Connecticut Seal

General Assembly

 

Raised Bill No. 6622

January Session, 2011

 

LCO No. 4851

 

*04851_______JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING THE BURDEN OF PROOF IN MEDICAL MALPRACTICE CASES AND THE STANDARD OF CARE RELATED TO EMERGENCY MEDICAL CARE AND TREATMENT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 52-184c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) (1) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, but prior to October 1, 2011, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.

(2) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 2011, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by clear and convincing evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.

(3) The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers, except that a given health care provider who provides care and treatment in the emergency department of an acute care hospital licensed under chapter 368v shall not be held liable for any damages as a result of such care or treatment unless such damages result from providing, or failing to provide, care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another. For purposes of this subdivision, "reckless disregard" as it applies to a given health care provider rendering care and treatment in such emergency department is conduct that a health care provider knew or should have known, at the time such care or treatment was rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

(b) If the defendant health care provider is not certified by the appropriate American board as being 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: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.

(c) 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: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider".

(d) Any health care provider may testify as an expert in any action if he: (1) Is a "similar health care provider" pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.

Sec. 2. Subsection (a) of section 52-557b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) A person licensed to practice medicine and surgery under the provisions of chapter 370 or dentistry under the provisions of section 20-106 or members of the same professions licensed to practice in any other state of the United States, a person licensed as a registered nurse under section 20-93 or 20-94 or certified as a licensed practical nurse under section 20-96 or 20-97, a medical technician or any person operating a cardiopulmonary resuscitator or a person trained in cardiopulmonary resuscitation in accordance with the standards set forth by the American Red Cross or American Heart Association, or a person operating an automatic external defibrillator, who, voluntarily and gratuitously and other than in the ordinary course of such person's employment or practice, renders emergency medical or professional assistance to a person in need thereof, shall not be liable to such person assisted for civil damages for any personal injuries which result from acts or omissions by such person in rendering the emergency care, which may constitute [ordinary] negligence. A person or entity that provides or maintains an automatic external defibrillator shall not be liable for the acts or omissions of the person or entity in providing or maintaining the automatic external defibrillator, which may constitute [ordinary] negligence. The immunity provided in this subsection [does not apply to acts or omissions constituting gross, wilful or wanton negligence] shall not apply to acts or omissions which may constitute reckless disregard, as defined in subdivision (3) of subsection (a) of section 52-184c, as amended by this act. With respect to the use of an automatic external defibrillator, the immunity provided in this subsection shall only apply to acts or omissions involving the use of an automatic external defibrillator in the rendering of emergency care. Nothing in this subsection shall be construed to exempt paid or volunteer firefighters, police officers or emergency medical services personnel from completing training in cardiopulmonary resuscitation or in the use of an automatic external defibrillator in accordance with the standard set forth by the American Red Cross or American Heart Association. For the purposes of this subsection, "automatic external defibrillator" means a device that: (1) Is used to administer an electric shock through the chest wall to the heart; (2) contains internal decision-making electronics, microcomputers or special software that allows it to interpret physiologic signals, make medical diagnosis and, if necessary, apply therapy; (3) guides the user through the process of using the device by audible or visual prompts; and (4) does not require the user to employ any discretion or judgment in its use.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2011

52-184c

Sec. 2

October 1, 2011

52-557b(a)

Statement of Purpose:

To: (1) Provide that a claimant in a medical malpractice action establish the negligence of a health care provider by clear and convincing evidence; and (2) provide that health care providers who render care in emergency departments of acute care hospitals and licensed medical professionals who render emergency care voluntarily and gratuitously be liable for acts or omissions constituting a reckless disregard for the consequences.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]