JUD Committee Hearing Transcript for 04/01/2013

SENATOR COLEMAN: Good morning again, ladies and gentlemen. I'd like to reconvene the public hearing of the Judiciary Committee. There sure are a number of items on our agenda and the committee is pleased to entertain testimony from all the people who signed the list. If you do wish to address the committee today, by the entrance, there is a sign up list. Please put your name on that list.

For your information there, is an overflow room that is at in Legislative Office Building at Room 1C. So if at anytime you don't have a seat here and you do wish to take a seat, you can probably find one in Room 1C.

Generally speaking, the committee will entertain speakers who will have three minutes to make a presentation to the committee to be followed by questions from the members of the committee. If you have or would like to submit written testimony, please submit that testimony to the staff members who are located at the desk in the rear left, my left of -- of this room.

In the interest of safety, I would ask you to note the location of an access to the exits in this hearing room. The two doors to which you entered the room are the emergency exits and are marked with exit signs. In an emergency, the door behind the legislators can also be used. In the event of an emergency, please walk quickly to the nearest exit. After exiting the room, go to your left and exit the building by the main entrance or follow the exit signs to one of the other exits. Please quickly exit the building and follow any instructions from the Capitol Police. Do not delay and do not return unless and until you are advised that it is safe to do so.

In the event of a lockdown announcement, please remain in the hearing room and stay away from the exit doors until an all-clear announcement is heard.

I believe that accounts for all the preliminary matters.

As first speaker, I'd like to call Ann Melissa Dowling.

Commissioner Dowling, no response.

Kevin Kane.

CHIEF STATE'S ATTORNEY KEVIN KANE: Thank you Senator Coleman, Representative Fox and Representative Rebimbas and members of the committee. I'm here to testify on behalf of the Division of Criminal Justice concerning several bills that are -- that are on the agenda today.

We have submitted written testimony on -- on all but one of the ones that I'm going to testify about, and I just want to remark about one of the others. And I'll be brief about -- about -- I think about most of them.

First of all, 1151, AN ACT CONCERNING RECORDING TELEPHONE CONVERSATIONS, the Division is opposed to that, it -- it's -- it's ambiguous, confusing. The language is -- seems to be subject to multiple interpretations. It's vague and we do already have a good statute in place which seems to deal with the problems and concerns about recording telephone conversations.

6639 is the bill dealing with license plate readers. The most serious concern in that bill -- and the Division is opposed to that and we've submitted written testimony as we've had with regarding to the telephone conversation bill -- the most serious concern with the license plate readers is the 14-day restriction. These -- these license plate readers are invaluable in solving extremely serious crimes. They're also invaluable in protecting the public in many ways. You're going to hear more testimony about that and how they're used from the police.

They're imposing a 14-day restriction is -- is much too severe. Making this information not subject to freedom of information is very, very important, and that's a good restriction on it in the bill that appears there.

And -- but I think to impose flat out, a restriction like this is called for in this bill is just unreasonable, especially, in light of the all the other invasions. I mean right now any of us can go into a store once or twice and all of a sudden all sorts of commercial entity's know our buying habits, know -- know -- know what stores we use, a ton about us. Here, where we use license plate readers, which license plates are publically displayed on the backs of cars. They're not a secret, they're -- they're where people go in public without people trying to hide themselves. This -- the value of this information to law enforcement in solving and preventing extremely dangerous crimes is so important to the protection of the public that the Legislature ought to treat very -- tread very, very carefully before it does impose restrictions.

It's fairly new. We've seen terrific benefit from it. You'll hear about that benefit in the -- in future testimony this morning, and I hope you're very cautious about approaching restricting that.

6660 is bill which would provide for -- provide a statutory requirement that courts hear family impact statements on behalf of defendants. That's something that courts already can do and should hear if the defendant has family members of a defendant that's supporting his family and needs a job. Courts can and do hear that traditionally. It's something they -- they, defense attorneys, traditionally introduce and -- and offer at sentencing.

And it seems -- it doesn't make sense, at least to the state, why -- why we would have to have a statutory requirement and a restriction on that when it's already inherent in the -- the courts do hear and consider that information.

6676, we did not submit testimony on it. Conceptually, it's a very good idea. It's -- it's a bill that would -- would make -- encourage, I guess, OPM to make Project Longevity available on a statewide basis. Project Longevity is something that works very well in New Haven. If Project Longevity is meant to a be a generic term, this is -- these are law enforcement efforts to combat and deal with violence, both in the law enforcement side and the -- and also on the prevention side.

It's a very good concept in New Haven. If the only purpose of it is to extend exactly what's being done in New Haven on a statewide basis to the degree that extension of other initiatives in this effort. And there are other initiatives it's not quite like project longevity, but different, going on in Hartford, New Haven -- I mean Hartford and Bridgeport -- and parts of it are a part of the Longevity Project in Hartford. Dealing with extending those projects around the state are a very, very, very good idea if it's going to be restricted to just Project Longevity as it is presently defined in New Haven that seems to me to be a little too restrictive. I'm not sure what the purpose of that bill, though, was but, obviously, it's well intended.

The next one in 6689, bail bonds. We have submitted our testimony in opposition to that at length. That bail bond bill contains several provisions in it which would transfer the risk of nonappearance from the bondsman to the State. It would provide in -- in one section that if they defendant appears more than five days after forfeiture, the surety shall be released from the bond and the re-arrest warrant shall be vacated but that ignores -- that means that the defendant could come back anytime after a year and have automatically the -- the surety would be discharged and the -- the bail bond, the arrest warrant would be vacated.

The problem a lot of times with nonappearance is not just the failure to appear in court but the failure to appear at the time required. We have defendants who abscond just before trial. It's important and one of the purposes of bond is to ensure that the defendant will appear in court at the time his or her case is called. That's important because that's when everybody is ready to proceed, not only the court, but the State with its witnesses; and having no restrictions on that, a defendant could just disappear for awhile. I'll go, I'll disappear, I'll come back and then I'll hide for eight months, I'll come back, and my -- my re-arrest warrant will automatically be vacated. The bond will be terminated. I may be subject to a new bond that the court imposes, but I really have no arrest because I was nonappearing. Things look bad. The witnesses are there against me. I'll disappear and so what? As long as I'm not caught and can come back to the court before I am caught, my bond will get -- the surety will be released and it'll transfer the obligation of the surety to be careful about who the surety chooses to post bail for. And impose that -- that risk and the -- the surety will be free of that.

We have had some bail reforms in the past that are -- are some reforms that appear to -- to be workable but this is an area that really needs a hard, hard look at before we go into reforms of that -- this nature that are opposed by this bill.

Thank you very much.

SENATOR COLEMAN: Thank you Attorney Kane.

Are there questions from members of the committee?

Representative O'Dea.

REP. O'DEA: Thank you very much, Mr. Chair.

Thank you for your testimony.

On -- on the license plate reader, 6639, I understand you're opposed to the 14 days. What -- what limit would you put on there? Thirty, 60, 90, what?

CHIEF STATE'S ATTORNEY KEVIN KANE: There are limits that have been imposed by other states that you'll hear more about, but I think New York has five years -- and -- and California may have five years. That's reasonable.

These crimes -- as long as -- to me, the most important thing the Legislature should be concerned about is making sure that these aren't subject to misuse. This information isn't subject to misuse. It can be subject to criminal penalties if police officers misuse it. It can be restricted with regard to accessibility to freedom of information. So that -- so that information like that isn't used improperly by -- by the public, but it's too important for law enforcement to be able to go back and a serious crime is reported or discovered later on. Just the tool and the access of this information is not only investigative but prevention is so important that -- that I think any time is limited is -- is not good.

Five years, I suppose is outside. That's the statute of limitations on -- on the Class D felonies and -- and all but murder and -- and Class A felonies so there. But a 14-day restriction is just -- it ties the hands of law enforcement, and it -- it really hurts us in our ability to protect the public.

REP. O'DEA: Thank you very much.

Thank you Mr. Chair.

SENATOR COLEMAN: Senator Meyer.

SENATOR MEYER: Thank you, Mr. Chairman.

Kevin, nice to see you.

A VOICE: (Inaudible.)

SENATOR MEYER: With respect to a bill that's not on the agenda this morning, investigative subpoena. You have supported Connected having an investigative subpoena, and I wanted to ask you, with respect to the Newtown investigation, whether your office has been affected in any way by the absence of an investigative subpoena in Connecticut. Have you been able to conduct an investigation without that subpoena power?

CHIEF STATE'S ATTORNEY KEVIN KANE: Well, there are areas -- I'm prepared to testify more about that when our -- when the grand jury bill comes up and the investigative subpoena bill comes up. That's a very, very good question. I've been trying -- I have hard enough getting prepared for what's on the agenda today without going into detail like that. But, yes, certainly, there are things that would have been better had we been able to have access to either investigative subpoenas or a functioning grand jury. Absolutely.

SENATOR MEYER: Thanks.

SENATOR COLEMAN: Do others have members have questions?

Representative Smith.

REP. SMITH: Thank you, Mr. Chair, and good morning.

CHIEF STATE'S ATTORNEY KEVIN KANE: Good morning.

REP. SMITH: On the bill -- going back to the license plate bill, I noticed the Department of Transportation is one of the entity's that would have the right under the bill to store this language and use it. I'm just wondering why -- I understand the police having it and the local police, but I'm not so sure I understand the Department of Transportation, I'm just wondering if you could help me with that.

CHIEF STATE'S ATTORNEY KEVIN KANE: I am certainly not ready to speak on the behalf of the Department of Transportation, either. They may have -- whether they have good needs, legitimate needs, they may well, but that's certainly beyond my expertise or knowledge.

REP. SMITH: I think that says it all.

Thank you.

SENATOR COLEMAN: Any other questions?

Seeing none, thank you, Attorney Kane.

CHIEF STATE'S ATTORNEY KEVIN KANE: Thank you.

SENATOR COLEMAN: Next is Paul Knierim.

PAUL KNIERIM: Good morning, Senator Coleman, Representative Fox, Representative Rebimbas, members of the committee, I'm Paul Knierim, probate court administrator, and there are two bills I'd like to offer brief testimony on this morning.

The first is 6448, AN ACT CONCERNING PROBATE COURT FEES. This is a pretty simple and pretty straightforward piece of legislation that the Office of the Probate Court Administrator and the Probate Assembly are offering jointly, and it is essentially clean up of our fee statutes.

Specifically, it would repeal absolutely provisions that deal with the calculation of probate fee for the decedent's estates. These are fee schedules that go back pre-1998 so we're operating, essentially, under the 1998 fee schedule. The fact that these are still on the books causes people confusion, simply a clean up.

A second element to the bill is to change nomenclature for the calculation of fees for accountings matters other than decedent's estates. The change simply is reflecting revision to our rules of procedure and the use of new terminology, but it has no net impact on the amount of the fees.

And lastly, the bill contains a provision that would add a new fee for a petition for an out-of-state attorney to be able to hear in a single matter. This, too, reflects our recent adoption of revised rule of procedure. We now do have a rule that would permit on an exceptional basis an out-of-state attorney to appear in a Connecticut Probate Court. It parallels the rule that's applicable in Superior Court. And I might mention that the fee for admission in Superior Court is $600, our proposed amount is $250.

The second bill that I wanted to comment on is 6680, CONCERNING ACCESS TO JOINTLY HELD ASSETS LOCATED IN A SAFE DEPOSIT BOX. We are generally supportive of this bill. I think it's a good idea to have a simplified procedure by which an individual who has claimed ownership of an asset held in a decedent's safe deposit box when that box is solely owned.

I will say that it seems that most common those with a joint ownership interest in an asset in a safe deposit box typically also are joint owners on the safe deposit box. So it's probably not a frequent issue, nonetheless, it -- it certainly can arise. Our suggestion is simply that the bill be amended to have some procedural safeguards so that an individual wouldn't be able to unilaterally remove assets from a safe deposit box.

So the suggestion is we could work with the existing framework by which a probate court can authorize the opening of a decedent's safe deposit box, provide for a person who is operating such an order to bring back to the court an inventory of the assets. And if she or he wishes to remove an asset, to petition for a specific order. It could be a simplified procedure. I think the court could be authorized to have the discretion to act without notice to parties on an ex parte basis if ownership is very clear.

On the other hand, if it appears that it might be a muddy issue, let's say, it's tangible personal property, an item of jewelry, for example, where other parties may have a different version of ownership, the court could send notice to heirs and beneficiaries so that everybody would have -- they would be alerted to the fact that this is happening and would have an opportunity to challenge the claim of ownership.

So with some modification in that regard, we would be supportive of this concept.

That's my testimony on those two items, and I'd be happy to answer any questions.

Thank you for your attention.

SENATOR COLEMAN: Thank you for your presentation.

Are there questions for --

Senator Meyer and then Senator -- Representative Buck-Taylor.

SENATOR MEYER: Hi, Paul.

PAUL KNIERIM: Good morning, Senator. How are you.

SENATOR MEYER: I'm well.

With respect to the safe deposit box bill, does the Department of Revenue Services have any rights with respect to the opening of a safe deposit box after death in Connecticut?

PAUL KNIERIM: I believe that under the statute, the Department of Revenue Services could be a proper petitioner for the opening a safe deposit box. As the statute is currently framed, a court issues that order solely for the purpose of determining whether there's a will or a cemetery deed in the box. And there's no authority to remove anything from it. So it's a very limited scope.

More broadly getting into an estate settlement, once an executor or administrator is appointed, she or he would have full access to it. So I suppose that if the DRS was taking an interest in the contents of a box, they would be working with an executor or administrator or asking the court to make an order to that fiduciary to disclose.

SENATOR MEYER: So the probate court today and under this bill has no obligation to inform the Department of Revenue Services with respect to the opening of a safe deposit box; is that right?

PAUL KNIERIM: That -- that is true there is no -- no requirement to inform DRS.

SENATOR MEYER: Okay. Thank you.

SENATOR COLEMAN: Representative Buck-Taylor.

REP. BUCK-TAYLOR: Thank you, Mr. Chair.

Good morning, sir.

PAUL KNIERIM: Good morning, Representative.

REP. BUCK-TAYLOR: As far as the bill having to do with the safe deposit box, it says to obtain a jointly held asset. What type of jointly held assets are being envisioned under that description since if it's jointly held, unless it's tangible, they could probably get access to in some other way.

PAUL KNIERIM: I think probably what's most typical would be certificated securities, so stock certificates, savings bonds, other forms of bonds, that on the face of the document would indicate how title is held -- joint survivorship, tenancy in common, for example.

I was trying, in anticipation of today's testimony, to think of the things that are typically in safety deposit boxes and, in addition to wills, I think intangible personal property. You'd see stock certificates, bonds, also insurance policies, sometimes savings accounts passbooks, a variety of things. Probably under a proposal, like this, the toughest category is the tangible personal property because nothing on its face indicates what ownership is. For something like a stock certificate, at least you have the benefit of -- of an indication of who the holder of the certificate is, and if it's joint, it would indicate the two names in the form of joint ownership.

REP. BUCK-TAYLOR: Is there the consideration that this would be put in place where there's not a fiduciary of the estate who would then have authority to go into that safe deposit box and inventory it? Is this viewed as a situation where there's no fiduciary?

PAUL KNIERIM: That's exactly the context, yes, because once there is a fiduciary that individual has full authority to access the box and dispose of its contents acting under his or her fiduciary responsibilities. This is all -- at least my understanding, would precede the appointment of a fiduciary or deal with those circumstances where a fiduciary is never appointed.

REP. BUCK-TAYLOR: Okay. Thank you.

SENATOR COLEMAN: Are there other questions?

Representative Smith.

REP. SMITH: Thank you, Mr. Chair.

Good morning.

SENATOR COLEMAN: Good morning.

REP. SMITH: I noticed that the bank officer under this -- again, the safe deposit box bill, the bank officer has to make a return to the court indicating what type of assets were in the safe deposit box. Is that something that we now have in our procedures as far as the Probate Court system?

PAUL KNIERIM: By way of statute, section 45a-284 contemplates only a bank officer reporting as to whether or not there was a cemetery deed or will and whether or not, if so, those items were removed.

Our procedures go a little bit beyond that. The form that we use for the procedure to open a safe deposit box also has a provision by which the judge can order the original petitioner to make an inventory of the contents.

So if the Legislature were to adopt this bill, I would think our procedures would work nicely given that we've already got that framework for requiring an inventory to be made.

REP. SMITH: And if I'm the bank officer, the order or return that I have to make to the court, there's a form already created so I'm not -- the court's not getting 50 or 60 different types of returns. There's actually one form that's created already by the system?

PAUL KNIERIM: There is.

REP. SMITH: Thank you.

SENATOR COLEMAN: Do other members have questions?

Representative Fox.

REP. D. FOX: Yes, thank you, Mr. Chairman.

Good morning. Thank you for being here today.

I think part of the context of behind this piece of legislation. It's particularly as it's spoken to a non-probatable estates. For instance, if there's a non-probatable estate being administered outside of probate court, there's a safety deposit box held by the decedent but contained therein is a stock certificate, a savings bond, a bank book, something of that nature held jointly. And currently under Connecticut law, my understanding is that in order for the surviving owner of that stock certificate, bank book, savings bond, things of that nature, to access that they have to open up an estate, be appointed an executor or administrator and go through the whole process, through the Probate Court in order to obtain the authority to go into a safe deposit box and obtain something that is -- is jointly held and rightfully theirs.

I think part of the idea with this type of legislation would be to provide a process by which an individual who is only looking to obtain something that they jointly own had the means by which they can do so without having to hire an attorney, initiate an estate or -- or go through any the potential evidentiary hearings as to ownership.

So part of -- I mean I'm curious to know would the court or be willing to even potentially limit this type of legislation to stock certificates, savings bonds and not -- I agree with you and I've spoken with some members of -- of your -- of your staff, once again, the idea of jewelry, watches, things of that nature, it becomes a little -- little murkier, I think and would then require potentially a hearing and notice to heirs and things of that nature. Wherein, initially, the individual who's trying to obtain the jointly-held asset is trying -- is likely trying to avoid all that.

So do think the court would be more willing to -- to not that they're not willing to accept this type of legislation but even from a just a stock certificate, I guess, paper assets in a sense or -- or on which the jointly held individual's name is affixed. Is that something that you'd be agreeable to or more agreeable to?

PAUL KNIERIM: Certainly, yes. That -- that makes the legislation more focused.

REP. D. FOX: Uh-huh.

PAUL KNIERIM: -- and it is a shift from our current system in which statute presupposes nothing except a will or cemetery deed can be removed from a box to a framework in which there is some flexibility on that. I think further in support of that concept is that the kinds of documents that you're referring to I'll refer to them as certificate of securities --

REP. D. FOX: Uh-huh.

PAUL KNIERIM: The story is told on the face of the document, A; and, B, an individual seeking to have the transfer formalized and completed, the joint survivor, having that completed under his or her name does have to work through a transfer agent so there's a safeguard in that sense also because some financial institution is also taking a look at whether this claim of ownership is valid.

REP. D. FOX: That's fair. And just one final question, are you aware of any other means by which a particularly with a nonprobatable estate, which a joint owner has the authority without going through the Probate Court to access assets contained within a safe deposit box. I don't -- in my -- in my research, I've been unable to find -- to find a way and I -- I don't want to -- I don't know if the court even has the authority, currently, with a nonprobatable estate to do anything of that nature.

PAUL KNIERIM: I'm not aware --

REP. D. FOX: Okay.

PAUL KNIERIM: -- of -- of any other means. As I mentioned at the outset, I think probably the most common scenario is that a joint owner of an asset that's contained in the box oftentimes is also jointly on the box since they have the authority to open it. Absence that, I'm not aware of another procedure.

REP. D. FOX: Okay. Great, thank you.

SENATOR COLEMAN: Thank you.

Do other members have questions?

Seeing none, thank you, Paul.

PAUL KNIERIM: Thank you very much, Senator.

SENATOR COLEMAN: Susan Storey.

SUSAN STOREY: Good morning, Senator Coleman, Representative Rebimbas. I'm Attorney Susan Storey, chief public defender. I'm here to testify on two bills in support of two bills on behalf of the Division of Public Defender Services.

The first bill is 6660, which is AN ACT CONCERNING FAMILY IMPACT STATEMENTS; and the other bill is 6642, which is AN ACT ESTABLISHING A CHILD NURSERY FACILITY AT THE CONNECTICUT CORRECTIONAL INSTITUTION AT NIANTIC.

We support passage of 6660 on the family impact statements. This bill -- this concept really came out of our work on both sides of the aisle as far criminal defense, as well as handling all the child welfare matters, representation for a parent and children in child welfare matters in Connecticut at this time.

Together these bills really present an opportune continuum of services for you to consider, which really impact the -- really impact children who have incarcerated parents. These -- the passage of these bills would indicate that Connecticut is part of -- of a growing movement to recognize the wide ranging implications and collateral consequences that incarceration of a pregnant woman or primary caretaker of minor children, who's also the custodial parent at the time of the crime, has on the individual the welfare of children and safe communities.

I think, as a state, we focused primarily and -- and very successfully on the reentry movement for people -- for inmates to reenter society safely but often that's really too late for repairing fractured relationships of children with parents who have been incarcerated. And sometimes it's a reunification process is impossible after even sometimes a short period of incarceration.

This bill would allow defense counsel to bring to the attention of the judge at sentencing when a judge is considering a term of incarceration for one of these individuals to take into consideration more than your traditional sentencing argument. I know that Attorney Kane said, Well, you can already consider these types of things but, traditionally, these are not on the radar screen for either prosecutors or judges. I don't believe either prosecutors or judges are traditionally changed in collateral consequences of conviction, which our attorneys have been for the last two decades. This is more than a traditional sentencing argument and it's more than what would be contained in a presentence investigation or what would also be called a PSI.

This would really be a cost -- more of a cost benefit analysis, if you will, of both the financial and emotional impact of incarceration upon the children of a person who is facing sentencing. This would include housing, loss of employment, commitment of the children -- possible commitment of the children to DCF foster care, loss of services for a special needs child, separation of sibling groups and possible termination of parental rights.

There are a number of federal laws that kick in after about 14 months of incarceration, which is also the Safe Families Adoption Act, which can result in termination of parental rights even if children are not at risk from the particular crime the person is being sentenced for.

We're looking at this primarily for not nonviolent crimes or like -- like larceny offenses, or nonviolent drug offenses. Sometimes when you're in the GA, they're a lot of felony staying in the GA Courts. These types of implications long-ranging negative effects are really not taken into consideration when there's an offer made by a prosecutor or consideration for a sentencing judge.

I think at -- you know, at this time we see a larger number of woman becoming incarcerated. The Annie E. Casey Foundation has done a number of studies and, approximately, 75 percent of incarcerated mothers -- of incarcerated women are mothers and, approximately, 66 percent of them have children under the age of 18. And they also look, the Casey Foundation also talks about how the multigenerational impact on these families goes on for a very long time and -- and has a very negative impact.

We see in Hartford how many children have an incarcerated parent. This is extremely disruptive, not only to children and to families, but also to communities. And we also know that research indicates that one of the primary -- one of the primary aids to prevent recidivism are strong family ties. The -- we've also seen that the federal courts take into consideration some of the -- the special circumstances, if you will, that children face when a parent or guardian is -- is being sentenced.

We see that Washington State has a Family Offender Act, which permits both a sentencing court, as well as the Department of Corrections, to enact a sentence that provides not only probation but more of a case management and supports for woman or -- or parents in the communities that have primary responsibilities for their children.

The -- the remaining bill, 6642, which is the prison nursery, we supported that study group last year. I think that a prison -- a nursery is really is a -- can be a very good thing, but I think it should really be a last resort if a person, a woman, cannot be maintained in the -- safely in the community. So we would ask for you to consider that, as well.

I'd be happy to entertain any questions you might have.

SENATOR COLEMAN: Are there questions for Attorney Storey?

Senator Meyer and then Representative Buck-Taylor.

SENATOR MEYER: Thanks.

The -- the family impact statement bill sets up a number of factors for the court to consider if the defendant is a custodian of a child. Wouldn't it strengthen the bill to add another factor, namely, whether or not the crime of which the defendant's been convicted is a violent crime or a nonviolent crime?

SUSAN STOREY: I think this particular bill doesn't have that language in it. It's broad. But I think really and so we -- we didn't really want to limit it, but I think, primarily, we're looking at nonviolent crimes of -- that -- where a PSI is not ordered. Where you traditionally wouldn't have any study done whatsoever to make sure that the -- these factors are brought to the court's attention.

So I think, primarily, you would see it used in nonviolent crimes where the -- where the sentence would be two years or less. I mean, that's -- that's what I'm -- what I'm thinking where a judge is on the fence about which way he or she is going to go whether a -- whether incarceration's really necessary because I think there are people that can be -- that there is an over incarceration of women, especially, for drug crimes and larcenies where, perhaps, they're a persistent offender or second offender where you have misdemeanors that are stacked together that you get a sentence of a, you know, year or two years. And after even like a year or two years can -- can really -- can impact termination of parental rights and housing and benefits and education and all those things that we know now are really negatively impact by even short period of incarceration.

SENATOR MEYER: The bill -- the bill also doesn't mention the fact of whether the conviction was for a felony or a misdemeanor nor -- nor does it refer to repeated offenders. It seems to me that all those factors would -- would strengthen this bill but a --

SUSAN STOREY: Well I -- I think that when you're -- when you're considering felonies, there are a number of felonies that are nonviolent crimes. When you're talking about drug possession, you're talking about larceny or welfare fraud or some of the other types of -- of crimes that I think that, you know, really could be included in something like this.

And it -- it really is not -- the court does not have to act on this. We just ask that the court consider it if it's presented. It doesn't bind the court in any way from imposing a sentence of incarceration if they feel that's more appropriate.

SENATOR MEYER: And so then you're experience if a there is no family member who could take the child -- the defendant's going to be incarcerated, there's no family member that could take the child, does the child go to the Department of Children and Families?

SUSAN STOREY: Yes.

SENATOR MEYER: And what -- what is -- what has been your experience with that result?

SUSAN STOREY: Well, one of the problem there is stability of that child. And if the sentence is, for instance, two years or less, the clock starts running for termination of parental rights under the federal law. And even if that parent is an appropriate custodial parent when that person gets out, the clock is still running. So if the person -- if it's -- even though incarceration is really not supposed to be a factor when that person is release, then they have to secure housing, they have to secure employment, they may have to secure mental health treatment, substance abuse treatment. It's -- it's very difficult to do without some kind of support from, like, a nonprofit or probation. And often it's too much of a -- it's too much of an impact on that person to get all those things together in time to keep custody of the child.

And very often you'll see that that child never has a permanent placement and that child goes from foster care to foster care to -- and that's very, very destabilizing both from an emotional point of view. It would also impact that child's education and -- and also you also you see families split up if some -- if a family member might take one child but not the rest of the children.

So these are -- these are things that I think aren't really commonly discussed and sometimes I think judges and prosecutors feel like it's not their concern. Their concern is what has this person done, what is this person's record, what is the impact on the victim, but I think that you'll see a number of states looking at this to, sort of, have much more of an analysis of whether incarceration is really, you know, really that necessary and whether that person -- the plan is presented to keep that person in the community safely and, of course, it could be revoked, as well.

I mean, if it's -- if it's a condition of probation that person has that opportunity. If the person doesn't rise to the occasion with assistance from probation in a -- in a case manager, if you will, then, you know, that person can be incarcerated, but I think that some states are -- are realizing that there may be another way to go.

SENATOR COLEMAN: Representative Buck-Taylor.

REP. BUCK-TAYLOR: Thank you, Mr. Chair.

Good morning.

SUSAN STOREY: Good morning.

REP. BUCK-TAYLOR: All the factors that you have down here about the financial needs of the child, the availability of community and family supports, aren't they arguments that defense counsel can make at time of sentencing to bring to the judge's attention?

SUSAN STOREY: Well, they could yes. Nothing really prevents that, but I think, traditionally, that doesn't happen. This promotes an awareness of what those collateral consequences are. I think that even defense attorneys are not aware of the collateral consequences to their clients.

Often you might see a person with a -- with a female client who is going to get a year or two on a drug case, and it never comes up that that person might lose her children; that person is -- that -- that client is never counseled that she might lose her children because of the federal law that terminates parental rights.

And so this has really become more of an awareness on our part after we became a consolidated agency. And we do training on both sides now. We train our defense counsel on collateral consequences, and we also -- we also train our child welfare attorneys about the criminal law and how that impacts the children that they represent. It's very important, I think, that both disciplines work together to promote child welfare and -- and positive outcomes.

REP. BUCK-TAYLOR: Who would be performing the study?

SUSAN STOREY: Defense counsel. In the public defender's office, we have a social worker in every office. They are all MSWs or they have further training or clinical -- licensed clinical social workers. So they also have the training to be able to perform that type of analysis for a family impact statement.

REP. BUCK-TAYLOR: Is there anything currently that prevents either your office or defense counsel from making this type of presentation without needing to enact a law to allow it?

SUSAN STOREY: I think that, in our experience, prosecutors feel that it's really not of their concern and many judges don't feel that they should be concerned about it either.

REP. BUCK-TAYLOR: Now when you're speaking about people who use the services of the Public Defender's Office, it's not the defendants that would be paying for the cost of having the study to be done --

SUSAN STOREY: Right.

REP. BUCK-TAYLOR: It would be the State because you would be using state employees to do this study?

SUSAN STOREY: That's correct and then assigned counsel would also be able to present this, as well, and whether or not they need an expert to present it or they themselves can do it. It's not -- it's not that I don't -- I don't want to say it's not rocket science but -- but we just have to be aware of what those collateral consequences are and ask your client, you know, do your children have special needs, do you have a place where your children are going to go when you're sentenced, what is your housing, will your housing be there when you get back, what is, you know, what is the income for the child, are there any you know specific educational needs or medical needs?

All these -- a lot of these questions, really, I hate to say it, should be asked and are not asked when the State is making an offer to a client about whether they're going to go to jail or not.

REP. BUCK-TAYLOR: Thank you.

SENATOR COLEMAN: Do other members have questions?

Representative Rebimbas.

REP. REBIMBAS: Thank you, Mr. Chair.

Good morning.

Just a quick question, in the statute is there anything regarding if a person is the parent -- and in this case, it seems like it would be more likely than not it would be the mother -- if she has a financial means to reimburse the State for the usage of this nursery, is that a provision that would is allowed?

SUSAN STOREY: I don't really think that that's really not for us to say. I think that the -- that it really would be up to the Attorney General's Office rather than us. I don't think there's anything to prevent that. We know that we see DOC asking for reimbursement for other types of incarceration so I -- I would imagine that could be part of it.

REP. REBIMBAS: So you would have no objections to that?

SUSAN STOREY: That really isn't -- that's a policy concern that really isn't a part of our -- I mean, that's not something we would -- we would be objecting to --

REP. REBIMBAS: Thank you.

SUSAN STOREY: -- or have really standing to object to.

REP. REBIMBAS: Thank you.

SENATOR COLEMAN: Are there other questions?

Seeing none, thank you, Attorney Storey.

SUSAN STOREY: Thank you very much.

SENATOR COLEMAN: Senator Steve Cassano.

Representative Prasad Srinivasan.

REP. SRINIVASAN: Chairman Coleman, Ranking Member Rebimbas and distinguished members of the Judiciary Committee, I want to thank you for giving me this opportunity to testify this morning. I'm here in opposition to House Bill 6687, AN ACT CONCERNING CERTIFICATES OF MERIT; and Senate Bill 1154, AN ACT CONCERNING THE ACCIDENTAL FAILURE OF SUIT STATUTE.

Healthcare, as we all know, is in a crisis. Healthcare access is a big concern for each and every one of us. The physician community is aging here in Connecticut. We have the highest numbers of physicians above the age of 50, and I definitely belong to that group, as well. We have been very unsuccessful in trying to attract younger physicians to stay in Connecticut. We train them very well, as you know at the University of Connecticut and at the Yale Medical School. And now the current medical school that's going to open for us in Connecticut but we are not able to retain them back in Connecticut.

The Affordable Healthcare Act is going to have its own challenges in terms of healthcare access. That is a concern for each and every one of us. Healthcare costs, needless to say, are an equally big concern. They're spiraling; we need to contain them. So our focus, our energy, needs to be on the two major issues as far as healthcare is concerned, access and containing costs.

We have, however, one part of the system that has been stable now for a few years. We have accomplished this with a certificate of merit. House Bill 6687 will drastically destabilize what we have been able to accomplish and maintain since 2005. House Bill 6687 will set back in terms of a nonmeritorious in the frivolous lawsuits, the kinds that we saw before 2005. We will be going backwards. We'll be going to the old days and, unfortunately, they definitely were not the good ol' days. As we all know, it was in response to the crisis that back in 2005, the certificate of merit was strengthened.

There's a reason why that certificate had to be strengthened. The medical malpractice claims were escalating. The annual increases in medical malpractice was greater than 90 percent. And in order to reduce the malpractice premiums, you saw physicians, you saw specialties not practicing the entire scope. We saw obstetricians and gynecologists not willing to deliver babies, we saw neurosurgeons not willing to operate. And we were in a situation where our constituents, our residents, had to go out of state in order to seek medical help.

And, in fact, in 2005 with that crisis, the certificate of merit was strengthened. This certificate of merit, as we have it in the books right now, is very simple to understand. When a plaintiff has a lawsuit, he or she with a lawyer will have to present a written document from a similar healthcare provider. Very simple to understand. Everybody, the legal -- the legal system, the plaintiff, the attorneys, everybody understands what it is required of them.

If a malpractice suit is brought against a cardiologist, you need a written opinion of another cardiologist. If you need -- if the malpractice suit is against an orthopedic surgeon, you need to get a written opinion of another orthopedic surgeon, not a surgeon, not an anesthesiologist. A surgeon may be aware of what happens in orthopedics and an anesthesiologist, definitely, is aware, he or she is in the operating room at the time of the surgery is done, but he or she is not a qualified orthopedic surgeon.

So when it is similar, you're looking for somebody in the same specialty, with the same background knowing the nuances of what is entailed in care and given the written opinion. That is what we have right now; it is a simple system, well understood by everybody and well documented that that has been effective for us.

One of the concerns raised, and rightfully so, that will a physician be publically be out there to write a written testimony against a colleague, against somebody, he or she brushes shoulders with in the operating room, in the hospital corridors, so on and so forth. And that has been appropriately addressed because the name of the physician who's giving the written testimony is expunged from the records. So when they're expunged component, that amendment was there, you're able to get the opinion of a similar healthcare provider.

