June 23, 2004		2004-R-0522
MEDICAL MALPRACTICE—CONNECTICUT LEGISLATION-2004
By: George Coppolo, Chief Attorney

You asked for a summary of PA 04-155, An Act Concerning Medical Malpractice Insurance Reform, which the governor vetoed.

SUMMARY

PA 04-155 makes numerous changes to the laws dealing with civil litigation; insurance regulation and oversight; and the regulation, oversight, and disciplining of doctors. It also gives certain physicians a tax credit for a portion of their medical malpractice insurance premiums.

CIVIL LITIGATION REFORM

The act:

1. establishes a mandatory mediation program for medical malpractice lawsuits filed after the act becomes law, which the parties must use unless they have agreed to use an alternative dispute resolution program (§ 1),

2. requires, as a condition of filing a medical malpractice lawsuit or an apportionment complaint in such a lawsuit, that a signed opinion of a similar health care provider be prepared to show there is a good faith belief that there has been negligence, and a copy be attached to the lawsuit complaint (§ 2);

3. changes the interest rate the court may award the plaintiff with respect to an offer of judgment for medical malpractice causes of action that accrue after the act's effective date by reducing (a) from 12% to 8% the interest the court must add to the portion of the award up to twice the amount stated in the offer of judgment, and (b) from 12% to 4% the interest the court must add to the portion of the award that exceeds twice the amount stated in the offer of judgment (§ 8);

4. gives the plaintiff 60, instead of 10, days after being notified by the defendant of his offer of judgment to accept it and gives courts the authority to give plaintiffs and defendants up to an additional 120 days to accept an offer of judgment (§§ 8 & 9);

5. allows the attorney fee schedule for contingency fees in medical malpractice cases to be waived only upon an application to and approval by a judge, requires the claimant's attorney to show that deviation from the schedule is warranted due to the nature of the case, requires that the fee be calculated after any disbursements and costs for which the plaintiff is liable have been deducted, and prohibits fees greater than one-third of the damages awarded (§ 15);

6. requires the court, in any medical malpractice case in which the jury awards more than $ 1,000,000 in noneconomic damages, to review the evidence to determine if the amount of noneconomic damages is excessive as a matter of law (§ 18), and

7. eliminates the Medical Malpractice Screening Panel (§ 23).

INSURANCE REGULATION AND OVERSIGHT

The act:

1. requires prior rate approval by the Insurance Department for medical malpractice insurance rate changes for physicians and surgeons, hospitals, advanced practice registered nurses, or physician assistants and, in such process, requires the insurers to either offer a discount for those who use an electronic records system or demonstrate that its use does not reduce the risk (§ 13);

2. requires that relevant factors that may reduce rates be considered when establishing malpractice rates for physicians and surgeons, hospitals, advanced practice registered nurses, or physician assistants, including (a) amendments the act makes to the offer of judgment law, (b) other provisions of the act, and (c) any reduction in risk from using electronic health record systems to establish and maintain patient records and verify patient treatment (§ 14);

3. beginning June 1, 2005, (a) requires entities that insure people or entities against medical malpractice lawsuits to provide the insurance commissioner with a closed claim report on each malpractice claim that the insurer closes; (b) the report to include details about the insured and insurer, the injury or loss, the claims process, and the amount paid but exclude any individually identifiable information defined in federal regulation as confidential; and (c) requires that if necessary to comply with federal privacy laws, the insured must arrange with the insurer to release the required information (§ 16);

4. requires the commissioner to compile and analyze the data and annually submit a report on this to the Insurance and Real Estate Committee and the public (§ 16); and

5. requires each captive insurer that offers, renews, or continues insurance in Connecticut to provide certain information to the insurance commissioner in the same manner required for risk retention groups (§§ 21 and 22).

Regulation, Oversight, and Discipline of Medical Providers

The act:

1. requires the plaintiff or his attorney to mail a copy of a medical malpractice complaint to the Department of Public Health (DPH) and the Insurance Department when he files a lawsuit against a licensed physician and certain other licensed health care providers, and requires DPH to determine if there is a basis for further investigations or disciplinary action (§ 3);

2. requires anyone who pays a medical malpractice award or settlement to provide copies of the award or settlement and complaint and answer, if any, to the Insurance Department instead of just DPH (§ 3);

3. requires those paying medical malpractice awards or settlements for licensed physicians and certain other health care providers to provide additional information to DPH, including a breakdown by economic and noneconomic damages (§ 4);

4. makes liability releases invalid until the attorney representing the paying party files an affidavit with the court that he has provided DPH and the insurance commissioner with the required information (§ 3)

5. requires DPH and the insurance commissioner to develop systems to collect, store, use, interpret, report, and provide public access to such information (§ 3);

6. requires DPH to adopt guidelines to determine the basis for further investigation or disciplinary action regarding physicians who paid damages or were sued for malpractice (§ 3);

7. requires DPH to adopt regulations establishing guidelines for screening complaints, prioritizing investigations, and determining when an investigation should be broadened (§ 4);

8. requires the Medical Examining Board, with DPH’s assistance, to adopt guidelines for its disciplinary process and requires the DPH commissioner to conduct a hearing on charges against a doctor if a hearing panel the board appoints has not done so within 60 days after the board reports charges to it (§ 5);

9. requires that DPH's annual report to the governor and Public Health Committee include additional information such as the number of complaints filed against doctors, and the number of notices of malpractice lawsuits filed that were not investigated and the reasons why (§ 6);

10. requires DPH to develop protocols for accurate identification procedures that hospitals and outpatient surgical facilities must use before surgery (§ 7)

12. requires doctors annually to provide certain information to DPH, including their malpractice insurer, policy number, area of specialization, and disciplinary actions and malpractice payments made in other jurisdictions and allows doctors to fulfill this obligation by including such information in their physician profile (§ 11);

13. requires DPH to report annually the number of doctors, by specialty, actively providing patient care (§ 12); and

14. requires the DPH commissioner to develop and implement a process that will ensure a continuing and coordinated focus on patient safety programs within DPH (§ 17).

The act gives any state resident who is a physician the right to a credit against his state income tax for a portion of the amount of medical malpractice insurance premiums first becoming due and actually paid during the taxable year. The credit is applicable to tax years beginning January 1, 2004. The act funds the credit for the fiscal year ending June 30, 2005 by transferring from the $ 2,000,000 being transferred to the General Fund from the Biomedical Research Trust Fund (§§ 19 &20).

EFFECTIVE DATE: The act takes effect upon passage, except the provision dealing with the duty of captive insurers to provide certain information to the insurance commissioner takes effect July 1, 2004; the provision providing tax credits takes effect July 1, 2004 and applies taxable years beginning January 1, 2004; and the provision requiring the data on closed cases takes effect January 1, 2005.

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