Comparision of Medical Malpractice Bills

PA 04-155, which the governor vetoed last year, and two bills from this session, sSB 131 (File 209) favorably reported by the Insurance Committee and Public Health Committees and sSB 1052 (File 554) favorably reported by the Judiciary Committee

PA 04-155 and sSB 131 are substantially the same except in three respects. First, PA 04-155 contains a state income tax credit for physicians. Second, sSB 131 requires litigants to send certain information about their malpractice case to the Department of Public Health (DPH). Third, sSB 131 requires physicians to provide additional information to DPH for the physician profile.

sSB 1052 is the same as sSB 131 in many respects, including the provisions dealing with the good faith certificate, closed claims reports, captive insurers, and information physicians must report to DPH.

But, sSB 1052 contains provisions dealing with some subjects that sSB 131 does not, including the introduction of evidence of prior damages awards, expressions of sympathy by physicians, and continuing education.

On the other hand, sSB 1052 does not address certain subjects that sSB 131 does, including contingency fees, mandatory review of million dollar non-economic damages awards, liability releases, the medical malpractice screening panel, insurance rate reduction factors, notice of malpractice cases and settlements to DPH, patient safety, and DPH reporting on the number of physicians by specialty.

Finally, sSB 1052 deals with areas also covered by sSB 131, but in a different way. These areas include offer of judgment, prior rate approval, physician investigation guidelines, physician discipline, and surgery protocols.

Table 1 compares these bills. The table is divided into three main sections: tort reform, insurance reform, and health care reform.


*Provision*	*PA 04-155* *(vetoed)*	*sSB 131* *(file 209)* *Insurance*	*sSB 1052* *(file 554)* *Judiciary*
*INSURANCE REFORM*
Prior Rate Approval	Requires the Insurance Department to approve medical malpractice insurance rate changes for physicians, hospitals, advanced practice registered nurses, and physician assistants before they can take effect and requires the insurers either to offer a discount for those who use an electronic records system or demonstrate that its use does not reduce the risk (§ 13)	SAME (§ 13)	Requires prior rate approval when an insurer wants to increase medical malpractice insurance rates by 5% for physicians, hospitals, and certain other health care providers, and requires an insurer to notify insured’s of (a) the proposed rate increase, and (b) their right to ask the insurance commissioner for a hearing (§ 7)
Rate Reduction Factors	Requires that specified 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 any reduction in risk from using electronic health record systems to establish and maintain patient records and verify patient treatment (§ 14)	SAME (§ 14)	NONE
Closed Claim Reports	§ Requires insurers to give the insurance commissioner a report on each malpractice claim that they close that includes details about the insured and insurer, the injury or loss, the claims process, and the amount paid, excluding confidential information (§ 16); § Requires the commissioner to compile and analyze the reported data and annually report on it to the Insurance Committee and the public (§ 16).	SAME (§ 16)	SAME (§ 18)


*Provision*	*PA 04-155* *(vetoed)*	*sSB 131* *(file 209)* *Insurance*	*sSB 1052* *(file 554)* *Judiciary*
*INSURANCE REFORM: Cont.*
Captive Insurers	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).	SAME (§§ 19 & 20)	SAME (§§ 19 & 20)
Insurance Commissioner Review And Working Group	NONE	NONE	§ Requires insurance commissioner, by October 1, 2008, to review professional liability insurance rates to determine if they have decreased and whether they bear a reasonable relationship to the costs of writing such insurance in the state, § Requires commissioner 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 (§11).
Viable Medical Malpractice Insurance Industry Plan	NONE	NONE	Requires commissioner to develop a plan to maintain a viable medical malpractice insurance industry in Connecticut and submit it to the governor (§ 12)


