Connecticut Law Nixing Legitimate Malpractice Lawsuits

The following article was published in the Insurance Journal on January 9, 2012:

Connecticut Law Nixing Legitimate Malpractice Lawsuits

After losing a baby because of an incompetent cervix, Patricia Votre thought she was well prepared when she got pregnant again. She made arrangements with her doctors to consult with high-risk pregnancy experts from Yale University and to have the specialists take over her care.

But when she began having problems including a fever and back pain, her doctors refused to turn over her care to the Yale experts, failed to treat her according to the Yale group’s recommendations and even hid the experts’ care plan from her, according to a lawsuit she filed in 2006. Her son, Miles, nearly died at birth from an E. coli infection and lived for 51 days before succumbing to a blood infection in 2003.

Despite the serious allegations, Votre was never able to get her case before a jury. A judge dismissed her lawsuit based on a technicality added to the state’s medical malpractice law in 2005 as part of the national “tort reform” debate. It requires plaintiffs in all malpractice cases to get an opinion from a medical expert backing up their allegations before they can sue, but legal fights over the credentials of those experts have led to many cases being dismissed.

“It was just not right. It was just not fair,” said Votre of Woodbridge, Conn., who’s now 41 and the mother of two children ages 7 and 12. “They used the law to manipulate the situation. It wasn’t about my baby. It was about me.”

Although the law was aimed at preventing frivolous lawsuits and reducing high malpractice insurance rates, it’s had the unintended consequence in many cases of keeping seemingly legitimate lawsuits out of Connecticut’s court system, an Associated Press review has found. The worst part, plaintiffs say, is that doctors, nurses, dentists and other medical professionals end up not being held accountable for their mistakes.

Since the law took effect, the number of malpractice cases filed in the state has dropped 20 percent to an average of 292 per year from an average of 364 annually, state records show. It’s not clear how much of the decrease can be attributed to the opinion letter requirement, but malpractice lawyers believe the mandate has played a big role.

“The argument is made that these (opinion letters) preclude the filing of a frivolous claim,” New Haven attorney Joel Faxon said. “It’s all just fear-mongering. It’s an impediment to bringing a case that gives them (defendants) a leg up.”

Faxon said there is already a malpractice lawsuit screening process that’s been effective for years. Most lawyers won’t file lawsuits unless there is very strong evidence of malpractice because the cases are expensive to litigate, he said.

Similar laws have been declared unconstitutional in several other states including Washington, Arkansas, Ohio and Oklahoma, mainly because the opinion letters can cost thousands of dollars and can prevent people who can’t afford them from getting their day in court, according to the Center for Justice & Democracy at New York Law School. But, lawyers for doctors and hospitals say, plaintiffs’ lawyers usually assume the cost of the letter as part of their fees, and plaintiffs will eventually need to pay an expert to testify at trial.

The wording of Connecticut’s statute says that experts who write opinions for plaintiffs must have “similar” credentials to those of the medical professionals accused of malpractice, and the opinion letters must be attached to lawsuits when they are filed.

But state judges have interpreted the law to mean that the experts must have credentials that are identical to those of the defendants. Many cases have been dismissed because the opinion writers’ certifications didn’t match up exactly with those of the defendants.

Both Democratic and Republican state lawmakers, who approved the 2005 law under pressure from doctors and hospital officials complaining about high malpractice insurance rates, say that’s not what they intended and they tried to ease the opinion letter requirements in the 2011 legislative session. The bill was passed by the House but died in the Senate at the end of the session, under heavy opposition from doctors and hospital officials.

“I don’t think anyone should be barred from the courthouse doors before the merits are heard,” said Republican state Sen. John Kissel of Enfield. “The party’s that’s forgotten in all of this is the injured individual who is suffering because of what he or she believes in medical malpractice.”

Kissel expects lawmakers in the 2012 session to take up another bill that would relax the opinion letter mandate. And an appeal filed with the state Supreme Court in a malpractice case is challenging the constitutionality of the law.

