AN ACT CONCERNING MEDICAL MALPRACTICE

This bill makes numerous changes in the laws dealing with civil litigation, primarily relating to medical malpractice; medical malpractice insurance regulation and oversight; and the regulation, oversight, and disciplining of doctors.

1. permits claimants to pay more than the contingency fee sliding scale allows under certain circumstances, but prohibits a fee of more one-third of the settlement or the damages awarded (§1);

2. requires, as a condition of filing a medical malpractice lawsuit, a signed opinion from a similar health care provider indicating that malpractice has occurred (§ 2);

3. requires the court, within six months after a medical malpractice case is filed, to schedule a conference to determine whether to recommend it be designated as a complex litigation case and transferred to the complex litigation docket (§ 3)

4. changes the “offer of judgment” law in several ways including changing the terminology to “offer of compromise” and having the process end in a withdrawal of the lawsuit after payment instead of a judgment against the defendant (§ 4-7);

5. reduces the interest rate the court may award with respect to an offer of compromise for medical malpractice cases that accrue after September 30, 2005 from 12% to 8%, and establishes some additional requirements for such cases (§4)

6. allows defendants in medical malpractice cases that accrue after September 30, 2005, to introduce evidence of the amount of damages awarded to the plaintiff for the same injury or death by a court or jury in a separate lawsuit by the plaintiff against a different health care provider (In general, a cause of action accrues when the right to bring suit on a claim
is complete. ) (§8);

7. makes expressions of sympathy by health care providers inadmissible in lawsuits by victims of unanticipated outcomes of medical care (§ 9).

8. requires the court to review the evidence in medical malpractice cases that award $ 1 million or more in noneconomic damages to determine if the award is excessive as a matter of law (§ 10);

9. eliminates the medical malpractice screening panels (§ 29).

1. requires prior rate approval when an insurer wants to increase medical malpractice insurance rates by 7. 5% or more for physicians, hospitals, and certain other health care providers, and requires an insurer to notify insureds of (a) the proposed rate increase and (b) their right to request a hearing on the matter before the insurance commissioner (§ 11);

2. requires the insurance commissioner, by October 1, 2008, to review professional liability insurance rates to determine if to determine if (1) the amount or frequency of insured awards and settlements against these providers have decreased since October 1, 2005; (2) the rates reflect the decrease; and (3) the rates bear a reasonable relationship to the costs of writing such insurance in this state, and requires her to convene a working group to recommend appropriate changes to the law in decrease rates or establish reasonable rates if after review she determines that rates have not decreased and are not reasonably related to the costs of writing such insurance (§12);

3. requires the commissioner to develop a plan to maintain a viable medical malpractice insurance industry in Connecticut and submit it to the governor (§ 13);

4. requires insurers to report to the insurance commissioner on each malpractice claim that they close and requires her to compile and analyze the reported data, and report on it to the Insurance and Real Estate Committee and the public (§ 14); and

5. requires captive insurers to provide certain information to the insurance commissioner (§§ 15 and 16).

1. requires the Department of Public Health (DPH), to adopt guidelines for investigating complaints against, and disciplining, physicians (§§ 17 & 20);

2. expands the pool of people who may serve as members of DPH hearing panels from 18 to 24, specifies that at least eight, instead of eight, must be physicians, and at least one, instead of one, must be a physician assistant. , and requires that one member must be a physician or a physician assistant as appropriate ( § 18 & 19);

3. amends the physician profile law to require more information about adverse licensure actions in other states, professional liability insurance, and active involvement in patient care, and requires physicians to report any changes or updates in mandatory reporting information (§ 23);

4. establishes continuing education requirements for physicians as a condition of license renewal, along with exemptions from the requirements under certain conditions (§§ 21, 25,, 26); and

5. requires a physician whose license becomes void for failure to renew while on active duty in the armed forces to complete continuing education requirements in order to have his license renewed (§26);

6. requires each health care facility to develop surgery protocols by October 1, 2005 and the DPH commissioner to report on them to the Public Health Committee by that date (§ 27);

7. requires each hospital to contract with a patient safety organization, to gather medical or health care related data from the hospital and make recommendations to the hospital on ways to improve patient care and safety ( § 28).

