Connecticut Seal

General Assembly

Amendment

 

February Session, 2012

LCO No. 4045

   
 

*SB0024304045SDO*

Offered by:

 

SEN. COLEMAN, 2nd Dist.

REP. FOX, 146th Dist.

SEN. DOYLE, 9th Dist.

SEN. FASANO, 34th Dist.

SEN. KISSEL, 7th Dist.

REP. HETHERINGTON, 125th Dist.

REP. ROWE, 123rd Dist.

REP. LABRIOLA, 131st Dist.

REP. KLARIDES, 114th Dist.

REP. SMITH, 108th 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 Section 52-190a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage and applicable to actions pending on or filed on or after said date):

(a) (1) 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, including reasonable efforts to obtain a written opinion from a similar health care provider, as defined in section 52-184c, and if proceeding under subparagraph (B) of this subdivision, 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) 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,] or (B) from a health care provider who the court concludes, based on a review of the written opinion which shall include a detailed description indicating that the health care provider possesses sufficient training, knowledge and experience in the specific care, treatment or diagnosis at issue in the complaint within a five-year period before the incident giving rise in the complaint, so as to be able to testify as an expert as to the standard of care as to each defendant to whom the expert has issued an opinion. A written opinion from a health care provider pursuant to subparagraph (B) of this subdivision shall include a statement as to the existence of any board certification in a related specialty and license to practice medicine in any jurisdiction. The conclusion of the court pursuant to subparagraph (B) of this subdivision shall be made without prejudice as to said health care provider should such health care provider's qualifications be challenged at trial. The written opinion shall state that there appears to be evidence of medical negligence and [includes] include a detailed basis for the formation of such opinion which identifies one or more breaches of the prevailing professional standard of care.

(2) 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.

(3) In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.

(4) 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] comply with subsection (a) of this section shall be grounds for the dismissal of the action, except that no such action may be dismissed unless the claimant has failed to attach a copy of a written opinion, or has failed to comply within a single forty-five-day period after being ordered to do so by the court. "

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

Section 1

from passage and applicable to actions pending on or filed on or after said date

52-190a