This certificate of merit, as we see it now, is fair because even if the certificate of merit is to be dismissed, it is dismissed without prejudice so it can always be refiled with the appropriate testimony, with the appropriate physician giving the written testimony whose name is expunged and then the process starts again.

And even if all fails and the certificate of merit does not go through at all, we still have the accidental failure suit that they can rely on and ask for a full court trial. So in no way does the certificate of merit limit the capacity of somebody who has brought a meritorious claim not to see his or her day in court.

House Bill 6687 requires or will allow a plaintiff and his attorney or her attorney to get an opinion from a similar healthcare provider, sure enough, but also from somebody who is a qualified healthcare provider. My concern with that is that in this day, in this day and age, with medicines advancements, specialities and super specialists, it is very difficult for one group of people to opine on somebody -- some other field of medicine where they have not learned all the various aspects and the nuances.

A cardiologist is a specialist, but look at cardiology itself. You have an invasive cardiologist and you have a noninvasive cardiologist. So if a law suit is filed against an invasive cardiologist, even a cardiologist -- we're not talking about an internists. We're not talking about any qualified medical provider -- even a cardiologist may have difficulty in writing an opinion which is correct, which is appropriate against an invasive cardiologist.

And then you have the interventional radiologist. Science and medicine is advancing in leap and bounds. Our radiologist is no longer the conventional radiologist we knew about. They do procedures now and interventional radiologist against him or her if a -- if a lawsuit would be filed, would you be able to get even another radiologist to know all the nuances of what is done, let alone a qualified provider.

And that is my concern when we switch from a similar healthcare provider to somebody who's qualified. Physicians are qualified to do what they are capable of doing but asking them to give an opinion of an area that is not their expertise is really not fair, is not right in that particular situation.

House Bill 6687 continues to maintain that the person who gives that opinion, that person's name is expunged. So in that situation, it is only the attorney who knows from whom he or she had got the opinion as far as an interventional radiologists, as far as an invasive cardiologist, as it been from a similar healthcare provider, or has it been somebody who's a qualified provider, no question about that, but he -- is she or he qualified in that particular situation. That is my concern.

I have one more concern to House Bill 6687. When this bill when the certificate of merit is dismissed, it is not dismissed for good. That the -- the attorney is now given a six-month window when he or she can refile -- remember we already have a mandatory nine-month window -- so we're adding on a six-month window for one more opinion. And when that opinion occurs, you will have another six months, and it goes on and on and on in an endless way where there is no end to the entire scenario.

The certificate of merit, as we see, with a similar healthcare provider has been able to stabilize our system and what we're looking for is to try to destabilize something that is already working.

It is unclear to me the purpose of Senate Bill 1154. What purpose could it serve because we already have an accidental failure of suit statute. A clear full trial is always available if and when the attorney and the plaintiff decide that is the way they need to go.

I share your concerns for our constituents, for our constituents, for the citizens of Connecticut who have given you and me this privilege, a privilege we do not take lightly at all to represent them. So a concern that you and I rightfully will have is it possible that because of all the legal maneuvering, is it possible that a meritorious case cannot have his or her day in court. And the answer, absolutely, no, because the way the certificate of merit stands, as it is right now, they will have the appropriate opportunity to be heard. And if that -- if that certificate of merit is dismissed, it is dismissed without prejudice and so a full trial is always a possibility if they so choose to.

What the certificate of merit when it was strengthened back, in 2005, did was to flush out the nonmeritorious, the nuisance lawsuits, that have flooded the system and taken away the energy, taken away the drive and, of course, cost us a ton of money, as well. So I would like you to reconsider both, Senate Bill 6687 -- the House Bill 6687 and Senate Bill 1154.

Healthcare access is a big concern. Healthcare cost is an extremely important concern for each and every one of us. And we have something that is working, and I urge you to leave that alone.

Thank you very much for giving me this opportunity, and I will be more than glad to answer any of your questions, thank you.

SENATOR COLEMAN: Thank you, Representative.

Are there questions?

Senator Meyer.

SENATOR MEYER: Thank you, Doctor, for your testimony.

Were you a member of the Legislature when the o-- the good faith provision related to a similar healthcare provider, the existing law, because that -- that was actually negotiated quite heavily just several years ago and -- and now there's an effort made to -- to change it from, as you pointed out, from the word "similar healthcare provider" to "qualified."

REP. SRINIVASAN: Right.

SENATOR MEYER: Were you -- were you a member of the Legislature when the -- when the similar provision was -- was inserted?

REP. SRINIVASAN: No, senator.

SENATOR MEYER: No, okay.

REP. SRINIVASAN: This is -- this is my second term, so at that time --

SENATOR MEYER: Right.

REP. SRINIVASAN: -- I was not a member.

SENATOR MEYER: In your -- in your opinion if a malpractice action was commenced against a gynecologist for an accident to the birth of a child, would a -- and this bill passes providing for a qualified, rather than a similar healthcare provider, good faith statement, and the gynecologist was sued could the good faith statement come from say a -- a podiatrist?

REP. SRINIVASAN: No. It -- it --

SENATOR MEYER: No. Under -- under this bill?

REP. SRINIVASAN: Under -- under -- under the current bill, the answer is yes, it is possible. And so that's my concern that it has to come from a similar healthcare provider and so it would have to come from a gynecologist -- from an obstetrician alone who would be involved in the delivery of a baby.

SENATOR MEYER: And if -- if there was a medical malpractice case against a brain surgeon for something that happened in a brain operation, brain surgery, could the qualified good faith statement come from, say, a ophthalmologist?

REP. SRINIVASAN: It -- it could and I don't know this full definition of a qualified healthcare provider. So who is going to be providing the testimony, you know, and is -- is the unknown factor. That's where the confusion comes. That's where the uncertainty comes, and the only person who knows this from whom they got the opinion because their name is expunged will be the attorney and -- and maybe the plaintiff, I'm not sure how that relationship works but the plaintiff -- the attorney alone is going to know. And we are not -- and we're very concerned that when a lawsuit is filed against such a specialist, a super specialist, like a neurosurgeon, that from whom are they going to get an opinion and it should be from another neurosurgeon.

And those opinions, since their name is expunged, it does not have to be limited to our state at all. They could go outside the state and get an opinion. So sometimes you might say how many neurosurgeons are there in Connecticut and what if they're not able to get a testimony? Sure, that's a fair -- fair concern but nothing restricts us getting an opinion from any physician across the country as long as they are a similar specialty.

SENATOR COLEMAN: Are there others with questions?

Representative O'Dea.

REP. O'DEA: Thank you, Doctor, very much for your testimony.

I come from a unique position as a trial lawyer whose father was a general surgeon for many years in Pennsylvania. Much to his chagrin, when I told him I was going to law school rather than going to medical school so I think I have a unique perspective on the problems that are being discussed here and growing up with it.

My question to you is, as I understand your testimony, the accidental failure of suit statute, you would have no problem with the concept if -- if the case was dismissed for not having a similar doctor certificate of merit filed. If the accidental failure suit statute were allowed to bring that action back where the lawyer was able to get a similar doctor under the language, at a later date, after the case was dismissed; is that -- is that correct?

REP. SRINIVASAN: Absolutely, absolutely. And thank you so much for asking that question and clarifying something for all of us. Absolutely. If the certificate of merit is dismissed. It is dismissed without prejudice and so it can always be brought back, and if that is what they choose to do and go through the accidental failure of suit, absolutely, there's nothing, nothing restricting them from doing that at all and going all the way if that is how they feel that they have a meritorious case. Somehow or the other in the certificate of merit, things fell apart and they did not get their fair day and they feel convinced that they need to move forward, nothing will prevent them. Nothing will restrict them and I would be -- I would be supporting that and I've always done that that if you feel you have a case you need -- and you need to go all the way, nothing should prevent that person from going all the way.

REP. O'DEA: Thank you, Doctor.

And my understanding of Bill 1154 is simply a clarification of the accidental failure suit statute, one which, by the way, I've argued to -- to prevent cases from being revived in certain circumstances successfully as a defense attorney. But my understanding -- and I'm looking forward hearing some further testimony on this -- is that this proposed bill is simply clarifying under the accidental failure suit statute, in that scenario, it can't be argued that that sort of case shouldn't be allowed to be revived.

So I'm just clarifying for myself, now based on your position, that if -- if 1154 simply clarifying that position, would you be okay with it?

REP. SRINIVASAN: Yes. As long as you're able to move forward and -- and I have absolutely have no objection to that at all. Absolutely. In fact, I'm a -- I'm a strong champion of that and never to take away. You know, we don't want mistakes to happen. Who would want a mistake to happen. Which physician sees a patient, you know, saying, oh, my God, you know, what today I'm in a bad mood so I'm going to make a mistake. No. But we're all human, mistakes do happen and when mistakes do happen, it is not right for the patient to pay. The patient made no mistake for the mistake that happened whatever be the reason.

So taking full responsibility for the physician, human as he is or she is but a mistake is inadvertently made, and the price has to be paid. No question about that at all whether it be the certificate of merit or through the accidental failure suit. It is a nonmeritorious cases that we want to flush out and make sure that we are not bogging ourselves down, time wise, emotionally, and, of course, financially in these unnecessary law suits and the system is working.

I'm sure -- I'm sure all of us you know read the Hartford Courant, you know, that came out on Friday and Saturday where we talked about the -- in this last 2011/2012, the malpractice claims that had to be reduced compared to where there were before. And never, never, we all campaign every two years, you know, this is my second campaign that I just came off, you know, you hear, our constituents telling us, you know, that look at healthcare access. I'm not able to see my physician, I'm not able to see my -- my doctor. That is what we hear over and over again. Do something about access. I want to see my physician, but I do not want to go to the emergency room, I do not want to be seen by somebody who does not know me at all. Access is what people are telling us, our constituents, yours and mine.

Costs, of course, we're talking about cost. We can't afford it, what do we do? Those were the primary concerns that you and I hear when we were knocking on doors and talking to people, our constituents, real people day to day. I have not had a single person come up to me in my two year, two terms that I've been here when I was campaigning, Doc, access is great, cost is fabulous but my problem is I cannot sue my obstetrician. My problem is I cannot sue my -- that is wrong with the system. I have not heard that the reverse is what I've heard. And that is why I feel a part of our medical system which is working, keeping our doctors here in Connecticut. The physicians have all come back.

Obstetrics is still being -- is now being practiced as it was in the good old days. Neurosurgeons are operating now because they have this comfort zone that if a mistake happens, it will be a peer review. It will be a review by somebody in the same field. And, obviously, if an error is made, then they will be paying the price for that.

REP. O'DEA: Thank you very much, doctor.

I would just point out my father has retired in Pennsylvania and -- and gave a warning to me that be careful because the system in Pennsylvania is so broke that the only doctors that go to work there are those that can't get jobs elsewhere. So I certainly don't want that to become a problem in Connecticut, and I appreciate your testimony.

Thank you, Doctor.

REP. SRINIVASAN: Thank you so much for saying that because, you know, we all find the same problem in recruiting younger physicians to join our practices. You know, we -- we put out, you know, a request for people to join us. And for me, on the personal story, if I can share this.

You know, knowing that I'm going to be here you know a good part of my time, and I want to follow my practice, too, you know, with the appropriate care. You know, you want to try to get somebody it is extremely, extremely difficult not because of medicine alone because the state of Connecticut's economy and the overall, you know, lifestyle here. The younger generation want to be somewhere in New York or Boston but not come to us. And that is something, a big issue, a major concern for all of us, especially, when Affordable Care Act needs more access.

REP. O'DEA: Thank you, Doctor.

Thank you, Mr. Chair.

SENATOR COLEMAN: Thank you, representative.

Are there others with questions?

If -- if not, thank you, Doctor.

REP. SRINIVASAN: Thank you for the opportunity.

SENATOR COLEMAN: Representative Dan Carter.

REP. CARTER: Thank you very much, Mr. Chairman and Senator Coleman and Senator Doyle, Representative Fox, Representative Rebimbas, Senator Kissel and the members of the committee, I appreciate the chance to be here today and talk a little bit in opposition to House Bill Number 6687.

Last year, I left a job where I've been in healthcare for about 14 years. I worked for Pfizer Pharmaceutical Company, right here in Connecticut, but I spent the majority of that 14 years interacting with doctors. I wasn't in, you know, because I was in the frontlines every day. I covered hospitals. I covered every practice. I covered every specialty that I could think of except gynecology. I know how doctors work; I know how doctors think.

The a -- the case of healthcare today with respect to malpractice insurance is something that we all have to be really cognoscente of with what's happening with this bill. Obviously, in 2005, we decided that we would change the law to make it, you know, a little extra effort in there to make sure that we had quality, and we were getting the right kind of expert witnesses. And we were going to have somebody, I would say, equal to a specialist making the decision. And now we want to turn around and we want to say, well, we're just going to call somebody qualified. And -- and the only reason we're doing this is we think it's just going to be what cost effective to do that. And we're going to -- we're going to compromise our value situation.

And what I mean is if you have somebody who's an orthopedic surgeon, let's say, and let's say they're a spine surgeon. You can talk to a neurosurgeon who works on spines, the -- the point is they're both very, very different physicians. They were trained differently; they look at the problems differently. I don't think it's fair to take one and just say, well, you're qualified because you work on the spine when the orthopedic surgeon may have done everything right.

I think it's fair to look at those two physicians and say, you know what, you want somebody with the same training who made the same kind of call to make that determination if they're going to be an expert witness in the case.

The fact that we would just want to pick somebody we think is qualified defies logic to me. It defies common sense.

I think as we move forward of this, you know, the committee is going to have to take some time and really look, look deeply at what we're trading off if we relax the recommendations or relax the law to go back and call it a qualified physician versus a similar provider. That's what we're sacrificing.

Now, the last thing I want to mention before I leave is -- is what it means to a physician to get sued because we -- we sometimes forget that. You know, it's just somebody who has a lot of money and we're going to out and we're going to sue them. I have personal friends who've had malpractice cases brought against them that were extremely frivolous. And what does it mean in their lives?

Well, for one -- one of my friends, this -- this case gets getting put off over and over and over. He had to worry about pushing back his boards. He has to worry about, you know, planning things with his family because he thinks, well, in May I'm going to have a court case -- court case, and I'm going to be spending all my time doing that. Well, next May comes along and they get pushed back again. And it's something that just hangs over people for a long period of time.

I think we need to make sure that the real cases make it through and people who are victims of a mistake in this case -- this court -- in this state rather, get their day in court. There's no question about that, but as a -- as a policy making body, we need to spend some time and think about those people who are going to get sued, and we need to think about making the system as best as possible.

I'd much rather be sitting here today talking about health courts or talking about, you know, medical malpractice reform in this state instead of doing band aid fixes, like this, but I appreciate the time being here. And I just want to make sure I said my peace as we move forward. I hope to be part of the dialogue.

Thank you very much.

SENATOR COLEMAN: Thank you, Representative.

Are there questions for Representative Carter?

If not, thank you for your testimony.

Senator Martin Looney.

Is Anne Melissa Dowling here?

If not --

ANNE MELISSA DOWLING: Good morning.

SENATOR COLEMAN: Good morning.

ANNE MELISSA DOWLING: I'm Anne Melissa Dowling, deputy commissioner for the Department of Insurance, and I've brought a couple colleagues with me, if you have any questions on my remarks.

Senator Coleman, Representative Fox and members of the Judiciary Committee, the Insurance Department does appreciate the opportunity to provide testimony regarding Raised Bill 6689, AN ACT CONCERNING BAIL BONDS.

The Department strongly opposes section 1 of this bill and would respectfully urge the committee to consider rejecting the bill in its entirety or amending it to delete section 1. Section 1 of Raised Bill 6689 would remove the most important current provisions regarding payment plans extended by surety bail bond agents to defendants. This would seriously -- seriously undermine the Department's ability to ensure that proper premiums are collected when a defendant is bonded out, thus, increasing the potential for abuse within the bail bond industry.

By eliminating the requirements to pursue collection of payments within a mandated time frame, surety bail bond agents could use that mechanism to subtly engage in an unfair method of competition called undercutting. Undercutting is the term used when surety bail bond agents attempt to take away business from their competitors by charging premiums lower than the rates required by law. Unscrupulous surety bond bail agents seeking to circumvent statutory prohibition against rebates, which currently prevent agents from giving to their clients valuable consideration as an inducement to insurance, will collect an initial fee for a bond with the understanding that part or all the balance due will not be collected.

In years past, this practice created significant problems for the courts and for honest, law abiding surety bail bond agents. Legislation was enacted in 2011 to address this issue, among others, in response to the decay in the bail bond process which bordered on lawlessness caused, in major part, by the practice of undercutting.

In particular, the provisions in section 1 of Raised Bill 6689 seeks to delete were formulated in response to a few high-profile murders which occurred after defendants were released from custody after posting bonds where the surety bail bond agent charged little or no money to place a bond, thus, enabling the defendant to be released without appropriate security. Further, the provisions sought to be deleted were previously negotiated with the Legislature and all interested parties after several lengthy meetings.

In the past, the practice of undercutting caused numerous fights in courthouses as competing surety bond bail agents would approach defendants trying to outbid -- bid each other with lower rates. This practice was unsure -- unfair for surety bail bond agents as it forced them to compete on an unlevel playing field and for defendants who would end up paying premiums that were not reflective of the two -- the true value of a bond.

In addition, defendants and their family members frequently had to deal with aggressive tactics by surety bail bond agents engendered by the practice.

Passage of Raised Bill 6689 as currently drafted will result in a return to previous problems with the bail bond process and would cause harm not only to honest surety bail bond agents but also to the public exposing it to possible danger.

In short, Raised Bill 6689 would undermine the ability of the Department to properly enforce the laws relating to surety bail bond agents and would create an unfair advantage for unscrupulous surety bail bond agents and would create hardships for defendants and their families. So the Department would strongly urge the committee to oppose this legislation as written.

Thank you for the opportunity to speak in front of you.

SENATOR COLEMAN: Are there questions for the Deputy Commissioner?

Seeing none, thank you.

ANNE MELISSA DOWLING: Thank you.

SENATOR COLEMAN: Oh, I'm sorry, Representative Dillon appears to --

ANNE MELISSA DOWLING: Oh, hi.

SENATOR COLEMAN: -- have a question.

REP. DILLON: Hi.

Just as long as you're here --

ANNE MELISSA DOWLING: Oh, boy.

REP. DILLON: And this is not on point and so it would really be so for an outside conversation. I've been concerned about some concerns about oversight of the mental health parity.

ANNE MELISSA DOWLING: Uhm.

REP. DILLON: And that's an issue that may or may. Not come up in some of the legislation that's going forward on -- on Wednesday actually. On that, we kind of thrash our way through that issue and sometimes in response to public safety but I'm -- I am -- I wonder if you could -- if you could put your hands on any kind of an update on the efforts that your Department has made to overseeing the mental health parity.

ANNE MELISSA DOWLING: Would you like me to comment. On that now or just submit something to you --

REP. DILLON: Why don't -- why don't you do that separately because --

ANNE MELISSA DOWLING: Okay. I'd be happy to --

REP. DILLON: I know we're sort of taking over -- yeah. Thank you.

ANNE MELISSA DOWLING: Okay. Thank you for the question.

SENATOR COLEMAN: Are there others with questions?

Let me ask one question, in some of your other fields, I think we take the approach that let the market determine what the price should be. Why should that be different with bail bonds?

ANNE MELISSA DOWLING: I'm going to turn it over to.

those who've been through the ups and downs of this so --

SENATOR COLEMAN: Sure.

ANNE MELISSA DOWLING: So let me just turn it over to Kurt Swan, who runs our market, conduct and fraud; and Tony Caporale, who's the attorney supporting this.

ANTONIO CAPORALE: Good morning members of the committee. My name is Tony Caporale. I'm an attorney with the State of Connecticut Insurance Department, and I appreciate the possibility to provide maybe an answer to your question.

Insurance, especially, as it relates to bail bonds is quite unique in that there is some laws that have been enacted to protect individuals who buy insurance from tactics that would cause this individuals to purchase a product, an insurance product, based not on the feature of the product, of the desirability that this product would do for the person, but rather based on a price competition; and therefore, there were some laws enacted that prohibit rebating in the context of insurance.

We have seen this reasoning time and time again in the field of bail bonds where the practice of rebating or so, in other words, giving some valuable consideration to a person so that person can buy insurance from -- from us has caused a number of problems. It's caused fights in -- in courthouses where individuals who did not abide by the rules, did not observe the true rates that would have to be charged for a specific bond, were trying to compete just based on price. And this has caused fights in the courthouses. It's caused judges to, basically, be unsure of the amount of bond that they would set for a specific defendant.

The amount of bond is reflective of the risk that this person is no -- does not show up for all the hearings. And once a judge sets that amount and then the judgment is undermined by an individual who's willing to place a bond at a reduced price has created a number of problems. Some people were let out of jail and pay absolutely no money or they pay just a token amount and then what they did they went back and reoffend. They went right back because of the security that they really had to give was inadequate.

There is also another reason why rates, as filed, are a desirable thing because the Insurance Department looks at the rates for a product and taken -- and takes into account all the circumstances surrounding the rate and make sure that the rates are not inadequate or not unfair or not discriminatory. And obviously, if now we let every single person who's selling insurance set, so to speak, his or her own rates, all this protection will be undermined. And the -- the price charged will not reflect all the correct risks that --that a sane and true and functioning insurance market should reflect.

SENATOR COLEMAN: Interesting response.

Has your Department done any studies or research that correlate a discount in bail bond premiums to an incidence of failure to appear?

ANTONIO CAPORALE: Oh, yes, we had done a number of cases that actually were the impetus for the Department to propose the kind of legislation that eventually was passed a couple of years ago and is currently subject to these challenges. And we -- we have observed firsthand situations in which the defendants where their -- their failure to be -- to appear and their -- their possibility to be able to reoffend were related directly to the fact that they were let out of jail without proper security.

SENATOR COLEMAN: Do you have written studies to that affect?

ANTONIO CAPORALE: No. We don't have written studies, but we have gone through this over the last four or five years and that -- we have observed very strong and empirical evidence that that, in fact, is the case.

SENATOR COLEMAN: Is there something that you could refer me to so that I could get a better understanding of the strength or lack of strength of that correlation?

ANTONIO CAPORALE: Yes. If you like, I can put something together for you and send it to your attention so you can see what the Department has done and some of the cases that the Department has observed.

SENATOR COLEMAN: Okay. I would appreciate that.

And in your response, you mentioned that there is some uncertainty on the part of judges about how much bond to set, and I guess I'll ask the question, bail bonds are a very particular kind of insurance and some would argue it's not insurance at all, but just -- I guess, going with your analysis and we'll -- we'll call it insurance, but in the context of the criminal courts, shouldn't the judge be concerned with whether or not the defendant will reappear at future scheduled dates for that particular case?

ANTONIO CAPORALE: And that is, in fact, the case and based on the risk involved and the correct risk of the -- of the defendant, of the characteristics of the crime, of the -- their roots that the defendant may have in the community and a number of other factors. The judges look at an amount that, in their judgment, would be sufficient to guarantee -- to guarantee that the person attends all the hearings. They look at all these factors. One of the factors is what is the stake of the defendant in his or her freedom and once they -- the value to the defendant, in terms what it cost her or him is a lot lower than anticipated then the judge's judgment is somehow undermined and one of these factors does not represent the correct correlation that was taken into account to set the bond to begin with.

SENATOR COLEMAN: What is the responsibility, in that scenario, of the bail bonds person?

ANTONIO CAPORALE: Of the bail bonds person doesn't have any responsibility. Basically, there is an insurance company that does guarantee the bond and if the person does not show up, ultimately, the insurance company is on the hook for the forfeiture. There is different number of contracts and different kinds of contracts between surety agents and insurance companies as to, ultimately, who's going to be responsible. But for the sake of argument, the insurance company's the ultimate responsible party.

SENATOR COLEMAN: Does the bail bonds have any responsibility to the bail bond company or the insurance company?

ANTONIO CAPORALE: And again, there is a number of contractual relationships. There is some individuals who might be contracted with an insurance company, and they are called liable agents; in other words, whatever the insurance company pays is going to come out of the agent's pocket. There are other agents who are no liable agents; in other words, whatever insurance company pays comes out of the insurance companies pocket so it depends on the circumstances.

SENATOR COLEMAN: Whatever is the contract between the bail bonds person and the insurance company is -- is there any risk that the performance of the bail bonds person will determine whether the contract is renewed or not?

ANTONIO CAPORALE: Without looking at any specific contract, it is difficult to say, but I would say it's possible, yes.

SENATOR COLEMAN: Is there any other members with questions?

If not, thank you, the three of you for your presentation.

ANTONIO CAPORALE: Thank you.

SENATOR COLEMAN: Mike Neubert.

MICHAEL NEUBERT: Good morning, Senator Coleman, Representative Fox and members of the Judiciary Committee. My name is Michael Neubert. I'm with the law firm of Neubert, Pepe and Monteith.

Thank you for the opportunity to provide testimony on behalf of the more than 7,000 physicians and physicians in training of the Connecticut State Medical Society in opposition to House Bill 6687, AN ACT CONCERNING THE CERTIFICATE OF MERIT; and House Bill 1154, AN ACT CONCERNING THE ACCIDENTAL FAILURE OF SUIT STATUTE.

To those of you who may have sat on this committee, in 2005, I had the distinct honor to testify before it at that time in support of what was then a proposed bill but has since adopted and became 52-190a. As Dr. Srinivasan alluded to at that time, the Legislature was appropriately concerned about the impact of medical malpractice litigation on physicians, the healthcare system and, ultimately, patients here in Connecticut. Those concerns range from rising medical malpractice premiums to physicians fleeing the state and abandoning certain practice areas which would directly impact access to healthcare and quality of healthcare.

The situation was viewed as a crisis by many, not just physicians, at that time. And as a result, there was a strong contingent, I recall, who favored a cap on damages as one way to deal with this situation. Ultimately, the Legislature, in their wisdom, decided to take a middle road and adopted a reform package which preserved a right of a patient to compensation through the tort system with no limit on damages and some sensible, modest restrictions on what cases would be allowed to proceed and be submitted to a jury.

Like most sensible legislation, constituents on both sides of the aisle or the issue, the physicians and the plaintiff's bar, were not entirely happy with the outcome. So now we're at a point we need to ask ourselves what has happened since 2005 that would prompt the Legislature to consider significantly changing or gutting 52-190a? Has the number of medical malpractice cases being filed significantly been reduced? Well, no.

I recall testimony last year before this committee from a former president of the Connecticut Trial Lawyers Association estimating that the number of lawsuits, medical malpractice lawsuits, had gone from approximately 300 to 280. Well, if that is the case, it's certainly not a reason to change 52-190a. If the hurdle for -- of 52-190a even slightly reduces the number of frivolous or dubious malpractice cases being filed, then isn't it doing what it was designed to do? Has Connecticut -- I'm sorry -- has 52-190a resulted in clogging up our courts dockets with motions to dismiss as was claimed by the plaintiff's bar. What is the proof for that? There's no evidence that supports that claim and, in fact, if my firm's experience is any guide, motions to dismissed pursuant to 52-190a are filed in a small minority of medical malpractice cases presently.

There was a time within the first few years, following the passage of 52-190a, when our firm and I suspect other defense lawyers were filing more motions to dismiss as we awaited guidance from the courts regarding its interpretation and as the plaintiff's bar adjusted to the new statute. The reality is that today most plaintiff's lawyers understand what is required in order to comply with 52-190a. And as a result, a motion to dismiss has really become the exception to the rule.

In addition, various appellate court decisions or supreme court decisions interpreting 52-190a have made it easier for the plaintiff's bar to meet the requirements of the statute, most notably Wilcox versus Schwartz and more difficult for plaintiffs to prevail on motions to dismiss based on Morgan versus Hartford Hospital. In addition, Plante versus Charlotte Hungerford, another Supreme Court decision, opened the door for plaintiffs to refile the case in those rare cases where a motion to dismiss is granted.

In my view and I think in any objective view, 52-190a is not only a good statute which is achieving what it was designed to achieve. Furthermore, as a plaintiff's bar has adjusted to the statute and response to various appellate court decisions, its impact on medical malpractice cases has been significantly diminished.

The other point I want to make is that the argument that it is somehow fundamentally unfair or illogical to allow a healthcare provider that may be allowed to testify pursuant to 52-184c, parens, d, closed parens, d, to provide a written opinion pursuant to 52-190a, while appealing in its simplicity is badly flawed and short on analysis.

The circumstances under which a court rules that a witness is qualified to testify as an expert in court, pursuant to 52-184c, parens, d, is vastly different from the limited analysis that a court uses to decide if an expert is qualified as a similar healthcare provider under 52-190a. At trial, defense counsel will be afforded an opportunity to cross examine the witness often outside the presence of a jury regarding his or her alleged qualifications to serve as an expert when they fail to meet the definition of a similar healthcare provided under the provisions b or c.

In addition, even if the trial court allows that witness to testify, defense counsel can attempt to undermine that expert's credibility in front of the jury. However, pursuant to 52-190a, presently, no such opportunity to cross examine the anonymous author of the opinion letter is afforded to defense counsel; and therefore, the court has to make its analysis without the benefit of the information that a trial court has when he or she makes that same decision.

In my opinion, talk about fundamental and fairness, the situation of the proposed amendment sets up -- what it sets up is both unfair and illogical. And ironically, not only will the new statute lower the bar with regards to the expert that can sign the opinion letter, it will lead to defense lawyers, no doubt, filing significant more motions to dismiss challenging the alleged qualifications of an anonymous author of a 52-190a opinion letter.

SENATOR COLEMAN: Attorney Neubert, would you move to summarize the remainder of your -- of your testimony.

MICHAEL NEUBERT: I'm sorry.

SENATOR COLEMAN: Would you summarize the remainder of your testimony --

MICHAEL NEUBERT: Okay. Basically, my point on this is that, presently, the judge is comparing apples to apples and under the new scheme they would be put in a position where they're going to be comparing apples to oranges because there's no longer a similar healthcare provider.

With respect to the proposed amendments on the accidental failure of suit statute, it seems to -- it's our position that those are unnecessary at this point. There is an avenue under certain circumstances where they're cases of good faith mistake or excusable neglect where they can take advantage of that statute.

Otherwise, what we have a potential situation is almost similar to the movie Groundhog Day where there will never be an end where the opportunity to use the accidental failure of suit statute could be repeated and the -- the cloud or the prospect of a possible malpractice case would be hanging over a physician's head for an amount of time certainly well beyond the statute of limitations.

I think that the statute, both statutes, have worked effectively, and I don't see the need, and we don't feel there's any need at this point to make the change that's being proposed.

I'd be happy to take any questions that members of the committee would like to --

SENATOR COLEMAN: Representative O'Dea.

REP. O'DEA: Thank you, Mr. Chair.

Thank you for your testimony. Just a real quick follow-up. You may have heard my questioning of the doctor.

MICHAEL NEUBERT: I did.

REP. O'DEA: My understanding then of your testimony is that the accidental failure suit statute currently allows for a case that was dismissed based on the certificate of merit being insufficient.

MICHAEL NEUBERT: Correct.

REP. O'DEA: And so that anybody that's currently dismissed because the certificate of merit wasn't properly signed by a similar specialist, can refile it once they get a proper certificate; is that correct?

MICHAEL NEUBERT: That's correct. Actually, there's a couple scenarios. Number one, it's depending on when they file the lawsuit and when the motion to dismiss would be acted on. If the statute of limitations hasn't run, they could go ahead and refile there. Two, is they can attempt to refile under the accidental failure of suit statute. I'm not -- it's not to say that every -- every time it is refiled under that statute that ultimately it's going to be successful. There are certain restrictions, which I think are fair restrictions because otherwise the potential for litigation will never end, where it has to meet the requirements of a good faith mistake or inadvertent and excusable neglect.

For example, perhaps, a situation where the attorney had actually obtained the letter but for some reason it neglected to attach it to the complaint. You know, that might be a situation which would clearly fall into that circumstance.

REP. O'DEA: What about the circumstance in which the court had said that the doctor wasn't a similar expert such that, you know, the merit is insufficient on its face so the case is dismissed.

MICHAEL NEUBERT: I think there, the court's going to, again, analyze it whether it was excusable neglect or a good faith mistake. In other words, let's say -- and it would really be a case-by-case analysis depending on the facts of the case and the type of expert maybe that there was clearly a good faith attempt on the attorney's part to get an expert that would qualify. And -- and that the -- that he was not far off but he was nonetheless or he or she was nonetheless off. The court would find -- I would guess -- that that was a good faith mistake on their part and would allow them to proceed provided they could now provide the -- the appropriate opinion letter.

Where the attorney, say, had done nothing, had never read the statute, had never bothered to even attempt to contact an expert or whatever that might be a different situation, that might not fall under that that excusable -- excusable neglect standard.

REP. O'DEA: Okay. Thank you very much for your testimony.

Thank you Mr. Chair.

SENATOR COLEMAN: Are there other members with questions?

Representative Rebimbas.

REP. REBIMBAS: Thank you, Mr. Chairman.

Good morning.

MICHAEL NEUBERT: Good morning.

REP. REBIMBAS: Thank you for your testimony.

I guess I'm just trying to narrow down exactly what the main concerns are. When I look at the change in the wording of "similar" to "qualified" in line 21. It goes so we're changing "similar healthcare provider" to "qualified healthcare provider." And then if we look in that same Proposed Bill 6687, it goes on to say that "a qualified healthcare provider means a similar healthcare provider as defined by" and it goes on for then referencing 52-184c.

As I refer to that statute in sections b and c, clearly, in section c, it says, trained and experienced in the same specialty and it goes on to say a variety of other qualifications for it to be a qualified healthcare provider. So I don't see, I guess, for your comment earlier that it's pretty much gutting the statute that we currently have or the law that we currently have.

Could you tell me what am I missing there in that regard because it also seems like giving it a little bit more weight that the person is qualified and not just similar and maybe it's just a play on words.

MICHAEL NEUBERT: Well, I'm looking at section d, which adds, "or any other healthcare provider who may testify as an expert pursuant to subsection d of 52-184c." That would open the door as you would -- an earlier witness testified to somebody completely outside the area of your specialty offering an opinion and merely stating in the letter that they're familiar with the standard of care of a neurosurgeon even though they're not a neurosurgeon.

And that might work in the context of a courtroom where there's an opportunity to vet that issue in front of a judge before the witness is allowed to testify before a jury but there's no opportunity with, obviously, a redacted letter or, obviously, any opportunity to cross that person what is the -- what is the experience they're really claiming that they claim now allows them to be familiar with the standard of care in an area which they clearly, you know, is not their specialty area.

