You asked which of the laws passed in California, Colorado, Nevada, Pennsylvania and West Virginia to reduce medical malpractice claims would be permissible under Connecticut's constitution, and if a constitutional amendment were necessary for passage, what would be required. You also asked how medical malpractice premiums compare in Connecticut with states that have adopted laws to reduce medical malpractice claims.

Our office is not authorized to issue legal opinions and this memorandum should not be considered as such.

SUMMARY

California, Colorado and Nevada cap noneconomic damages in medical malpractice cases. If Connecticut were to adopt a similar approach it would likely be challenged under the equal protection and civil due process provisions of the state constitution.

A constitutional amendment giving the legislature express authority to limit noneconomic damages in medical malpractice cases may be needed to diminish any constitutional challenge to such a law.

The Connecticut Insurance Department reports that medical malpractice premiums increased an average of 20. 5% in 2002.

According to one source, premiums in states with a cap on noneconomic damages increased on average about 12% compared to a 44% increase in states with no cap. Yet, another source suggests that caps on damages have no impact on the frequency of medical malpractice litigation, which is one basis for premium increases.

STATE MEDICAL MALPRACTICE REFORMS

California and Colorado adopted tort reform measures in the mid 1970s. Both states imposed caps on victim's compensation for noneconomic damages. California also limit attorney contingency fees, and Colorado required periodic payment of future damage awards in medical malpractices cases.

Nevada, Pennsylvania, and West Virginia recently enacted medical malpractice torts reforms. The reforms in these states emphasize procedural and administrative changes. Nevada, while setting limits on noneconomic damages, also established an expedited procedure for resolving medical malpractice cases. Pennsylvania requires hospitals to report medical errors to a newly formed board, and West Virginia bans third-party bad faith claims.

Connecticut enacted major tort reforms in 1986 and 1987. They included:

1. limits on attorney contingency fees;

2. periodic payment of future judgment amounts;

3. attorney good faith certification that negligence exists as a prerequisite to filing a medical malpractice action;

4. a prohibition against and monetary penalty for filing frivolous lawsuits or defenses;

5. a rule that requires the court to reduce medical malpractice awards by the amount of any collateral source (e. g. , insurance payments);

6. modification to the standard of care for health care providers involved in causes of action that accrued on or after October 1, 1986; and

7. changes to the rules on joint and severable liability with respect to insolvent defendants (PA 86-338 and PA 87-227).

Connecticut also enacted medical malpractice judgment and medical error reporting laws in 1996 and 2002, respectively (PA 96-133 and PA 02-125).

CONSTITUTIONAL IMPEDIMENT

Two of the laws enacted in the above states, may be subject to constitutional challenge if adopted in Connecticut. An equal protection and civil due process challenge under the state constitution may have merit against laws that (1) establish a different statute of limitations period or (2) place a cap on noneconomic damages in medical malpractice cases (Article I, §§ 10 and 20 of the Connecticut Constitution).

Connecticut does not appear to recognize third-party bad faith claims outside of the Connecticut Unfair Insurance Practice Act.

Other reforms, such as requiring an expedited court procedure to handled medical malpractice lawsuits, do not appear to violate the separation of powers provision of the state constitution (Article II of the Connecticut Constitution). Even though the courts have held that the legislature lacks the power to make rules of administration, practice, or procedure that binds the Supreme or Superior Courts, to be unconstitutional the statute must operate in an area that lies exclusively under the control of the courts. If the expedited court procedure were reasonable in the context of existing court procedures it probably could withstand any constitutional challenge.

Right to Redress

Connecticut law requires tort and negligence lawsuits to be brought within three-years from the date of the act or omission complained of (See, CGS §§ 52-577 and 52-584). A law establishing a different statute of limitations period for medical malpractice causes of action (presumably a shorter time period) may violate Article I, § 10 of the Connecticut Constitution that grants civil due process.

Article I, § 10 of the state constitution provides: "All
courts shall be open, and every person, for an injury done to him
in his person, property or reputation, shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay. " The federal constitution contains no comparable
provision.

The Connecticut Supreme Court has construed this provision to
protect, in certain instances, access to the state's courts and the
right to redress for injuries. The provision does not create new
substantive rights or guarantee any particular causes of action
(Sanzone v. Board of Police Commissioners, 219 Conn. 179, 195
(1991)). Rather, it "prohibits the legislature from abolishing or
significantly limiting common law and certain statutory rights that
were redressable in court as of 1818, when the constitution was first adopted, and which were 'incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury. . . '" (Moore v. Ganim, 233 Conn. 557, 573-74 (1995) (quoting Gentile v. Altermatt, 169 Conn. 267, 286 (1975)). The statutory
rights that are automatically incorporated are only those that
were statutory common law rights, i. e. , those which were already
part of the common law and were codified or reflected in the
pre-1818 statutes (Moore, 233 Conn. at 573 n. 30).