*Senate Amendment “B” eliminates the provision in Senate Amendment “A” that would have increased the information DPH must report to the governor and the Public Health Committee regarding investigation activities it conducts. It also eliminates the requirement that DPH investigation guidelines specify when additional patient interviews should be conducted. Finally, it eliminates the requirement contained in Amendment “A” that physicians include their malpractice policy number in the physician profile DPH maintains.

EFFECTIVE DATE: Upon passage, except for the provision requiring captive insurers to provide information, which takes effect July 1, 2005, the provisions dealing with good faith certificates (2), (4), offer of compromise (4-7); collateral source (8), DPH disciplinary guidelines (17), continuing education (21, 25, 26), and the physician profile (23, 24) which take effect October 1, 2005; and the provision dealing with closed claims reports (14), which takes effect January 1, 2006.

The law establishes a sliding scale of contingency fees attorneys may charge clients based on the amount of the settlement or judgment. It allows attorneys to collect (1) one-third of the first $ 300,000, (2) 25% of the next $ 300,000, (3) 20% of the next $ 300,000, (4) 15% of the next $ 300,000, and (5) 10% of amounts exceeding $ 1,200,000. This sliding scale applies to any lawsuit to recover damages resulting from personal injury, wrongful death, or property damage involving contingency fees, not just to medical malpractice cases. A Superior Court judge interpreted this law to allow clients to waive its protections and agree to pay a higher contingency fee.

The bill allows a claimant in a claim or civil action that accrues on or after the date the bill becomes effective to waive the benefit of the limitation contained in the sliding scale only if the claim is substantially complex, unique, or different from other claims as to warrant a deviation. The bill specifies that factors that may indicate that a claim is substantially complex, unique, or different include, but are not limited to, whether it

1. involves complex factual, medical, or legal issues;

2. involves serious permanent personal injury or death;

3. is likely to require extensive investigation and discovery proceedings, including multiple depositions; or

4. requires testimony, whether at trial or in a deposition, from an expert who has not participated in the claimant’s care or in any official investigation of the incident involved.

The bill requires that before a claimant may enter into a contingency fee agreement that provides for a fee that exceeds the sliding scale, the attorney must (1) explain it and the reasons the attorney is unable to abide by it; (2) advise the claimant of his right to seek representation by another attorney willing to abide by the sliding scale; and (3) allow the claimant enough time to review the proposed agreement, and, if claimant wishes, seek representation by another attorney before entering into it.

The bill makes any waiver of the sliding scale invalid unless the agreement (1) is in writing; (2) sets forth completely the sliding scale fee schedule; (3) contains a conspicuous statement containing certain information, printed in boldface type at least 12 points in size, in substantially the form the bill specifies; and (4) is signed and acknowledged by the claimant before a notary public or other person authorized to take acknowledgements.

The bill requires that the conspicuous statement contain the following information:

1. The client understands that the sliding scale in statutes limits the amount of attorney’s fees payable by a claimant and that the law establishing the sliding scale was intended to increase the portion of the judgment or settlement that a claimant actually receives and

2. despite the legislative intent in enacting that fee schedule was to confer a benefit on a claimant the client knowingly, and voluntarily waive that fee schedule in his claim or civil action.

If a claimant waives the sliding scale, the bill limits the total fee under the contingency fee to one-third per cent of the damages awarded and received by the claimant or of the settlement amount received by the claimant and prohibits the firm from requiring the claimant to repay any costs that the attorney incurred in investigating and prosecuting the claim or civil action if there is no recovery.

The bill specifies that no fee shall be payable to any attorney who seeks a fee that exceeds the sliding scale unless the claimant has waived it pursuant to the bill’s requirements and the contingency fee agreement complies with the bill.