REP. REBIMBAS: Okay. So your main concern is the "or" part so in -- in section d --

MICHAEL NEUBERT: -- d, yes.

REP. REBIMBAS: -- It would be lines 64 through 65, where it says, "or any healthcare provider," which then also references back to the statute that I was just discussing, 52-184c. And it says that they would still have to qualify under that. And again, it goes on to say you know board certified and a variety of qualifications but wouldn't it be certainly prior to trial or at trial that challenges could be made whether or not this person is actually a qualified expert. I mean, does anything really change there because that's still something that's done even under current law. Wouldn't the ability to do that under even under this proposed statute be the same thing? And in fact, possibly even arguing for the defense, if you think that there's going to be someone that's not as qualified that could then testify, maybe it'll make a defense case that much stronger. Is that arguably something that is the case?

MICHAEL NEUBERT: It's really two separate situations. When you're at trial, I agree with you, nothing will have changed. You will still be able to challenge an expert who's not in the same area of specialization as your client with respect to whether they're even qualified to testify as an expert under 52 -- under subsection d of 52-184c. But with respect to 52-190a, previously, you could only qualify if you met subsection b or c, and that really required you to be in the same field of practice either as a board certified practitioner or it could be the defendant is not a board certified practitioner at least practicing in that area of specialization.

By adding and allowing the -- the plaintiff's bar to now use subsection d, it will open the door without the benefit of cross-examination, without even the benefit of knowing who the physician is of somebody outside the field of the defendant claiming familiarity with the -- the standard of care and expertise in a simple letter and, no doubt, frankly, allowing the plaintiff to get over the hurdle, if you want to call it or the bar, that now exists for 52-190a.

And again, I go back to that apples to apples and apples to oranges. If I'm a judge sitting there trying to make that decision without the benefit of any cross-examination and just a mere letter asserting that I -- I'm familiar with the standard of care. Because, for example, I had a case where a neurosurgeon signed the certificate of merit against an emergency room physician on the basis that he works in the -- he gets consult -- he does consults in an emergency room and, therefore, is familiar with the emergency room -- emergency room physician standard of care.

Well, frankly, I don't think that's the case. I think they practice in two different areas, and I would challenge that. And on that case the court upheld that opinion letter. I think wrongfully, but nonetheless that's what we deal with on that basis and that's the problem. I'm sure the neurosurgeon, in some respects, has experience in the emergency room, but he doesn't practice as an emergency room physician. And for him to start -- or that specialist to be allowed to comment on what the standard of care in the emergency room, I think is real dangerous place to go.

And honestly, if the statute wasn't working that would be one thing. I don't think there's any evidence that the statute is not working to achieve what it was intended to achieve. And that is that the real marginal cases -- and we've testified this at the time. I remember my remarks saying listen we didn't envision this as lopping off numerous lawsuits, meritorious lawsuits. We're talking about law suits on the margins and -- and anyone can argue that any lawsuit is potentially meritorious.

By the way, the challenge of getting, you know, a physician to sign anonymously. I don't think, frankly, a high burden and to require that same physician to be in that area of specialization or to be board certified in that same area, I don't think is really asking too much. And I have to agree with the prior -- the witness, they said by adopting this legislation as proposed a long with the change in the accidental failure to suit statute is really kind of taking a big step backwards and it would be -- we would be back before pre-2005.

REP. REBIMBAS: Thank you for your testimony.

MICHAEL NEUBERT: Okay.

SENATOR COLEMAN: Are there others with questions?

Representative Dillon.

REP. DILLON: Thank you very much.

And I'll be brief because I know that you've been -- I was interested that you mentioned the emergency medicine because in the New Milford case, I believe, was what propelled the law (inaudible). There's a background issue anyway --

MICHAEL NEUBERT: Yeah.

REP. DILLON: Were you talking about the new --

MICHAEL NEUBERT: No, I was not. This was not a case that went up on appeal because -- no, that's the case. It's still pending but I was using it as an example because that's what we, you know, we dealt with at the Superior Court level, but my point was that by adopting this statute, clearly, the circumstances where a neurosurgeon could sign a letter against an emergency room physician would clearly be available -- an available option to plaintiffs' counsel. And I'm just not so sure why we need to open that door, to be honest with you, and I really share the physicians', especially, the specialists' concern in this regard that they're going -- people outside their specialty and -- and these are -- all these specialists now, you know, they're very sophisticated in what they do and there are nuances and, obviously, I mean, it seems obvious to me but it wasn't obvious to the court and we ended up losing the motion. To the neurosurgeon, even he does consult in the emergency room, can't possibly really be familiar with the -- the standard of care of an emergency room physician. No matter, you know, he may sign the letter in good faith and no doubt did, but I just think --

REP. DILLON: No. That's important, and I've had to refresh my memory and read that case again, but I remember that involved an emergency department --

MICHAEL NEUBERT: Correct.

REP. DILLON: Yes.

MICHAEL NEUBERT: Yes.

REP. DILLON: Yeah and -- and I -- I think you're quite right, specifically, about the -- about the working conditions and the -- the decisions that you have to make on the ground if you're -- if you're in an emergency situation. I haven't been there as a practitioner.

MICHAEL NEUBERT: Nor have I.

REP. DILLON: But I used to go there all the time as a -- to meet crime victims, actually, when I worked with domestic violence victims and I -- I am interested in that, and I want to revisit it at some point maybe not today and, certainly, refresh my memory on the fact pattern of the --

MICHAEL NEUBERT: New Milford Hospital, yeah.

REP. DILLON: -- New Milford case, but it was that specific case that really --

MICHAEL NEUBERT: That was one of the cases that --

REP. DILLON: -- that made me really start to rethink some of the things that I had always thought because I was very concerned about -- about the facts there.

Thank you, Mr. Chairman.

That's all I know. We've many of us have caucuses, and so forth, so I won't -- I won't dwell on this point, but I did want to highlight the New Milford case.

SENATOR COLEMAN: Thank you, representative.

Are there others with questions?

I have a couple maybe you can help me with. Isn't most of, I guess, not being sure how to characterize it, but isn't most of the controversy surrounding the definition of frivolous and of similar?

MICHAEL NEUBERT: I guess, I mean I think it's "similar healthcare provider" is really goes to the nub of -- of the argument here and by broadening it and making it "qualified," I think that's really the -- a very big part of our concern in a statute that we think is working effectively.

The term "frivolous," obviously, I suppose arguably always in the eyes of the beholder but the only thing we can ask the court to do is to see if this case should go forward based on some credible evidence from a provider and then the issue becomes what should be the qualifications of that provider. And we don't think it's too much to ask and -- and we think it's appropriate under all the circumstances that led to this statute's adoption to require it to be a similar healthcare provider as presently defined.

SENATOR COLEMAN: When you mentioned the circumstances that led to this, you would agree, would you not, that it was an extraordinary step that the Legislature took in 2005 to pretty much adopt a prerequisite that someone would have to meet in order to even set foot in court. I can't think of any other cause of action that requires that kind of a hurdle to overcome in order to get a day in court, can you?

MICHAEL NEUBERT: Well, in other states -- other states have certainly adopted similar provisions.

SENATOR COLEMAN: Okay. Well, --

MICHAEL NEUBERT: -- and I think -- I think that --

SENATOR COLEMAN: -- in -- in the State of. Connecticut and even in other states, are there causes of actions but let's -- let's focus on Connecticut.

MICHAEL NEUBERT: Well, on other causes of action --

SENATOR COLEMAN: Let's focus on the State of Connecticut --

MICHAEL NEUBERT: -- Connecticut. I can't speak to --

SENATOR COLEMAN: -- are there any other causes of action --

MICHAEL NEUBERT: Right.

SENATOR COLEMAN: -- where there is that kind of a hurdle --

MICHAEL NEUBERT: -- I --

SENATOR COLEMAN: -- in order to access the courts?

MICHAEL NEUBERT: Other than an action against the state where you'd have to go to the Claims Commission, I can't think of a particular cause of action that has a prerequisite that would be similar.

However, I would say that I think in this particular area, it -- it was the whole crisis that sort of surrounded the situation at that time that I think the Legislature said, Listen, we have to do something, we don't want to go to the extreme of putting limits on the -- on the amount of damages somebody should get because that didn't seem fair and right and may not be constitutional depending on somebody's view; on the other hand, doing nothing, we might lose access to our healthcare system, we might lose physicians.

I actually thought, at the time, to be honest with you, that this was a sensible middle road. And I think it's been successful, but I will concede to you that it -- that it is a somewhat unique situation in terms of a prerequisite but I think it's a good one. I honestly do. And I actually think even plaintiffs, obviously, they don't have plaintiff's bar does not have a problem with the concept of a prerequisite. I think the area requires it, but the question and the debate will always be what should it be, what should be -- what is the appropriate one, and obviously, I strongly feel having been practicing in this area for a number of years and actively since the adoption of 52-190a, that this is an appropriate one; that this is not -- not the time to be jumping horses to be honest with you. And I don't see what the empirical evidence is. What is it that happened in the last eight years that says something radically wrong happened with this statute, and that's where I really don't see. There isn't -- I know there's a suggestion, that's all these motions to dismiss clogging the court system, not true. That's just not the case. And all these people are being denied access for good cases. Prove it to me, show it to me. That's just not the case.

SENATOR COLEMAN: Well, from my understanding, I think what happened was a Supreme Court decision and just to get back on --

MICHAEL NEUBERT: Right.

SENATOR COLEMAN: -- on -- on my track, the premise for the argument that we need to do something about malpractice insurance premiums was that they're too many frivolous cases that were being allowed into the court. I'm not sure how "frivolous cases" was being defined --

MICHAEL NEUBERT: Exactly.

SENATOR COLEMAN: -- but that seemed to me to be the purpose of the certificate of merit provision --

MICHAEL NEUBERT: I could (inaudible).

SENATOR COLEMAN: -- to -- to attempt to weed out frivolous cases.

MICHAEL NEUBERT: Uh-huh.

SENATOR COLEMAN: And I think what occurred was that when legislators got together -- I can speak for myself -- I didn't think that we were talking about a full blown hearing at the beginning of a lawsuit to determine whether the law suit had any merit or basis. I thought that we were talking about having someone who was familiar with the standard of care that applied in the case, comment concerning whether that standard was met or not met.

And it just seems to me that when we decided on the word "similar," we weren't talking about the exact same. When we decided on similar healthcare provider, we weren't necessarily talking about the exact same healthcare provider but, lo and behold, the Supreme Court said that we were talking about the exact same healthcare provider.

But my question is, are we ignoring the fact of intersecting scopes of practices and that, perhaps, two physicians or healthcare providers in different specialties might have some experience with the applicable standard of care in a given case. And if that's the -- if that -- if my assumption is correct, why wouldn't we move to the language of "qualified healthcare provider"?

MICHAEL NEUBERT: I think you're assumption is probably correct in certain areas. The problem that as it interacts with 52-190a is there's no opportunity for a trial judge when that is challenged to really vet that issue because there's no cross-examination. So the mere proclamation that I'm familiar with the standard of care of an emergency room physician because I've done consulting there and I've observed emergency room physicians, to me, seems woefully insufficient.

I think when you signed on, perhaps, for 52-190a back in 2005, you didn't envision what you said a full blown hearing. Let me, first, indicate there's I think the percentage of cases now where motion dismissed is filed under 52-190a is in a small minority because of the sophistication of the plaintiff's bar and also some decisions handed down. So, you know, it's -- it's a small -- and two --

SENATOR COLEMAN: But my point is at the beginning of the -- the case --

MICHAEL NEUBERT: Yes.

SENATOR COLEMAN: -- the only thing the determination of the validity of the certificate of merit or the effectiveness of the certificate of merit was not determined -- was not supposed to be determined -- determinative of the case.

MICHAEL NEUBERT: (Inaudible.)

SENATOR COLEMAN: It was barely supposed to determine whether the case had any merit to proceed, whether it --

MICHAEL NEUBERT: Right.

SENATOR COLEMAN: -- was a frivolous case or not a frivolous case.

MICHAEL NEUBERT: Absolutely. And that's still true. And, by the way, often a motion dismissed might get submitted and there's no hearing. In other words, I submit a motion to dismiss, there's objection filed, and the court decides.

On some cases because it's a close call or whatever or there maybe a little more involved, the court may ask the attorneys to come in an argue. But it's strictly a legal argument. There's no witnesses. It's strictly a legal argument at this point, and it doesn't take up necessarily a lot of time. So, again, it could be decided on the papers, perhaps, in some situations. But at the end of the day, I don't think it's -- it's working any different than you envisioned it, and nor is it required to.

We're not saying that the judges decide, okay, this is a meritorious case, this is a good case you can go forward with it. No. The judge is merely looking at it as did the individual that signed this letter do they meet the qualifications? It's a simple analysis. In most cases, that's why if you have a board certified whatever, you -- it -- you're not even going to be bothering to challenge with a motion dismissed.

So I -- I don't think that it's working any differently than it was envisioned. And, no, we're not having a big hearing on whether it's a good case or a meritorious case. We're really -- the simple issue is did you meet the requirements of the statute, is this a similar healthcare provider. And again, I don't think that's a burden that we should, at this point, scrap.

SENATOR COLEMAN: Do you find it at all anomalous that someone who is deemed qualified to testify as an expert at trial may be deemed not qualified to offer a certificate of merit?

MICHAEL NEUBERT: And the answer is no. And again, because, at trial, we have the process of cross-examination often even outside the presence of the jury where the court will decide whether that person indeed, as you said, whether there's enough cross over in the specialty, whether indeed this proposed expert is familiar with the standard of care. Does he do the same surgery, you know, what are the circumstances. And the court will make a detail analysis in the context of a trial and say, you know what, I think Dr. Smith is qualified or not qualified so there's that protection. And again, we don't have that protection at the -- at the gates of the -- going into the lawsuits.

So I think, again, I actually also think on the basis of the fact that it makes it much easier for the court to make a determination. And it isn't as if plaintiff's counsel is not familiar with -- with what's required of them and, frankly, the vast majority, I would guess 90 percent or -- or better, you know, meet the qualifications without any question.

SENATOR COLEMAN: And so I guess my last question is shouldn't it be considered a question of fact concerning whether or not, for example, like in your situation, whether a general surgeon can offer a certificate of merit concerning an emergency room surgeon's work as an alleged state.

MICHAEL NEUBERT: I'm not sure I understand your question. You say a question of fact. Again, it might be an issue that could be determined whether that scenario -- and it was a neurosurgeon against an emergency room physician, whether that neurosurgeon was qualified at trial to testify, but I don't think it should a question of fact. At -- at the beginning of the law suit because then you really would be a situation where the court would have to have a hearing. Whereas, I think, if you keep it as is, which is very pretty much straightforward, we never -- we never have a hearing, we never have evidence. At best, we have oral argument.

SENATOR COLEMAN: And I guess to clarify my question, at the beginning of the lawsuit, I think the focus of concern should be -- and you can, obviously, comment concerning whether you agree or not -- but I think the focus of concern should be whether or not the applicable standard of care for the treatment for the procedure was met and if there is an argument to be made that, for example, in the emergency room's -- an emergency room physician's standard of care should be different, shouldn't that be a question of fact in the litigation rather than at the beginning where the certificate of merit is the focus or the issue to be determined?

MICHAEL NEUBERT: I'm -- I fear I'm going to repeat myself. I agree with you. In the context, once the case gets going, clearly, an issue of fact when it reaches trial, whether that expert's qualified or not qualified under subsection d of 184 -- 52-184c, but I don't think that similar situation works at the beginning of the lawsuit because, again, we don't have the opportunity to cross-examine or question the anonymous author. And so we have to take it on its face if he says or she says I'm familiar with the standard of care of an emergency room physician because I consult there once a week or something, et al.

I think the risk here is, as presently drafted, that the court is -- is likely to say they meet the requirements under the new statute. And I would -- furthermore, I would suggest that there won't be any cases that, ultimately, would not qualify to move forward, perhaps, if that is adopted. Despite what I think will be numerous motions to dismiss when people attempt to use subsection d for, you know, for their expert to sign the opinion letter.

So I think in some respects, it's a lose-lose. One is you're going to end up with more motions to dismiss, which one of the things you want to do is reduce; and two, is I think you're going to run the risk of, frankly, more cases that lack merit moving forward -- I won't say frivolous -- that lack merit moving forward. And -- and that's, to me, it's a lose-lose situation. And again, I think the present statutory scheme is -- has worked, has been working and there is really no evidence, empirical evidence that would suggest that it's not or that people with meritorious cases are being denied access to the court.

SENATOR COLEMAN: I guess I'm trying to make some assessment concerning -- and you just told me where you're coming from and what you feel, what is your position, but I'm trying to make some assessment concerning what would be the real impact of a change in language, moving from "similar healthcare provider" to "qualified healthcare provider."

I want to -- I want to argue that the change would be so negligible, and I think just having been around these halls for a period of time, I think many of us have observed and experienced the slippery slope argument. And we see it now I think with the NRA and guns, my own personal opinion.

MICHAEL NEUBERT: Uh-huh.

SENATOR COLEMAN: In so many other instances, we see people drawing lines and saying if we give in on this, no telling what's going to happened to tomorrow or next week so let's not even -- let's not budge from this position, let's resist. And I wonder, to some extent, whether that's what's going on here.

MICHAEL NEUBERT: I honestly don't think it is, Senator. I honestly think this will serve to really, you can say, gut or emasculate this statute. When you combine that with the 60-day provision that presently exists in there, if that were adopted, would mean not only would you lower the bar on the expert going in. You would, in addition, allow the plaintiff an opportunity to refile -- I'm sorry -- to refile the opinion letter within 60 days. And then when you add on top of it the potential of -- of adopting the changes in the accidental failure of suit statute, in making the analogy to Groundhog Day, I was not being frivolous.

I'm -- I'm serious about the fact -- think of the scenario, I file the lawsuit. It gets dismissed. I'm unable to find an expert sufficient to meet the court's requirements in the next 60 days, so it's finally dismissed. I refile under the accidental failure of suit. I, again, fail to come up with the appropriate letter. I can refile, again, there's no prohibition, as I see it, to refiling, you know, again.

So I mean, at some point, it -- it's certainly at a minimum takes the action well outside the statute of limitations that was originally envisioned, and I think that's the real concern, you know, that I would have on what impact that's going to have on physicians coming into the state, wanting to practice in the state. And I do think that, ultimately, it's a type of thing that down the road could impact things, like malpractice rates. And also -- that's why I'm saying the risk this runs -- I mean, you and I may have honest disagreements about the impact of the statute. I think it'll be significant. I don't think that there will be any dismissals that will last at all, whatsoever. So we're going to be back to where we were before 2005 and then you have to ask yourself, well, what's going to be the impact of that in the present environment, and I think that's the concern you ought to have.

If there was some dramatic reason or if there was something that somebody could -- other than these, sort of, theoretical arguments that it's unfair to allow a expert who's going to be allowed to testify at trial not to sign the letter. Again, it's appealing in its simplicity but when you really look behind it it's -- it's not a logical argument. And it's not -- it's not a apples-to-apples argument, two completely different situations.

So I -- I really think that this is an important crossroads and one that the Legislature ought to take a pass on.

SENATOR COLEMAN: Okay. Well, I think Representative Walko is next.

I appreciate your responses to my questions, and I think we'll -- we'll talk more.

MICHAEL NEUBERT: Okay.

SENATOR COLEMAN: Representative Walko.

REP. WALKO: Thank you, Mr. Chairman.

SENATOR COLEMAN: -- and then Representative O'Dea.

REP. WALKO: So I -- I find interesting the interplay between addressing, quote/unquote, mistakes by a doctor and -- and potentially the mistake of an attorney for filing a insufficient certificate. And -- and I'm sure we could spend hours on that interplay, especially, as legislators, and -- and most of us being attorneys and not doctors. But relative to just the one issue about the accidental failure to sue statute --

MICHAEL NEUBERT: Uh-huh.

REP. WALKO: -- versus section c of this proposed bill.

Other than the point -- and I -- and I think it's a good one -- that it can continue ad nauseam for one attorney to constantly file a new certificate. If we were to minimize that one section to whether it's one or two -- and I know at some point that becomes arbitrary -- but some finite number, why wouldn't it be wiser to place such limitation in this statute as opposed to relying on the accidental failure to sue statute which, as you've indicated already, there are nuances to that that if an attorney does make, in fact, a mistake --

MICHAEL NEUBERT: Right.

REP. WALKO: -- it's possible, at least, that the court would deny the individual, the client, his or her day in court.

MICHAEL NEUBERT: Correct. I'm not completely sure I understand your question but let me try and respond.

The statute, as proposed, certainly, if the 60-day measure is adopted would allow, I think, frankly, you know a big window, as you want to call, it for the plaintiff's attorney to go back and -- and figure out what he needs to do to obtain the appropriate letter. And -- and I don't know if you're talking about working at that end of the statute in order to achieve what you want and leave alone the -- the other statute with respect to the accidental failure of suit statute.

What my point was, though, with respect to the accidental failure of suit statute is that there's no other causes of action that get this special carve-out that they're trying to do for medical malpractice; that is, that the standard that the courts have used for years and years in evaluating whether a case is appropriately refiled under the accidental failure of suit statute meets those requirements.

Now, we're going to create a special carve-out for the plaintiff's bar who practices medical malpractice, and I don't see the reason for that. Plus the potential that we're really -- the specter of a law suit is going to hang over a physician's head for years now, okay, for years. So that's the reason I have difficulty with that -- or the Connecticut State Medical Society, and I join them in this regard, has a real problem with that.

I can't speak because I'm not exactly sure what you're saying about the 60-day provision or the 50 -- or the amendment to 52-190a and how that would interplay or what changes you were suggesting, perhaps, to deal with that.

REP. WALKO: If I may, Mr. Chairman.

So 52 -- 52-190a --

MICHAEL NEUBERT: Uh-huh.

REP. WALKO: -- section c --

MICHAEL NEUBERT: Right.

REP. WALKO: -- discusses the addition of -- of the words, "provided the claimant has failed to remedy such failure not later than 60 days after being" --

MICHAEL NEUBERT: Right.

REP. WALKO: -- "ordered to do so by the court."

And if I heard your comments earlier, you envisioned a scenario, such as Groundhog Day, where a plaintiff's attorney would be able to repeatedly attempt to correct whatever --

MICHAEL NEUBERT: -- only the accidental failure of suit statute potentially.

REP. WALKO: And -- and my question, I guess, is relative to that particular section -- or subsection, subsection c, if we were not inclined to change the accidental failure to sue statute --

MICHAEL NEUBERT: Right.

REP. WALKO: -- and instead key in on this provision --

MICHAEL NEUBERT: I see.

REP. WALKO: -- what are your thoughts relative to that what you called a window being able to account for what, in essence, would be an attorney's mistake?

MICHAEL NEUBERT: Well, we oppose it -- I do want to be clear. Again, our position is the statute's been working and it's working fine in this respect. We don't support the -- the amendment that would provide plaintiff's counsel an additional 60 days. But what I was speaking to is the fact that if you combine that with the provisions for the changes in the accidental failure to sue statute, then, truly, it seems to me that the statute's been totally gutted.

I can't really think of any other word because I can't imagine a case would not survive or that an attorney cannot find a suitable expert in that time frame. And that time frame is well extended now. So --

REP. WALKO: Okay. Thank you.

Thank you, Mr. Chairman.

SENATOR COLEMAN: Representative O'Dea.

REP. O'DEA: Thank you very much, Mr. Chair.

Just a brief follow-up, Representative Walko was asking, essentially, the same question I was but going at it from a different -- revision of a different statute. I was looking at -- looking at 1154 and simply putting in -- if you look at section a of 52-592, where the language is added "by the death of a party or for any matter of form and opposed languages or because the action has been dismissed pursuant to subsection c of section 52-190a." Obviously, we've been discussing the -- the -- you oppose that because you --

MICHAEL NEUBERT: Right.

REP. O'DEA: -- could be in a Groundhog Day of going back and forth.

MICHAEL NEUBERT: Right.

REP. O'DEA: Well, if we simply added the language "or because the action has been dismissed pursuant to section c of section 52-190a on one" -- "on a maximum of one occasion or one" --

MICHAEL NEUBERT: Well --

REP. O'DEA: -- "or less than two occasions," whatever you want to phrase it. That would prevent that Groundhog Day scenario. Correct?

MICHAEL NEUBERT: It would. But -- but my bigger point is what's the point -- what's the reason for carving out an exemption to a statute that's existed and worked for years just for this particular area which is what it does.

REP. O'DEA: -- because it's been proposed and, clearly, some people have a problem with it.

MICHAEL NEUBERT: Right.

REP. O'DEA: So -- so in trying to look at a compromise --

MICHAEL NEUBERT: I understand.

REP. O'DEA: -- between the two opposing forces, as is my job, I think here, I'm trying to think of a compromise --

MICHAEL NEUBERT: Yeah.

REP. O'DEA: And understanding that I think I get everybody's position. What I'm looking at is, as Representative Walko said, the scenario where an attorney -- I'm thinking of -- the language being changed from "similar" to "qualified" --

MICHAEL NEUBERT: Right.

REP. O'DEA: And I understand your position on that and I'm kind of leaning that way, you know, and so in an effort to prevent a plaintiff's case from being dismissed, who may have a valid claim of malpractice --

MICHAEL NEUBERT: Right.

REP. O'DEA: -- but they don't have the right expert. Rather than fix the language that they want to, in that, allow them more time under the accidental failure to clearly get an expert that qualifies under that "similar language," not the "qualified language." You see what I'm saying?

MICHAEL NEUBERT: Uh-huh.

REP. O'DEA: So if we did limit the -- the -- the number of times and med mal action could be brought as an accidental failure of suit to that one occasion to do that. It's a bridge, so to speak, to not having to amend the language that you don't want amended on -- on the other bill, but I think I understand the points.

MICHAEL NEUBERT: Yeah. I hear what you're saying. I think what it does is it takes out the analysis the court would now apply with respect to the attorney's client, whether it was a good faith mistake or excusable neglect. And it would allow them to proceed -- they would still, I guess, have to analyze whether the letter, the opinion letter, met the appropriate requirements and that they would only have that remedy available to them on one occasion, if there's any uncertainty about that.

Clearly, that's a compromise, and I can't, you know, I mean, obviously, I know what your job is in that regard. I can only tell you what, obviously, our position is and I -- and I -- I appreciate your efforts trying to bridge two competing interests in this respect. So I think you have a good grasp of the -- the issue, certainly, in that regard.

REP. O'DEA: Thank you very much. Thank you for your time.

Thank you, Mr. Chair.

SENATOR COLEMAN: Thank you.

Any other questions?

Were you familiar with the bill that was proposed last year?

MICHAEL NEUBERT: I was, yes.

SENATOR COLEMAN: There was a bill, if my recollection serves me correctly, I think it had -- it sought to address -- at least, the final version that was presented to the Senate and the House was modified to seek to address the Groundhog Day scenario --

MICHAEL NEUBERT: Okay.

SENATOR COLEMAN: -- that you were talking about with the --

MICHAEL NEUBERT: Okay.

SENATOR COLEMAN: -- do you recall that?

MICHAEL NEUBERT: I don't -- are you -- you're talking about the accidental failure to sue statute I assume?

SENATOR COLEMAN: Yes.

MICHAEL NEUBERT: Frankly, I'm more familiar with what was proposed last year for 52-190a so I may not -- I may not be familiar with the language that you're referring to --

SENATOR COLEMAN: Okay.

MICHAEL NEUBERT: -- with respect to last year's proposed bill.

SENATOR COLEMAN: Right.

MICHAEL NEUBERT: -- but I assume it did not pass from the sound of it, presumably.

SENATOR COLEMAN: It did not pass the House. You're right.

MICHAEL NEUBERT: Yeah.

SENATOR COLEMAN: But I think that we did take some steps to try to address --

MICHAEL NEUBERT: (Inaudible.)

SENATOR COLEMAN: -- that endless scenario that --

MICHAEL NEUBERT: Right.

SENATOR COLEMAN: -- you were talking about so you might want to take a look at --

MICHAEL NEUBERT: I will.

SENATOR COLEMAN: -- what we drafted from last year --

MICHAEL NEUBERT: Yeah.

SENATOR COLEMAN: -- to see if that satisfies your concerns.

MICHAEL NEUBERT: Uh-huh.

SENATOR COLEMAN: In any event thank you for the time that you spent with us and thank you for your testimony.

MICHAEL NEUBERT: Thank you.

SENATOR COLEMAN: John Souza.

JOHN SOUZA: Good morning, Senator Coleman and members of the committee. I'd like to shift gears a little bit, I'm expecting everybody to be happy with that? Right. I'd like to speak regarding Bill 6661, AN ACT CONCERNING USE AND OCCUPANCY PAYMENTS IN SUMMARY PROCESS MATTERS.

My name is John Souza. I'm a small landlord and I also manage property. I'm a member of the Greater Hartford Property Owners Association. I serve as their treasurer.

I also belong to several other small landlord groups, and this bill would level the playing field going into landlord tenant court, which is right up the street here for some of you that don't know that.

Speaking with many of our members, the biggest frustration from a landlord is going into the court system in good faith and finding out that it could take two, three, four months, and that the tenant does not have to pay rent during the time of the proceedings. Much to our surprise, there was already an existing statute that would require a use and occupancy payments but it's not used, apparently. And our lawyer from the group explained why I'm just a landlord and they don't use it because he says it doesn't make any sense. It only extends all the things. It does not produce the results that we would like to see. You'd think it would work.

And as a -- as a small landlord, finding that out and talking to the other landlords that their biggest frustration going into this court and finding out they know they're going to lose money but the only -- they want to find how much they're going to lose, and we don't think that's a fair way to deal with the court system.

I'm in favor of the changes of the statute. It would create more equitable relationship between the landlord and the tenant during the summary process proceedings. The present statute is seldom used, as I said, because of the -- it only serves to lengthen the proceedings.

Landlords sell a service that's time based once that time's gone there's very little chance getting payment from that. The statute would require the tenant to pay the rent into the court while the action is commencing creating a good faith basis for the tenant to continue with the action. If the action takes three or four months, again, the tenant would have to pay during those three or four months into the court.

I know most people say landlords, you know, they're rich, they don't care -- about the landlord -- but I would say that most of the people in our group are mom-and-pop operations, two families, three families, we've got young couples that are getting off on their first house and they buy it two or three family to qualify for the mortgage. And then they come to find out -- they come to us because they find us because they're looking for help. And they're, like, you know, this tenant doesn't pay, we're in court and it's taking three months and, you know, they're, like, this is crazy, you know, why -- I understand if there's an issue.

They understand that, you know, that if the window's broken or something that the there should be a system for the tenant to put up a defense, but it shouldn't take four months to figure that out and not get any payment during that process.

The changes that are made to the statute that already exists won't affect the tenant's rights to provide a defense against paying rent. It only streamlines the process for requesting the use and occupancy payments. It does not delay the action.

The way that it's written from what I understand, I'm not a lawyer, would allow the use and occupancy hearing to run parallel to the rest of the proceedings instead of somewhere down the line. I think it's a fair law, and it would benefit good tenants as well as bad. Landlords are trying to be fair people and they only want, you know, to be dealt with fairly from everybody.

Questions?

REP. G. FOX: Thank you. Thanks for your testimony.

JOHN SOUZA: Thank you.

REP. G. FOX: Are there any questions from members of the committee?

No, I don't see any so thank you very much.

JOHN SOUZA: Thanks.

REP. G. FOX: Josephine Miller.

JOSEPHINE MILLER: Good afternoon --

REP. G. FOX: Good afternoon --

JOSEPHINE MILLER: -- to Senator Coleman, Representative Fox and members of this committee. My name is Attorney Josephine Smalls Miller, and I am here to briefly give some testimony with regard to Raised Bill -- Senate Raised Bill 6667 and, in particular, section 17.

The testimony that I wish to give to you today is informed by my having spent the last 33 years as a labor and employment lawyer. Some of that time has been spent in the private sector as in-house counsel for a corporation, some of that time has been spent in the public sector and, also, now representing plaintiffs in employment matters.

I provide this testimony in favor of the attempt to clarify, maintain and strengthen Connecticut General Statute, section 31-51q.

As you may be aware that statute provides that employees who engage in free speech rights either under the federal constitution First Amendment or under the state constitution First Amendment are protected from discipline and discharge for having engaged in that protected speech.

Largely, as a result of a U.S. Supreme Court decision in 2006 called Garcetti versus Ceballos and a state Supreme Court decision rendered in the spring of last year, the rights of employees to engage in protected speech with regard to matters of public concern have now been placed in jeopardy. The state Supreme Court decided in two cases that were decided and at the same time last year: one called Perez-Dickson versus the Board of Education, which I handled at the trial court level; and another one called Schuman versus Dianon System.

There is now a serious question and something that I believe caused -- calls for bad public policy. The rights of public and private employees to engage in free speech now has been questioned if the free speech that they engaged in relates to matters that were part of their duties as an employee.

The concern that I have about the state of section 31-51q, at this point in time, is based upon the fact that employees now maybe involved in free speech about matters that they are loyal to their employers about, conscientious about and, yet, they may be subject to discipline and discharge over it.

I would like to pose quickly three scenarios for the consideration of this committee that I think addresses the problem as I see it. Suppose that we had an employee who works with disabled clients in a residential facility and they witness serious abuse by a supervisor of that patient. The employee makes a report of the abuse only to find himself or herself terminated a few days later. Now, if this is a public employee and the abused client was in state care, the State could be subject to liability to the client for that abuse. If the abuses had been previously known and ignored, the extent of liability by the State or even a municipality would be enhanced because of a known pattern of abuse.

Take a second example. Another employee who learns of fraudulent misuse of funds in a school district's program funds -- after school funds. Further assume that those funds were state or federal funds. The employee who reports this abuse and this fraud, let's say that they are later terminated in retaliation for having made the complaint. Now, there could be jeopardy because of the continued receipt of those federal funds and the fraudulent loss of state funds. There's no accountability there, but an employee could be discharged because they reported the fraud and abuse.

And finally, let me give you this example of someone who, let's say, who is an employee in aviation services out at Bradley Airport. They make multiple reports to their immediate supervisor about security risks in the facility. No response from the supervisor so that they then go to upper management to make a complaint about ongoing security breaches at the airport.

It is not an unusual case that you might find an immediate supervisor who is angry about having been called to task for not responding and that employee going over their head so they, in turn, terminate that employee, effectively, for having engaged in protected speech.

But there are circumstances under which an employee who engages in protected free speech about matters of public concern actually results in a benefit to the organization but because of the state of the law, as regards to section 31-51q at this point in time, that employee has no protection against discipline or discharge.

