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May 6, 2013 OTHER VOICES

Two malpractice bills unfairly target doctors

David K. Emmel
By David K. Emmel

Finding the doctor you need is dangerously close to becoming more difficult. Two bills that are before the state legislature will do little to serve the public, but will have a profound effect on health care in Connecticut.

Under current law, medical liability — or malpractice — effectively allows someone who has been harmed to seek and receive compensation. It is in everyone's best interest that all parties — doctors, patients, and insurers — work to reduce medical errors. But frivolous lawsuits only increase the cost of health care, increase judicial costs, and put additional strain on physicians' time and resources as they fight these suits.

Ten years ago malpractice insurance premiums soared, as the number of claims increased, despite no evidence that the quality of health care had changed. Some specialties, like obstetrics and neurosurgery, were hit particularly hard, with malpractice insurance rates that were prohibitive. Some of these specialists moved to other states where laws were more reasonable. It was the beginning of Connecticut's slide toward the very bottom of the list of desirable places for a physician to practice.

The response to the crisis was the Malpractice Reform Act of 2005; an act that created the 'certificate of merit' that is under attack today. House Bill 6687 is the same bill that was defeated last year. Under current law, a 'similar' physician, that is, one who has the same training and expertise as the defendant and understands the complexities involved in the case in question, must sign a certificate stating that the case has merit. Should the new bill become law, the physician need only be 'qualified;' effectively allowing someone with no specific training or understanding of the case to render a most critical opinion.

The Connecticut Trial Lawyers Association has claimed for three years running that the certificate of merit has prevented many meritorious cases from having their day in court because it is such a difficult hurdle. Yet through those same three years, they have yet to produce a single example of a meritorious case that has failed to move forward because of the certificate of merit. In fact, the certificate of merit is a very low barrier. Most of the cases that pass the certificate of merit are ultimately dropped without settlement, and the defendant prevails in most of those that do make it to court. 

However, the cost of this process is very high. It has been estimated that the average cost of defending a medical malpractice case is $40,000, and that is just for those cases that are dropped without settlement before trial. A recent New York Times article reported that the average physician will devote four years of his career to defending a malpractice case and neurosurgeons as many as 10 years. Almost as much time is spent on non-meritorious lawsuits as is spent in medical school. 

Perhaps worst of all is the effort to change the accidental failure of suit statute from a safeguard for clerical and administrative mistakes into a fail-safe extension of the statute of limitations. Current law as established by the courts has made it clear that the accidental failure of suit statute cannot be applied to all failures of the certificate of merit. In Plante vs. Charlotte Hungerford Hospital, the court ruled that egregious conduct or gross negligence on the part of the plaintiff or plaintiff's attorney did not qualify for relief under the statute. Senate Bill 1154 has been written with the clear intent of permitting all failures of the certificate of merit, including those due to gross negligence or egregious conduct by the attorney, to re-file beyond the statute of limitations using the accidental failure of suite statute. Physicians are fundamentally opposed to this change because the certificate of merit statute is already generous, allowing the plaintiff to re-file without prejudice for any and all failures. Adding the extra year removes even the tiniest threat that an attorney might be held accountable for his mistakes, let alone his gross negligence and egregious conduct. It creates the hypocrisy of a double standard where physicians are judged far more severely than their legal counterparts. It encourages the sort of egregious misconduct that the current law seeks to suppress. It makes it impractical to the point of impossible for the defendant to effectively challenge the certificate of merit.

Connecticut is already facing a doctor shortage. Recruiting doctors to practice in Connecticut is difficult, as we already have some of the highest medical liability rates in the country, and insurers have stated that these bills will contribute to premium increases. Most medical residents who train in Connecticut leave after they graduate because of the unfriendly practice environment. And more senior physicians will choose to retire early (two-thirds of Connecticut physicians are 55 and older). Moreover, the doctors who do practice here will be more reluctant to take on more complicated cases. The cost to the state will also increase, as the judicial system will be further clogged with claims that have questionable merit.

So who is the loser in all of this? Who is the real victim? It is you and I, as patients, when access to care becomes more difficult.

The current law is working. Laws that weaken the certificate of merit are injurious and should be opposed. After all, we want conscientious doctors taking care of us in their offices, not battling frivolous lawsuits in a courtroom.

David K. Emmel is an optometrist in Wethersfield and a past president of the Connecticut Society of Eye Physicians.

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