The law prohibits filing malpractice lawsuits unless the attorney or claimant has made as reasonable an inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that the claimant received negligent care or treatment. The complaint or initial pleading must contain a certificate of the attorney or claimant that his inquiry resulted in a good faith belief that grounds exist for a lawsuit against each named defendant.

Under current law, a good faith belief can be shown if the claimant or his attorney receives a written opinion from a similar health care provider that there appears to be evidence of medical negligence. But it can also be shown in some other way. The bill instead requires, for lawsuits filed after September 30, 2005, a written signed opinion from a similar health care provider in order to show good faith. The opinion must include the reasons for concluding that medical negligence occurred. It is not subject to discovery by the defendants except for questioning the certificate’s validity.

The bill makes the failure to obtain and file the written opinion grounds for the dismissing the case.

The bill requires the claimant or his attorney to retain the original written opinion and attach a copy of it to the certificate, with the health care provider’s name and signature removed.

The bill imposes the same good faith certificate requirement on defendants who file an apportionment complaint against another health care provider. An apportionment complaint is a defendant’s claim in a medical malpractice lawsuit that another health care provider who the plaintiff did not make a defendant committed malpractice and partially or totally caused the plaintiff’s damages. By filing the apportionment complaint, the defendant in essence makes the other health care provider a party to the plaintiff’s lawsuit.

The bill makes the health care provider who provides the opinion immune from liability unless it is shown he acted with malice.

By law, the court may impose sanctions if a certificate is not made in good faith.

The bill requires the court, within six months after a medical malpractice case is filed, to schedule a conference to determine whether to recommend to the chief court administrator, or his designee, that it be designated as a complex litigation case and transferred to the complex litigation docket. The bill specifies that it does not prevent any party or a judge from, at any time, asking the chief court administrator to designate it as a complex litigation case.

By law, in any contract case or a case seeking money damages, plaintiffs and defendants can use a statutory procedure to offer to settle the case for a specified amount. This is called an “offer of judgment. ”

Plaintiffs can file an offer of judgment with the court clerk up to 30 days before trial. After trial, the court must examine the record to determine whether the plaintiff made an offer of judgment that the defendant failed to accept. Under current law, if it determines that the plaintiff recovered an amount equal to or greater than the sum stated in his offer of judgment, the court must add 12% annual interest.

By law, a defendant has 60 days to file an acceptance of the offer with the court clerk. If the defendant notifies the clerk that he accepts the offer, the clerk must enter judgment.

Regarding lawsuits that accrue after September 30, 2005, the bill makes several changes in this process. It reduces the interest the court must add from 12% to 8%. It prohibits the plaintiff from making the offer for at least 180 days after service of process on the defendant. It changes the terminology from “offer of judgment” to “offer of compromise,” and gives the defendant 30 instead of 60 days to accept.

If the defendant accepts the offer, he must file his acceptance with the court clerk. After the plaintiff receives the amount specified in the offer from the defendant, he must file a withdrawal of the lawsuit with the clerk, which the clerk must record. Thus, no judgment is entered against the defendant.

By law, defendants may also file an offer with the court clerk up to 30 days before trial. The plaintiff has 10 days after being notified of the defendant’s offer to accept it. If the plaintiff recovers less than the offer of judgment, he must pay the defendant’s costs accruing after he received his offer, including reasonable attorney’s fees up to $ 350.

The bill changes the term “offer of judgment” to “offer of compromise” for this law also. It gives the plaintiff 60 days to accept the defendant’s offer, instead of 10. After the plaintiff files an acceptance of an offer to compromise with the clerk and receives the amount specified in the offer, the plaintiff must file a withdrawal of the lawsuit with the clerk, who must record its withdrawal.

The bill requires that, in medical malpractice cases, an offer of compromise must specify all damages then known to the plaintiff or his attorney when the offer is made. At least sixty days before filing the offer, the plaintiff or his attorney must provide the defendant or his attorney with an authorization to disclose medical records that meets federal health care privacy provisions under the Health Insurance Portability and Accountability Act of 1996 (also known as HIPAA), and disclose all expert witnesses who will testify as to the prevailing professional standard of care. The plaintiff must file with the court a certification that the plaintiff has provided each defendant or his attorney with all documentation supporting the damages.