Each of these scenarios that I've just presented to you illustrates the reason why it is so important that this committee not only maintain but strengthen and clarify the rights of public and private employees to engage in free speech when it is regarding a matter of public concern.

REP. G. FOX: Thank you.

And I appreciate -- I let you go pretty far beyond the three minutes.

JOSEPHINE MILLER: Okay.

REP. G. FOX: And I do appreciate the examples, and I think that they are helpful for the members of the committee.

Representative Shaban.

REP. SHABAN: Thank you, Mr. Chair.

I'm sitting here listening to your examples and the question that jumps out at me is wouldn't -- well, the first question is -- is I think some of those examples might not actually be constitutionally protected free speech, but we'll leave that to the side.

Wouldn't some of those examples be covered by standard whistleblower statutes?

JOSEPHINE MILLER: Not always. As you may be aware of the whistleblower statute having very, very restricted time periods. The employee has to make the complaint within 90 days of the action and sometimes employers are clever enough to not take action immediately so that the employee might not have a basis for challenging his discipline or discharge simply because the -- the statute has run.

REP. SHABAN: Thank you for that.

I mean the obvious concern and I -- I think you recognize this because I thought I heard you say it in your testimony was -- is what is constitutionally protected and then can an employee just make this claim for anything. I mean, now, you say like a security breech. I'm not sure -- I'm trying to envision a scenario in my head where if I was working at wherever, the airport, the hospital, something like that, and I call the paper and say, hey, there's security problems over here at the airport or the hospital. How that would be protected under either the state or the federal constitution.

JOSEPHINE MILLER: Okay. The statute as it is presently written and has as it has existed for quite some time now has limitations so that not everything that an individual claims to be free speech is protected. It has to be about a matter of public concern, number one; and secondly, it is also required that the manner in which the employee engages in the free speech does not materially or substantially interfere with their job duties. So it is a -- already narrowly focused in terms of the kind of speech that it is the employee can engage in. And so for that reason, we believe that there is no reason at this point to eliminate the right of public or private employees simply based upon what the federal constitutional guarantees are.

The statute is written in such a way that it is -- it is in the disjunctive. It could be free speech under the federal constitution or under the Connecticut constitution. And there is case law that we've cited for you in our written presentation that shows that there's a long history of saying that free speech rights under the Connecticut constitution has always been intended to be far broader than those rights under the federal constitution.

REP. SHABAN: Thank you for your testimony and your response.

I've got to read this Garcetti decision. I -- I think I read it but in some other context. I'm trying to remember it.

Thank you, Mr. Chair.

REP. G. FOX: Thank you.

Are there other questions?

Representative Smith.

REP. SMITH: Thank you, Mr. Chairman.

Good afternoon, ma'am.

JOSEPHINE MILLER: Good afternoon.

REP. SMITH: Your -- your examples that you gave were more in the public sector context, which I think would probably not be as easily -- I don't think the firing would be as easy as you suggested because there's probably subject to collect bargaining and things of that nature where it would probably be a little bit more difficult than what you imply.

I'm just wondering if you can give me example for the private context, private sector, in terms of how you think this statute would apply.

JOSEPHINE MILLER: Well, I will direct you back to the first example that I gave and that is suppose that the employee who witnesses the abuse of the disabled parent maybe working for a private organization that cares for residents who may have state assistance, but it's a private organization. In this -- in that same context that employee, based upon the current language of 31-51q, is protected from discipline and discharge because speaking out about the abuse that they witnessed would be considered protected free speech so that is an example of a private sector employee.

But based upon the turmoil that we now have about the meaning of the statutory section, there is a real question as to whether or not that speech could be protected so that the employee is not disciplined or discharged because of it.

REP. SMITH: I thought you testified that you've been in practice on both sides of the issue here. So I'm just wondering if you came across this in your years of practice in terms of having real issues with this subject matter?

JOSEPHINE MILLER: Yes, I have. And that is one reason why I mentioned the length of my service and having been in both private and public sector. It is has been my experience that there is something about human nature that seems to call forth retaliation in circumstances where you would not expect that an employee would be retaliated against.

Sometimes people are retaliated against simply because their immediate supervisor doesn't like the fact that they've gone over their heads and that employee, whether in the public or the private sector, is often discriminated against, retaliated against, in sometimes subtle ways and in sometimes very open ways where their employment is affected.

So to answer your question, based on my experience, I have seen that this is an ongoing problem and that is why I urge this committee to strengthen and clarify the circumstances under which employees can be protected for free speech. And keeping in mind that we're not talking just free speech of any kind but free speech on matters that are of public concern.

REP. SMITH: And as part of your representation, did you represent employers, as well, or just employees?

JOSEPHINE MILLER: No. I spent approximately 12 years as corporate in-house counsel for a major corporation. So I -- my position on this is informed by having been on both sides of the fence.

REP. SMITH: So you understand then the need for a delicate balance here between the rights of an employer, as well, as the rights of an employee to -- to report some issues that may be a public of concern. So there is a fine balance there which we have to strike. Would you agree with that?

JOSEPHINE MILLER: That's correct.

I would point out, however, that one of the things that seems to be getting lost as we talk about the cost associated with employees being able to maintain their free speech rights is that there are costs associated to an employer when employees feel intimidated into not speaking out about matters that are part of their job duties but that should be reported. There are costs associated, for example, in the scenario that I gave you where if that resident who was abused then later files a lawsuit against the residential facility, there re going to be costs that might have been forgone if the employer had listened earlier to what they were hearing from their employee.

After all, the employee is in the best possible position to be able to observe and to witness when there are abuses, when there is fraud, when there are safety concerns. And if the employer ignores that, then sometimes the liability that may inure to them may be that much more heightened.

So I think that as we're looking at the cost, whether it's the cost of litigation by the employee on the one hand, we also need to look at the cost to an employer who, perhaps, may ignore information that comes to them from employees by the way of protected free speech about matters of public concern.

REP. SMITH: Well, I think we can have this dialogue back and forth for a while but, perhaps, we can do it privately so I'm sure the committee is -- I know they have a huge agenda today. I do appreciate you coming up to discuss this and informing us on, at least, your experience so thank you.

JOSEPHINE MILLER: Thank you.

SENATOR COLEMAN: Thank you.

Are there others with questions?

Douglas Zipes is next.

DR. DOUGLAS ZIPES: Senator Coleman, distinguish members of the Judiciary Committee, I'm a distinguished professor, Indiana University School of Medicine, and I'm a cardiac electrophysiologist, which means I'm an expert in heart rhythm problems, sudden death, pacemakers and defibrillators.

I have been a plaintiff expert in multiple litigations involving TASER X26 delivery and sudden death. The taser is a device that shoots a dart -- two darts into the chest that are like fish hooks. They impale the skin and/or clothes and are connected by a wire to the gun through which is delivered electricity. The electricity charge is sufficient to capture the heartbeat.

The charge is at over 1100 times a minute, and it is my opinion that the charge can speed up the heart rate when the probes are over the chest and cause cardiac arrest. This is the mechanism how the taser can provoke cardiac arrest. How often this happens is not clear because there's no accurate registry and that's one of the reasons I support the Bill 6628.

In addition, users of the taser need adequate training to understand that this may be a possibility. I am not here to -- to condemn or condone the use of taser. That is for law enforcement experts to decide. What I am here is to say that users need to be educated and trained in the application of taser technology; be aware of potential complications; be judicious in its deployment and treat the device like a firearm; avoid the chest area, if possible; avoid long and repeated trigger pulls because the number of charges that are delivered can then increase the risk for sudden cardiac arrest; they should call for a medical support immediately after deploying the device to suspect a -- that a cardiac arrest may be present in an individual who's nonresponsive after being shocked and be prepared to administer CPR to that individual; and to keep careful tracking of all ECD applications, circumstances of use and outcomes.

Thank you. I'd be happy to answer any questions.

SENATOR COLEMAN: Thank you.

Are there questions for Dr. Zipes?

Give me one minute, please.

In your support of a -- of a registry --- where -- if there is no registry in existence, what are you basing your conclusion on?

DR. DOUGLAS ZIPES: That is correct. There is no registry because the taser is not supervised under any bureau. For example, it's not a fire arm and, therefore, does not fall under the bureau of alcohol, firearms and explosives. Consequently, there is no registry, we don't know how often sudden death does occur, though, Amnesty International said they're over 500 deaths associated with taser administration.

In the peer reviewed paper I published, I document eight sudden deaths. Those are only the ones that I became involved with and could research in-depth to look at autopsy and the taser discharge and witness testimony, and so on, and become convinced that those were sudden deaths but the actual numbers are not known.

SENATOR COLEMAN: Okay. Thank you very much.

Any members with questions?

Seeing none, thank you for your testimony.

Is Senator Fasano here?

SENATOR FASANO: Good afternoon, Senator Coleman, Senator Kissel, Representative Rebimbas, Senator McLachlan and Representative Fox. I'm here to talk about committee Bill 735, AN ACT CONCERNING ACTIONS AGAINST SCHOOL SAFETY SECURITY CONSULTANTS.

Basically, in a nutshell what this tries to do is allow school districts to hire folks who understand school safety, who are experts in that area to be hired by the municipalities to give advice in how to make the schools more safe.

The issue is is that the liability that they have in an event of a tragic incident, like Newtown, would be a limited liability based upon gross negligence, recklessness, something of that nature.

Let me tell you how this came about. Shortly after Newtown, like many of you, I met with the first selectman, boards of education and there was a consultant whose background was FBI, CIA, now he's in security, ran a small business and he was going to advise the Town of North Haven on how to make their middle school more safe. What happened was his counsel after starting to talk to us and meeting with us, counsel advised him that the liability was too great. Should you have an incident somewhere to Newtown, you would exhaust your insurance and you would probably go into your personal assets. At which point, he declined to be our security consultant.

You know, we talk about safety for our kids. We're doing a gun bill that everyone knows about. We're doing something on school safety. I might add, in full disclosure, this concept was in -- came out of consensus from the School Safety Committee and then was lost in the shuffle after that. We're dealing with mental health issues.

Here's a solution which is reasonable, costs the state absolutely no money. We have LoCIP money because, if you recall, we amended a LoCIP statute to allow school security to be part of LoCIP funds. And who would you want best to describe the best protection for either existing or new -- new school but someone who is up to date on the latest bulletproof glass, security cameras, whatever they have, but folks who do it for a living.

And effectively, I would argue that we limit, if not hinder to a extreme point, the ability for these folks to give input.

Now, I've been around this building and I know the pushback is from probably trial lawyers associations say, listen, we don't like to limit liability, you know, that's not a good thing. We do it all the time. There's a bill that's either in -- I wish I -- I'll get it to you later but either it came out of the school committee or is in front of this body where we had the same type of limited liability. We do it. We do it in public policy mandates that we do it. I cannot think of a better time to do it when you're weighing special interest versus safety of kids.

So I'm here to say I'm not talking about someone constructs a school safety and the glass falls on someone. Well, you know, that's not covered by this. I'm talking about we have an incident, they have to prove that the design was gross negligence or recklessly constructed and then liability would open up so that's essentially what the bill does.

SENATOR COLEMAN: Thank you, Senator.

Are there questions?

Senator McLachlan.

SENATOR MCLACHLAN: Thank you, Mr. Chairman.

Thank you, Senator Fasano, for your proposal.

During the school security subcommittee meetings, I raised a question about who are the experts that are going to tell boards of education and -- and local municipalities what's best to do? And all of the discussion was about school security experts. And my point to them was during the discussion on that was that corporate facilities security experts are equally or, perhaps, better suited to -- to answer those questions because they've been doing it for years, banks and big corporate headquarters, and so forth.

Is your proposal addressing those individuals? It's anyone who touches the topic of school security consultants?

SENATOR FASANO: Senator McLachlan, that's a great question. And the answer is I didn't mean it -- and the language does -- I'll have to look at it but, yes, I would agree with you that I don't want to bludgeon, not the school safety folks, but those people who hold themselves out as experts in construction safety or safety for buildings so I would broaden it more incline with what you were suggesting.

SENATOR MCLACHLAN: Thank you.

Thank you, Senator.

And thank you Mr. Chairman.

SENATOR COLEMAN: Thank you both.

Are there others with questions?

Representative Fox.

REP. D. FOX:

Thank you, Mr. Chairman.

Thank you, Senator, for being here today.

And just to clarify your description earlier, you're not exempting entirely these individuals from liability, but you're just setting a standard so that so long as any act or omission by them was not -- unless such damage or injuries caused by the reckless, willful or want of misconduct. So we're not totally wiping them of those.

SENATOR FASANO: That's correct.

REP. D. FOX: Okay.

SENATOR FASANO: There would have to be a standard. My assumption would be is that once if an incident took place, everybody gets sued. That's just what you do so you don't get hit with malpractice.

REP. D. FOX: Right.

SENATOR FASANO: But then the standard -- and I would think that would be something that, you know, could be defined maybe in the summary judgment or at least gives you an argument that, you know, you're not fully disclosed.

REP. D. FOX: Yes, understood. Thank you.

SENATOR FASANO: Thank you, Representative Fox.

SENATOR COLEMAN: Are there others with questions?

SENATOR FASANO: Senator Coleman, I thank you very, very much. And I thank the members of the committee for your time.

SENATOR COLEMAN: -- Before you run away can I ask you --

SENATOR FASANO: Oh, sorry.

SENATOR COLEMAN: -- about your recollection on a different subject.

SENATOR FASANO: Of what?

SENATOR COLEMAN: A different subject.

SENATOR FASANO: Yes, sir.

SENATOR COLEMAN: While you're here.

I know you were extensively involved in negotiation having to do with certificate of merit. Did we address what many refer to as the Groundhog Day scenario in the accidental failure of suit provision --

SENATOR FASANO: We --

SENATOR COLEMAN: I guess people are saying that people can make a mistake and then refile and refile ad infinitum under the accidental failure of suit scenario. And I seem to recall that we sought to address that when we were revising the bill. Do you have any recollection of that?

SENATOR FASANO: Being a little reluctant to get back into the topic --

SENATOR COLEMAN: I understand.

SENATOR FASANO: -- I would say that I have a huge file on it but my recollection was there was a limit if the refiling -- I'm trying to go from memory. I haven't looked at it since then -- but my understanding was if the refiling was based upon someone who did not disclose an expert in that area for one reason or the other or didn't meet the qualifications, they had one more shot to do it and that was it. That's my recollection. You couldn't on it ad infinitum and that was sort of the give and take on both sides.

SENATOR COLEMAN: That was my recollection, too.

SENATOR FASANO: I will certainly send you a copy of what -- I'm sure you can dig it up as well, but I can send you a copy of what I have, but that's my recollection.

SENATOR COLEMAN: Okay. I appreciate that and sorry to put you on the spot without any kind of notice --

SENATOR FASANO: And, you know, I met with all sides, as you know, last year and, obviously --

SENATOR COLEMAN: I do know very well.

SENATOR FASANO: -- I'd be more than willing to put the time in again because I think it's a worthwhile topic.

SENATOR COLEMAN: Okay.

Thank you, Senator.

SENATOR FASANO: Thank you, Senator.

SENATOR COLEMAN: Renee Cannella is next.

RENEE CANNELLA: -- AN ACT CONCERNING POSTJUDGMENT INTEREST. This is a bill that we're revisiting after a couple of years, and what I'm -- what this is regarding is when a judgment enters against a judgment debtor whether or not postjudgment interest will accrue automatically or not.

For 20 years, this bill was enacted. It was in play and it was automatic that any time there was an installment payment order, there was postjudgment interest ordered. For 20 years that went on. Members of the Judiciary, members of the bar, all went through their actions with the understanding that postjudgment interest will accrue.

A couple of years ago that all changed, all of a sudden, and it didn't change because the statute changed. The statute was not repealed. The statute was not changed, but there was a change and an understanding of the way it worked. And all of a sudden postjudgment interest became at the discretion of the court with actually absolutely no indication as to what the court should be looking at when it decides whether or not to apply postjudgment interest.

In those few years since that change, what's happened in the courts is there has been injustice done in that you can have the exact same two litigants before either a different judge or different magistrate and have a completely different outcome.

There could be a $5,000 judgment -- and understand that if it goes to judgment that means that the court has decided that the creditor has been owed this money. So they can have a $5,000 in one court, they may get 10 percent postjudgment interest ordered. In another court, they may have zero percent ordered. Same litigants, same set of circumstances for no reason given, whatsoever. And usually this is based on a payment order of the court of $35 per week.

So a judgment creditor is waiting almost three years to get paid $5,000 that they've probably already been due for over four years, and now they're not getting interest on it either. If they're in the court -- if they're unfortunate enough to be in a court with a judge who's not ordering postjudgment interest, and it's a luck of the draw as to who you're in front of and what kind of interest rate you're going to get.

That's just not right. And the reason why I believe the legislation was put into place over 20 years ago was because there was a recognition that there's a time value to money and there's a recognition that there needs to be an incentive for a judgment debtor to pay their debts sooner rather than later; otherwise, in small claims court, for instance, where a judgment is good for ten years, if there is no postjudgment interest that judgment debtor can disappear and will owe the exact same amount in year ten as they did in year one, and that just doesn't seem right.

In addition, if you look at the other statutes that are on the books in Connecticut, including 37-1, which has to do with interest on monies that's not -- that is properly -- improperly withheld, 8 percent shall accrue. That means we're saying that people who don't have a judgment have a right to more interest than those with a judgment. That also doesn't make sense. In terms of statutory construction, if it doesn't make sense, it shouldn't be read that way.

Additionally, if you look at 37-3a, it says that in civil actions up to 10 percent can be awarded after a case goes to judgment. If you look at these three statutes all together, the interest statutes along with the installment payment order statute, it doesn't make sense that judgment creditors are in a worse position than creditors without a judgment in our state. And that's precisely what's happening, and this is affecting small businesses. I think often everything gets lost in the debacle of the credit cards and the big banks. But we're not just talking about credit cards and big banks, we're talking about mom-and-pop shops, we're talking about my clients, doctors, landscapers, endodontists, chiropractors, people who are trying to run a small business and aren't getting paid for their products and their services. Not only are they not getting paid, and they're not being supported by the state for having to not be paid for years and years on end to collect $35 a week when they've been due money for over four or five years and they're not getting paid for the time value of the money that they've lost. I think that really needs to be fixed.

This proposed bill would do that; however, I would point out that the bill and it's -- would be in 52-356d, subsection e, which is the specific part we're talking about. In light of the fact that a case of Ballou versus the Law Offices of Howard Lee Schiff came through, in 2012, that the language shouldn't just be that the rate of 10 percent shall be recovered. I think it should have to read, shall be ordered. Because of the language in the Ballou case, the Supreme Court decided that unless it's ordered by the court, it cannot be collected so I think that needs to be changed, as well.

SENATOR COLEMAN: Thank you.

Are there questions?

Thank you for your time and your testimony.

RENEE CANNELLA: Thank you.

SENATOR COLEMAN: Lawrence Jezouit is next.

LAWRENCE JEZOUIT: My name is Larry Jezouit. Senator Coleman, ranking members, members of the committee. I'm asking you testify in favor of Senate Bill 1151, recording telephonic communications.

I would like to take this opportunity to advise the committee that your legal staff has reached out to me to ensure that the bill will be structured in a manner that will benefit the state's telecommunications users.

On a personal note, I want to advise the committee that the staff have proved themselves to be very knowledgeable on the subject matter and have acted in a courteous and professional manner.

1151 cures unintended detrimental consequences that resulted from section 52-570d that was codified in 1990. 52-570d created disharmony between it and an eavesdropping subsection 53a-187a-1, wiretapping, that was passed in 1969. In section 52-184a, evidence obtained illegally, that was passed in 1967. See OLR Report 99-R-0987, in 1999, that verifies that analysis.

Although, as unlikely an event as was the Sandy Hook School tragedy, consider the following scenario, you possess knowledge that a set of criminals plan to burglarize a gun store. Criminal A was tasked to organize a meeting with a second set of criminals who had agreed to buy the stolen goods. Exercising your civic responsibility, you convince Criminal A to call so you can set up to record A's account of the theft. Criminal A calls to brag and that the stolen goods will be transported to site X at a specified date and time certain. You, as a party to the call, either secretly record it or give consent to a nonparty to record it, under 53-187a-1, then you provide the recorded evidence to law enforcement. They act upon it. Under 52-184a and under the fruit of the poisonous tree doctrine, the evidence is excluded and the criminals go free. 1151 provides the cure.

For authorities, see 15 Connecticut Appellate, 529, and there are also three Superior Court under LEXIS database.

In 1976, the Supreme Court noted that under 53a-187a -- and that's the Connecticut Supreme Court -- you were permitted to take that recording at will, then you provide it to law enforcement and the evidence would be admissible -- and that's also a Supreme Court authority, 171 Connecticut, 524, 544, footnote 13. Note that the citation is also set out in the criminal jury instruction 10.8-4, eavesdropping. The codification of 52-570d in 1990 turned that on its head.

I guess I'd just like to add that the State's Attorney this morning made his comments based on language that was put out in 2011. Unfortunately, that is what's in the database today. And the 2013 language would provide -- refuting that testimony.

SENATOR COLEMAN: Are there questions for Mr. Jezouit?

Thank you, sir.

Lance Gande. Lance G-a-n-d-e, Gande.

Daryl Wells.

DARYL WELLS: Good afternoon, Mr. Chairman and members of the Judicial Committee. On behalf of the Minority Construction Council, I would like to thank you for considering the issue of having the Metropolitan District Commission, MDC, report to CHRO and be deemed a state agency as opposed to a municipality and vote to pass Senate Bill 1153.

My name is Daryl Wells, and I'm a member of the Minority Construction Council and a small business owner. The MDC is not a good corporate citizen. And contrary to the statistics published by the MDC, they discriminate against African American contractors in construction. For 85 weeks, the Minority Construction Council and the Greater Hartford African American Alliance have been protesting discrimination by the MDC against African American owned construction firms. Despite the protests in many meetings with the -- state, federal and local officials, the MDC has failed to effectively address the issue of discrimination and requires monitoring and compliance by CHRO.

I am not guessing about whether or not the MDC discriminates. It is a fact based upon a disparity study performed by the MDC by Miller 3 Consulting, which states, and I quote, based on the findings in the previous nine chapters of the disparity study, Miller 3 Consulting draws the conclusion of discrimination against African American owned firms in construction.

There were other areas where the MDC was found to have discrimination against other minority groups, such as Hispanic firms and Asian firms in goods and supplies. But African American owned firms were the only firms identified in construction. Hispanic firms would have been a victim of discrimination in construction in the disparity study had it not been for a 21 and a-half million dollar contract to a New Jersey based Hispanic owned firm.

If you ask the MDC about the results of the disparity study, they will tell you that the results are inconclusive as to whether or not they were found to have discriminated. There's no such designation as inconclusive in determining discrimination. Just as a in a life and death situation, you're either alive or you're dead. In the disparity study, you either discriminate or you don't discriminate. And it is apparent that through the -- the past practices of the MDC, given that disparity study found discrimination and based on the MDC's own statistics regarding the $2 billion Clean Water Project, published in July 11th of 2012, where the MDC indicates they executed a $340 million in prime construction contracts but only 284 of that was awarded to African American firms. It is evident that the MDC's own statistics that they do discriminate.

So we support this bill. The MDC is in need of oversight by CHRO, and I urge you to pass this bill.

SENATOR COLEMAN: Thank you.

Are there questions for Mr. Wells?

Do you know if the -- is the disparity study that was conducted by -- is it Miller 1?

DARYL WELLS: Miller 3.

SENATOR COLEMAN: Miller 3, is that public information?

DARYL WELLS: Yes, it is, according to my account, yes.

SENATOR COLEMAN: And do you know at what stage the Clean Water Project is? I know it was originally a $2.8 billion project, and I'm assuming that 2.8 billion dollars' worth of contracts have not been let at this point, regarding the project.

DARYL WELLS: I would agree.

SENATOR COLEMAN: Do you know how far along they are and how much money has been expended in connection with the project?

DARYL WELLS: I don't have that specific number for you, but we can find out.

SENATOR COLEMAN: Okay. And are you familiar or aware whether or not any minority contractors from the Greater Hartford area have, in fact, been hired on the project?

DARYL WELLS: I'm not aware specifically to that point, no.

SENATOR COLEMAN: Okay. Thank you for your time and your testimony.

DARYL WELLS: Thank you for the time to testify. Thank you.

SENATOR COLEMAN: Randy Molloy.

RANDY MOLLOY: Good day, Senator Coleman -- and members of the -- a member of the Judiciary Committee.

My name is Randy Molloy. I'm a funeral director from the Molloy Funeral Home in West Hartford, Connecticut. I'm here today representing the Connecticut Funeral Directors Association, which represents over 220 funeral homes in the state. I serve on their legislative committee, and I am a past president of that association. I am grateful of this opportunity to provide testimony in support of Senate Bill 1140, AN ACT CONCERNING THE DUTIES OF A CONSERVATOR AND OTHER PERSONS AUTHORIZED TO MAKE DECISIONS RELATING TO THE CARE AND DISPOSITION OF A DECEASED PERSON'S BODY.

Senate Bill 1140 would permit a conservator, with permission of the probate court, to make funeral disposition arrangements on behalf of their ward in advance of their death. This power is particularly important where the ward has little or no family and will help avoid the situation where the ward dies in a nursing home. There are no directions as to who should be in charge or how the disposition should take place. This legislation would similarly allow an agent with power of attorney to make funeral disposition arrangements in advance on behalf of their principal.

In addition, CFDA supports the provision in the legislation which would permit majority rule to make disposition arrangements where there are multiple people of equal disposition of rights. For example, two out of three children could direct disposition of a parent. Also, CFDA supports the section of the legislation, which disqualifies a person charged in the death of a decedent from having disposition rights over that decedent.

In conclusion, the Connecticut Funeral Directors Association believes this legislation closes the gap in law regarding disposition, especially, regarding conserved persons who may have no surviving relatives, relatives who do not wish to participate in the disposition of a person's remain and establishes a clear methodology in regards to disposition where families are spread out over the country, cannot be located, are criminally involved, or have no interest in taking part of -- in the disposition.

I would also like to add that we cleared the language on this with the probate court representatives so that we could expedite this.

And thank you very much for your time.

SENATOR COLEMAN: Are there questions for Mr. Molloy?

Is it currently the law that the conservator's responsibilities end at the death of the ward?

RANDY MOLLOY: That's correct.

SENATOR COLEMAN: Okay. And so you probably said this in your testimony, but can you just restate what is the confusion or what is implication to the funeral home that receives a body under those circumstances where there's a conservator but -- I guess, if the conservator's duties end at the death --

RANDY MOLLOY: What the normal procedure for us right now is that we usually call the conservator and ask does he know anything about this person, and then if he does, that's great, we'll put a notice in the paper and sometimes someone will come forward, well, he's got a son out in California or they've got something like that, and then we go to probate court and request permission to cremate or to bury.

SENATOR COLEMAN: Okay.

RANDY MOLLOY: This would facilitate -- for instance, we don't want to necessarily cremate an orthodox Jew because that's not in their religion. How would we ever know what their faith was? It's that type of situation that comes up.

SENATOR COLEMAN: Okay. And the bill would help because it would extend the authority of the conservator beyond the --

RANDY MOLLOY: It extends the authority of the conservator to make these arrangements supervised by the probate court. In other words, he could not initiate it. The probate court would say you could do this. In other words, so they still -- they're still, you know, they report every 30 days, the conservator, it -- that gap is closed where we already have this done, it's on -- in paperwork is done.

SENATOR COLEMAN: So are we talking about anything different than a prepaid burial plan?

RANDY MOLLOY: Excuse me?

SENATOR COLEMAN: Are we talking about something different than a prepaid burial plan?

RANDY MOLLOY: Yes. Many of these would not have any prepaid burial plans.

SENATOR COLEMAN: Okay.

Any other members with questions?

If not, thank you for your testimony.

RANDY MOLLOY: Thank you very much, Senator.

SENATOR COLEMAN: Dr. Bob Green.

Dr. Keith Ruskin.

DR. KEITH RUSKIN: Good afternoon, Senator Coleman, members of the committee. My name is Keith Ruskin and as president of the Connecticut State Society of Anesthesiologists, I represent over 500 anesthesiologists in practice and also residents in training in anesthesia in the state of Connecticut, and I'm speaking in opposition to House Bill 6687.

I have a couple of issues with this bill. The first one being that the substitution of a similar -- of a "qualified healthcare provider" for a "similar healthcare provider," eliminate the -- can fundamentally change the -- the way the case -- the certificate of merit is filed.

It's critical because medicine is becoming increasingly sub specialized. I work as an anesthesiologist but within that I'm a neurosurgical anesthesiologist. I take care of patients having epilepsy surgery, aneurysms, very highly specialized surgery.

And really only a physician with that level of training who practices in that environment has the capacity to understand whether or not I've deviated from the standard of care. Allowing a physician without the subspecialty training or -- potentially from a different specialty wouldn't -- wouldn't allow that -- that physician to -- to judge whether or not I deviated from the standard of care and whether or not the suit has merit.

The other issue is that diminishing the requirements for a lawsuit and potentially increasing number of ill-founded or frivolous lawsuits in the state of Connecticut has a number of other side effects on -- on medicine.

As a member of the American Society of Anesthesiologists, we have an expert witness program that is designed to make sure that expert witnesses provide truthful testimony in good faith.

And if you allow the -- the expert who's supplying the certificate of merit to remain anonymous, if that person provides misleading testimony or false testimony, there's no way to sanction that person within their specialty for doing so. They're anonymous, you don't know who they are. The other problem is that it will allow -- it diverts resources from health care.

When a physician is sued, even if that physician is cleared, he or she has to take a lot of time off work, potentially days or weeks away from seeing patients in order to defend him or herself. That -- that can never be recovered.

Malpractice premiums go up, and again, that diverts money away from health care and towards other things where -- where there are no benefits to patients. Physicians will practice more defensive medicine so you're going to get more tests, get more consultations just to protect yourself against the possibility of a lawsuit. And more importantly, physicians are going to be afraid to take on complex or challenging cases because of the fear of the potentially unfounded malpractice lawsuit.

So with these issues in mind, I respectfully submit that -- that this bill should -- should not be passed. Thank you.

SENATOR COLEMAN: Thank you.

Are there any questions?

Thank you for your testimony.

DR. KEITH RUSKIN: Thank you.

SENATOR COLEMAN: Courtland Lewis.

DR. COURTLAND LEWIS: Senator Coleman and members of the Judiciary Committee, my name is Dr. Courtland Lewis. I'm the chairman of the Connecticut State Medical Society Legislative Committee and a practicing orthopedic surgeon in Farmington.

On behalf of more than the 8,500 physicians and physicians in training of the Connecticut State Medical Society, the Connecticut Chapters of the American College of Physicians and the Connecticut Chapter of the American College of Surgeons, thank you for the opportunity to present this testimony to you in strong opposition to House Bill 6687.

This bill turns back the clock on a delicate compromise reached by the legislature in Public Act 05-275 as a result of a two-year state review of medical liability reform. This proposal undoes the compromise and would be a significant step backwards in addressing the issue of medical liability in Connecticut.

Last session, I and other physicians and legal professionals came before this committee to establish how language contained in Connecticut State -- General Statute 52-190a establishes comprehensive yet appropriate standards for a certificate of merit. This language has proven to be effective and beneficial to the filing and adjudication of civil medical liability claims. Today, I tell once more that the statute has not resulted in lopsided Connecticut's -- results in Connecticut courts.

In 2012, the Connecticut Insurance Department statistics show that approximately half of the medical liability cases were decided for plaintiffs and half for defendants. And I would note that this is a percentage that's substantially higher than in many other states in the country.

House Bill 6687 makes significant changes to the medical standard for filing a certificate of merit. The existing statute states that in providing an opinion related to medical negligence, plaintiffs must provide a detailed basis for the formation of such an opinion. And House Bill 6687 lowers the threshold to one or more breaches of the prevailing professional standard of care. This modification lowers the standard for such certificates to make it easier to claim that negligence has occurred.

As part of the medical liability reform compromise enacted in 2005, physicians were assured that the expert making the good-faith assertion as to alleged medical negligence was a similar healthcare provider, in other words, practicing in the same specialty as the defendant physician. House Bill 6687 drastically lowers this standard and simply asks that the healthcare provider issuing the good-faith assertion be qualified, which is a lower standard.

As a orthopedic surgeon who actively practices in Connecticut, I have 14 years of formal education, including undergraduate school, medical school, residency and additional specialization in arthritis surgery to do what I do. The practice of medicine is increasingly specialized and, therefore, a specialist is not necessarily a specialist. A rheumatologist specializing in nonsurgical arthritis treatment does not have the same experience or insight around a total knee replacement, for example, that I would be expected to have.

Medical liability cases involve highly technical matters, and many times it's only the physicians practicing in the same specialty or subspecialty who will have the necessary education, training and practice experience to offer a sound opinion.

The Connecticut State Supreme Court has interpreted the existing statute in a manner that is true to the original legislation while creating a forgiving climate for plaintiffs in meritorious cases. In situations where an attorney fails to meet the appropriate standard for certificate of merit, dismissals are without prejudice.

Finally, this legislative body undertook a task of a comprehensive review of the medical liability system in 2005; that included appropriate changes to tort reform and the insurance system in the interest of patient safety. Connecticut physicians, myself included, are very concerned that this legislation proposes to tinker with only one portion of that comprehensive reform, one that is actually working as intended.

Thank you and we ask that you oppose House Bill 6687.

SENATOR COLEMAN: Are there questions for Dr. Lewis?

One quick question, your opinion, do you think that a obstetrician should be able to offer a certificate of merit concerning an allegation of malpractice by a midwife?

DR. COURTLAND LEWIS: So the question of whether an obstetrician can offer a -- an opinion, I think that -- that that probably those are not overlapping areas of -- of special interest and train -- clearly, special interest, but not necessarily training, so I wouldn't say categorically that that was the case.

SENATOR COLEMAN: I'm not sure whether you said yes or no.

DR. COURTLAND LEWIS: My response would be not necessarily because I think it depends on the specifics of the -- of the case.

SENATOR COLEMAN: Okay. Fair enough. Thank you.

DR. COURTLAND LEWIS: Thank you.

SENATOR COLEMAN: Rick Sotil.

RICK SOTIL: Well, thank you for allowing me to speak today. My name is Ricardo Sotil, and I'm a minority contractor and a board member of the Minority Construction Council and in favor of Bill 1153 because we definitely need some oversight over MDC.