Lawyers for doctors and hospitals, however, say the law has been effective at weeding out frivolous claims and reducing their clients’ litigation costs, and they would continue to oppose any efforts to change the statute.

Eric Stockman, a New Haven attorney who has represented both plaintiffs and defendants in malpractice cases, said state law before 2005 required lawyers who filed malpractice lawsuits to declare in writing that the cases had merit.

“There was really no way to challenge whether that inquiry (by plaintiffs’ lawyers) was done,” Stockman said.

Since the 2005 opinion letter law took effect, “We really stopped seeing those really bad cases,” he said, referring to frivolous claims.

Stockman also said he believes part of the effort to relax the opinion letter requirements is to protect plaintiffs’ lawyers from legal malpractice claims that could arise if they don’t get the right expert to write the letter and their clients’ cases are dismissed.

One malpractice case that was dismissed because of the opinion letter requirement played a prominent role in this year’s legislative debate after having led to a landmark state Supreme Court ruling.

Richard Bennett Sr. of New Milford crashed his car while having a diabetic seizure in November 2006. He was brought to the New Milford Hospital, where his blood sugar was stabilized and he was given medication for back pain before being discharged.

But a doctor failed to diagnose the spine and leg fractures Bennett suffered, and Bennett died two months later of a heart condition caused by severe pain from the injuries, according to a lawsuit filed by Bennett’s family. The retired machinist was 69.

The lawsuit went all the way to the state Supreme Court, which last January upheld dismissals of the Bennetts’ case by lower courts because the author of the Bennetts’ opinion letter was a trauma surgeon and the defendant was an emergency room doctor.

But the Supreme Court did allow Bennett’s family to refile the lawsuit, which remains pending. The ruling, however, set a landmark precedent that upheld the opinion letter law, including its requirement that cases be dismissed if the opinion letters aren’t sufficient.

“It just defied logic,” said the Bennett family’s lawyer, Andrew Pianka. He added that the 2005 law is “actually being implemented … in a manner to defeat valid claims.”

Doctors and hospital officials insist that tort reforms including the opinion letters, known as “certificates of merit,” have helped lower malpractice insurance rates, and they don’t believe the measures have created barriers to the courts.

“It makes no sense at all to allow someone to file a medical malpractice lawsuit without the most superficial of investigations,” said Dr. David S. Katz, a general surgeon in Milford, Conn., and former president of the Connecticut State Medical Society.

“There has to be a least a basis from a qualified expert as to whether malpractice occurred or not,” he said. “There has to be a screening process and I think it’s a smart way to go.”

But the Center for Justice & Democracy recently released a report, echoing previous studies, saying that certificates of merit and other tort reforms have no effect on malpractice insurance rates. The report says rate levels go up and down based on insurance companies’ financial performance and the economy.

“The certificate of merit is weeding out legitimate cases,” said Joanne Doroshow, executive director of the center.

In Patricia Votre’s case, she sued her doctors for alleged breach of contract and infliction of emotional distress — not malpractice. But a judge ruled that her case involved alleged medical malpractice and dismissed her lawsuit because she never filed an opinion letter from a medical expert. The state Appellate Court upheld the ruling, and the state Supreme Court declined to hear the case.

In an ironic twist, Votre said her case set a precedent for dismissing malpractice cases.

“I feel that my son is made a mockery of at this point,” she said. “I can’t even explain to you what he went through. Now his memory is being trashed.”

Edmund Lohnes of Denver said he nearly died in 2007 because of a medical mistake at a New Haven hospital when staff gave him a drug to which he was allergic, despite his wearing a red wristband alerting staff to the allergy. He also sued, but his lawsuit was dismissed because the doctor who wrote his opinion letter was a pulmonologist while the defendant was licensed to practice emergency medicine.

“I’m not going to be able to hold this doctor and the hospital accountable,” Lohnes said. “It affects the whole gauntlet of what I thought America was all about.”

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