The bill allows defendants in medical malpractice cases that accrue after September 30, 2005, to introduce evidence of the amount of damages awarded to the plaintiff for the same injury or death in a separate lawsuit the plaintiff filed against a different health care provider. (See Background for a list of the health care providers covered. )

The bill makes certain statements or other conduct inadmissible evidence as an admission of liability or an admission against interest in any medical malpractice lawsuit, or in any arbitration proceeding related to it. (See Background for a list of health care providers covered. ) This rule applies to statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that a health care provider or his employee makes to the alleged victim, his relative, or representative regarding the victim’s discomfort, pain, suffering, injury, or death as a result of the outcome of a medical treatment or procedure that differs from an expected result.

The victim’s relatives include his spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-sibling, or his spouse’s parents; relationships that are created by adoption; and any person who has a family-type relationship with a victim. A victim’s representative is his legal guardian, attorney, health care agent, or any one else recognized in law or custom as a his agent.

The bill requires the court, in any medical malpractice case in which the jury awards more than $ 1 million in noneconomic damages, to review the evidence to determine if the amount is excessive as a matter of law. It requires the court to consider whether it so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake, or corruption. If the court concludes the award was excessive, it must order the plaintiff to remit the excessive amount. If the plaintiff refuses to do so, the court must set aside the verdict and order a new trial.

The bill subjects malpractice insurance rates for physicians, hospitals, advanced practice registered nurses, and physician assistants to prior rate approval by the insurance commissioner. On and after the bill’s effective date, each insurer or rating organization seeking to increase its rates by 7 ½% or more must file a request with the Insurance Department and send, by certified mail with return receipt requested, written notice to all affected insureds at least 60 days before the change’s effective date on a form the insurance commissioner prescribes.

The request for a rate increase must be filed after this notice is sent and must indicate the date the notice was sent. The notice must indicate that the insured can request a public hearing by submitting a written request to the insurance commissioner within 15 days after the date notice was sent. Within 15 days after notice is sent, the insurer must give the Insurance Department a list of insured’s to whom notice was sent and indicate whether a return receipt was received for each.

The bill prohibits the insurance commissioner from approving, modifying, or denying a requested rate increase the time period for insureds to request a hearing expires. It requires the commissioner to hold a public hearing, if requested, before taking action.

The commissioner must approve, modify, or deny the filing within 45 days after receipt. Her final decision may be appealed to Superior Court.

By October 1, 2008, the bill requires the insurance commissioner to review medical malpractice insurance rates in Connecticut for physicians, hospitals, advanced practice registered nurses, and physicians’ assistants to determine if (1) the amount or frequency of insured awards and settlements against these providers have decreased since October 1, 2005; (2) the rates reflect the decrease; and (3) the rates bear a reasonable relationship to the costs of writing such insurance in this state. She must examine the rates for policies issued by (1) captive insurers and risk retention groups, to the extent this information is available, and (2) insurers licensed in Connecticut.

If the commissioner determines that rates have not decreased and are not reasonably related to the costs of writing such insurance in the state, she must convene a working group to (1) consider the amounts of awards and settlements in the past 10 years and (2) recommend appropriate changes, if any, in the law to decrease rates or establish reasonable ones. These changes may include reasonable limits on noneconomic damages awards, revisions to procedures insurers use to establish rates, and regulation of reimbursement rates health insurers and HMOs pay to health care providers.

1. the chairmen and ranking members of the Judiciary, Public Health, Insurance and Real Estate, and the Legislative Program Review and Investigations committees;

2. one member each appointed by the Connecticut Medical Society, the Connecticut Hospital Association, and the Connecticut Trial Lawyers Association;

3. one representative of a patient advocacy group appointed by the House speaker;

4. one representative of a medical malpractice insurer licensed and actively doing business in Connecticut appointed by the Senate president pro tempore;

5. the commissioner of the Office of Health Care Access, or a designee; and

6. the insurance commissioner.