Some years ago there was a disparity study, and I won't bore you with the details because the book is about this thick. And MDC's attorneys have taken it and twisted it and twisted it to the left, to the right, but I just want to read you the final conclusion of it, which is, 11.2 Conclusions, that MDC is discriminated against African American owned firms and construction, Hispanic Americans, Asian Americans and Native Americans.

And it's not only that Minority Construction Council is out there walking for almost now two years in front of MDC, but it's also the Greater African American Alliance with -- as well as the NAACP. We've been at this for a long time.

All we want them to do is to respect the laws that are on the books and not play any more games. I mean, I'll give you an example right here in this room when we had this attorney show up and he just started talk -- about all these malpractices and the bell rang once, bing, just kept ringing. The bell rang twice, bing, until you stepped in, and that's what we want.

We want CHRO to step in and to make sure that they comply with the laws that are enforced. That's what it is. It's plain and simple and short and to the point.

SENATOR COLEMAN: Okay.

Are there questions for Mr. Sotil?

Seeing none, thank you, Rick.

SENATOR COLEMAN: Richard Mulhall.

You're not from Bloomfield, are you? Did you serve in Bloomfield --

RICHARD MULHALL: You remember me.

SENATOR COLEMAN: Yes, I do, absolutely. Good to see you again.

RICHARD MULHALL: Same here.

Thank you, Senator Coleman and committee members. I'm here to testify on -- for the Connecticut Police Chiefs dealing with Bill Number 6639, AN ACT CONCERNING THE AUTOMATIC NUMBER PLATE RECOGNITION SYSTEM. And I'll try to keep this short for you.

I am the technology chairperson for the Connecticut Police Chiefs. I also oversee an LPR system for the Capitol region, it involves 12 law enforcement agencies. If there's a technical question, I certainly would be happy to answer that.

As far as the bill is concerned, we do have an opposition to section 1, paragraph d, that places a 14-day restriction on the retention of license plates that are scanned. We think that's an unreasonable amount, and we certainly would support a standard time period that other states have used, especially New York, California, which is a 60-month period. After that time, we would purge the -- replace from our servers and maintain a five-year statistical analysis base.

We also would like the legislation to restrict the access to this from FOI so that's it's a law enforcement database similar to other data bases out there so there's no abuse. The chiefs also support maintaining the computer crime punishments for any misuse of the information. And certainly, we want to assure you that we would hold our law enforcement officials to the highest standard, as we've done with NCIC and other computer systems in the state. I think we've done a good job of policing our own, and we think this is a valuable technology. It is new. It is something we are experimenting with. It's taking some time to build this, but we think it does have some real law enforcement benefits as far as investigation of terrorism, child abductions, burglaries, robberies, and an assortment of other crimes that are tied to license plates.

The 14-day restriction would remove that ability for us to follow through on these -- these type of investigations in determining patterns with criminals, you know, within our jurisdictions.

I do have several different examples to use for you, you know, that we have done locally that I think are appropriate and show some of the potential of this technology. One of them was we had a call from an out-of-state college parent. Their child was missing from the school system. A local complaint was filed with the local law enforcement. One of the officers did remember that we do have this system out there and we were able to get a plate from the parents.

We checked it against our database and found out that is was scanned a number of times in Manchester at the mall. So we're able to get a hold of Manchester Police Department and started to conduct a search of the area, did locate the vehicle at a local motel. The child had taken an overdose of medication, was transported immediately and basically was saved. And we give a lot of that credit to the LPR system.

We have used it for a number of investigations dealing with burglaries. The terrorist alert, we've worked with the state and federal government where they inputted data into our system, and when we hit those plates, we supplied that information back to them to assist with their investigations.

Again, we think this is a valuable resource, and again, I can answer technical questions if you'd like, but we want to make sure that we -- you understand the chiefs' positions on this. One, the 14-days retention, we think is not reasonable and would remove this tool from our tool bill. We think that a 60-month retention period is appropriate.

Again, we'd like to see this exempt from FOI so it's not abused. You know, at this point our regional system has only been FOI'd once and it was by the ACLU on -- just to see what information we have. We have cooperated with them. I think they see the benefit of this. It really is a dual system. It's an active system where we check for stolen cars, warrants, you know, warrants, insurance violations with the vehicle on registered vehicles and that type of thing which the officers actively pursue and make arrests on site for.

The second part of the system is that the passive nature of the investigative capabilities. It has taken us several years to build a database and we are just starting to use it to solve crimes, and again, we want to be able to continue to do that, and we think -- we are willing to put a cap on this because I think beyond 60-months, I don't think the information is really fresh or useable. And again, that's something we'd look at over time with you.

Again, I appreciate the time that you've given us to, at least, state our case on this, and we would support those changes.

SENATOR COLEMAN: Thank you.

Are there questions for Chief Mulhall?

Seeing none, thank you for your time and testimony.

RICHARD MULHALL: Thank you.

SENATOR COLEMAN: Good to see you again.

RICHARD MULHALL: Same thing. Good seeing you again, Senator.

SENATOR COLEMAN: Khaliyl Lane. Well, if he returns.

Joyce Lagnese.

JOYCE LAGNESE: Thank you, Senator Coleman and distinguished members of the Judiciary Committee. My name is Joyce Lagnese, and I am a medical malpractice defense attorney. I'm here to speak in opposition to the proposed amendment to the accidental failure of suit statute, Senate Bill 1154, which is a companion issue to the proposed amendment to the certificate of merit.

The accidental failure of suit statute was enacted in the very early 1900s for the purpose of rescuing cases where there was a technicality that resulted in the dismissal of a legitimate lawsuit. And while that statute has been applied very liberally in practice, it has never, in its history, been interpreted as without limits.

The proposed amendment would have the effects of making every case, which is dismissed under 52-190a, revivable within a year, regardless of the circumstances that led to the dismissal. Not only would the proposed amendment condone lawyer malfeasance, it would effectively extend the statute of limitations for filing lawsuits against doctors for an additional year.

It's important to recall that when the current certificate of merit bill was enacted in 2005, the plaintiffs negotiated for and received, as part of that extensive compromise legislation, an automatic 90-day extension of the statute of limitations to sue doctors. Although this extension was intended for situations when counsel was retained on the eve of the expiration of the statute of limitations, the 90-day extension is now pursued as a matter of routine practice by every plaintiff's counsel in the state, and it has resulted in an effectively an extension of the statute of limitations against doctors. There is no other profession that has been singled out in our state for extension of the statute of limitations.

This proposed amendment would effectively give plaintiffs an additional one-year extension to sue doctors. And as troubling as it was for the statute of limitations to be extended for 90 days, for another year to be added to that, especially when the additional year derives from what would have been deemed egregious conduct or inexcusable neglect by the lawyer, is, I can tell you, incomprehensible to the medical community and should be unconscionable to the legal community. We are responsible for enacting laws and in seeking their enforcement.

And one might ask why is it okay to make doctors accountable for their negligence but not lawyers? If a lawyer is negligent and does not follow the clearly defined rules, which by the way are already highly forgiving, the client has recourse against the lawyers. Lawyers have malpractice insurance just like doctors.

As between the doctor and the lawyer, why should the negligent lawyer win out, especially when their conduct is deemed egregious? I wonder what the citizens of our state would prefer? And this dynamic is the height of irony. The trial lawyers endeavor to make it easier to sue doctors.

No one would ever suggest that if a doctor is negligent they should get a reprieve. Under the proposed amendment, a lawyer's egregious conduct or inexcusable neglect would be deemed okay and deserving of forgiveness.

I hope that the self-serving nature of this is apparent to the committee. The statute, as it currently exists, already protects lawyers who commit excusable neglect and gives them a one year do-over.

Our doctors don't get away with excusable neglect. The concept of endorsing a law that would reward lawyers for inexcusable neglect and egregious conduct is offensive to me as a practicing attorney, and I hope that it is to you. And I would encourage the committee to reject this bill.

SENATOR COLEMAN: Are there questions for Attorney Lagnese?

Am I saying that right?

JOYCE LAGNESE: Yes, Senator.

SENATOR COLEMAN: Any questions?

Apparently no questions. Thank you for your time and your testimony.

JOYCE LAGNESE: Thank you.

SENATOR COLEMAN: Is Khaliyl Lane here?

KHALIYL LANE: I apologize for being out when my name was called.

Senator Coleman, Representative Fox and distinguished members of the Judiciary Committee, my name is Khaliyl Lane. I'm a graduate student at the University of Connecticut in the Master's of Social Work program. I'm originally from Hartford, Connecticut.

I am here in front of you today in support of House Bill 6676. As a social worker and a member of the Hartford community, I endorse the Project Longevity Initiative in its goal to reduce violence in our neighborhoods. The community-based approach provided by Project Longevity is vital in empowering communities from within against gun violence is becoming more prevalent every year.

I grew up in these communities and I can ensure you that change must come from within and this starts with community members and law enforcement working together to combat violence.

The implementation of the Project Longevity will ensure that continued development of communication between state officials and the communities they serve. The evidence-based support of the program can be found in its success when implemented in other cities around the United States, such as Boston and Chicago, for example.

This is not to suggest that, you know, what has worked in other cities will work for Hartford. Violence in our communities will not be cured through a one-size-fits-all approach, but rather in the dedicated work of people that know and genuinely care about the community, furthermore, in a program that takes the time to develop more effective measures to identify those that are suitable for the Project Longevity Initiative, as well as remains aware and empathetic of the array of challenges faced by members of this demographic.

Personally speaking, I know many people who have been affected by violence in the communities that the Project Longevity wishes to serve. This is why I'm here today to provide my support in implementing a state-wide Project Longevity Initiative in Connecticut.

Through the continued collaboration of law enforcement, the state officials and community members, I'm confident that we can begin to take back our neighborhoods and ensure the safety of men, women and children that reside there.

To conclude the Project Longevity Initiative provides people with a history of violence the opportunity to change. We must pass House Bill Number 6676 and continue on the road towards reducing violence in our great state.

Thank you for allowing me the time to talk to you today and this concludes my testimony.

SENATOR COLEMAN: Thank you.

Are there questions for Mr. Lane?

There are none. Thank you for your time and your testimony.

Dr. Andy Packer.

DR. ANDY PACKER: Good afternoon, Senator Coleman.

SENATOR COLEMAN: Good afternoon.

DR. ANDY PACKER: Distinguished members of the Judiciary Committee, my name is Andrew Packer. I'm a practicing retina specialist in Hartford. I'm here as a representative of the Connecticut Society of Eye Physicians and the American Academy of Ophthalmology in opposition to House Bill 6687, AN ACT CONCERNING CERTIFICATES OF MERIT; and Senate Bill 1154, AN ACT CONCERNING THE ACCIDENTAL FAILURE OF SUIT STATUTE. There will also be a separate filing from the American Academy of Ophthalmology.

As our population ages and we anticipate an influx of patients from the Affordable Care Act, we face serious challenges to the manpower needs of our physician force. Will Connecticut have an adequate supply of physicians to meet the pressing needs of patients in our state?

One of the major challenges for attracting high quality physicians is the oppressive malpractice environment we face. Connecticut consistently ranks amongst the worst states in our nation.

The one positive piece of legislation, the compromise of '05, has offered a modicum of fairness to the practicing physician and the perpetual concern of frivolous lawsuits. The certificate of merit requires that a plaintiff's attorney obtain the endorsement of a similar physician, one of the same specialty, who is equipped to fairly and competently evaluate the legitimacy of the claim.

It is totally inappropriate and unfair to change this law allowing a nonsimilar physician to opine on the merit of the claim. Furthermore, as the expert's name is withheld, the qualifications of this nonsimilar physician cannot even be determined, let alone challenged.

This law, if enacted, would change the way many of our physicians practice medicine. It would strongly discourage physicians from taking on the more complex cases, trauma cases and complications of chronic disease that afflict our neediest patients, particularly those cases with a higher risk of poor outcomes regardless of the quality of care given. In addition, the costs of defensive medicine would skyrocket.

What could make matters even worse? How about Senate Bill 1154 taking a very generous statute regarding accidental failure of suit and moving it to the realm of preposterous by specifically allowing cases to be refiled despite an attorney's gross negligence or egregious behavior?

In closing, I feel that it is my professional duty to my patients and my colleagues and my civil responsibility to the citizens of Connecticut to testify and, hopefully, shed some light on some of the unintended consequences these bills would create if passed. I am convinced that it is in no one's best interest to further stress the healthcare delivery system and prevent those who are the neediest from receiving the care they deserve.

I thank you for your consideration.

SENATOR COLEMAN: Thank you, Doctor, good to see you.

It suddenly has gotten very lonely here.

DR. ANDY PACKER: I love speaking to -- to a filled audience here.

SENATOR COLEMAN: Well, fortunately, through our technology, you're being videotaped, and hopefully, all the members will review the videotape and gain the benefit of your very insightful remarks, as well those of others.

DR. ANDY PACKER: Thank you, Senator.

SENATOR COLEMAN: Representative Fox, any questions?

I have a question. You remain one of my favorite constituents, but can you answer the question for me, help me to understand why it should be that an obstetrician should not be able to comment to a certificate of merit concerning whether a midwife -- a case against a midwife -- malpractice case against a midwife, is frivolous or not?

DR. ANDY PACKER: Well, when this question was brought up before, and I'm not an OBGYN and it's probably not -- I don't really know exactly what the training of the midwives are recently. I could, perhaps, answer a question --

SENATOR COLEMAN: Should I look at it differently than that there is a standard of care for the delivery of a baby and --

DR. ANDY PACKER: Well, if I can just --

SENATOR COLEMAN: Am I mistaken that whether or not that standard of care would be the same for an obstetrician as it would be for a midwife?

DR. ANDY PACKER: I think there's a lot more expected of an obstetrician. There's more training. There's more technical knowledge. There's more complexity that he or she can handle. And it's somewhat similar to eye care in a way. Cases that I would take on, for example, severe trauma to the eye, gunshot wounds, in our neighborhood. You certainly wouldn't expect an optometrist or even a general ophthalmologist to have the expertise to handle that problem or to understand the complexities of the case and what was involved and whether the person that that did take care of that -- the gunshot wound did so appropriately. And I would assume it's -- it would be the same in -- in any other field.

These cases can be extremely complicated, and as was alluded to before, the level of training now of residents and fellows that spend six, seven years beyond medical school to develop this expertise puts them in a sphere where they can -- they have knowledge that others just don't have. And I think it's very important to -- to allow physicians to feel that when they take on these complex cases, they're going to be judged fairly. If I perform complex surgery, I couldn't possibly expect any other eye professional, other than an retina specialist, to really understand the specifics of the case and what my actions were and to judge whether they were appropriate or not.

SENATOR COLEMAN: Okay. And I'm not sure that I would disagree with anything that you've said. I don't -- I'm not all that familiar with your specialty and I'm assuming that your -- there aren't any other specialty that necessarily -- whose scope of practice necessarily intersects with what you do as a retina specialist.

DR. ANDY PACKER: There aren't any others that -- that I would consider do intersect, but it all depends on how broadly you -- you define the situation. If you were to say if someone has visual difficulties, if you were to look at that broad definition, yes, there are other professionals, other healthcare professionals, where things would intersect. I had mentioned an optometrist who we work with on -- on teams taking care of patients, but I think it would be totally wrong to think that an optometrist would be able to opine as to whether my actions in trying to save an eye in an emergent situation, for example, is -- is appropriate. It would have to be another retina specialist.

SENATOR COLEMAN: Okay. Well, thank you for your time and your testimony.

DR. ANDY PACKER: Thank you, Senator.

SENATOR COLEMAN: Appreciate seeing you again.

DR. ANDY PACKER: And I'm certainly available if any questions come up later. You know how to get a hold of me.

SENATOR COLEMAN: Thank you.

Darren Smith.

DARREN SMITH: Good afternoon, Senator Coleman and member of the committee. My name is Darren Smith, and I'm an intern here at the Legislative Office of Building working under State Representative Douglas McCrory, but I come here today as a -- as a student at the University of Connecticut School of Social Work. And I come to testify in support of House Bill Number 6676, AN ACT CONCERNING IMPLEMENTATION OF THE PROJECT LONGEVITY INITIATIVE ON A STATE-WIDE BASIS.

Gun violence is an epidemic, and it will take more than one person, one policy, or one piece of legislation passed to rid us of a problem that is essentially embedded in the fabric of our nation. The Project Longevity Initiative looks to have taken this into account, as it will involve members from every aspect of the communities in New Haven, Bridgeport, and Hartford, in order to provide a holistic approach to this ongoing issue. Something that has been lacking considerably in this battle.

As a person who is educated and performs work in the social service sector, one of the most important aspects of this initiative that I found was the intricate role the social service providers will play in assisting with the educational, employment, housing, medical and mental health needs of those looking to transition out of gang lifestyles. This method will address some of the much too often glossed over mental health traumas associated with engaging in a violent lifestyle, along with expose and provide alternate options for those looking for a better way to live. For as we all know, one cannot be expected to end a way of life to which they have grown so accustomed to without being exposed to and provided with alternate options.

There is data that shows that this initiative, when applied successfully and with thorough follow-through, has a positive impact on communities. According to the U.S. Department of Justice, after this program was implemented first in Boston, then in cities such as Chicago, Cincinnati, and Providence, it resulted in 40 to 60 percent reduction in group-related homicides in certain neighborhoods. Judiciary Committee member and New Haven mayoral candidate, Gary Holder-Winfield has already offered his support for this initiative in his city, claiming that, in fact, it shouldn't have taken this long for the city to listen to their community.

On a personal note, I attended the anti-gun violence march this past Saturday, organized by the lovely women of the Mothers United Against Violence organization. Hundreds of people participated as we marched to the State Capitol, carrying a total of 358 white crosses bearing the names of homicide victims since the year 2000. Most of these names were of young men whose race is the same as my own. Now, while I have been fortunate enough to not know anyone personally affected or who have lost their life to gun violence, I'm still an African American male, and I am still very much cognizant of the dangers that have statistically been shown to be associated more with my own than with any other group. Because of my race and gender alone, I am 2.5 times more likely to suffer from gun violence than Latino males, and eight times more likely to suffer from gun violence than my white male counterparts.

Therefore, it is not uncommon within my culture that parents outlive their children, just as it is not uncommon that people within these communities do not assist law enforcement in an effort to solve these violent crimes, mostly in fear that their own lives will be in jeopardy as well.

It is for these reasons and many more that I offer my full support of House Bill Number 6676 for the Project Longevity Initiative to be implemented across Connecticut's major cities. The culture of violence and America's obsession with guns is a systemic issue that will not be cured overnight. But by launching such an initiative, it definitely serves as a step in the right direction, for it places the power of change back into the hands of the community, exactly where it should be.

Thank you.

SENATOR COLEMAN: Thank you.

Any questions?

Are you from Hartford?

DARREN SMITH: No, sir. I'm actually -- I'm from Maryland.

SENATOR COLEMAN: Maryland, okay.

DARREN SMITH: Yes.

SENATOR COLEMAN: And you changed to Connecticut Connecticut to go to school at UConn?

DARREN SMITH: To go to school -- to go to graduate school, yes, sir.

SENATOR COLEMAN: Okay. Well, good luck with that.

DARREN SMITH: Thank you.

SENATOR COLEMAN: Thank you for your input here.

DARREN SMITH: Thank you.

SENATOR COLEMAN: Colin Dawkins.

COLIN DAWKINS: Good afternoon.

SENATOR COLEMAN: Good afternoon.

COLIN DAWKINS: My name is Colin Dawkins, and I'm kind of happy I get to come right behind a young man.

I am here to support a bill, it's 1153 -- 1153, for MDC. One of my reasons for being here today is that I'm kind of tired of seeing in the City of Hartford or around the neighborhoods that there's a majority of contractors from outside of the state of Connecticut, and most of the time -- most of the time, there's a lot more white workers that are working on the streets in the City of Hartford where sometime you're driving on the street and there's probably, like, 11 police officers, 10 police officers standing up on one side of street just because of the fact that they don't -- to me, why -- how I think it is that they don't have enough minority workers on the -- in the streets in the City of Hartford, why they are carrying so much police officers? And, you know, it just -- it's just the way that MDC do their business, will come in the City of Hartford, basically.

I went to a class with MDC for seven months to learn about construction, and at the end of the day there was nothing there for us to get no work from MDC. You know, MDC is just -- basically, just -- just there doing their own thing.

So that's one of the reasons why we're looking for CHRO to oversee them so that minority contractors -- well, actually, not black -- minority contractors is that black and Hispanic contractors can get some work out of MDC, basically.

SENATOR COLEMAN: Okay.

Any questions?

Mr. Dawkins, one real quick question from me, are you familiar with any minority contractors from the Greater Hartford area that are working on the Clean Water Project?

COLIN DAWKINS: No. I'll give you a good -- a good thing, something that just happened recently. MDC had a job that they were bidding on over on the Airport Road. There was minor -- I'm not going to call the name of the minority contractor, but the minority contractor was the lowest bid -- was the lowest bidder, but it was like $2 million worth and MDC found a reason not to give them the contract and made sure it went to a -- I would consider it a small minority firm, but it's not a black firm.

SENATOR COLEMAN: Okay. Thank you.

COLIN DAWKINS: You're welcome.

SENATOR COLEMAN: Chief Anthony Salvatore and Chief Matthew Reed.

We're missing your sidekick.

CHIEF MATTHEW REED: He had other commitments this afternoon and as the clock stuck noon time hour had to head back to Cromwell, so I sit before you alone but with the mass power of the Connecticut Police Chiefs Association.

Senator Coleman and Representative Fox, other distinguished members of the committee, the Connecticut Police Chiefs Association has submitted testimony for your consideration in regards to three specific bills, Bill 6628, AN ACT CONCERNING THE SAFE USE OF ELECTRONIC DEFENSE WEAPONS BY PEACE OFFICERS; Bill 6663, AN ACT CONCERNING COMPLAINTS ALLEGING MISCONDUCT BY LAW ENFORCEMENT AGENCY PERSONNEL; and finally, Bill 6639, AN ACT CONCERNING THE USE OF AN AUTOMATED NUMBER PLATE RECOGNITION SYSTEM.

The Connecticut Police Chiefs Association opposes Raised Bill 6628, AN ACT CONCERNING THE SAFE USE OF ELECTRONIC DEFENSE WEAPONS BY POLICE OFFICERS. The association recommends that such legislation, if enacted, simply direct the Police Officer Standards and Training Council to establish training requirements for the use of electronic defense weapons for the departments that choose to employ such devices. Such requirements could also be incorporated into the mandatory 60-hour triennial recertification process already in place.

Please -- please don't make any mistake here, we certainly support proper training and proper use of electronic defense weapons.

The most commonly used weapon is the taser device. Earlier today, a physician testified about the effects such device can have on an individual. What he set forth is the training standards and the standards for use and deployment are exactly what our training doctrine reflects today. So what he told you is nothing different then what we have put into place to date.

I've also been assured by Chief Salvatore, the chairman of the Police Officers Standards and Training Council, that effective July 1, 2013, there will be a uniform policy that takes into consideration all of those items that were putting into this proposed legislation and a similar piece of legislation that was presented before the Public Safety Committee so that those rules -- those uniform rules for the use and training and reporting of taser deployment will be set forth by the Police Officers Standards and Training Council and other agencies will be required to adopt that policy.

You recall that back in 1965, this Legislature established the Police Officers Standards and Training Council for just that reason, to keep track of technology, to keep track of changes in law enforcement response, and to make sure proper policies were set forth and that the conduct of police personnel was regulated appropriately.

The Association also opposes Raised Bill 6663, AN ACT CONCERNING COMPLAINTS ALLEGING MISCONDUCT BY LAW ENFORCEMENT AGENCY PERSONNEL. CPCA understands the need for and has long supported the orderly regulation of police personnel. However, once again, we feel that this goal is best accomplished through Connecticut's law enforcement governing body, which is the Police Officers Standards and Training Council.

The Legislature created this body for just this purpose, to regulate and oversee the training and conduct of Connecticut law enforcement. The Association recommends that the Legislature direct POSTC to research and create a model policy concerning complaints alleging misconduct by police personnel that law enforcement agencies would then be required to adopt.

And finally, just to reiterate, Chief Mulhall who is our technical expert spoke earlier on the opposition to Bill 6639, AN ACT CONCERNING THE USE OF AN AUTOMATED NUMBER PLATE RECOGNITION SYSTEMS.

Specifically, we would like to strike the 14-day retention period, adjust that up to 60 months. We'd also ask that you make the retention of that data -- or that data that's retained through those systems exempt from freedom of information disclosure, and we'd remind you that to date, we've seen nobody injured as a result of the use or retention of any of that information. We've always seen successes in law enforcement investigation as a result of the use of the data that's collected through license plate recognition systems.

Thank you very much, and I will certainly answer any questions you may have.

SENATOR COLEMAN: Are there questions?

Representative Fox.

REP. D. FOX: Thank you, Mr. Chair.

A quick question on the 6639, the 14 days. Is that -- is the desire to have that deleted based on an administrative perspective or more of an investigatory perspective or a combination of both?

CHIEF MATTHEW REED: A combination of both, but mostly investigative. We find that any use of this data is generally -- occurs after that 14-day window.

After the data has been collected, you begin to initiate an investigation, you begin to follow up leads, you then get information on a vehicle, partial description of a vehicle or a partial plate, you're able to put that into the database and it then feeds you back information based on some of that partial information.

Oftentimes that happens long into an investigation, it could be a year, two years into an investigation when some sort of evidences is unearthed that could point you to a suspect. So we want that data to be available. We find five years to be quite common in places who have written such statutes, and so we think that would be reasonable to retain that data for five years.

REP. D. FOX: And the next question, I think you just touched upon the -- your colleague earlier mentioned the 60-month time period, I think he said out of New York. Are there other states in the area where the -- I mean there's a 60 month from your -- in your profession a standard -- standard period, or is it --

CHIEF MATTHEW REED: I don't know that these devices are employed enough nationally to say what the standard is. Looking through the policies the IACP have, they don't have a retention, which is the International Association of Chiefs Police, we often look to them for model policies.

They don't have a retention period articulated at this point. So we try to find those states that have some sort of period, either they have none, or the ones we have seen, and again, I'd have to defer to Chief Mulhall, he does the -- did a majority of research on this and five years is the number that seemed to be most common.

REP. D. FOX: Okay. Thank you.

SENATOR COLEMAN: Thanks for your time and your testimony.

CHIEF MATTHEW REED: Thank you very much.

SENATOR COLEMAN: Michelle Isler -- Isler. Is Michelle here? Michelle, first name; last name, I-s-l-e-r.

If not, Jillian Fortier.

Rollo Jones. Rollo Jones.

ROLLO JONES: Good afternoon.

SENATOR COLEMAN: Good afternoon.

ROLLO JONES: My name is Rollo Jones, and I am the owner of Capital Masonry, which is a construction company that is housed here in Connecticut and my home office is in Hartford. And I am here to speak on the behalf of Bill 1153, and I'm in favor of this bill, and I'm here to try to plead for this bill to be passed because being a minority contractor in this state, I see a need for this bill.

CHRO to monitor some of this construction that's going on in our state, and it really bothers me to no end that we don't have an organization, or whatever you want to call them, to help us to oversee and to make this as fair as can be.

I know people have spoke before me and they have pretty well -- pretty much said what I was -- my feelings and my passion about this. This is my testimony -- my testimony that we, as small contractors and minority contractors that work in this city and state, is being treated unjust. I think I'm saying something a lot of people don't want to hear, but it is unjust that we're not able to get contracts through the City and through a lot of the private sectors in the state simply because of the CHRO has not been given -- I wouldn't say the power -- I guess I would say the power to oversee some of this construction. My interest is in construction.

And let's be honest here, you know, if minorities worked, they put minorities to work. If minorities don't work that means people who look like me don't work. And I can't see for the life of it, why is it so hard to make this a level playing field for us all? I know people sit up here on this hill, they have work done around their houses, they have people coming in and raking their yards and they are happy. But what is going to happen to these people when the small and minority contractors is no longer in existence? I guess they will have to go to the turn of the (inaudible) and they can't afford those people. And the people that they can afford and are willing to work and do work hard is the one that's being left on the sidelines.

You know, over the years that I've been in construction, I've been fighting this battle for years. You know, just a level playing field to get people -- people work, equal pay and being able to feed my family. And all for me to feed my -- if I feed my family that means the people that work for me will be able to feed their family.

Seems like that's not an interest to a lot of people. You know, a lot of people sit up here and think they got it made. I know have never experienced racism, prejudice or just been pushed to the back of the line. I have a problem with that, and I'm here speaking on it.

And, you know, and I urge this committee to look at this bill -- think about this bill and then while you're thinking about it, put yourself in our places. You know that check you get every week or every two weeks or every month, just think about if you don't get it, where would you be. Nine times out of ten, you have to come to a small business, like myself and like some of the other peoples in this room. For some reason, we can't get it across.

MDC, we -- MDC, we spend billions of dollars on work to go in through our towns, throughout the cities and nobody can tell them what to do, how to do, and when to do it -- I heard the bell but let me finish this -- and I think it's very unfair that we pay the same money and sometimes more than the people in the suburbs. And those are the people that are calling the shots for us here in Hartford. And at some point in time, I think this should be put on hold. Give us an opportunity, give us a chance to get out here and get this work. And the only way we're going to do it is through legislation. And if legislation closes their eyes and turn their back on us, we're still back at square one. Thank you.

SENATOR COLEMAN: Thank you, Mr. Jones.

Dr. Scott Gray.

DR. SCOTT GRAY: Senator Coleman, Representative Fox, distinguished members of the Judiciary Committee, I want to thank you for the opportunity to present this testimony to you in strong opposition to House Bill 6687, AN ACT CONCERNING CERTIFICATE OF MERIT.

I am Dr. Scott Gray, secretary treasurer for the Connecticut Orthopedic Society representing over 230 orthopedic surgeons in Connecticut, and I am a board certified orthopedic surgeon with a subspecialty in foot and ankle surgery and in private practice in Danbury, Connecticut.

I am here today to represent the collective voice of my colleagues in opposition to the proposed changes to AN ACT CONCERNING CERTIFICATE OF MERIT. These changes will diminish the credibility of the certificate of merit.

If these meaningful qualifications to the definition of "similar healthcare provider" are removed, it would be a serious step backwards and would create a legal environment that would increase nonmeritorious lawsuits and claims and cause our malpractice insurance to skyrocket putting us back to 2005 or before. This current statute is in place to provide merit, which is why it is called a certificate of merit.

This proposed provision would eliminate the requirement that a board certified, similarly trained healthcare provider be an expert in the first place. In effect, it leaves the defendant with the potential of a nonrelated specialist rendering a decision that does not require details to determine if there is the appearance of negligence in order to move the case forward.

These proposed provisions will add to the cost of healthcare in Connecticut with an increase in the filing of nonmeritorious suits and do nothing to promote fair and equitable legal system. The professional integrity of your physician caregivers will be challenged.

The proposed language will also disband the requirement of a detailed basis for an expert's opinion, which defeats the purpose of requiring an expert report in the first place. The current provisions maintain the integrity of the law by ensuring that testimony against the physician needs to be provided by an expert who is board certified and similarly qualified in the field of practice of the defendant physician.

In fact, Florida went a step further last year by instituting an out-of-state certificate requirement for expert witnesses practicing outside their state which provides a simple one-page application and an effective vetting process for out-of-state witnesses, verifying their license status and garnering the state some revenue.

Orthopedic surgeons in Connecticut oppose these changes and request this committee to support the requirements for professing a certificate of merit that currently are in place and maintain the current statute provision that requires a detailed basis for the formation of a medical negligence opinion in order to move forward.

This would be an important step in addressing the ongoing malpractice crisis in our state as identified by the American Medical Association and the American Academy of Orthopedic Surgeons, both who continue to label Connecticut as a malpractice crisis state.

Currently, Yale and University of Connecticut graduating orthopedic residents do not stay in our state due, in part, due to the malpractice environment.

Connecticut's certificate of merit is comparatively modest to the state's malpractice reforms -- to other states' malpractice reforms and to gut or weaken it now by eliminating important and justified thresholds, threatens the vibrancy of medical practice here in Connecticut and threatens the healthcare delivery in our state. The way to make sure that good care is provided, physician recruitment improves and the mistakes are corrected is to have properly qualified equally trained physicians evaluate concerns regarding rendered care.

Thank you very much for your time. I'd be -- I'd be happy to answer any questions.

SENATOR COLEMAN: Are there questions?

Thank you, Dr. Gray.

DR. SCOTT GRAY: Thank you.

SENATOR COLEMAN: Dan Greene.

DANIEL GREENE: Good afternoon, Senator Coleman, Representative Fox. My name is Daniel Greene. I am a third-year resident physician at Yale University currently pursuing training in ophthalmology. I'm here today to respectfully urge members of the committee to oppose House Bill 6687, AN ACT CONCERING CERTIFICATES OF MERIT.

As a medical student three years ago, I embarked on residency interviews across the country for several weeks. My travels brought me to wonderful and diverse cities, like Nashville, Chicago, San Diego and, yes, New Haven, Connecticut. In order to match into a residency program, my classmates and I were required to painstakingly weigh each program's strengths and weaknesses and to ultimately rank them. Among several other options, Yale University here in Connecticut landed at the top of my list because of strong faculty and the presence of nearby family members.

However, as my fellow residents and I approached the completion of our training, we must consider novel factors in preparing for the next stage, employment as attending physicians. With typical medical school debt ranging from 150,000 to 200,000 dollars, young doctors are looking to practice in places that minimize the potential of frivolous lawsuits and require less medical liability coverage.

Financial considerations aside, malpractice lawsuits have become very time consuming for doctors. A recent New York Times article claims that I should expect to spend four or more years of my career working through one or several lawsuits. My peers and I have been trained by attending physicians who have been stunned and overwhelmed by the malpractice side of medicine, and I believe that this upcoming generation of young physicians will look to avoid highly litigious areas.

I would like to add that after nearly two years of ophthalmology residency, I now have a full appreciation for the hyperspecialized nature of medicine that exists today. Within our relatively small field of ophthalmology, for example, as Dr. Packer alluded to, patients are frequently referred to retina, cornea, glaucoma specialists that are each able to keep up with current literature and offer the best possible standard of care for the respective disciplines. The certificate of merit in its current form supports and acknowledges this specialization of medicine.

I feel very fortunate to be training at Yale. I've enjoyed my time in Connecticut very much. The state offers many attractive opportunities for my family, and I will strongly consider practicing here in the near future. As during my residency interviews, however, I will search broadly for an ophthalmology practice, but this time around, I must consider avoiding states with laws that jeopardize the ability to practice medicine without fear of frivolous malpractice suits. I do not believe that mine is a unique consideration and would urge members of the Justice -- Judicial Committee to be mindful of this while deliberating House Bill 6687.

