Connecticut Seal

General Assembly

Amendment

 

February Session, 2012

LCO No. 3591

   
 

*SB0024303591SRO*

Offered by:

 

SEN. SUZIO, 13th Dist.

 

To: Senate Bill No. 243

File No. 331

Cal. No. 263

Strike everything after the enacting clause and substitute the following in lieu thereof:

"Section 1. Section 52-190a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012, and applicable to actions filed on or after said date):

(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion that there appears to be evidence of medical negligence as to each named defendant. In any action alleging that personal injury or death was the result of the negligence of a defendant's agent, servant or employee, such written opinion shall be from a similar health care provider as to each agent, servant or employee. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney's fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.

(b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.

(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.

(d) Not later than ninety days after a civil action or apportionment complaint is filed in court, a claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall file in court a written and signed opinion of a physician licensed pursuant to chapter 370, or licensed in another state that has similar or greater requirements for licensure as a physician, stating that the physician has reviewed each written opinion filed pursuant to subsection (a) of this section and stating that there appears to be evidence that the medical negligence of each named defendant caused the injury or death complained of and includes a detailed description of the manner in which the medical negligence caused the injury or death. The claimant shall give notice of such written opinion to each party's attorney or, if the party is not represented by an attorney, to the party himself or herself. If the written opinion required by this subsection is not timely filed, the court shall, upon written motion, dismiss the action.

Sec. 2. Section 52-195 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012, and applicable to actions filed on or after said date):

(a) If the plaintiff does not, within the time allowed for acceptance of the offer of compromise and before the commencement of the trial, file the plaintiff's notice of acceptance, the offer shall be deemed to be withdrawn and shall not be given in evidence.

(b) Unless the plaintiff recovers more than the sum specified in the offer of compromise, with interest from its date, the plaintiff shall recover no costs accruing [after the plaintiff received notice] of the filing of such offer, but shall pay the defendant's costs accruing [after the plaintiff received notice] from the date the civil action was filed with the court if the offer of compromise was filed not later than eighteen months from the filing of such civil action. If such offer was filed later than eighteen months from the date of filing of the civil action, the plaintiff shall pay costs accruing from the date the offer of compromise was filed. Such costs [may] shall include all reasonable attorney's fees [in an amount not to exceed three hundred fifty dollars] incurred by the defendant or the defendant's liability insurer with respect to the action.

(c) This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney's fees in accordance with the provisions of any written contract between the parties to the action. The provisions of this section shall not apply to cases in which nominal damages have been assessed upon a hearing after a default or after a demurrer has been overruled.

Sec. 3. (NEW) (Effective October 1, 2012, and applicable to actions filed on or after said date) (a) Except as provided in this section, in any action in which costs may be taxed to the plaintiff, no mesne process shall be issued until the recognizance of a third party for costs has been taken, unless the authority signing the writ certifies on the writ that such person has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient.

(b) No recognizance shall be required of a pro se complainant in a summary process action.

(c) In an action in which a plaintiff has not accepted a defendant's offer of compromise filed in accordance with section 52-193 of the general statutes, the court shall, upon written motion, order the plaintiff to file the recognizance of a third party affirming that such party shall be financially responsible for all costs that may be awarded pursuant to section 52-195 of the general statutes, as amended by this act, unless the judicial authority determines that the financial responsibility of the plaintiff is sufficient. An attorney may enter into a recognizance upon a writ which such attorney signs.

Sec. 4. Section 51-243 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012, and applicable to actions filed on or after said date):

(a) In any civil action to be tried to the jury in the Superior Court, if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as "alternate jurors". Alternate jurors shall have the same qualifications and be selected and subject to examination and challenge in the same manner and to the same extent as the jurors constituting the regular panel. In any case when the court directs the selection of alternate jurors, each party may peremptorily challenge four jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this subsection, a "unity of interest" means that the interests of the several plaintiffs or of the several defendants are substantially similar. A unity of interest shall be found to exist among parties who are represented by the same attorney or law firm. In addition, there shall be a presumption that a unity of interest exists among parties where no cross claims or apportionment complaints have been filed against one another. In all civil actions, the total number of peremptory challenges allowed to the plaintiff or plaintiffs shall not exceed twice the number of peremptory challenges allowed to the defendant or defendants, and the total number of peremptory challenges allowed to the defendant or defendants shall not exceed twice the number of peremptory challenges allowed to the plaintiff or plaintiffs.

(b) Alternate jurors shall be sworn separately from those constituting the regular panel, and the oaths to be administered shall be as provided in section 1-25.

(c) Alternate jurors shall attend at all times upon trial of the action. They shall be seated when the case is on trial with or near the jurors constituting the regular panel, with equal opportunity to see and hear all matters adduced in the trial.

[(d) If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him. If any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk, shall become a part of the regular panel and the trial shall then proceed as though the alternate juror had been a member of the regular panel from the time when the trial was begun.

(e) A juror selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on the case. ]

(d) If, at any time and for any reason, a juror becomes unable to further perform the duty of a juror, the court may excuse such juror and, if any juror is so excused or has died, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial or deliberation shall proceed with appropriate instructions from the court as though such alternate juror had been a member of the regular panel from the time when the trial or deliberation began. If the alternate juror becomes a member of the regular panel after deliberations begin, the jury shall be instructed by the court that deliberations by the jury shall begin anew. A juror who has been designated to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time such alternate juror may be dismissed from further service on said case or may remain in service under the direction of the court.

Sec. 5. Section 52-205 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012, and applicable to actions filed on or after said date):

(a) In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of the issues joined be tried before the others.

(b) In any civil action to recover damages resulting from personal injury or wrongful death that is to be tried to a jury, any party may file a written motion requesting that the court order the trial bifurcated into two separate phases consisting of a liability phase and a damages phase. The court shall grant the motion, unless the court determines that the risk of prejudice to the party requesting bifurcation is substantially outweighed by the benefit of a single phase trial."

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2012, and applicable to actions filed on or after said date

52-190a

Sec. 2

October 1, 2012, and applicable to actions filed on or after said date

52-195

Sec. 3

October 1, 2012, and applicable to actions filed on or after said date

New section

Sec. 4

October 1, 2012, and applicable to actions filed on or after said date

51-243

Sec. 5

October 1, 2012, and applicable to actions filed on or after said date

52-205