By January 1, 2006, the insurance commissioner must develop and submit to the governor a plan to maintain a viable medical malpractice insurance industry in Connecticut for physicians, hospitals, advanced practice registered nurses, and physician assistants.

Current law authorizes the insurance commissioner to require all medical malpractice insurers in Connecticut to submit whatever information she deems necessary to establish a medical malpractice database. The database can include information on all incidents of medical malpractice, all settlements, all awards, other information relative to procedures and specialties involved, and any other information relating to risk management.

The bill instead requires, beginning January 1, 2006, each insurer (including captive insurers and self-insured entities) provide to the commissioner a closed claim report, on whatever form she requires. A “closed claim” is one that has been settled or otherwise disposed of, where the insurer has paid all claims regarding physicians, hospitals, advanced practice registered nurses, and physician assistants.

The bill requires the insurer to report within 10 days after the end of the calendar quarter in which a claim is closed. The report must include information only about claims settled under Connecticut’s laws. It must include details about the insured and insurer, the injury or loss, the claims process, and the amount paid on the claim.

The report must include the (1) insurer’s name; (2) policy limits and whether it was an occurrence policy or was issued on a claims-made basis; (3) insured’s name, address, license number, and specialty coverage; and (4) insured’s policy number and unique claim number. An “occurrence policy” provides protection for malpractice that occurred during the time the policy was in effect. A “claims-made” policy provides protection for claims made during the period the policy is in effect.

2. date the injury or loss was reported to the insurer;

3. name of the institution or location where the injury or loss occurred;

4. type of injury or loss, including an injury severity rating that corresponds with the injury scale that the commissioner must establish based on the severity scale developed by the National Association of Insurance Commissioners; and

5. name, age, and gender of any injured person covered by the claim.

Any individually identifiable information (as defined by federal regulation) is confidential. The bill specifies that reporting this information is required by law. It requires that if necessary to comply with federal privacy laws, the insured must arrange with the insurer to release the required information.

1. whether a lawsuit was filed, and if so, in which court;

2. its outcome;

3. the number of other defendants, if any;

4. the stage in the process when the claim was closed;

5. the trial dates;

6. the date of any judgment or settlement;

7. whether an appeal was filed, and if so, the date filed;

8. the resolution of the appeal and the date it was decided;

9. the date the claim was closed; and

10. the initial and final indemnity and expense reserve for the claim.

1. the total amount of the initial judgment rendered by a jury or awarded by the court;

2. the total amount of the settlement if no judgment was rendered or awarded or the claim was settled after judgment was rendered or awarded;

3. the amount of economic and noneconomic damages, or the insurer’s estimate of these amounts in a settlement;

4. the amount of any interest awarded due to failure to accept an offer of judgment;

5. the amount of any remittitur (reduction) or additur (addition) and the amount of final judgment after such reductions or additions;

6. the amount the insurer paid;

7. the amount the defendant paid due to a deductible or a judgment or settlement in excess of policy limits;

8. the amount other insurers or other defendants paid;

9. whether a structured settlement was used;

10. the expense assigned to and recorded with the claim, including defense and investigation costs but not including the actual claim payment; and

11. any other information the commissioner determines necessary to regulate the medical malpractice insurance industry, ensure its solvency, and ensure that such liability insurance is available and affordable.

The bill requires the commissioner to establish a closed claim reports electronic database.

The bill requires the insurance commissioner to aggregate the data in individual closed claim reports into a summary and annually report the summary data. The report must analyze the closed claim information, including

1. a minimum of five years of comparative data, when available;

2. trends in frequency and severity of claims;

3. itemization of damages;

4. timeliness of the claims process; and

5. any other descriptive or analytical information that would help interpret the trends in closed claims.