SENATOR COLEMAN: Any questions?

Thank you --

DANIEL GREENE: Thank you.

SENATOR COLEMAN: -- Dan, for your testimony.

DANIEL GREENE: Appreciate it.

SENATOR COLEMAN: Andrew Glassman.

ANDREW GLASSMAN: Good afternoon, Senator Coleman and Representative Fox. My name is Andrew Glassman, and I'm here as an attorney with the firm of Pullman & Comley in Hartford. I'm testifying in support of proposed House Bill 6640. My practice is in the area of business and corporate law, and I'm testifying today as chair of the Corporations Subcommittee on the Business Law Section of the Connecticut Bar Association. The CBA Business Law Section supports HB 6640, AN ACT AMENDING THE BUSINESS CORPORATION ACT, and this bill simply reflects recent changes to the Model Business Corporation Act. We're just simply trying to parallel Connecticut's changes to the MBCA.

The proposed bill would amend the CBCA in really two separate ways. The first is an amendment to the Connecticut General Statute section 33-706g. And all we're really doing there is to more clearly establish when the terms of an irrevocable proxy are binding on a transferee for value. For some reason in the last amendments that we did, there was an ambiguity that was created, and we're simply eliminating that ambiguity.

The second change is to section 33-776 and that is more substantive but it's, again, intended to parallel the indemnification provisions of the Model Business Corporation Act by establishing limits of indemnification, related simply to officers and eliminating, by deletion, any reference to the indemnification of employees and agents.

And for clarification purposes, we are not suggesting that the deletion does not allow indemnification of employees and agents, what we're doing is eliminating them from the proscriptions of that section. And if you were to look at 33-776f, we are careful to very clearly state in the proposed language that this deletion -- this elimination of employees and agents would not limit a corporation's power to indemnify advance expenses to or provide or maintain insurance on behalf of an employee and agent. What we're simply doing is allowing common law and contract law to control those particular negotiated indemnification provisions.

And I want to thank you for your time here this afternoon.

SENATOR COLEMAN: Thank you.

Are there questions?

Thank you for your testimony.

Paul Rosow

PAUL ROSOW: Hello, Senator Coleman, Representative Fox. My name is Paul Rosow. I'm a landlord, and I'm president of the Connecticut Coalition of Property Owners Association and I'm here to speak in favor of House Bill 6661.

I've been a landlord for 33 years. I've had the opportunity to attend housing court more than I would like, but I have been there numerous times and the system is broken. And this bill will help us out in order to level the playing field for tenants and landlords.

My -- My attorney here would like to take over now.

MICHAEL CLINTON: Good afternoon, Senator Coleman, Representative Fox. My name is Michael Clinton. I'm a private practicing attorney in Glastonbury, Connecticut. Primary area of my practice is landlord-tenant summary process law, and I am also on the board of directors for the Connecticut Coalition of Property Owners.

With respect to this Bill 6661, in my 20 years of practicing, the payment of rent and court provisions under the use and occupancy statute has been ineffective and not useful to landlords. With respect to this bill, you'll hear testimony later today from Attorney Podolsky that indicates that there is a due process issue, and I'd argue that that absolutely is not the case. Specifically, the tenants that have objection to the use and occupancy motion have numerous opportunities to object and to be heard by the judge.

With respect to that order, if they disagree with the order, they have two more avenues. One is their appeal rights; but secondarily, they're going to also have the opportunity to be heard on their merits during the pendency of the action before the judge provided they're willing to make the use and occupancy payments as part of the process.

I would also point out that when we discuss the due process, Attorney Podolsky might mention that the appeal -- or their rights are being impaired, but I want to point out that if a tenant wants to appeal a judgment in the housing court today, they must also post use and occupancy simply to get to the appellate court to be heard in that instance also.

Finally, one of the reasons we think this bill would be effective is that it will place landlords, who already have their assets in -- in play when they come to court, up against tenants who have possession of their property but no assets in play to protect landlords from frivolous defenses and claims that delay the process. So both parties are placed on equal footing during the litigation in order to protect the interests of the parties before the judge rules on the merits.

Finally, I will point out that I have more than 10,000 cases in my experience and the average landlord loses two and a half to three and a half months of rent during the process.

Thank you for your time. I'd be happy to entertain any questions.

SENATOR COLEMAN: Are there questions?

There are apparently no questions. I thank both of you gentleman.

MICHAEL CLINTON: Thank you, Senator.

PAUL ROSOW: Thank you very much.

SENATOR COLEMAN: Good to see you.

Dr. Frank Vesci.

DR. FRANCIS VESCI: Good afternoon, Senator Coleman, Representative Fox and members of the committee. My name is Francis Vesci. I am a -- I am the president of the Connecticut Chiropractic Association and a practicing chiropractic physician in New Britain. I am here to testify in opposition to HB 6687, AN ACT CONCERNING CERTIFICATES OF MERIT.

Out of respect for the committee's time, I'll be keeping my comments brief. As you are aware, at present, if a plaintiff wishes to sue a healthcare provider, a similar healthcare provider must sign the certificate of merit for the case to proceed.

In other words, under the present system, if I were to be named in a malpractice suit, the plaintiff must find a chiropractic physician to sign the certificate of merit. Passage of this bill would change that requirement such that a plaintiff would need a provider in a similar field to sign that certificate. Thus, a provider who might not understand the specifics of chiropractic treatment or a provider who does not know the standard of care for chiropractic physicians could allow a potentially frivolous malpractice claim to proceed.

Of course, I am using my profession as an example, but this could be extended to any provider or any discipline.

And while I understand that the proposed requirement is to create balance and avoid setting a standard in which serious claims might not be heard, it is important to not ease the requirements such that potentially frivolous claims are allowed to proceed further and, thus, further burdening the courts. And as such, I'm asking that the committee not pass HB 6687.

SENATOR COLEMAN: Any questions?

Thank you, sir.

DR. FRANCIS VESCI: Okay. Thank you.

SENATOR COLEMAN: Raphael Podolsky.

RAPHAEL PODOLSKY: Thank you, Mr. Chairman. My name is Raphael Podolsky. I'm a lawyer with the Legal Assistance Resource Center in Hartford, which is part of the Legal Aid Program. For the record, I want to note that we oppose Senate Bill Number 1121, which would make 10 percent postjudgment interest mandatory and would overturn a contrary a 2012 Supreme Court case. I leave that to my written testimony.

My primary reason for being here is to strongly oppose House Bill Number 6661, and I urge you to read -- to parse the bill carefully because it actually does a lot more than it may at first glance appear.

I disagree with the previous witness who said that the system is broken. I do not think the system is broken. I think it's effective. What this bill will do is it will effectively prevent many tenants from defending an eviction action unless they are paying into court. What it does is that, essentially, allows the landlord to make payment into court mandatory from the very moment that the case starts. It provides that a tenant who does not pay will be defaulted, which means they will not be able to get in front of the judge, have the case heard. They will not be able to get to the mediation stage. It raises serious constitutional questions, as well, because we do not require defendants to pay in order to be heard.

Defendants are not voluntary participants in court cases. And you'll note if you look at other parts of the system, for example, we do not charge homeowners and require them to make payments in order to be able to defend their mortgage. We do not require payment from debtors in order to be able to defend a suit for money damages. It's not part of our system. It's not part of our system because of the constitutional overtones that are involved.

As a practical matter, the bill will have two opposite effects, neither of which is good. One is it's going to generate a lot of defaults. People simply are going to end up not participating in the case and that will have consequences for how the Housing Court works. It will also clog the court with use and occupancy hearings. It does not make sense to try some of the same issues that will go to the question of what should be paid as use and occupancy, go to the merits of the case itself. You're going to end up with the case being tried twice. It's going to slow down all cases in the eviction courts, which is counterproductive for everyone.

One of the things that make the Housing Courts so good is they combine two essential elements that are at the core of justice. They are fast and they are fair. The fastness has to do with moving cases quickly. Very few cases extend for long periods of time. Judicial Department data shows the median time from return day to entry of judgment, which is the time the case is in court, is 18 days for all cases; 94 percent of cases are done within 60 days. So the long case is very unusual. But it's fair, as well, because it gives the defendant an opportunity to defend and mandatory mediation is a key to that.

One of the things the court -- the Housing Courts try to do is avoid defaults because getting the tenant into the court rather than defaulting as happens -- I'll try and summarize quickly -- but rather than what happens commonly in collection cases is a key to ending up with the negotiated settlement. And in a negotiated settlement, you are likely to get a result that is better for everyone because the tenant is significantly more likely to vacate on a date agreed to than in a default case which greatly increase the use of marshals for carrying out actual evictions.

I would refer you to the testimony -- to the written testimony of Greater Hartford Legal Aid, which gives you some examples of cases in which the operation of this bill would have adversely affected the ability of, particularly, pro se tenants to represent themselves. I'm happy to answer any questions I can, but we urge you to reject this bill.

Thank you very much.

SENATOR COLEMAN: Are there questions?

Representative Fox.

REP. D. FOX: Thank you, Senator Coleman.

Thank you, sir, for being here today. I understand your testimony and perspective and value it particularly before this committee and the many others that you appear before here at the -- here at the Capitol.

My reading of the legislation -- I don't necessarily see the intent and I don't -- I don't mean to misinterpret or misconstrue your comment as being a manner by which tenants are forced into a default situation, but I understand your point in that regard.

On the other side of it, from the -- landlord's perspective, if not this -- if not going by way of this means in an effort to assist land -- landlords in recouping rent -- rent from the tenant. Do you have any other suggestions or recommendations as to -- by which how that be achieved? Because, currently, now as it stands, there are many obstacles -- I don't know if that's the right word -- but in an effort to assist landlords in recouping these costs, do you have any other recommendations on that side?

RAPHAEL PODOLSKY: Well, I mean there are a couple things. I don't know that anything that I can -- I don't know anything I suggest would -- I don't know that you'd view as satisfactory. What some people do -- what the -- Connecticut uses a system in which you do not make claims -- you cannot make claims for money damage in the summary process action, and there's a reason for that because if you do, you're going to have jury trials in all your summary process cases and if you roll back to 1949, we used to have jury trials in summary process.

But a number of landlords will bring a small claims action, say, for back rent, while the -- while the summary process action is still pending because they want to make sure they know where the defendant is. That's something that can be done. Sometimes problems -- another way of approaching it is you end up with fewer nonpayment cases, nonpayment evictions, if people screen carefully. Screening does not guarantee that there won't be any defaults, and people's situations change. But there are still a lot of landlords out there that do not make any serious effort to screen their applicants. And at some level you may say, maybe it's my interest that they shouldn't screen applicants, but I think they should. And I think it's important and I think it contributes to the way in which the system works.

There is a provision in the existing statutes for paying -- making use and occupancy payments into court, but it's important to understand why -- and it's used occasionally but, fairly rarely, but there's -- and it was pointed out by Mr. Clinton that there's a reason why it's used -- not used often. And the reason is that the pay -- the court moves the cases to housing specialists so quickly that it doesn't make -- in most cases, it will not make sense to try and have a separate determination on the use and occupancy motion. So that it -- it ties in with how one controls -- how much rent is at stake in the course of the process. It's not unusual in -- when you have stipulated judgment, which is the common disposition, to actually incorporate in the stipulated judgment an agreement as to what the rent is, if there is a renter in arrears is what it is. And that maybe very valuable if it becomes necessary to sue later on.

Now, that's not literally enforceable through -- because you can't -- that's not -- because summary process is limited to possession. Because it's -- you're shaking your head, yes, I'm assuming you're familiar with this process. I guess, I don't -- those methods are out there. I'm not trying to tell you that they are -- that they are as powerful -- they're certainly not as powerful as saying to the tenant that if you don't pay in the court, you don't get to make a defense and that is a very powerful mechanism but, also, is not a balancing mechanism. That is not a leveling of the field at all.

Our experience from the end of representing tenants, I mean, we do not find this in the slightest a field that is level towards tenants. I mean this is -- we really struggle to maintain the balance, and we have the benefit of being attorneys. The attorneys of the Legal Aids programs represent a miniscule percentage of the tenants who are in Housing Court. And if you look at this -- the data, it's something like 80 percent of landlords are represented by lawyers and 15 or 20 percent of tenants are represented by lawyers.

And so the typical Housing Court case is a landlord represented by an attorney against a tenant, pro se. And it's important for you to understand that these -- this legislation -- I mean, the Housing Court is designed to help pro se's get through the process, both landlords and tenants. Legislation of this sort is particularly destructive for pro se's who cannot handle -- who cannot, in most cases, cannot handle the process alone, and the more complicated you make it, the more likely they are to drop out of the process.

And given -- the purpose of the existing use and occupancy motion is really to make sure the tenant cannot delay the process through pleadings. It requires that the pleadings be closed. And the typical pro se tenant closes with pleadings at the very beginning of the case.

And so, they've done what they can and they're not delaying the case. And as long as you make sure that -- actually, as long as you make sure the Judicial Branch has staff that's key and has never been an issue until very recently. They need to keep their mediator positions full -- filled, they need to keep their clerks office positions filled. This is very, very (inaudible). I'm sorry that was a long answer.

REP. D. FOX: No, thank you very much.

SENATOR COLEMAN: Thank you, Raph. Thank you for your testimony.

RAPHAEL PODOLSKY: Thank you very much.

SENATOR COLEMAN: Jean Rexford.

JEAN REXFORD: Good afternoon Senator Coleman. Good afternoon, Representative Fox. I'm Jean Rexford, and I am the executive director of the Connecticut Center for Patient Safety. And I'm here in strong support of House Bill 6687, AN ACT CONCERNING CERTIFICATES OF MERIT; and Senate Bill 1154, THE ACCIDENTAL FAILURE OF SUIT STATUTE. I am not a lawyer, and I am not a physician.

What I have been doing over the years is representing the voice of the healthcare consumer and, particularly, the voice of those who have been harmed by healthcare. No one wants to be severely or permanently injured in a hospital or in a doctor's office and no one wants to file an expensive and emotionally draining lawsuit. But when innocent people are injured by medical malpractice through no fault of their own and they can never work again or never walk again or never hug their children again, their only option is to file a lawsuit to protect their family and to obtain compensation for the enormous cost of current and future medical bills and medical care.

House Bill 6687 and Senate Bill 1154, both, have the purpose of giving victims of medical malpractice a fair opportunity to get into court to seek justice for the medical malpractice that caused their injuries and pain and financial devastation.

The current law is often not fair to the patient, to the victims, because the injured victims are often faced with insurmountable hurdles to get into court and have their cases heard by a jury of their peers. Everyone agrees that we should not have laws in Connecticut that make it very difficult, if not impossible, for victims to get into court.

I would just like to add -- and this is not part of my testimony -- in December this year I was asked by the College of Surgeons to come down and be on a panel on medical liability issues, and it was a wonderful opportunity to have a discussion. And clearly, you know, when I'm outside of the state, when I am in hospitals, when I am meeting with professionals, everyone acknowledges the extent of error that is happening within our healthcare system, and I know hospitals are trying so hard to address those issues.

When I hear the term "frivolous lawsuit," I -- I guess I have a visceral reaction to that because I used to bring Gus, who lost two legs, or Steve, who lost a wife, to our legislature to testify. So, I -- I want to -- I want to work on patient safety issues. I want us all to. When I see the resources in this room this afternoon, we could solve the problem, but we need to move the discussion beyond what it is today so thank you for your time.

SENATOR COLEMAN: Thank you very much for your testimony.

Any questions?

Thank you very much.

JEAN REXFORD: You're welcome.

SENATOR COLEMAN: Carl Schiessl.

CARL SCHIESSEL: Good afternoon, Senator Coleman, Representative Fox. I'm Carl Schiessl, director of regulatory advocacy at the Connecticut Hospital Association. I'm here representing the interest of Connecticut Hospitals and offer testimony in opposition to House Bill 6687, AN ACT CONCERNING CERTIFICATES OF MERIT; and Senate Bill 1154, AN ACT CONCERNING THE ACCIDENTAL FAILURE OF SUIT STATUTE.

And I just wanted to kind of follow on to one of the comments that was made by my predecessor speaker, Jean Rexford.

We share many of the same concerns and are often united in our efforts to improve the quality of patient care and to ensure good health for all the patients of the state of Connecticut who are treated in Connecticut's hospitals. And her final remark is a remark that I can join with in asking, you know, that the resources in the state of Connecticut be directed toward the quality of care being given and, perhaps, less so on who's going to win or lose a lawsuit.

But under our current system there is -- Representative Fox -- under our current system there is a judicial mechanism in place to address issues of medical malpractice. And these two bills stand to change a balance that currently exists that we believe are working rather well to ensure fairness and equity in the administration of justice as they pertain to these particularly difficult and complex cases.

Regarding House Bill 6687, I'll open by saying that the changes that were adopted in 2005 clarified the court's expectation of the plaintiff's bar as to the pre-complaint inquiry to ensure that there's a reasonable basis for filing a medical malpractice case and that counsel has obtained sufficient information from the appropriate healthcare provider, a provider armed with the knowledge, training and experience to know the applicable standard of care or treatment, who may apply that standard of care to the facts alleged in the complaint and offer an opinion to evidence plaintiff's counsel's good-faith belief in the defendant's negligence in order to satisfy the court and achieve the public purpose of the statutory prerequisite.

The case law that's been developed since 2005 has offered additional guidance on the expectations that the court places on those practitioners who bring these cases. While not perfect, the system appears to be working to achieve its public purpose, to discourage the filing of the baseless lawsuits against healthcare providers.

House Bill 6687 would alter the statutory regime relying instead on a patient's attorney's more subjective assessment of the healthcare provider's qualifications as they relate to a related field of medicine.

This change -- this proposed change threatens to defeat the purpose of the pre-complaint inquiry and may in all likelihood result in a new set of questions and challenges relating to the particular qualifications of the healthcare provider who offers the assessment and such provider's familiarity would be applicable standard of care.

I'll close by posing a question. If the Legislature remains committed to having a pre-complaint inquiry, the question you must ask yourself is how will you guarantee that the healthcare provider who conducts that pre-complaint inquiry knows the applicable standard of care for the defendant provider who's treating the condition that's the subject of the lawsuit? The current regime, "similar healthcare provider," offers a clear answer to that question and we ask that you please don't change it.

Thank you, Representative Fox and Representative Fox. I'm happy to answer any questions you may have.

REP. G. FOX: Thank you.

Representative Fox, any questions?

REP. D. FOX: No, Representative Fox. Thank you.

REP. G. FOX: Thank you very much and I hope everybody understands that we -- there's -- we all have caucuses going on right now, and these caucuses were scheduled after this -- this meeting was noticed. We have a very long public hearing agenda, as well, so everyone is here. We're all trying to cover what we can, but I hope you'll excuse us for those of the members who are not here. I hope you excuse me for having been out for a while and just understand that we're trying our best to cover this as best we can.

So -- but thank you. Thank you for your testimony.

CARL SCHIESSEL: Thank you.

REP. G. FOX: Next is Kathy Nastri.

KATHLEEN NASTRI: Good afternoon, Representative Fox and Senator Doyle, and Representative Fox. My name is Kathleen Nastri. I'm a partner in the Waterbury law firm -- sorry -- the Bridgeport Law Firm of Koskoff, Koskoff & Bieder, and I'm a past president of the Connecticut Trial Lawyers. And I'm here to testify in support of Bill 6687, CONCERNING THE CERTIFICATES OF MERIT.

We did submit written testimony, which I will leave to the committee to review. I wanted to respond to a couple of comments that have been made and then answer whatever questions you might have.

The comment that I found most troubling was from a couple of the previous physicians who have testified regarding a malpractice crisis that exists in Connecticut. I think the truth is that that are about 9,000 physicians who are practicing in Connecticut. We have about 31 hospitals. I don't know how many nursing homes and other healthcare providers there are in the state. There are less than 300, in fact about 280 cases filed per year in Connecticut so there is no crisis.

The second thing that concerns me is this notion that there is some connection between medical liability reforms -- which I would translate into ways to make it more difficult for plaintiffs to file malpractice suits -- and a quality of care that exists.

And in fact, the College of Emergency Room Physicians did a study in which they found a direct inverse correlation between medical liability reforms and the quality of care within the different states. They actually graded each state.

Connecticut got A's in things, like access to care and quality of care, and a D from the College of Emergency Room Physicians on medical liability reforms because we don't have more difficult reforms that some states have actually enacted, so there is no proven correlation. I can provide the committee with that report if it helps.

The other thing seems to be a misunderstanding by the medical community on what the certificate of merit was intended to do and how it has been used and how the processes have been abused, I think, by defense firms. If we go back -- and you all can come back with me to 2005 when we talked about what the purpose of this legislation was. There was an effort to -- to prevent what people were calling, at the time, frivolous lawsuits. I have the same visceral reaction that Jean Rexford has to that phrase, but there was -- that was clearly the intent. We were going to set a hurdle for plaintiffs before they could get into court to make it more difficult, and we're the -- they're the only class of plaintiffs in the state that have that kind of a hurdle before they can file a suit. So there's this hurdle that they must -- must pass, and it requires a lot of time and a lot of effort and a lot of expense by their lawyers, but we get over that hurdle.

The purpose of the good-faith certificate requirement was not to set a whole bunch of traps for plaintiffs and for their lawyers and provide a procedural mechanism for defense lawyers to try to prevent the case, the meritorious case, from going forward, but that's how it's been used.

And so this fix to the statute simply addresses the notion of what a similar healthcare provider is, what a qualified healthcare provider is, and whether the qualified healthcare provider isn't really the one who should be able to sign off on a certificate of good faith.

Dr. Gray, who testified earlier, is an orthopedic surgeon. He's board-certified in orthopedics and he specializes in foot and ankle surgery. Under the present system, any board-certified orthopedic surgeon could file a -- could sign off on a good faith certificate against Dr. Gray, whether that doctor did foot and ankle surgery or spinal surgery or hand surgery. The qualified healthcare provider definition requires an understanding of the standard of care that applies to a particular provider under particular circumstances for a particular procedure. So it doesn't make it any easier for us to get into court, it simply sets the right standards for cases to proceed.

I'll be happy to take any questions you might have.

REP. G. FOX: Thank you.

Are there questions?

I would have one question. We heard earlier testimony about the -- the numbers of motions to dismiss that are being filed, and my recollection is -- and when this legislation first came up several years ago, it was because there was -- there was some testimony, I think, that said you get a motion to dismiss in every case. And I recognize that there have been some court decisions since then that have interpreted the statute -- and I think there was testimony earlier that said its drop down significantly. I don't -- I would like to know what your experience has been?

KATHLEEN NASTRI: All right. So that's a good question. My office is -- files a fair number of malpractice suits on an annual basis. We have a partner or a lawyer in the firm who spends about 25 to 30 percent of her time only addressing these kinds of motions to dismiss. So, although, maybe the crisis has passed where they're not filed in every single lawsuit, they are filed very, very frequently.

So you take one lawyer with 25 to 30 percent of her time, in fact, she was in court this morning involved in a case with Mr. Riggs' firm up in Danbury. She also said that since -- because I spoke to her this morning, this particular lawyer -- in -- since September of 2010, she has responded to over 30 motions to dismiss filed against lawsuits that my office has -- has brought.

And we do a very thorough pre-suit investigation, and I have to say that I think any lawyer in Connecticut, any competent lawyer in Connecticut who is handling malpractice, does a thorough pre-suit investigation because the last thing you want is to get involved in a case, like these cases, which are so unbelievably difficult without having done the correct pre-suit investigation to determine whether you have a good-faith basis for proceeding.

So even under those circumstances, in the last two years, we've gotten over 30 motions.

REP. G. FOX: Okay. Well, thank you.

Are there questions based on that? No.

Thank you very much for your testimony.

KATHLEEN NASTRI: Thank you.

REP. G. FOX: Rupert Daniels. Good afternoon.

RUPERT DANIELS: Good afternoon. Senator Fox -- and I don't know which one I've elevated, but it will stay there if you'll support my bill -- and Senator -- I'm sorry, I'm not familiar with your name, sir -- (inaudible).

I'm here in regards to Bill Number 1153 that deals with the MDC in Hartford. And I believe we've had several people who have testified before so I won't bore you with a lot of the rhetoric that you've heard already.

What I really wanted to say was that the MDC has been awarded 2 billion dollars' worth of work to be done in the City of Hartford, which is all in infrastructure -- or the majority is all infrastructure. We have tried several times, number one, through demonstrations; number two, with meetings with MDC to no avail. We finally got down to -- MDC said, we should have a disparity study because we don't think that you had the right -- or the minority people in force to participate. So they hired a firm, MB3 Consulting out of Atlanta, Georgia, I believe, to do this study. The results are -- or the conclusion of their study was that, based on the findings, the MB consultant draws an inference of the discrimination against African American owned firms in construction, African American, Hispanic, African -- African American owned firms in WBEs and nonprofessional services and Asian Americans, African Americans, Hispanic American owned firms and WBE in goods and supplies.

The disparity analysis revealed statistically significant disparity in these industry categories for these groups for professional services. The disparity analysis either reveal nonsignificant disparity or overutilization of all M/WBEs. The regression analysis further suggests that disparity shown may be due, in part, to race, gender or ethnicity.

Now, they -- this is their own disparity study. The problem we find is they didn't use their own disparity studies when they wrote the conclusion to it. They wrote a separate disparity study to suit their own. What the -- Bill Number 1153 says, that's fine what the disparity study does, but we need someone to police what they are supposed to be doing. And I believe that's what we're asking in this Bill Number 1153. If you would give this to CHRO and they -- and mandate them to take care of this, of course, you'll have to give them the proper monies to do it, also, then we would have no problem. And that's what we're asking for with the Minority Council.

Thank you very much. I'll answer any questions if you have any.

REP. G. FOX: Thank you. I'm not sure if anyone has any questions, but I do thank you for your testimony today.

RUPERT DANIELS: Thank you.

REP. G. FOX: Jeanne Leblanc. And just -- I'll go through a couple of names. You're followed by Eric Stockman, Gil Lancaster, Russell London.

Hello.

JEANNE LEBLANC: Hello. Good afternoon, Representatives Fox and Senator Doyle. My name is Jeanne Leblanc. I'm the communications and education manager for the American Civil Liberties Union of Connecticut, and I'm here to testify in support of House Bill Number 6663, AN ACT CONCERNING COMPLAINTS ALLEGING MISCONDUCT BY LAW ENFORCEMENT AGENCY PERSONNEL.

Last year, the ACLU of Connecticut conducted a study that found many police departments in this state routinely imposed barriers to accepting complaints from civilians about police misconduct. Some departments don't make complaint forms available to the public. Many refuse to accept anonymous complaints. Many imposed time limits on receiving complaints and many require sworn statements and threaten criminal prosecution or a civil lawsuit for false statements.

We undertook this study because we were hearing from people who were having trouble filing a complaint about racial profiling or some other mistreatment by police. The first question we had to answer was what should police be doing about complaints, and to answer it we consulted the police themselves. The recommendations and standards in our report, similar to those contained in this legislation, don't come from a wish list drawn up by civil rights organizations, but from the best practices advocated by law enforcement experts, mainly the Department of Justice, the International Associations of Chiefs of Police and the Commission on Accreditation for Law Enforcement Agencies.

These organizations agreed that the effectiveness of police agencies depends on the trust of the communities they serve and that this rests, in turn, on a fair and transparent process for investigating allegations of misconduct. The extraordinary authority that police wield, including the power to use deadly force, must be balanced by accountability. And that means the police must accept, document and investigate all complaints about officers; make complaint forms available; accept anonymous complaints; and refrain from intimidating people who may wish to file a complaint. There's more detail about our findings in my written testimony, as well as in the report, which is available on our website.

After we published a report in December 2012, we heard from a number of police chiefs and assistant chiefs who wanted to discuss the results. They all agreed about the importance of a functional complaint process, and we were very encouraged by this. We commend the Judiciary Committee for considering this important legislation to protect the public and the police with minimum standards to help ensure that no resident of Connecticut who feels mistreated by a police officer will be turned away, ignored or intimidated.

We urge you to pass this bill. Thank you.

REP. G. FOX: Thank you.

Are there questions?

Thank you very much for being here today.

Eric, Eric Stockman?

Gil Lancaster. Good afternoon.

DR. GIL LANCASTER: Good afternoon.

Senator Doyle, Representative Fox, Representative Fox, my name is Dr. Gil Lancaster. I'm a cardiologist in practice for 25 years. I'm currently the director of noninvasive cardiology at Bridgeport Hospital and an associate clinical professor of Medicine at Yale University School of Medicine, the Connecticut governor of the American College of Cardiology Board of Governors, and the president of the Connecticut Chapter of American College of Cardiology, also known as the CCACC.

The CCACC represents the doctors, nurses and other healthcare professionals that take care of patients with any and all cardiovascular problems in the state. And I'm here to speak in their behalf to block any further progress on Raised Bill 6687.

In 2005 the General Assembly passed Public Act 05-275, AN ACT CONCERNING MEDICAL MALPRACTICE, in an attempt to address concerns about the availability and affordability of medical liability insurance for physicians. The resulting statute strengthened what was known as good-faith certificate by requiring that the attorney filing suit attach a written opinion of an expert in the field. Among other stipulations, this legislation stated that this expert must be a "similar healthcare provider," in other words, a peer to the defendant; that this expert had to provide a detailed basis for the formation of the opinion of medical negligence; and that the case would be dismissed if a plaintiff failed to obtain the required opinion prior to filing the suit.

Over the past eight years, the current rule has been effective in reducing the filing of frivolous lawsuits -- yes, I'm saying that again -- has helped doctors keep down costs of medical malpractice insurance to a somewhat more tolerable level and has been a national model of tort reform. In states that do not have this legislation, doctors have left many fields that are considered high risk for suits, such as obstetrics and anesthesiology, and this has significantly limited access to care for many patients.

Act 05-275, the current rule, has not reduced the number of qualified lawsuits and, instead, has increased the likelihood that certified suits, that is suits that have been vetted by true -- by a true peer, would get the required attention that they deserve.

Raised Bill 6687, the one you are considering, on the other hand, would significantly increase the number of meritless lawsuits to come to trial, flood the courts with frivolous lawsuits, unnecessarily tie up doctor's time, increase malpractice insurance rates and, ultimately, adversely affect patient access to medical care.

The existing rule does not need a change. Connecticut and its citizens do not need any more frivolous lawsuits. So for the sake of patients, doctors and healthcare costs, I implore this committee to block any further progress of Raised Bill 6687.

REP. G. FOX: Thank you, doctor.

Are there questions?

Well, thanks for being here today.

DR. GIL LANCASTER: Thank you.

REP. G. FOX: Russell London. And just -- before you proceed, next will be Howard Shaw, Kurt Swan, Mark Mcwilliams.

RUSSEL LONDON: Good afternoon, Chairman Fox and Senator Doyle. It's good to be here this afternoon, and I thank you for placing the Bill 1121 on the docket to be heard today. It's an important bill, and it's an important bill for clients and an important bill our economy in Connecticut, and it's an important bill to keep small businesses in business in Connecticut.

What the bill tends to do is to clarify the law, in short, to say whenever you have a judgment and you're -- the creditor or the plaintiff that has prevailed in court and the court has recognized that he's entitled to money that's owed, that if he has to wait to get paid back, he's entitled to additional compensation for that delay to get paid back.

The law clarifies how the -- how the statute is being interpreted and I think it sets the right course. It corrects the current direction that we're now seeing the court operate where judgments are rendered, and magistrates enter judgments between zero and 10 percent or Superior Court judges enter between zero and 10 percent in terms of postjudgment interest.

I know you're familiar with the area of the law so I won't so along go into too much other than just to touch base in terms of the fact that there really isn't equal treatment now being done in the courts. I see this on a daily basis where people have similar situations, and one creditor gets zero, another gets 2 percent, another gets 3, another gets 6, another 8, and 10, and it's just -- it's just not very fair treatment, and I think it doesn't allow our business community or the prevailing plaintiff to know what they can expect when they seek redress in our court. They've already been hurt once now in terms of their not being paid on their judgments, and they're looking for compensation for that delay.

I've submitted testimony which really outlines a great deal of this, but, you know, and I -- I think the big thing to remember is there needs to be something that encourages people to pay back an obligation that's already owed. And if Connecticut allows people to have interest-free loans when they default, it's just going to be more harmful to our economy and really hurt the commerce and trade that we have today.

I've spoken on this before, and I do hope that the committee will look at this bill, look to see that this bill will -- enact it and will -- will address language which says, "order," as opposed to making it discretionary so that whenever someone is forced to get paid back on delayed basis is compensated for that additional delay.

If you have any questions, I can answer that. I think my testimony that's been submitted really outlines really the issue, and I think you both are probably familiar with it.

REP. G. FOX: Thank you, Attorney London.

Senator Doyle.

SENATOR DOYLE: Yes, thank you, Mr. Chairman.

Good afternoon, Attorney London. How are you doing today?

RUSSEL LONDON: Good to see you, Senator Doyle.

SENATOR DOYLE: Good. Just a quick question, any thoughts on -- I mean, clearly now your -- your issue is that the -- the percentage rate is all over the board and depends on the judge and the day. What's your opinion today if -- if it was a perfect world for you, what -- what interest rate would you be happy with? What fixed rate, you know?

RUSSSEL LONDON: You know, I think some -- you know, remember, these are -- these are delinquent loans or delinquent obligations and so, you know, someone says, well, my bank rate I'm getting now is 1 percent or less, so how can you give 10 percent here? It's a whole different ball game. One is set by the Federal Reserve; another is compensation for the delay on a delinquent obligation that's been recognized by the court as being owed. You know, I think it's more important to have a uniform number as opposed to being all over the board, so I -- I would not be against something, maybe in, you know, 8 percent or something else that was consistent with the pre-judgment rate.

The Legislature does set the rate, but I think it's important to recognize that this for the long term. I mean, not every judgment can you collect on. Most judgments you don't collect on it. If you collect on 10, 20 percent, that's a good number. But most people have to seek -- who come to court to pursue a judgment are coming there because they're not getting paid.

And whether it be the lawn boy, the plumber, the doctor, the dentist, the tailor, the law firm, you know, whatever it is, that hasn't gotten paid, they're now seeking redress and they're getting injured upon injury upon injury by saying, these people, pay back $10 a week or $20 a week and if you don't pay it back, there's no penalty whatsoever for that delay.

I think you're familiar with that issue and --

SENATOR DOYLE: Yes.

