Conn. Law Nixing Legitimate Malpractice Lawsuits

Associated Press
Sunday, January 8, 2012

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.

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.

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.

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.

For a copy of the complete article, contact CJ&D.

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