*Provision*	*PA 04-155* *(vetoed)*	*sSB 131* *(file 209)* *Insurance*	*sSB 1052* *(file 554)* *Judiciary*
*HEALTH CARE REFORM*
Notice of Litigation and Settlement	§ Requires litigants to notify the Insurance Department and DPH when they file a malpractice case § Specifies that the notice of settlement or award that the party paying damages must, by law, submit to DPH must include information on (1) economic and noneconomic damages, if determined; (2) how the award is allocated among multiple defendants; and (3) the portion attributable to the offer of judgment law (§§ 3, 4)	Same (§ 3) Also requires (a) settlement notice to go to Insurance Department and (b) DPH to send information to appropriate examining board	NONE
Physician Information	§ Requires physicians to provide DPH with name of malpractice insurer, policy number, specialty area, active practice status, and any disciplinary actions against them in other jurisdictions (§ 11)	§ Same (§ 11) § Also requires (a) physician profiles to include name of malpractice insurer, active practice status, and any adverse licensure actions in other jurisdiction and (b) periodic updating of all physician profile information, including hospital disciplinary actions and malpractice judgments, arbitration awards, and settlements (§§ 21,22)	§ Same as sSB 131 (§§ 15, 16)
Physician Investigation Guidelines	§ Requires DPH to adopt guidelines for screening and investigating complaints against physicians (§ 4) § Requires DPH to notify physicians and complainants when it decides not to investigate because of a lack of probable cause (§§ 3, 10)	Same (§§ 4, & 10)	§ Same for guidelines (§ 8) § No notice requirement when DPH does not investigate
*Provision*	*PA 04-155* *(vetoed)*	*sSB 131* *(file 209)* *Insurance*	*sSB 1052* *(file 554)* *Judiciary*
*HEALTH CARE REFORM: Cont.*
Physician Discipline	§ Requires Medical Examining Board to adopt regulatory guidelines for (1) identifying violations and prescribing penalties, (2) factors it must consider in determining penalties or deviating from penalty guidelines and (3) other license conditions it may impose § Requires one member of hearing panels be a health care provider similar to the physician being investigated § Requires DPH to conduct the hearing if board doesn’t do so within 60 days of receiving charges (§§ 4, 5)	Same (§ 5)	§ Similar, guidelines are not adopted as regulations § No change in hearing panel membership § No provision for DPH to conduct hearing if board fails to do so in prescribed time (§ 9)
Surgery Protocols	Requires DPH to develop protocols for accurate identification procedures hospitals and outpatient surgical centers must use before surgery (§7)	Same (§ 7)	Requires health care facilities to adopt protocols and make them available to DPH on request (§ 10)
Patient Safety	Requires DPH to develop and implement process to ensure continuing and coordinated focus on patient safety (§ 17)	Same (§ 17)	NONE
DPH reporting	§ Requires DPH to report annually on number of physicians in active practice, by specialty (§12) § Requires DPH’s annual report to the governor and legislature to include additional information such as the number of complaints filed against doctors and the number of malpractice notices it received but did not investigate and why (§ 6)	Same (§§ 6 & 12)	NONE
Continuing Education	NONE	NONE	Requires physician to have 50 contact hours of continuing education every two years in order to renew license (§§ 13, 17)
*OTHER*
Tax Credits	Gives physicians who have never had a malpractice judgment against them a state income tax credit for part of their malpractice premium (§§ 19, 20)	NONE	NONE


May 3, 2005		2005-R-0456
COMPARISION OF MEDICAL MALPRACTICE BILLS

By: George Coppolo, Chief Attorney Saul Spigel, Chief Analyst


*Provision*	*PA 04-155* *(vetoed)*	*sSB 131* *(file 209)* *Insurance*	*sSB 1052* *(file 554)* *Judiciary*
*TORT REFORM*
Mandatory Mediation	Establishes program (§ 1)	SAME (§ 1)	NONE
Good Faith Certificate	§ Requires written certificate from similar health care provider § Requires copy with signature removed submitted with complaint § Immunizes signer unless he acted with malice (§ 2)	SAME (§ 2)	SAME (§ 1)
Offer of Judgment by Plaintiff	Reduces interest rate for medical malpractice cases from 12% to 8% for portion of award up to twice the offer and from 12% to 4% for the portion that exceeds twice the offer (§ 8)	SAME (§ 8)	§ Changes the term to "offer of compromise" and ends the process in a withdrawal of the lawsuit after payment instead of judgment against the defendant (§§ 3-7); § Reduces, from 12% to 8%, the interest rate the court may award for an offer of compromise for medical malpractice cases that accrue after September 30, 2005 (§ 3) § 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. Requires the plaintiff to: (a) 60 days before filing the offer, provide the defendant with an authorization to disclose medical records that meets federal health care privacy provisions, (b) a disclose all expert witnesses who will testify about the prevailing professional standard of car; and (c) file with the court a certification that he has provided each defendant or his attorney with all documentation supporting the damages.
Offer of Judgment by Defendant	Gives plaintiffs more time, 60 days instead of 10, to accept a defendant’s offer of judgment and allows courts to give plaintiffs and defendants up to an additional 120 days to accept an offer of judgment (§§ 8 & 9)	SAME (§ 8 & 9)	Changes the term to "offer of compromise" and ends the process in a withdrawal of the lawsuit after payment instead of judgment against the defendant (§§ 3-7)
*Provision*	*PA 04-155* *(vetoed)*	*sSB 131* *(file 209)* *Insurance*	*sSB 1052* *(file 554)* *Judiciary*
*TORT REFORM: Cont.*
Contingency Fees	§ Prohibits fees above the sliding scale without court approval § Fees may not exceed 1/3^rd of award § Client’s share must be calculated after deductions for costs (§ 15)	SAME (§ 15)	NONE
Mandatory Review Of Million Dollar Non-Economic Damage Awards	Requires court to review any non-economic award of $ 1 million or more to see if excessive as a matter of law-influenced by prejudice, partiality, mistake, or corruption. Can order plaintiff to remit a portion or order a new trial. (§ 18)	SAME (§ 18)	NONE
Liability Releases	Makes liability releases invalid until the attorney representing the paying party files an affidavit with the court that he has provided the Department of Public Health (DPH) and the insurance commissioner with required information (§ 3)	SAME (§ 3)	NONE
Medical Malpractice Screening Panel	Eliminates existing Medical Malpractice Screening Panel (§ 23).	SAME (§ 21)	NONE
Introducing Evidence Of Damages Awarded	NONE	NONE	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. ) (§ 2)
Complex Litigation Case	NONE	NONE	Requires the court, within six months after a medical malpractice case is filed, to schedule a conference to determine whether to recommend its be designated as a complex litigation case and transferred to the complex litigation docket (§ 21).
Expressions Of Sympathy	NONE	NONE	Makes expressions of sympathy by health care providers inadmissible in lawsuits by victims of unanticipated outcomes of medical care (§ 22).