According to the Court, the provision does not prohibit the
legislature from replacing a common law cause of action with a
statutory scheme that deprives certain individuals of redress for
the type of injury at issue. But, in exchange for that deprivation,
the scheme must confer commensurate aggregate benefits upon any
class to which those individuals belong (Sanzone,
219 Conn. at 195-96; see, e. g. , Gentile, 169 Conn. at 286
(upholding no-fault insurance statute as alternative to prior
unrestricted tort causes of action); Daily v. New Britain Machine
Co. , 200 Conn. 562, 585 (1986) (upholding 10-year limitation in
product liability statute because workers compensation statutes
provide a reasonable alternative).

A shortened statute of limitation, particularly for complex medical malpractices cases, may effectively deny plaintiffs their day in court.

Equal Protection

State law also permits the recovery of nonecomonic damages in personal injury cases. The Connecticut Supreme Court has stressed that since pain and suffering cannot be computed mathematically, it is peculiarly within the jury's determination and will be sustained, even though generous, if it does not "shock the sense of justice", (Campbell v. Gould, 194 Conn. 35 (1984)).

The Fourteenth Amendment's Equal Protection Clause provides in
pertinent part, that no state shall "deny to any person within its
jurisdiction the equal protection of the laws. " Article First, §
20, as amended, of the state constitution provides that "[n]o
person shall be denied the equal protection of the law nor be
subjected to segregation or discrimination in the exercise of his
or her civil or political rights because of religion, race, color,
ancestry, national origin, sex or physical or mental disability. "

Under both the federal and state constitutions, state action that
invidiously burdens a suspect class or intrudes on the exercise of a fundamental right will be upheld only if it survives the court's strict scrutiny. Specifically, it must (1) serve a compelling state interest and (2) be narrowly tailored to serve that interest (see Horton v. Meskill, 172 Conn. 615, 640 (1977)).

Under review, if the court, in distinguishing between classes of cases, determines that the statute intrudes on the exercises of a fundamental right or burdens a suspect class of persons, it will apply a strict scrutiny standard and the state must demonstrate that the challenged statute is necessary to achieve a compelling state interest. If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.

Unlike the Gentile case, the legislature would not be abolishing a cause of action, but would be imposing a cap on recovery for a valid cause of action. One could argue that the cap removes "the right to have the jury, rather than the court, pass on the factual issue of damages. " And, if the right to nonecomonic damages is considered a "constitutionally incorporated common-law right," the cap is unlikely to withstand the reasonable alternative test under Article I, § 10 cited above.

Constitutional Amendment

Article XII, as amended by Article VI of the amendments to the constitution, prescribes how the State Constitution can be amended. A legislator's proposal must be introduced to the General Assembly in the form of a resolution, as the recent sheriff and spending cap measures were. If the resolution passes by at least three-fourths of the membership of each house of the legislature, it is placed on the ballot in the next general election. If it passes by a majority of the membership of each house but less than three-fourths, it is referred to the General Assembly session held after the next election and must be approved in both houses again before being placed on the ballot. If a majority of those voting in

the general election approves the amendment, it becomes part of the State Constitution. The amendment becomes effective as soon as the election results are certified.

The amendment may simply authorize the General Assembly to set monetary limits on noneconomic damages in either all civil actions or in medical malpractice cases alone. An amendment drafted along the same line would apply to the statute of limitations period in medical malpractices cases.

MEDICAL MALPRACTICE INSURANCE RATES

The number of medical malpractice claims filed in Connecticut have remained relatively constant from 1986 to 2002, but premium rates have increased on average 20% in 2002 and for certain specialties, 40%.

Table 1: Medical Malpractice Cases Filed

The Connecticut Medical Insurance Company (CMIC), the largest medical malpractice insurer in the state, has about 55% of the market. CMIC filed an overall 20. 5% increase for medical malpractice liability insurance effective January 1, 2002. This followed last year's 16. 0% overall increase. American Healthcare filed a 33. 2 % increase effective

October 1, 2001, Truck Insurance Exchange a 30. 0% increase effective February 1, 2002, Proselect 8. 0% effective November 1, 2001 and MIIX a 25. 5% increase effective June 15, 2001.

According to the U. S. Department of Health and Humans Services, the availability and affordability of medical malpractice insurance is less acute in states that have reformed their litigation system. States with limits on nonecomonic damages have averaged premium increases of 12 to 15%, compared to 44% in state without caps on noneconomic damages.

Table 2: 2001 Premium Increases in States With and Without Caps on Noneconomic Damages

A primary goal of medical malpractice reforms is to decrease the frequency and severity of claims. A National Center for State Courts study of the impact of reforms on the frequency of medical malpractice litigation, which studied cases disposed of in 21 states during 1992, yielded surprising results. The authors found that while certain malpractice or tort reforms were associated with a decrease in the frequency of litigation, other reforms had no impact or were associated with an increase frequency of malpractice litigation (Roger Hanson, Brain Ostrom, and David Rottman, "What is the Role of State Doctrine in Understanding Tort Litigation?" National Center for State Courts, (1996)). Table 3 illustrates their findings.

Table 3: Impact of Specific Reforms on Rate of Malpractice Litigation

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