So -- and I mean your -- your argument, I assume, is if there's no penalty, there's no -- there's incentive to pay it off early or just keep $10 -- but, as you know, the file copy says 10 percent. So I guess my question to you is at what point, you know, the Legislature is an entity that often compromises so at what point is too low for you, I mean, like 5 percent, 4 or what would your -- what -- how low would you go? I mean -- and I don't know what's going to happen. I'm just curious.

RUSSEL LONDON: No. I would recognize that there's some movement for compromise, and I think that given the low interest rates out there, maybe it would be, you know, more advantageous. You would ask me a rate, I would say 6 percent.

SENATOR DOYLE: Okay.

RUSSEL LONDON: And that's personally, but, you know, but I think other people could argue there's 8 percent since the prejudgment rate is set in the statute, I think in 37-3a at 8 percent, I think for -- before suit. So I think I'd make it consistent.

SENATOR DOYLE: Okay.

RUSSEL LONDON: And I'd go 8 percent across the board.

SENATOR DOYLE: All right. Well, thank you for coming today.

RUSSELL LONDON: I thank you very much for -- for allowing this bill to come before hearing, and if you have any further questions, I'd be more than willing to address them.

REP. G. FOX: Thanks for being here today.

RUSSEL LONDON: Thank you.

REP. G. FOX: Howard Shaw.

HOWARD SHAW: Representative Fox, Representative Fox, Senator Doyle, thank you for allowing me to speak this afternoon. I'm speaking to opposed Raised Bill 6687. I'm currently the Connecticut chair of the American Congress of Obstetricians and Gynecologists. And you've heard many of my colleagues today speak against this Bill 6687.

The two things that really come out about this bill are the similar healthcare provider, which we are very adamant about that, especially, in obstetrics that OBGYNs should be able to have an OBGYN testify against them or to review their cases.

The other is access to care issue. I've been an educator my entire career. I've educated residents in -- at Saint Francis in Hartford and now the last three years at Yale. And trained OBGYN doctors don't want to stay in the state of Connecticut because of the malpractice climate. And this bill would actually cause that even to be worse. And so I would urge you to oppose House Bill 6687.

REP. G. FOX: Well, thank you.

Are there questions?

I have one but it might be better for the lawyers, but I'm trying to think of who else could be an expert in a case involving an OBGYN than an OBGYN.

HOWARD SHAW: Right. Well, there -- there -- you could conceivably have a family physician that does deliveries or people have talked about having a midwife be able to -- because they do obstetrics, too, but we would -- we would argue that that would not be a like or similar provider.

REP. G. FOX: Okay. Well, thank you. Thanks for your testimony.

Next is Kurt Swan.

Okay. Mark Mcwilliams followed by Dr. Orlando, if he's still here?

MARK MCWILLIAMS: Good afternoon, Senator Doyle, Representative Fox and Representative Fox. I'm speaking on behalf of Bill 6661. I'm a landlord, small landlord. I have been doing this for about 14 years, and I see this as something to make the -- the playing field a little bit more level. It somehow seems that the speakers before me had said that -- that the process is currently fast and fair. And I think it's neither. I think it's broken.

Just as an example, I bought a building in December and four tenants in it, and two of them decided to pay because they wanted to stay and two of them who were my current tenants decided they just didn't want to stay. They're not bad people. I talked to Liz this morning, and I have to pay $3500 to get them out. It took from December until now to get a hearing in court and reach an agreement that they're going to leave and for no other reason than they don't want to pay, they don't have to, and they can leave, and they get three months free -- free rent, and that's just the way it is, and you know, but I get to pay in order for them to leave.

As I said, they're not bad people. They just, you know, don't have money and don't want to stay -- the -- the system isn't fair. It isn't fast. It's broken. And I think this bill would help.

This is something that the courts outside of Hartford, Middletown and Norwich are a little bit slower. It takes another month to go through the process and it's -- it's tough.

REP. G. FOX: Thank you. You say you bought the place in December?

MARK MCWILLIAMS: Yes.

REP. G. FOX: And would -- did you get a security deposit assigned to you?

MARK MCWILLIAMS: They made an affidavit that there were no security deposits at all, and that's just the way it is. They -- they -- the tenants actually turned around and said that they did have it and I've got two affidavits and that's, well, it's another story, but it's a tough process.

REP. G. FOX: Okay. Well, thanks for being here. Thanks for your testimony today.

Dr. Orlando.

DR. ROCCO ORLANDO: Chairman Fox, Senator Doyle, thanks very much for the opportunity to speak in opposition to Raised Bill 6687, AN ACT CONCERNING CERTIFICATES OF MERIT. I'm here representing Hartford HealthCare. Our four acute care hospitals, Hartford Hospital, Midstate Medical Center, the Hospital of Central Connecticut and Windham Hospital. And also we have 2200 physicians on our medical staffs who provide care throughout the state and that we believe that this bill is poor public policy which would adversely affect the well-being of our citizens.

We feel very strongly that changing the expert witness status to a similar healthcare provider, from -- would be -- represent a diminution in the quality of care. I've been a practicing gastrointestinal surgeon for nearly 30 years and -- and when -- if a lawsuit was brought against me, I would expect that it be another gastrointestinal surgeon who testified to my breaching a standard of care.

In addition, as a large healthcare system, we invest large amounts of money in quality improvement, and we do this because we have a captive malpractice insurance company, and so we invest a very significant amount of our premium in quality improvement, which we view as the other side of the same coin as risk management. And allowing these meritless cases to go forward would simply increase our cost and the administrative cost of the judicial branch with no benefit to the -- the citizens.

And the final point I'd like to make is that this bill would also decrease access to care, particularly, in our community hospitals. And here I'm speaking about the willingness of our physicians to provide emergency call coverage in our emergency departments. Certainly, our large academic urban hospitals wouldn't -- would not experience that, but in our small community hospitals, the burden of care is difficult, and we depend upon the voluntary efforts and goodwill of those physicians to provide that. In the absence of that that means that patients would need to be transferred to the urban centers because they -- these folks -- these doctors would withdraw from their obligation and their desire to provide call coverage, which they do voluntarily.

So -- and again short, we oppose this strongly, and we appreciate the time that you've given.

REP. G. FOX: Dr. Philip Lahrmann.

DR. PHILIP LAHRMANN: Good afternoon, Representative Fox, Senator Doyle, Representative Fox. My name is Phil Lahrmann. I'm an OB/GYN physician. I've been practicing in Connecticut for 25 years. I was in community practice until three years ago, and now I'm in academic practice. I am at Hartford Hospital teaching the UConn residents and -- so I come at this from those two points of view.

I also am the legislative chair for ACOG, District 1, which is New England, including Connecticut. So I'm here today to reinforce opposition to the Raised Bill 6687 and because of -- I've been here all day, I can see this is a difficult process. It's somewhat -- someone like a prolonged labor, and we're -- we're -- so I'm going to just distill it down to one point. I'd like us to think ahead to the future.

We've talked about access to care, and there has been concern about limited access to care if our residents after being aware of some of these situations choose to practice elsewhere, I just would like all of us to think about our children and who is going to care for -- provide the medical care for our children in the state.

And I think if we're -- we're not careful and we're not very prudent with the way we craft some of this legislation, we'll -- we'll have -- we won't have the brightest and best caring for the next generation. Thank you for the opportunity. Any questions?

REP. G. FOX: Thank you, Doctor.

DR. PHILIP LAHRMANN: Any questions?

REP. G. FOX: Questions? No.

Thank you very much.

Alan Meinke followed by Silvina Etchegoyen

Good afternoon.

DR. ALAN MEINKE: Good afternoon, Representative Fox, members of the committee. I appreciate the opportunity to stand in opposition to Bill 6687.

My name is Alan Meinke. I came to Connecticut 30 years ago from training as a general surgeon at the Mayo Clinic, and I've been practicing in Westport for 30 years. I'm currently chief of general surgery at Norwalk Hospital, director of the surgical quality there and an officer in the Connecticut Chapter of the American College of Surgeons.

I'm opposed to Bill 6687 because I believe it dilutes the certificate of merit clause that would allow expensive and resource training frivolous malpractice cases to court.

I've heard many eloquent speeches by my colleagues so I won't reiterate that. I'd like to give you just one short example which might help you understand more viscerally the difference between qualified and similar.

One of my responsibilities and pleasures is to be able to work as a medical missionary and a teacher in developing countries, including Papua New Guinea in the Highlands; Haiti after the earthquake and that cholera epidemic, and Africa in the Western rift. And in there I'm the only qualified surgeon to do a number of things, including treat children with malaria and cholera, I deliver babies, and I do all sorts of surgeries. When I returned to the United States --

REP. G. FOX: I'm sorry, Doctor. If you could just hit your -- I think you accidentally turn your button off, the red button in front of you, might be underneath, yeah, thank you.

DR. ALAN MEINKE: Do you want me to repeat anything?

REP. G. FOX: It just happened. If you want to just go -- maybe from the last sentence.

DR. ALAN MEINKE: The point I wanted to make is when I'm in developing countries, both teaching and serving, I'm, by necessity, qualified to do a lot of care, but I'm not necessarily an expert. And one of the privileges I have is when I returned to Connecticut surrounded by the medical care that I see, I step 100 years into the present. In Connecticut, I'm surrounded by colleagues with the skill, knowledge and expertise to solve complex and nuanced medical challenges. I don't feel qualified to evaluate their care or advise the court as to the merits of complex care outside my expertise of minimally invasive and robotic surgery.

Yes, I've delivered babies; yes, I've taken care of the injuries that we saw a Louisville basketball player recently have. I could take care of that care, but I don't feel I can advise the court on whether that's proper care or not. So I ask you to please oppose Bill 6687.

REP. G. FOX: Are there questions?

I just have a question, Doctor. And I -- because I appreciate your use of the word "qualified" and how it, as a physician, you may feel that you can help in a number of situations, but you're not necessarily the expert in that; is that essentially --

DR. ALAN MEINKE: Under those circumstances, yes, sir.

REP. G. FOX: Okay. No, because I'm just, I mean, the term "qualified" does have a legal definition. There is a statutory definition for qualified, unless I -- as I understand it the definition by which one could testify in court as to a standard of care.

DR. ALAN MEINKE: Yes.

REP. G. FOX: And is that -- no, I'm just -- is that your understanding of the term "qualified"?

DR. ALAN MEINKE: Well, I don't purport to be an attorney so I don't want to address the fine points of the words. But I know how privileged I feel to be in Connecticut surrounded by people that really do understand all the nuance medical care that we provide in this area in Connecticut. And although I can do that work, I don't feel I should advise the court as to what is proper and what is not proper. And this is the reason why I wanted to testify, there's a difference as what can be done and what should be done in terms of advising the courts.

REP. G. FOX: And just -- and I don't mean to -- so that means if -- if you were to testify in court as to a standard of care, you would only feel comfortable in the area in which you practice the bulk of -- the majority of your time, I guess, the bulk of your time?

DR. ALAN MEINKE: Yes, sir.

REP. G. FOX: Okay. That's -- I think -- I think the same way but -- okay, well, thank you very much.

DR. ALAN MEINKE: Thank you for your attention.

REP. G. FOX: Silvina Etchegoyen, and you can tell me if I spelled your name wrong -- pronounced the name wrong, followed by Michael Walsh.

SILVINA ETCHEGOYEN: Pretty well. I know it's every year, that name.

Good afternoon, Senator Doyle, Representative Fox, Representative Fox. Thank you for the opportunity to testify before you this afternoon. My name is Silvina Etchegoyen. I am a graduate student in social work at the University of Connecticut School of Social Work, and I'm here today to testify in favor of Raised Bill 6676, AN ACT CONCERNING IMPLEMENTATION OF THE PROJECT LONGEVITY INITIATIVE ON THE STATE-WIDE BASIS, which would reduce gun violence in the state of Connecticut.

In communities around Connecticut, there is an imperative need to stop gun violence. After the horrendous act of violence that occurred in Newtown, and the horrendous acts of gun violence occurring every day in cities, like Hartford, New Haven, Waterbury, Bridgeport, our population is living in a highly traumatized state. The State of Connecticut has a responsibility to dignify people's standard of living by providing security, education, healthcare, and well-being to everyone.

Violence is a structural social problem that needs a structural social solution, and the implementation of this Project Longevity will help to build better communities by having a sincere and open dialogue, by developing a critical constructive point of view, by creating responsible popular participation and social inclusiveness.

However, this Project Longevity will also stop the violence in our communities if it provides transitional help for those who want to move out of the gang lifestyle by assisting them with educational, health and mental health services, employment, housing, witness protection programs, and other needs.

As a social worker, I had a chronically ill patient with a mental health and substance abuse condition who never had access to mental health services. At the age of 14, he was forced by his father to join the family business, organized crime. Since then, he was never able to get out of the business and has been victimized by his own father and peer group, and he has been unable to access mental health services.

Simply, he was avoiding healthcare professionals so they would not suffer intimidation nor harm from criminal groups. He knew that there was no safe place for him in the society. He knew if he opened his mouth, he would be killed. He was a child when this happened to him. He was a child without any social protection, without anyone to trust.

I am wondering today, how many 14, 16 or 18 are out there in our communities living under the same type of condition, with clearly an impediment to use their right to freedom of speech.

Gun violence and any type of violence affects not only the victims and victimizers, it affects us, our families, our neighbors, our communities, our country, and our world. The Project Longevity Initiative will allow communities to develop a sense of peaceful commitment and trustful collectiveness.

Based on an evidence-based research from the Center for Crime Prevention and Control at John Jay College, the Project Longevity Initiative has been implemented in different cities at different times in the United States. According to the Campbell Systematic Reviews published in 2012, the Project Longevity has been shown statistically significant reductions in youth homicides and other indicators of serious gun violence.

I urge you to support this bill that you will help to stop gun violence in our communities. Thank you for taking the time and interest in my testimony. And I welcome the opportunity to address your questions.

REP. G. FOX: Thank you for your testimony.

Are there any questions?

Well, thanks for coming here today.

SILVINA ETCHEGOYEN: Thank you.

REP. G. FOX: Next is Michael Walsh.

Good afternoon.

MICHAEL WALSH: (Inaudible.)

Yeah, my name is Michael Walsh. I'm a trial attorney here in West Hartford, and I currently served as the president of the Connecticut Trial Lawyers Association. Thank you for this opportunity to speak in support of Raised Bill 1154, AN ACT CONCERNING THE ACCIDENTAL FAILURE OF SUIT STATUTE.

Raised Bill 1154 seeks to amend the accidental failure of suit statute in order to expressly extend the protection of that statute to medical malpractice lawsuits that have been dismissed because of insufficiencies and good-faith certificate filed pursuant to 52-190a. As currently written, the statute applies to cases that have failed for a number of specific reasons and then it has the phrase, "as well as cases that have failed for any matter of form."

Now the phrase, "any matter of form," is a catchall phrase that can apply to a multitude of different factual situations. And in order for a medical malpractice action to qualify under the accidental failure of suits statute, a trial judge must determine that the action failed, quote, as a matter of form. Now repeated decisions of the Appellate Court and the Supreme Court have suggested that the accidental failure of suit statute does apply and should apply to medical malpractice actions that fail as a result of insufficiencies and good faith certificate. However, since the "matter of form" language is not specific, the ultimate determination is left to the discretion of the trial judge.

This bill seeks to clarify the statute and to establish a bright line rule that would apply in all cases. The proposed bill does not in any way expand the scope of liability for physicians in any given case.

The plaintiff must still obtain a detailed good-faith certificate from either a similar healthcare provider or qualified healthcare provider, depending on the results of the other legislation from the committee. The bill ensures, however, that a litigant with a meritorious case will not be denied an adjudication on the merits simply because of technical insufficiencies in the good-faith certificate.

Now, in previous years, those who have testified against good-faith certificate legislation have repeatedly represented to this committee and to Legislature, at large, that the medical malpractice cases always have the accidental failure of suit statute remedy available to them.

In fact, I've been sitting here most of the day and Dr. Srinivasan in his testimony, specifically, said he was a strong proponent of the accidental failure of suit statute and that he fully supported its application in medical malpractice cases.

I had difficulty reconciling the substance of his testimony with his opening statement, which said that he was testifying in opposition to 1154, as well as the Good-Faith Certificate statute, 6689.

But I'd respectfully submit in closing that this proposed legislation, essentially, ensures that no meritorious action, medical malpractice action, will fail because of technical insufficiencies, and we'd urge passage of this bill.

REP. G. FOX: Thank you, Attorney Walsh.

Are there questions?

Thank you very much for your testimony.

MICHAEL WALSH: Thank you.

REP. G. FOX: There was a name that was crossed -- crossed off. It may have been crossed off by mistake which is about four or five up, Pamela Viens, Viens. So -- okay. I must have crossed off two names.

PAMELA VIENS: Good afternoon. No, husband and wife.

JEFFERY VIENS: Good afternoon. I'm Jeffery Viens.

PAMELA VIENS: And I'm Pamela Viens.

JEFFERY VIENS: And we are the -- we're the small mom-and-pop landlords. All right. We own a few buildings. We are here in support of Bill 6661, and we're asking for your support. We find that the eviction process is long and cumbersome.

The financial burden is placed completely on the landlord. Not only do we not get the time back but, oftentimes, we are not reimbursed for the monies that is owed. Even through small claims, it can be a long process and many times resulting in nothing at all. And asking the tenant to be paying what is owed while we're going through this process, we don't believe is unreasonable. We have a lot of, you know, a lot at stake, as far as bills, and on and on, that we have to pay also. So we feel it's extremely important that they be involved in a process.

One of the other big things, too, is, you know -- and it's not all about just the money to us. Okay. One of the things here is being brought to the attention by a lot of cities, a lot of towns, is blight. All right. If landlords cannot collect their rents, you know, properties do follow into disrepair. And it's not that we want to have buildings in disrepair, or we want to incur blight, but if people aren't paying their bills, you know, we can't get in line to pay our bills.

The other thing is you have a tenant now that doesn't pay their bill, they go through three months of the eviction process; we win a judgment against them; this judgment hangs over heads for years and years, and affects, you know, them in the upcoming years, whether it be a car loan, on and on, in their credit.

And what this would do, it would kind of nip it in the bud. It would say that, you know, if you're not -- if you think you can live here for three months rent free, not pay anything and then skipped out on a small claims judgment and not pay it. No, you can't. You have to -- you have to have some -- pardon the expression -- skin in the game. All right.

And I think it's just very, very important, and I thank you for hearing our testimony. We've been here all day. We got here at eight o'clock in the morning. We didn't want to miss this.

One thing I have heard a lot about is somebody talking about interest, and I'm not sure exactly which bill that was on but, an interest rate, but --

REP. G. FOX: It's 1121, sir.

JEFFERY VIENS: 1121. But we know that the towns and the cities charge 18 percent for delinquent taxes under tax bills so maybe that might be a number you want to consider. I'm just going to throw that out there. If it's good enough for the cities and towns, I mean, you know, by all means. But, once again, we'd like you -- you know, we really ask for your support on Bill 6661 and just thank you very much. Thank you.

REP. G. FOX: Well, thank you, sir. Thank you both for being here.

Abdul Shahid Muhammad followed by Peter Wagner.

Good afternoon.

ABDUL SHAHID MUHAMMAD ANSARI: Good afternoon, Representative Fox and members of the Judiciary Committee. I appreciate the opportunity to testify before you today in favor of House Bill 6628, concerning the use of tasers by police. I'm Abdul Shahid Muhammad Ansari, president of the Greater Hartford Branch of NAACP, and the political action chair of the Connecticut State Conference of NAACP Branches.

Several years ago, when police started arming themselves with tasers, we heard that these weapons were not legal and that officers would use them as an alternative to deadly force. A police officer would fire a taser to subdue a violent suspect instead of shooting and killing that suspect with their gun. Tasers would save lives. And it seems as if tasers are sometimes used that way, but it is not the whole story, not even close.

Over and over again, we hear about tasers being used not as an alternative to deadly force but as an alternative to talking, negotiating or showing a little patience. We see them used against people who pose no threat to others, but who are passively resisting an officer's orders. We see them used on people who are not violent but are only uncooperative, often people who are mentally ill or under the influence of alcohol or drugs. And we see them used disproportionately on minorities.

We can't say exactly how disproportionately because we don't require the police to tell us who they shoot with tasers. We only know for sure about the 11 people who have died in Connecticut since 2005 after being tasered by the police, and we know that eight of those people were African Americans or Latino. We know that at least nine of those 11 people were completely unarmed and that none of them had guns or knives.

We know that one young African American man died after he was tasered while handcuffed in the back of the Waterbury police car because he was kicking the upholstery. We know that a Latino man in Middletown died after he was shocked 34 times while handcuffed, after his family asked for help dealing with his severe anxiety attack. Neither of these men was suspected of anything more serious than breach of peace when police arrived. In fact, only one of the 11 people who have died was suspected of a violent crime and that suspect had brought the alleged victim to the hospital and was running away when he was tased -- tasered.

It's, at least, a little bit ironic that the State has repealed its death penalty but still allows police to shoot people with a weapon that can kill without any regulation or oversight. We may have had the excuse at first that we thought tasers were harmless, but we don't have that excuse anymore.

Even when tasers don't kill, the barbs tear into flesh and muscle, the probes burn, the shock causes people to fall and get hurt. You might be interested to know that when the police tell you that getting shocked by a taser is part of their training, they don't tell you about the lawsuits filed by officers who got hurt in the process.

This bill is just a first step. It's truly the least we can do. It will make sure police officers are trained in taser use, and it will make them tell the public exactly why and when they fire a taser against a human being. Maybe it will make them think twice about shooting people who are in distress, shocking people in the chest, shocking them when they're handcuffed or shocking them multiple times. But mostly, it's going to let us see how the police are using tasers and whether we need to make some reasonable rules, as New Jersey and Florida have done.

I also want to mention House Bill 6663, which would set some rules for how police accept complaints of misconduct. This is another very important measure that the NAACP also supports, and we ask you to pass it so that police will be held accountable for their actions.

Please pass these bills. The public deserves their protection. Thank you very much.

REP. G. FOX: Well, thank you, sir. Thanks for your testimony.

Are there questions?

No, thank you very much.

Peter -- Peter Wagner followed by Elizabeth Yang.

PETER WAGNER: Good afternoon, Chairman Fox, Senator Doyle, representatives. Thank you for the opportunity to address this critical voting rights issue. My name is Peter Wagner, and for the last decade I've been working to urge the Census Bureau to count incarcerated people as residents of their pre-incarceration addresses and working with state and local governments to develop some interim solutions. Because the problem is the Census Bureau counts people who are incarcerated as if they were willing residents of the correction facility even though they, for all other purposes, legally reside back at home.

In Connecticut we have a population that's incarcerated that altogether would almost be large enough to be an assembly district; however, it's not a house district. This is a population that comes from all over the state, disproportionately from the urban -- five urban cities, but all over the state and then it's concentrated in 16 census blocks. They are located mostly in five very small majority white towns.

The prison population, of course, is disproportionately African American and Latino. African Americans are incarcerated at a rate nine times higher than whites in the state so where people in prison are counted matters.

The solution would be ideally the Census Bureau could agree to count incarcerated people at home. This is something that we're urging the Census Bureau to do but Connecticut doesn't need to wait for that.

Connecticut can join Maryland, New York, Delaware and California and pass legislation, such as 6679, that would ensure that incarcerated people are counted at home for redistricting purposes in the next redistricting cycle.

This is something that as I said four states have this law. Two states, Maryland and New York passed their legislation in time for it to take effect during this round of redistricting. The Maryland law went all the way to the Supreme Court and was upheld.

Some of the 200 cities and counties already do, rural communities that have large prisons, removed these prison populations during redistricting, including the towns of Enfield and Cheshire, both of these communities refused to use the Census Bureau prison counts to distort the voting power of their own citizens for town council purposes. So this bill would take what Cheshire and Enfield does and apply it statewide.

I want to emphasize two key side issues that I think tie back in very quickly. One is that people in -- three-quarters of the people who are locked up in Connecticut are not allowed to vote, but under state law anyone who's incarcerated remains a legal resident of their pre-incarceration home. Someone who's incarcerated in Cheshire or Enfield and was allowed to vote because they're awaiting trial or because they're serving time for a misdemeanor, when they vote, they vote via absentee ballot back at their home addresses. So these large census -- these census blocks that contain these prisons give extra representation to communities where the incarcerated people are not a part of, are not allowed to vote or are required to vote somewhere else.

It's very important, I urge you, I know redistricting and the census sounds a long way away, but the thing about 6679 is that it requires the Department of Corrections to start collecting home address information on intake. So if you pass this bill now, the burden on the Department of Corrections to produce you with the dataset of home addresses of incarcerated people in 2011, would be quite -- would be a very low bar if you pass this now.

And finally I wanted to just hit one other issue, which is that changing your redistricting data would not affect the distribution of federal or state funds. There is currently a sentence in 6679 calling for the bill to apply to federal and state funds.

I would urge you to remove that for a couple of reasons: one, that's not -- the Maryland and the New York bills don't include funding; two, I'm not sure it's actually possible to use the limited dataset that produced for redistricting to factor into the very complicated formulas that are used to distribute state and federal funds.

So I'd urge you to take that out and focus on what could be a very significant improvement in the redistricting process, in the electoral process to how legislative decisions are made in Connecticut.

So I'm going to thank you for the opportunity to be here to talk about 6679 and I'd be happy to answer any questions about the bill or the experience of the states that have similar laws.

REP. G. FOX: Well, thank you and thanks for your testimony.

Are there any questions?

I don't see any questions, but if other members of the committee do have questions, I will, perhaps, direct them to your attention. And so I do appreciate you being here.

PETER WAGNER: Thank you and I'd be happy to talk to anyone. Thank you, sir.

REP. G. FOX: Thank you.

Elizabeth Yang, followed by Harold Harris, Brian Krin.

ELIZABETH YANG: Good afternoon, Senator Doyle and Senator Fox, distinguished members of the Judiciary Committee.

My name is Elizabeth Yang. I'm one of the second-year residents in ophthalmology at Yale-New Haven Hospital. To give you some background, I've completed a full undergraduate education, four years of medical school and an internship year in internal medicine.

I'm currently in my second year out of three for ophthalmology residency and will be applying to a retina fellowship, which entails another two additional years of training. That makes at least eight to ten years of post undergraduate training that is required for becoming an eye surgeon and this amount of dedicated training is not exclusive to the field of ophthalmology.

As someone in such a specialized field, it's impossible for me to know what the standards of care are in completely dissimilar fields, such as in otolaryngology or emergency medicine, much less cardiology or neurosurgery.

Thus, I'm here to urge you to oppose Bill 6687, which discredits our years of training and makes it easier for meritless lawsuits against physicians to make it to court.

According to the Connecticut State Medical Society survey of 2010, 25 percent of family practice physicians and 22 percent of internists in Connecticut were contemplating career change. This reflects, in part, the fact that Connecticut has some of the highest medical liability rates in the country and has not made a meaningful effort in tort reform.

My colleagues and I are currently undergoing training in an increasingly litigious environment, and we are aware and very much concerned about how this will impact us as we embark -- embark on our new careers in medicine.

An AMA survey from 2007 and 2008 showed that 61 percent of physicians over the age of 55 have been sued at least once, and I can only imagine that the numbers have been increasing. Given the odds that most of us physicians will be the -- on the receiving end of a lawsuit at least some point in our careers, I'm hesitant to even consider staying to practice in a state that does not make any effort to prevent unmeritorious lawsuits from appearing in court.

Should this bill be passed, it would undermine the very term "certificate of merit."

Years ago, I decided to go into medicine because I knew I wanted to help people, as is with the case with most physicians. Now, in this climate of uncertainty and apprehension as to where the practice of medicine is heading, we're asking for your help in making changes for the better.

We want to maintain the fairness and equality in the current system which would in turn help provide a more stable and favorable environment for attracting young physicians, like myself, to stay in Connecticut, where there is going to be a growing need for more physicians as both the population and current practicing physicians begin to age.

Thank you for your time and in considering our concerns and opinions on the issue, and I urge you to strongly oppose House Bill 6687.

REP. G. FOX: Thank you.

Are there any questions?

Thank you very, much.

Harold Harris.

HAROLD HARRIS: Representative Fox, Senator Doyle, Representative Fox and Representative Riley, I would like to thank you for listening to me today. My name is Harold Harris. I am a 66 year-old engineer and resident of Glastonbury. I'm speaking as a concerned citizen. I am opposed to any action that would encourage the increase of malpractice law -- lawsuits as the House Bill 6687, Certificate of Merit.

As an engineer and an owner of a small company I have seen firsthand how products that would improve the health and safety have been kept from the market because of concerns for lawsuits. These same concerns affect my doctor and result in increased cost and early retirements. My doctor of 30 years would like to have stayed in practice just a couple of days a week on people, like me, that he's had for a long time, but he was forced to retire because of the malpractice insurance cost.

I watch TV -- I watch injury lawyer's TV commercials every night. And that is all I need to know about the risk that lurks for those of us that dare to take on the challenge to improve the well-being of our fellow citizens. No good deed goes unpunished.

Is there any questions?

REP. G. FOX: That's usually what -- what I ask but that was good.

Are there any questions?

I don't see any. Thanks, thanks for being here today.

HAROLD HARRIS: Okay, thank you.

REP. G. FOX: Brian Krin?

John Walker?

Moira Buckley.

MOIRA BUCKLEY: Good afternoon, Chairman Fox, Senator Doyle, Representatives Riley and Fox. My name is Moira Buckley, and I'm the president of the Connecticut Criminal Defense Lawyers Association. I'm here in -- testifying in support of Raised Bill 6660 and 6642.

The bill that I want to address in testimony today is 6660, AN ACT CONCERNING FAMILY IMPACT STATEMENTS. The other bill is regarding Nurseries -- the Nursery at Niantic, we've adopted the Chief Public Defender's testimony, and I've submitted written testimony on 6660, the Family Impact Bill.

And I'll rest on that, and I just want to add a couple of points that, unfortunately, I missed Attorney Kane's testimony on this earlier today, but I think based on what I've heard that one of the reasons he may oppose it is that it's viewed as superfluous. You know, why should we say that judges need to consider the family impact statement when, essentially, they do. But as I point out in the written testimony, they're not obligated to consider a family impact statement. This bill would obligate them, in the limited circumstances that a family impact statement applies, to consider the statement.

And I think what's interesting about the bill is that it really puts the burden on the defendant, which, you know, maybe in the future that will change and it will become something that probation needs to look into when they're doing a pre-sentence report. But I think at this juncture, it's appropriate that it's on the defendant, and I think it's appropriate that it also holds a lawyer to the standard of bringing in the relevant facts if a client's circumstances fit within those articulated by the bill.

I also think that the bill brings Connecticut in line with what those of us who practice in federal court see frequently, which is when you raise in federal court what we call extraordinary family circumstances as a ground for downward departure from the federal sentencing guidelines, the sentencing court has to consider that ground.

They can completely discount it in rendering sentence and find that it doesn't move them to lower a person's sentence or issue an alternative sentence, but there has to be some articulation that that argument was considered. So here really what you're doing is requiring a court to consider, in these limited circumstances as they're articulated by the bill, the family impact statement. I

I can't say anything negative about that. I don't think you will be placing an undue burden on courts because, to some degree, they do consider those things, but you're just requiring the court -- you're obligating them to consider it now.

And certainly I think in many circumstances, the court will consider it, and the court will say that other interests outweigh the family impact statement and may require the court to sentence someone to a lengthy term of incarceration regardless of that statement.

So CCDLA supports that bill, as well as 6642, AN ACT CONCERNING NURSERIES AT NIANTIC.

Thank you.

REP. G. FOX: Thank you. Thanks, Attorney Buckley.

Any questions?

I don't see any. You know, just because you're here and we haven't had that much testimony on this, could you just explain for us what -- how it works when during the sentencing process, and as defense counsel, you may make an argument, you know, talking about, you know, whatever the mitigating factors are on behalf of your client and during that process would you include the family and the impact on the family?

MOIRA BUCKLEY: You know, it depends on the case. I mean, you know, how it is. We may have cases where there's a mandatory minimum, and if your client is going to plead to that, this doesn't matter. I see this arising in a case where you've got a right to argue for less, where you've negotiated with the prosecutor and, let's say, you set a cap. The prosecutor is looking for, you know, two years. You have a right to argue down to zero. I see the family impact statement coming in there. Something that you would submit to the judge prior to sentencing.

When I have that situation, I file what I -- what I call a sentencing memo. It's sort of -- you know, I follow the federal model just because I used to do a lot of it and still do a lot of federal sentencing in federal cases where you almost, I mean, I can't imagine not filing something in federal court for sentencing because the sentencing guidelines pretty much dictate it. So I follow that model in state court when I have a sentence that isn't locked in. So if I've got a right to argue down to nothing in a potential of a cap sentence, I'm going to submit that to a judge.

Also I can see with this bill it doesn't limit you to just submitting it at sentencing. I think it's absolutely something you could use in negotiation with the judge and the prosecutor. I'm not, you know, precluded from doing that now, but this, again, you know, requires the judge to consider that statement whereas previously they didn't have to. So it -- it's a bit of a, you know, a practice preference. With me, if I think there's a way to get some consideration from judge and prosecutor, they'll see something like this in some form. Sometimes it's just a verbal articulation from me before we settle on a number.

And again, if you get to sentencing and you don't know what that number is going to be and there's room for the judge to come down from that cap that the prosecutor is articulating, that's where you're going to see these family impact statements coming into play. So I'm not sure, that was a very long answer to your question.

REP. G. FOX: Well, no, no -- and I think it's important to know for, even though I realize the committee's -- a lot of them are out at different caucuses at the moment, but I think it's important to hear how this would actually work so.

MOIRA BUCKLEY: And in terms of -- just so I can quickly say -- in terms of accountability for a judge, the way I see it playing out, is if I'm in that right to argue for less circumstance and I submit the family impact statement I think in order to comply, you know, if this becomes law, the judge would have to say, as they do in federal court, I considered, you know, X, Y, and Z, and then factor that into sentencing or not, say why other consideration outweighed that in meting out sentenced.

REP. G. FOX: Senator Doyle.

SENATOR DOYLE: Thank you, Mr. Chairman.

Just a quick follow-up, if under current -- in your current practice you already present and we have to assume the judge considers this. What's the real impact of this, as a practical matter? If you're already doing it and it's being considered. I'm not certain why we need a law.

MOIRA BUCKLEY: I think it's just, again, it goes back to knowing that the judge actually considered it. I mean you can have a sentencing where you submitted your memo and the judge -- I don't know that the judge has actually. I'd like to think, you know, that I'm not a total pessimist. I'd like to think that the judge considers everything you say. But there's some accountability here where, I think, the judge would have to articulate on the record. You know, you submitted an impact statement.