The annual report must include a summary of rate filings for medical malpractice insurance for medical professionals and entities that the department approved for the prior calendar year. The summary must include an analysis of the trend of direct losses, incurred losses, earned premiums, and investment income as compared to prior years. The report must also include base premiums charged by medical malpractice insurers for each specialty and the number of providers insured by specialty for each insurer.

Beginning March 15, 2007, the commissioner must annually submit the report to the Insurance and Real Estate Committee. She must also (1) make the report available to the public, (2) post it on the department’s Internet site, and (3) provide public access to the contents of the electronic database after establishing that the names and other individually identifiable information about claimants and practitioners have been removed.

The bill requires the commissioner to provide the DPH commissioner with electronic access to all the closed case information she receives. It also requires the DPH commissioner to keep such information as confidential as the law requires the insurance commissioner to do.

A “captive insurer” is an insurance company owned by another organization and whose primary purpose is to insure risks of the parent organization and affiliated companies. In the case of groups and associations, it is an insurance organization owned by the insureds whose primary purpose is to insure risks of member organizations, group members, and their affiliates.

The bill requires each captive insurer that offers, renews, or continues insurance in Connecticut to provide the following information to the insurance commissioner in the same manner required for risk retention groups:

1. a copy of the group’s financial statement submitted to its state of domicile, which must be certified by an independent public accountant and contain a statement of opinion on loss and loss adjustment expense reserves made by a member of the American Academy of Actuaries or a qualified loss reserve specialist;

2. a copy of each examination of the captive as certified by the commissioner or public official conducting the examination; and

3. at the commissioner’s request, a copy of any audit performed with respect to the captive.

If a captive insurer does not maintain this information in this form, the bill permits it to submit the information to the commissioner on whatever form she prescribes.

The bill requires the commissioner to act as agent for service of process for risk retention groups domiciled outside the United States and for captive insurers. By law, the commissioner acts as agent for risk retention groups domiciled in another state that offer insurance in Connecticut.

The bill requires that, by January 1, 2006, the DPH, with the assistance of the Connecticut Medical Examining Board, and relevant medical professional associations, establish guidelines for use in the disciplinary process. The guidelines, must include, at a minimum:

1. identification of each type of violation;

2. a range of penalties for each type of violation;

3. additional conditions that the board may impose;

4. identification of factors the board must consider to determine what penalty should apply;

5. conditions, such as mitigating factors or other facts, that the board may consider in deviating from the guidelines; and

6. a requirement for the board to specify its reason for any deviating from the guidelines.

By law, DPH must investigate charges that a physician may be unable to practice medicine with reasonable skill or safety. If it finds probable cause, it refers the mater to the Medical Examining Board, which must refer it to a three-member hearing panel within 60 days of receiving it. The panel makes a recommendation to the board after conducting a hearing on the charges. The board may restrict, suspend, or revoke a physician's license or limit his right to practice for certain misconduct.

The bill expands the pool of people who may serve as members of such panels from 18 to 24. The bill specifies that at least eight, instead of eight, must be physicians, and at least one, instead of one, must be a physician assistant.

By law, the three-member medical hearing panel must include a board member and a public member. The bill requires that one member must be a physician or a physician assistant as appropriate.

DPH INVESTIGATION GUIDELINES CONCERNING COMPLAINTS AGAINST PHYSICIANS (§ 20)

Under current law, the DPH commissioner, with the Connecticut Medical Examining Board’s advice and assistance, may establish regulations to carry out his physician licensing duties. The bill instead requires the commissioner to establish guidelines, which will not be considered regulations, to carry out these duties. By January 1, 2006, the commissioner must establish guidelines:

1. for screening complaints about physicians’ competence to determine which complaints DPH will investigate and in what order;

2. for conducting investigations to ensure prompt action when it appears necessary;

3. to determine when an investigation should be broadened beyond the initial complaint to include sampling patient records to identify patterns of care, reviewing office practices and procedures, and reviewing performance and discharge data from hospitals; and

4. to protect and ensure the confidentiality of patient and provider identities when an investigation is broadened.

