offering their medical opinion regarding the standard of care should be asked to opine only within their specialty expertise. This is good public policy and creates a fair process for physicians.

American Academy of Otolaryngology- Head and Neck Surgery (AAO-HNS): Strongly opposes this bill. While AAO-HNS supports effective certificates of merit, this bill would devalue the current requirements in Connecticut and increase the likelihood of frivolous cases which completely goes against the underlying purpose of an effective certificate of merit. This bill would have a lasting negative impact on the practicing physicians of Connecticut and on the state itself as there would no longer be a fair and balanced system.

Norwalk Hospital, Daniel Debarba, President and CEO: Opposes this bill which would significantly weaken the good faith certificate process. The measures implemented in the 2005 reform should not be dismantled.

Connecticut Hospital Association, Carl Schiessl, Director of Regulatory Advocacy: Opposes this bill which would significantly weaken the good faith certificate process. The measures implemented in the 2005 reform should not be dismantled. While not perfect, the system appears to be working to achieve its public purpose specifically to discourage the filing of baseless lawsuits against healthcare providers.

National Federation of Independent Business (NFIB), Andy Markowski, Connecticut State Director: Opposes this bill. This unnecessary legislation would make significant changes to the existing practice of ensuring that potential plaintiffs in medical malpractice actions have a reasonable basis for moving forward before filing suit. As such, this would weaken the process in Connecticut for protecting against frivolous lawsuits. The unnecessary litigation increases costs for physicians which make it more difficult for physicians to run their practices as small businesses, rather than work for larger entities.

Waterbury Medical Association, Mary Yokose, Executive Director: Strongly opposes this bill. The current certificate of merit is one of the few protections currently in place that works to weed out frivolous lawsuits and this bill would completely obliterate it. If the General Assembly is going to look at one section of the state's tort law, it should look at the whole system and consider proposals that would ensure access and cost control to the system.

Connecticut Academy of Family Physicians, Mark Schuman, Executive Director: Strongly opposes this bill. This bill attempts to erode the certificate of merit system currently in place in medical malpractice cases. The medical malpractice system is already broken and the court system is overburdened, yet this bill will weaken one of the safeguards put in place to guard against frivolous lawsuits.

Reported by: Meredith Blake

Date: March 26, 2012