You asked for a summary of malpractice insurance reform debate in the 2004 regular session, including information on any bills proposed with caps and what was ultimately developed in legislation.

SUMMARY

The 2004 legislative session contained much debate over medical malpractice reform. Committees considered 12 bills, including two that capped noneconomic damages, and reported out six bills, but none with caps. Ultimately, the General Assembly passed sHB 5669, An Act Concerning Medical Malpractice Insurance Reform (PA 04-155), which the governor vetoed. OLR Report 2004-R-522 (copy enclosed) provides a detailed summary of PA 04-155.

MEDICAL MALPRACTICE BILLS REPORTED BY COMMITTEES

Legislative committees reported out six medical malpractice bills in the 2004 session. None of the bills reported contained caps on noneconomic damages. Table 1 lists each bill by file number, title, and committee of origin.

Table 1: 2004 Medical Malpractice Bills Reported by Committees

Enclosed is a detailed summary of each of these bills. Five are very similar (sHB 60, SB 141, sSB 356, sSB 394, and sHB 5669). Each one makes numerous changes to the (1) the law dealing with civil litigation; (2) insurance regulation and oversight; and (3) the regulation, oversight, and disciplining of doctors. Substitute HB 5669 has a unique provision that establishes a patient safety ombudsman within the Department of Public Health to improve patient safety and reduce medical errors.

The provisions dealing with civil litigation for the most part deal with similar areas. Some of these bills require those who file malpractice cases to first submit their claim to a medical malpractice screening panel before they can pursue their case in court (sSB 60, sSB 356, and sSB 394). Two of the bills eliminate the screening panel and instead require that a claim be submitted to mediation before proceeding through the litigation process (SB 141 and sHB 5669).

Three of the bills expand the current malpractice screening panel from three to four members by adding a judge trial referee (sSB 60, sSB 356, and sSB 394). Two of these bills retain the requirement that the panel’s conclusions are admissible in a medical malpractice lawsuit only if the findings are unanimous (sSB 60 and sSB 394). Substitute SB 356 retains the three-member panel and permits admissibility of findings by a majority of the panel members.

Each bill reduces the amount of interest the defendant must pay under the offer of judgment law. But they do so in different ways.

Each bill also addresses the contingency fee that attorneys may charge. One mandates that the current contingency fee schedule must be complied with and outlaws waivers (SB 141). Four bills allow waivers only with court approval (sSB 60, sSB 356, sSB 394, and sHB 5669).

One bill establishes a task force to examine the feasibility of developing alternatives to the current litigation system for medical malpractice cases (SB 141).

One bill establishes two funds to deal with malpractice issues. One fund (called a Healthy Connecticut Fund) reimburses any parties of a medical malpractice settlement or judgment that represents the deductible portion of the defendant’s malpractice insurance policy. The other fund pays 50% of the portion of each malpractice settlement or judgment of between (1) $ 750,000 and $ 1,750,000 for each individual provider and (2) $ 1,500,000 and $ 2,500,000 for a hospital (sSB 61).

Substitute SB 61 also allows health care providers to deduct from their Connecticut adjusted gross income for state income tax purposes any amount they paid for premiums on a medical malpractice insurance policy.

Substitute SB 394 contains a fund to pay deductibles on malpractice insurance policies.

Substitute HB 5669 allows doctors to deduct any amount paid for malpractice insurance from their Connecticut adjusted gross income. It also provides money for a loan-forgiving program for people to complete medical training in obstetrics or neurosurgery at a medical school in Connecticut.

MEDICAL MALPRACTICE BILLS PROPOSED BUT NOT REPORTED

Committees proposed six additional medical malpractice bills in the 2004 session, but did not report them out. Two of the six bills imposed caps on noneconomic damages (SB 483, HB 5043). The bills reported out of committees addressed the majority of topics included in these proposed but not reported bills. Table 2 identifies each bill with file number, title, and committee of origin.

Table 2: 2004 Medical Malpractice Bills Proposed But Not Reported

* Judiciary amended HB 5043 and favorably reported sHB 5043, An Act Increasing the Penalties for Enticing a Minor and Importing or Possessing Child Pornography. All references to medical malpractice were removed.

In many respects, SB 483 is similar to SB 394, which was reported out of committee. The major difference is SB 483 includes caps on noneconomic damages awarded for professional negligence of a licensed health care provider in the medical diagnosis, care or treatment of the claimant. The bill caps the amount of recoverable noneconomic damages allowed at $ 250,000 for each claimant in the case of physicians, health care providers, or health care institution. In the case of an action brought against more than one health care institution, the bill caps the amount of recoverable noneconomic damages for all health care institutions at $ 500,000 for each claimant. The Insurance and Real Estate Committee voted on SB 483, but the motion failed, eight to 10.

The governor’s budget bill, HB 5043, contained a $ 250,000 cap on noneconomic damages. The Judiciary Committee reported out sHB 5043, which became Public Act 04-139, without the damage cap provision,.

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