The bill amends DPH’s physician profile program to require physicians to report adverse licensure actions taken in other states. Current law only requires them to report only disciplinary action taken by DPH or the State Medical Examining Board. The bill also requires the physician to report, for the first time, (1) whether he is actively involved in patient care and (2) the name of his professional liability insurance carrier.

Current law requires the physician periodically to update certain information in his profile about practice specialty, board certifications, practice location, languages spoken, hospital and nursing home privileges, and any felony convictions. The bill requires periodic updating of additional physician profile elements, including appointments to Connecticut medical school faculties; professional services, activities, and awards; hospital disciplinary actions; and medical malpractice judgments, arbitration awards, and settlements.

Beginning October 1, 2007, the bill requires a physician applying for license renewal to have completed at least 50 contact hours of continuing education during the previous 24 months. A “contact hour” means a minimum of 50 minutes of continuing education activity. It must (1) be in the physician’s practice area; (2) reflect the physician’s professional needs in order to meet the public’s health care needs; and (3) include at least one contact hour of training or education in infectious diseases (e. g. AIDS, HIV), risk management, sexual assault, and domestic violence.

Acceptable continuing medical education includes courses offered or approved by the American Medical Association, American Osteopathic Medical Association, Connecticut Hospital Association, Connecticut State Medical Society, county medical societies or equivalent bodies in other jurisdictions; education sponsored by hospitals and other health institutions; and courses offered by regionally accredited academic institutions, or a state or local health department.

A physician applying for license renewal must sign a statement that he satisfied the continuing education requirements. The physician must keep attendance records or certificates of completion showing compliance with the continuing education requirements for at least three years following the year in which they were completed. He must provide the records to DPH for inspection within 45 days after a request is made.

A first-time applicant for license renewal is exempt from the continuing education requirements. Also exempt is a physician not actively practicing during a one-year registration (license renewal) if he provides DPH, before the registration period ends, a notarized application for exemption on a DPH form. DPH may require other documentation. The exemption application must include a statement that the physician cannot practice until he meets the continuing education requirements.

A physician exempt from the continuing education requirements for less than two years must complete 25 contact hours of continuing education within the 12 months immediately preceding his return to active practice. A physician exempt for two or more years must complete the Special Purpose Examination of the Federation of State Medical Boards before returning to active practice.

The bill allows the DPH commissioner to waive the continuing education requirements or grant an extension to a physician in the case of medical disability or illness. The physician must apply to DPH for a waiver or extension on a DPH form and provide a licensed physician’s certification of the disability or illness, as well as other documentation the commissioner may require. DPH can grant a waiver or extension for up to one registration period. It can grant additional waivers or extensions if the disability or illness continues beyond that period and the physician applies for the additional waiver or extension.

A physician whose license lapses and who applies for reinstatement must document to DPH successful completion of the 25-hour continuing education requirement within the one-year preceding the application.

Under the bill, DPH must renew the license of a physician that becomes void for nonrenewal because he is on active duty in the armed forces within one year from the discharge date upon completion of the 25 contact hours of continuing education. The physician must apply to DPH and provide any documentation required. Under current law, DPH must renew a license in such a situation within six months from the discharge date.

The bill requires each hospital and outpatient surgical facility to develop protocols for accurate identification procedures that they must use before surgery. The protocols must include (1) procedures to identify the patient, the surgical procedure to be performed, and the body part on which it is to be performed and (2) alternative identification procedures in urgent or emergency circumstances or where the patient cannot speak or is comatose, incompetent, or a child. After January 1, 2006, no hospital or outpatient surgical facility may anesthetize a patient or perform surgery unless the protocols have been followed. Each health care facility must make a copy of its protocols available to the commissioner upon request. DPH must report to the Public Health Committee by October 1, 2006 and describe the protocols developed.

By January 1, 2006, the bill requires each hospital to (1) contract with a patient safety organization, to gather medical or health care related data from the hospital and make recommendations to the hospital on ways to improve patient care and safety, and (2) provide documentation to DPH, in whatever form and manner DPH requires, that the hospital has complied. By law, a “patient safety organization” is any public or private organization, or part of one, whose primary activity is improving patient safety and quality of health care delivery for patients. The organization must do this by collecting, aggregating, analyzing, or processing medical or health care–related information it receives from health care providers.

The bill eliminates the voluntary Medical Malpractice-Screening Panel. Under current law, the parties must consent to use the panel. With their mutual agreement, the insurance commissioner or her designee selects panel members from lists of names submitted by the Connecticut State Medical Society and the Connecticut Bar Association. The panel is composed of two doctors and one attorney with trial experience in personal injury cases who acted as chairman. One of the doctors must practice in the same specialty as the defendant. Panel members cannot be from communities in which the defendant doctor or the parties’ attorneys practice. Panel members are not compensated. The panel holds confidential hearings when and where it decides and makes transcripts available at cost to either party.

The panel’s conclusion as to liability is outlined in a finding signed by the members and recorded by the insurance commissioner. The panel does not address the issue of damages. Each party receives a copy of the panel’s findings. If a subsequent trial is held, only unanimous findings of the panel are admissible. The court or jury determines the weight assigned to such admissible findings. No member can be compelled to testify.

By law, if the defendant health care provider is not certified by the appropriate American board as a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a “similar health care provider” is one who is (1) licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications and (2) trained and experienced in the same discipline or school of practice. Such training and experience must be a result of active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.

If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a “similar health care provider” is one who is (1) trained and experienced in the same specialty and (2) certified by the appropriate American board in the same specialty. But, if the defendant health care provider is providing treatment or diagnosis for a condition that is not within his specialty, a similar health care provider is a specialist trained in the treatment or diagnosis of that condition.

By law, the court must impose an appropriate sanction on the person who signed the certificate if it determines, after discovery is completed, that the certificate was not made in good faith and that no valid issue was presented against a health care provider who fully cooperated in providing informal discovery. It may also sanction the claimant. The sanction may include an order to pay to the other party or parties the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. The court also may submit the matter to the appropriate authority for disciplinary review of a claimant’s attorney who submitted the certificate.

The provisions of the bill relating to evidence of damages awarded (§ 8) and expressions of sympathy (§ 9), apply to medical malpractice lawsuits filed against the following licensed health care providers:

1. doctors and surgeons,

2. chiropractors,

3. natureopaths,

4. podiatrists,

5. athletic trainers,

6. physical and occupational therapists,

7. substance abuse counselors,

8. radiographers and radiologic technologists,

9. midwives,

10. nurses and nurses aides,

11. dentists and dental hygienists,

12. optometrists and opticians,

13. respiratory care practitioners,

14. pharmacists,

15. psychologists,

16. marital therapists and professional counselors, and

17. clinical social workers.

1. veterinarians,

2. massage therapists,

3. electrologists,

4. hearing instrument specialists and audiologists,

5. ambulance drivers, and

6. emergency medical technicians and communications personnel.

The provisions also apply to the following health care institutions: hospitals; outpatient surgical facilities; residential care homes; health care facilities for the handicapped; nursing homes; rest homes; home health and homemaker-home health aide agencies; mental health and substance abuse treatment facilities; college infirmaries; diagnostic and treatment facilities, including those operated and maintained by a state agency, except facilities for the care or treatment of mentally ill or substance abusing people; and intermediate care facilities for the mentally retarded.

sHB 6714, File 466 contains almost identical requirements concerning physician profiles, continuing education, and physicians in the armed forces. SSB 131, File 209, contains many similar and related changes dealing with civil litigation, primarily relating to medical malpractice; medical malpractice insurance regulation and oversight; and the regulation, oversight, and disciplining of doctors.

The Senate referred the bill (File 554) to the Insurance Committee, the Public Health Committee, the Legislative Management Committee, and the Appropriations Committee on May 4, 13, 25, and 31 respectively, and these committees reported the bill unchanged on May 11, 19, and 26, and June 2 respectively.