There are requirements and I couldn't submit -- I wouldn't submit what I would call a family impact statement under this bill if my client doesn't have a minor child, you know, isn't the primary custodian of the minor child. But it you fit within the confines of this bill, I think a judge would have to say I considered it, and again, either factor it in to meting out the sentence, or say you know what, I considered this to be too serious of an offense. And although I understand you've submitted this and whatever they want to say about it, this is the sentence. And I think that's what you would get out if it, a judge actually being accountable in that regard.

SENATOR DOYLE: Okay, thank you.

MOIRA BUCKLEY: You're welcome.

REP. G. FOX: Thank you.

Any other questions?

Thanks for being here this afternoon.

MOIRA BUCKLEY: Thank you.

REP. G. FOX: Kurt Barwis?

KURT BARWIS: Good afternoon, Senator Doyle, Representative Fox and members of the Judiciary Committee. I am here in opposition to raised House Bill 6687 and Senate Bill 1154. I thank you for the opportunity to present this testimony.

HB 6687 will cause more frivolous lawsuits to be filed. The Connecticut Legislature first enacted the Connecticut General Statutes 52-190a, in 1986, as part of tort reform. The statute is commonly referred to as a certificate of merit statute. In passing the certificate of merit statute, the Legislature was responding to a crisis in healthcare provider's ability to obtain malpractice insurance, as well as their continued ability and willingness to continue practicing in Connecticut.

The purpose of the statute was to benefit healthcare providers, including hospitals, and prevent frivolous actions by requiring plaintiffs or their counsel to certify that they had a good faith basis for bringing the suit based on a reasonable pre-suit investigation. To ease the burden on perspective plaintiffs and their counsel, the Legislature provided for an automatic 90-day extension of the statute limitations to allow plaintiffs and their counsel extra time to conduct a good faith inquiry. Because of the 1986 legislation did not require a plaintiff to verify his good faith by consulting a qualified expert prior to filing the suit, the certificate of merit statute did very little to actually stop the filing of frivolous suits.

In 2005, the statute was strengthened to require that an attorney obtained a written opinion from a similar healthcare provider prior to following the suit and mandated dismissal for failure to do so. A similar healthcare provider provision in the statute isn't an apples-to-apples requirement. For example, if the plaintiff accuses an emergency medicine physician of malpractice, the plaintiff must first get an opinion from another emergency medicine physician. An opinion from a surgeon or an internist will not suffice. The expert must match up with the specialty of the accused healthcare provider.

The rationale for the apples-to-apples requirement is simple and fair, to ensure that the author of the written opinion has walked in the shoes of the healthcare provider that he, or she is accusing of malpractice.

HB-6687, Raised Bill 243, eliminates the requirement that a plaintiff obtain an opinion from a similar healthcare provider and provides that a qualified healthcare provider will suffice.

A qualified healthcare provider is defined as a similar healthcare provider or any other healthcare provider may testify as an expert pursuant to section d, of section 52-184c. Under section 52-184c, a healthcare provider is qualified to testify if, to the satisfaction of the court, they poses sufficient training, experience, and knowledge to provider expert testimony as to the prevailing professional standard of care in a given field of medicine.

In other words, under HB 6687, the type of expert whom the plaintiff may consult prior to filing a suit is identical to the type of expert the plaintiff must have at the time of the trial so there's a problem with HB 6687. At the time of trial, defense attorneys will have taken the position of an expert witness to determined whether the person is indeed qualified.

A defensive attorney can then file a motion at the time of the trial asking the judge to preclude the proposed expert on the ground that he is not qualified. The judge will, at the time of trial, hold an evidentiary hearing at which the expert is cross-examined or, in the alterative, his deposition testimony is reviewed by the judge. The expert will have been cross-examined during the deposition.

HB 6687 still allows for a plaintiff to expunge the name of the expert witness -- expert on the written opinion; and therefore, the expert identity is a secret. So this is a key here, an expert is a secret throughout this process until we get to trial.

As a result, it is impossible for the court to determine if the expert is really qualified. So both the court and the defense are at the mercy of whatever information the plaintiff chooses to put in the written opinion. Because the only evidence that will ever be submitted to court is the unchallenged claims of the anonymous expert's letter.

A court will always have to conclude that the expert is qualified. Unless the statute gives defendants the right to a meaningful hearing, the right to cross-examine the anonymous expert, the statutory guarantee that only a qualified expert may be relied upon by the plaintiff's prior to bringing suit is and will continue to be illusionary.

The statutory requirement that a plaintiff obtain prior to commencement of an action a written expert opinion from a similar healthcare provider has reaped benefits for Connecticut healthcare providers who otherwise would have had to endure the trials and tribulations of the litigation process.

In inadequately investigated cases, if Raised Bill 243 passes, it will eliminate the beneficial effects to the 2005 amendments and the certificate of merit statute and return Connecticut healthcare providers to the mercy of lawyers and parties who fail to properly investigate losses before filing them. Moreover, Connecticut healthcare providers will be doubly wronged because the raised bill leaves intact benefits to plaintiffs that were traded in return for the statutes extra burdens, such as statutory caps on jury verdicts, and extension of statutes of limitations and repos to allow extra time to presuit investigation.

The public will be wronged, as well, because it is the public that will ultimately suffer when scarce healthcare resources are squandered to restore the status quo that benefits no one except some lawyers who failed to fulfill their ethical responsibilities to their clients and properly investigate suits before filing them.

Second, the accidental failure of suit statute does not need to be changed. When the case is dismissed because an attorney did not comply with the certificate of merit statute dismissal without prejudice in our Supreme Court in Plante versus Charlotte Hungerford, 300 Conn. 33 (2011), made it clear that the attorney may refile the suit. And that is exactly what happened in the case of Bennett versus New Milford Hospital, 300 Conn 1 (2011). After the Supreme Court concluded that the attorney had failed to get the appropriate opinion letter, the attorney refiled the lawsuit, and the trial date is now set for July 9, 2013.

The only hurdle is the plaintiff must show that the failure to comply with certificate of merit statute was the result of a mistake, an inadvertence, an excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney. Plante 300 Conn. at 56, the attorney in Plante was not allowed to refile under the accidental failure statute because his conduct was egregious.

SB 1154 states that the purpose is to expressly include any medical negligent claim that was dismissed because the plaintiff failed to obtain the written opinion of a similar healthcare provider. But that is already the law, it appears, therefore, that the purpose is to give lawyers who egregiously violate the law the right to refile under the accidental failure suit statute. There is no reason to protect attorneys who egregiously violate the law. Hospitals are held accountable if their conduct is merely neglect.

As part of tort reform in 2005, the Legislature passed General Statutes 38a-395 that requires the Connecticut Insurance Department to issue annual malpractice reports, which I've heard referenced throughout the day.

Summarizing that data received from malpractice insurance companies and self-ensured entities. In the Department's April 2012 report, the Department notes defense counsel payments over half of the claims closed with no payments to plaintiffs. Yet 73 percent or 2,413 generated legal expenses to defend the claim. These expenses totaled $147 million, an average of 61,045 per claim.

Of those, almost 50 percent, 1,173 were for instances that had no payments to claimants averaging 44,938 per legal expenses. For instance, with payments to claimants, an average legal expenses that were higher of 76,283.

REP. G. FOX: Thank you, sir. If you could just summarize. You have been way past the three minutes.

KURT BARWIS: So in summary, I would actually be in favor of modifying the law so that during the pretrial -- during this whole process of the certificate of merit, you would know who the expert witnesses. You could actually know the name of the person and you could go through a process that's legitimate to determine whether they are valid or not.

I know that the trial lawyer association will argue that you can't get doctors to actually step up and disclose their names, but that's absolutely not true because when they get the hearing, they all know that they have to be now presented as who they are.

So this really is a very damaging bill in all the respects I've heard today. But I think that it's a fallacy to think that we should not alter this provision that you can't know, it's a secret, who that expert is. I mean that's just so inherently unfair and inequitable. And the process of saying that the certificate of merit is designed to validate whether a case has merits or not, without being able to know who this expert is makes absolutely no sense.

REP. G. FOX: Thank you.

Are there questions?

No, thank you very much.

KURT BARWIS: Thank you.

REP. G. FOX: Michael Krinsky followed by, I think, it's David McGuire.

DR. MICHAEL KRINSKY: Representative Fox and members of the Judiciary Committee, my name is Dr. Michael M. Krinsky. I am the immediate past president of the Connecticut State Medical Society. And on behalf of the more than 8500 physicians and physicians in training of the Connecticut State Medical Society and the Connecticut Chapters of the American College of Surgeons and the American College of Physicians, thank you for the opportunity to present this testimony to you in opposition to House Bill 6687, AN ACT CONCERNING THE CERTIFICATE OF MERIT.

I am a neurologist practicing in the Greater Hartford area since 1979. My patients struggle with some of the most complicated and challenging medical condition including, MS, Alzheimer's disease, Parkinson's disease and epilepsy. These are the cases where the ardent signs of medicine works hand in hand, as you use your clinical judgment creatively to find the right medical solutions for each patient, which often works for just a short period of time before the condition progresses and you have to find a new solution.

Last session, I came back this committee to testify in opposition to similar language in Senate Bill 243. It is unfortunate that even while the bill did not pass the General Assembly, I need to emphasize several points again.

Mine is a high-risk specialty not so easily accessed and Connecticut patients already struggle with access to care. In 2008, the Connecticut State Medical Society conducted the first work force study of its kind in our state and some of the results were startling: 19 percent of physicians were contemplating a career change because of Connecticut's practice environment; new patients trying to see a neurologist were experiencing the longest wait times of all the specialties that were surveyed, 29 days; with established patients waiting 18 days for an appointment. Half of the neurologists surveyed had already increased their work hours and these still were the statistics. More than one in four of my colleagues had reduced the number of high risk services they provided or high risk patients they saw, and that was five years ago. There just aren't enough of us to go around today.

It is important to point, also, a recent peer reviewed scientific study published in the January 13th edition of the Journal Health Affairs, which documented that the average physician will spend 50.7 months or almost 11 percent of an assumed 40-year career with an unresolved open malpractice claim; however, a highly specialized physician, such as neurosurgeon, will spend between 25 and 30 percent of his or her career with an open malpractice claim in their own right. This situation redirects physicians' focus time and resources away from patient care in an already difficult environment. It distracts physicians from their primary mission of caring carefully for their patents.

Passing House Bill 6687 will only worsen this environment. House Bill 6687 significantly lowers the threshold of expertise for a certificate of merit. In my specialty, I deliberate a long time before deciding on a course of treatment. It's one thing if a colleague with equivalent training in the same area has a different opinion. It's another if the physician does not work in my area of expertise. It's even worse if it's not a physician who hasn't a clue about what we actually do. Would you want to be second guessed by someone who did not have the same training of expertise?

In my case, it's all on the line, reputation, good standing and, of course, the cost that it entails. I could lose everything if I make a mistake, but if a judge is going to rely on another physician's opinion of my work that judge ought to rely on someone with the same education, training, and standards of care that I have.

In this case, it takes more than just an MD to make the difference. If the patient needed a specialist, the judge should have one, too. I remained perplexed that the certificate of merit provision in Public Act 05-275 is held up as a key part of a compromise. In compromises, by definition, each side gives up something. Yet, here we are again being ask to give up everything. If the good faith certificate system did not work, I would expect to a lopsided system where plaintiffs lost more cases than they won, and that is just not the case according the Connecticut Insurance Department.

Yet, again, in its 2012 legislatively mandated medical liability report, CID numbers continue to show that nearly 50 percent of cases that go to trial result in verdicts for the plaintiff. If you pass House bill 6687, an already tired, aging, and overworked physician workforce will start retiring much faster than it can be replaced.

In neurology, in takes an average of almost two years to replace an neurologist. Faced with the mounting financial pressures of running a small business, the overhead involved with expensive new medical record technology systems, and the constant uncertainty of payment under the Medicare system, more of my colleagues will simply hang up their stethoscopes and stop practicing medicine altogether. You, your family, your friends, your neighbors will experience longer delays to see a doctor if you can find one or if you can travel the distance to get to see one. As wait times increase, more patients will turn to our hospital emergency departments for more expensive care. None of it is a pretty picture at a time when those of us in the healthcare industry are focused on finding ways to reduce cost and increase patient access to care. But actions result in consequences. If you pass House Bill 6687 be assured what I've predicted is likely to be the consequence.

On behalf of Connecticut's patients and physicians, I urge you to oppose this bill.

SENATOR DOYLE: Thank you.

Any questions?

Seeing none, thank you very much.

Next speaker is David McGuire, then Dr. Art Tarantino, then Denis Caron, Dr. David Emmel, Dr. Jerry Hardison, Sean Wooden, Attorney Michael Rigg, Rio Comaduran.

David McGuire, thank you.

DAVID MCGUIRE: Senator Doyle and distinguished members of the Judiciary Committee, I am David McGuire; a staff attorney for the American Civil Liberties Union of Connecticut. I'm here to testify in favor House Bill 6639, AN ACT CONCERNING THE USE OF AUTOMATED NUMBER PLATE RECOGNITION SYSTEMS; and also in support of House Bill 6628, AN ACT CONCERNING THE SAFE USE OF ELECTRONIC DEFENSE WEAPONS BY LAW ENFORCEMENT.

The taser bill would safeguard innocent motorist's privacy in Connecticut. In 2012, the ACLU of Connecticut obtained a large database containing 3.1 million license plate scans collected by ten local police departments. These scans were collected between 2009 and 2011. These scans were pooled for ease of searching and show that there is a mass accumulation of innocent people's license plate information location data. Just last month, I obtained another, through a FOIA request, another 2.6 million scans that were amassed in 2012 showing that this a continued and pervasive use of this important and helpful technology. But it shows that, as more and more departments adopt this technology, there is a need to regulate it.

Maine, for example, has a 21-day data retention limit, which has not handicapped law enforcement in that state. The five-year retention limit that was talked of by law enforcement earlier today is laughably large and would, ultimately, result in massive databases that can easily point to commonalities in people's travel. It would be very easy to reconstruct someone's movements and identify a list of particular churches, mosques, motels, or medical doctors that they go to. This amounts to retroactive surveillance of innocent people without a warrant, probable cause, or any form of judicial oversight. This bill would put common sense solutions in place.

I also want to speak briefly about the FOI exemption that the police mentioned earlier today. Such an exemption would not prevent the massive buildup of data, nor would it prevent internal abuse. It will, though, prevent watchdog groups from monitoring whether the police are complying with data retention limits. And a medium that might work is just to redact the locationing data or the license plate number. So that way, people can see how many plates are being scanned and tracked but not be able to track people individually.

The second bill that I would like to touch on HB 6628 that involves tasers, tasers have been an increasing problem in Connecticut. We've discovered in recent years that tasers can be fatal, and there have been at least eleven deaths from tasers in the past seven years in Connecticut. We (inaudible) also members in minority groups and people with mental illness are being targeted by these devices, for these reasons the NAACP and the Office of Protection and Advocacy have supported this bill.

We -- just very briefly, I'd like to make a statement for a family that came here.

Today, five members of Marcus Brown's family, a 26-year-old who died in 2011, after being tased by the Waterbury police while handcuffed in the back of a police cruiser. They were here today from New York, but were not able to stay to testify due to time. They had asked me to read this statement.

"Marcus was a joy to our whole family. He gave his life to Christ early. He was a father, President of the Usher Board, a boy scout, and sang in choir. He was in school and had two beautiful boys that will never get to know him. They want justice for Marcus and urge this community to pass House Bill 6628."

I'm happy to answer questions about the license plate scanner bill or the taser safety bill.

SENATOR DOYLE: Thank you, thank you very much.

Any questions from the committee?

Thank you very much for spending your time here today waiting.

Next speaker is Dr. Art Tarantino -- Tarantino. Thank you.

And Denis Caron, Dr. David Emmel, Dr. Jerry Hardison, Sean Wooden, Attorney Michael Rigg, Rio Comaduran, and Dr. Patrick Felice.

Thank you.

DR. ART TRANTINO: Good afternoon, Senator Doyle, Representatives Fox and Riley -- sorry, can't see.

My name is Art Tarantino. I'm a board-certified urologist. I've practiced here in Hartford Connecticut for about 25 years. I'm here on behalf of one of our national urologic organizations, the American Association of Clinical Urologists whose sole purpose is to help preserve the private practice of urology. Oddly enough, the irony in it all is we had to sell our practice to Hartford Healthcare Corporation two years ago because the expenses of running a practice in the state were just too much.

I do want to thank you for the opportunity to testify here today in strong opposition to the two bills that have been talked before: House Bill 6687, the certificate or merit legislation; as well as Senate Bill 1154, the ACT CONCERNING ACCIDENTAL FAILURE OF SUIT STATUTE.

Restating, I do want to thank you for your efforts back in 2005 to help stabilize the medical liability and insurance climate in the state. I was in the prime of my practice at that time and I remember those days very well. Our written testimony is submitted and, in respect for your time, I'll sort of gloss over the highlights.

I think one of the things that we've learned today is just how complex the practice of medicine has become in the last many years. We have specialties, subspecialties, sub subspecialties, and it's all in an effort to provide better care. But it demands higher levels of training, board certification, recertification, and now every other year we to take tests to maintain -- maintenance of our certification. Because of that, that same standard really should be held true to whoever is going to be testifying or verifying to a certificate of merit for a malpractice suit.

When you think about it, this measure also affords the plaintiffs the assurance that their lengthy and emotional lawsuit is supported, not only by the opinion of their attorney, but also by the opinion of someone who has been recognized as an expert among the peers of the defendant healthcare provider.

With regards to Senate Bill 1154, again, that's been mentioned at length. But just to give my perspective, it really seems like we're going to give a one-year do-over to, basically, someone who not so much has a problem with a mistake, inadvertence, or excusable negligence during a case, but rewarding egregious and blatant misconduct. I'm not quite sure that's the message we want to send.

In summary, in 2005, this legislative body comprehensively reviewed the medical liability system in Connecticut. The current certificate of merit legislation was a product of that review and has provided stability to the liability insurance market and a mild sigh of relief to healthcare providers in the state. Both of these pieces of legislation would turn back the clock on that important legislative compromise. In our current economic climate with the costs of practice continuing to escalate, an aging workforce, not to mention the potential thousands of newly insured patients coming into the state under the Affordable Care Act, I don't think we want to or need to introduce new legislation that will hinder our ability to provide this needed medical care.

AAC restfully requests that oppose both bills, and again, we appreciate the opportunity to provide testimony today. Thank you.

REP. G. FOX: Thank you.

Thanks for your testimony.

Are there any questions?

Thank you.

Denis Caron.

DENIS CARON: Mr. Chairman, members of the committee, my name is Denis Caron. I'm here to speak in opposition to Senate Bill 1102, AN ACT CONCERNING FORECLOSURE WHEN THE LEGAL TITLE HAS NOT BEEN CONVEYED. This is a rather unusual bill, I think, in that the text of the bill is about a third as long its title. It has three words, section 49-17 is repealed.

49-17 is an act that is a codification -- I'm sorry -- a law that's a codification of a common law that the security follows the debt. And it's very difficult from the text of this bill to discern its intent. I believe it has something to do with attempting to compel lenders to record assignments of mortgage. If that's the case, I think it falls short of the mark and -- because it would only apply in the case of foreclosures.

And secondly and more importantly, if a statute that is a codification of the common law is repealed, you're still left with the common law so really nothing has changed. All that 49-17 does is impose an additional administrative obligation on a plaintiff who forecloses under its auspices by requiring the recording of an additional document over and above a certificate of foreclosure.

We won't go into those technicalities, but the point is that nothing would get accomplished by a repeal of 49-17. Further and probably more importantly, this would place the law -- if in addition to a repealer, there were to be an actual affirmative enactment requiring the recording of an assignment of mortgage prior to foreclosure, this would place the law, with respect to mortgages, in direct conflict with similar legislation under Article 9 of the UCC. And as you know, very frequently, we have mortgages and financing statements that are all part and parcel of the same transaction and they would, then, be regulated under different rules, which would be, I think, an untenable situation. That's pretty much all I want to say about 49-17 and its repeal.

Do you have any questions?

REP. G. FOX: Thank you, Attorney Caron.

Is there other any questions?

Senator Doyle?

SENATOR DOYLE: Thank you, Mr. Chairman.

Thank you. Thanks for coming Mr. Caron. So is it your testimony that if it were passed it would it more -- I mean, it would just slow down the process of title passing in foreclosures?

DENIS CARON: No. My testimony is that if this were passed in its present form, it would do nothing. Because you'd still have the common law and parties would still be able to foreclose as holders of the note without having had assignment of the mortgage.

You would need an affirmative provision requiring the recording of an assignment of mortgage to a plaintiff before you could foreclose the mortgage.

SENATOR DOYLE: And I know you don't speak for them but the advocates of this bill, you think that's their intention as far as you?

DENIS CARON: I don't speak for them. I can only go by what I heard when this bill was up before the Banks Committee last year. But fundamentally, I don't want to characterize it. It's an anti-MERS provision.

SENATOR DOYLE: Okay. Thank you very much.

REP. G. FOX: Thank you. I think you might be right when you characterize it in that way. I think that's my recollection of my discussions with the proponents of this, but we do appreciate your testimony and what the actual effects may be.

Are there questions?

Okay. Thank you.

David Emmel?

Good afternoon.

DR. DAVID EMMEL: Good afternoon, Representative Fox, Senator Coleman and distinguished members of the committee. Thank you very much for this opportunity to address you this afternoon. My name is David Emmel. I'm an ophthalmologist. I practice in Wethersfield. I'm the immediate past president of the Connecticut Society of Eye Physicians, and I'm one of the co-chairs presently.

I'm here today representing not only the Connecticut Society of Eye Physicians but the ENT Society and the Dermatologists and the Urologists. I'm going to keep my comments brief. My written testimony is pretty comprehensive, but I know that there have been many eloquent speakers ahead of me and most of the points have been covered already. I would like to make a few succinct points.

First of all, our group views these two laws, 6687 and 1154, as being in effect, essentially, the same thing, an effort to basically set back the Malpractice Reform Act of 2005, 05-275, and bring us back to the past when there were double-digit increases in malpractice premiums and physicians were leaving the state of Connecticut. We strongly oppose these two bills because we think they will have exactly the same effect and make the practice of medicine in Connecticut much more difficult.

You also heard from two residents from Yale, who have addressed you and let you know for physicians in training and for medical students, it's very hard to stay in Connecticut to a large degree because the medical malpractice situation is so bad.

The current certificate of merit works now and is rarely challenged because the writer has his name expunged and the only way it can be challenged is on the basis of whether or not they're of the same specialty. If the laws is changed so that anyone with sufficient qualifications, we will be at the mercy of the writer who will be the soul judge of whether he has sufficient qualifications.

I am also deeply concerned about 1154, which to me, as a physician who everyday makes hundreds of decisions all of which are under duress and have to be made quickly, that anyone would consider any law that would take away an attorney's responsibility to not be conducting himself in ways that were negligent, grossly negligent, or that would be considered egregious behavior. I urge you to vote against this bill and not allow it to move forward, these two bills.

REP. G. FOX: Well, thank you, Doctor. Thanks for your testimony.

Are there any questions?

One second, there is a question.

Chairman Coleman.

SENATOR COLEMAN: Just very quickly, I'm wondering whether or not you're in possession of any information from a malpractice insured carrier that would suggest that our proposal -- or what's proposed in this bill to change the language from similar healthcare provider to qualified healthcare provider would result in any significant increase in insurance premiums?

DR. DAVID EMMEL: I don't -- I believe there are representatives from the insurance industry here today who can properly address that. I don't have that information on me.

SENATOR COLEMAN: Okay. I'll save that for them.

Thank you.

REP. G. FOX: Jerry Hardison, Dr. Hardison, followed by Shawn Wooden.

DR. JERRY HARDISON: Thank you, Representative Fox and Senator Coleman, members of the committee. My name is Jerry Hardison. I'm a practicing optometrist here in Hartford for the past 35 years. And in respect to your time and the individuals that follow me, I will make my remarks very brief. I'm here representing Connecticut Association of Optometrists, and we strongly oppose Bills 6687 and 1154.

Medical malpractice is a difficult process for all involved and whether it's the result of malpractice or not, the patient may suffer devastating consequences. And the accused, especially, if truly innocent, can have his or her professional drive or career completely crushed in this process.

The current law requires that a similar healthcare provider file a statement that merit exists. The bill, as it's proposed now, will radically change that standard. We should be entitled to be judged by our peers when it comes to filing the certificate. Raised House Bill 6687 would open the door to abuse of that protection.

We currently do not see any need for revisions to the current laws on these certificates and please maintain the current system and oppose the proposals. Thank you very much.

REP. G. FOX: Thank you.

Are there questions?

Thank you very much.

DR. JERRY HARDISON: Thank you.

REP. G. FOX: Shawn Wooden?

SHAWN WOODEN: Good afternoon, Senator Coleman, Representative Fox, and members of the committee. I am the president of the City Council in Hartford, and I'm joined by our Minority Leader Larry Deutsch.

Thank you for giving me the opportunity to address you regarding Senate Bill 1153, AN ACT CONCERNING THE COMPREHENSIVE LEGISLATIVE REVIEW OF THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES AND CONTRACT COMPLIANCE PROCEDURES FOR THE METROPOLITAN DISTRICT OF HARTFORD COUNTY.

I am here to speak in favor of section 2 of the bill, which clarifies that the Metropolitan District Commission is a state agency for purposes of the set-aside program for small contractors, minority business enterprises, individuals with disabilities, and nonprofit corporations. As compared to many large out-of-state contractors, small businesses hire mostly Connecticut residents. So this change will result in something that we all support in this room, increased job opportunities for Connecticut residents.

The Metropolitan District Commission was created by the Connecticut General Assembly in 1929, and currently serves eight municipalities, including my city of Hartford. The MDC plays an enormous role in my city's infrastructure and receives a significant amount of public dollars. There should be little doubt as to whether or not it is a public entity and, as such, there is no good rationale for why it should not be subject to the same requirements that we require of our other state agencies. This legislation will accomplish that giving the CHRO the oversight authority that it has over other state agencies.

I am here today because Hartford faces a staggering 15 percent unemployment rate, and my constituents need opportunities for work. Residents routinely complain about the disruption from the significant amount of working being done by the MDC in Hartford, and note the irony that many of them cannot get jobs on the projects. For years, community groups have been protesting in front of the MDC in order to force them to hire more city residents, to employee more minority business enterprises. My constituents are frustrated that $2.1 billion are being spent in our community, but the MDC is not required to comply with the same laws to which other state agencies are subject.

Today, I ask you support this bill. It will make an enormous difference to many. It will keep more resources right here in Connecticut, and it will mean more Connecticut residents going to work each day. Thank you. I would be happy to answer any questions.

REP. G. FOX: Thank you.

Are there questions?

Chairman Coleman.

SENATOR COLEMAN: President Wooden, good to see you here, as well as Minority Leader Deutsch. It was either a year ago or maybe a couple years ago, we did pass a bill which gave the Commission on Human Rights and Opportunities the oversight authority. It may have been with respect to affirmative action efforts on the part of MDC. On this bill, are you interested in set-aside compliance in Connection with the Clean Water Project.

SHAWN WOODEN: Absolutely, in connection with the Clean Water Project and beyond that.

SENATOR COLEMAN: Okay.

SHAWN WOODEN: And in my understanding, I think when the bill was passed several years ago, at least by some, there was an assumption that all of it was covered. However, the MDC pointed out a deficiency, perhaps, in oversight and so that's why in my testimony I wasn't sure how to refer to this -- whether it's a clarification or a substantive change. But whatever it is, I think our intent is that the CHRO have oversight with respect to contracting, as well as hiring.

SENATOR COLEMAN: So you want both to be included in the bill both, affirmative action efforts and contract compliance efforts?

SHAWN WOODEN: That's correct.

SENATOR COLEMAN: Okay. Thank you.

REP. G. FOX: Are there other questions or comments?

I see you -- yes, sir, say a word here.

DR. LARRY DEUTSCH: If the Chair will permit, I'd like to add this, especially, in regard to Senator Coleman's question just now. At some point the Legislature also included a provision for training because we find, from experience, that often the, let's say, excuse or the rationale for not hiring our residents is lack of training, and the disparity study was said by the MDC to be inclusive. Our comment from a scientific point of view was that an inconclusive study may be for many reasons: Not enough sampling, not adequate performance of the study. So that we hope that progress in affirmative action is not hindered by the claim that study was inconclusive when there are so many reasons, scientifically or statistically, that the fact may exist by observation and by all kinds of evidence even if, technically, the study was inconclusive. And even, then, the public has not been able to see the original study and hear its discussion face to face with those who conducted it, who did make the inference as others have referred.

So I hope we can move forward. I am firmly in support of this bill and Council President Wooden in all its provisions for oversight and scrutiny to make sure that the employment is fare in the region. Thank you.

REP. G. FOX: Thank you,

Are there questions following those remarks?

No, thank you.

Michael Rigg?

MICHAEL RIGG: Good afternoon, Representative Fox, Senator Doyle, Representative Fox. My name is Michael Rigg. I'm a defense attorney. I spend most of my time representing hospitals or physicians who have been sued for medical malpractice. And I know that you've hear a lot of testimony regarding HB 6687 and SB 1154. I oppose both those bills, and I hope that you will not pass them out of committee.

The four points I'd like to make is that the change that 6687 proposes is to go from "similar healthcare provider" to "qualified." The argument in favor that is very simplistic, but the problem, of course, is that the pre-suit's expert's identity is a secret. I cannot cross-examine a piece of paper. It's impossible to know whether the person is really going to be qualified. I'd also note that the language in the proposed bill says that it's only any other healthcare provider who "may" testify. So it appears -- and I can already see the argument I'm going to get from plaintiff's attorneys saying, I don't have to establish that it's somebody will be able to testify, only that he "may" be able to testify. And of course, the expert will be anonymous, and there is no way for the court to do any meaningful inquiry to determine if he "may" or "will" be qualified to testify at the time of trail and the result is we revert back to pre-2005.

The other point I'd like to make is that it's absolutely impossible for somebody not to have his or her day in court who has a legitimate claim. The Bennett case is one that's been bandied about as the great injustice. Well, guess what? The trial date for Bennett is July 9, 2013. What -- the only good thing that can be said about Bennett is that it forced the Plaintiff's attorney to get a better expert. He chose to appeal to the Appellate Court, he lost. He chose to appeal to the Supreme Court, he lost. And then he was given the opportunity to get the proper expert, which is what he did and he is using that expert now. He's disclosed him and he's going to be testifying at time of trial.

With respect to Senate Bill 1154, the accidental failure suit statute. I listened very closely to what CTLA President Mike Walsh testified to, and I now know what the clear intent is. He said it's to create a bright line rule that allows them to refile. I represented a hospital in case called Plante versus Charlotte Hungerford Hospital. That's the case that established that you can, in fact, refile under the accidental failure suit statute. The only hurdle is that the attorney's behavior could not have been grossly negligent or egregious.

Now, keep that in mind, doctors are held to a standard of negligence. But the attorneys who sue them are only held to the standard of gross negligence and egregiousness. And they're saying we want to take that away, too. So that it would be possible if this law were to pass that an attorney whose violation of the law was egregious, he can take advantage of that egregious violation of the law and extend the statute of limitations by one year.

The last point I'd like to make is that the numbers of motions to dismiss have gone down dramatically in light of the Supreme Court's decisions in Bennett and other cases, such as the Wilkin's case that was decided on by the Appellate Court. It's now clear what plaintiffs have to do. They do it and because of the clarity by the Supreme Court, there is less litigation. If you were to pass this bill and open it up to the so-called "qualified standard," it is going to be a huge explosion in motions that are being filed and challenges made to determine whether or not the person really and truly is qualified.

The last thing I did hear testimony by -- a long time ago by Mike Neubert. He was being asked about the provision at line 60 and 61 in House Bill 6687, the COM bill. And that one, again, gives the absolute right to fix the issue, all right. It's similar to the accidental failure suit provision. And again, there's no provision there that if the attorney's behavior was egregious or grossly negligent in violating the law that the court would be justified in saying, no, I'm not going to let you take advantage of your misbehavior and fix the problem.

The appropriate remedy there is for your client to sue you for legal malpractice. Just like doctors are held accountable for their negligence, I think that lawyers, who are in the lucrative business of suing doctors, ought to be held accountable to the same standard. Thank you very much.

REP. G. FOX: Thank you.

Are there any questions?

Chairman Coleman.

SENATOR COLEMAN: I guess what I'm struggling with is the whole concept of frivolous, and as I understand what the legislature did, in 2005, it was an effort to limit -- not just limit but eliminate frivolous malpractice lawsuits from being filed. And I guess what I don't understand is how people take the position that changing the language from "similar healthcare provider" to "qualified healthcare provider" will allow frivolous lawsuits to go forward.

As I understand "frivolous" -- you can correct me if I'm wrong -- but I think people intended not to permit lawsuits that had no reasonable basis from clogging the court system. And I guess what I'm not understanding is how a certificate of merit authored by a qualified healthcare provider -- by "qualified," I think the language intends to mean someone who has some understanding of the applicable standard of care -- how someone who authors a certificate of merit with those kinds of qualifications allows frivolous lawsuits or would result in frivolous lawsuits and an influx of frivolous lawsuits being filed?

MICHAEL RIGG: Well, I think the -- I don't accept the premise, with all due respect, Senator, I don't accept the premise of the question that there will be qualified people if we don't know their names. You don't know who the person is, you don't know who wrote it, you don't know the person's background or qualifications, you don't.

SENATOR COLEMAN: Isn't that another issue? Isn't that another issue? Doesn't that go toward the professional responsibility of the attorney involved and ethics of the attorney involved?

MICHAEL RIGG: Well, then, I guess, this comes down to whether there ever should be a pre-suit statute, at all. If we're going to say that because attorneys are bound by rules of professional conduct, then the entire statutory provision is superfluous because the rules of professional conduct require attorneys to behave ethically.

SENATOR COLEMAN: You raise an interesting point, whether or not, there should be any sort of pre-suit requirement, at all. I guess some of us may rethink that, but at the time in 2005, in response to the allegation that there were significant increases in malpractice insurance premiums and the effect that that had on the healthcare provider, or healthcare provider community and people's willingness to be involved. I, and others, probably thought it was a reasonable compromise to set up this threshold, and I'm not certain if we went too far. Maybe we went too far because it allowed the Supreme Court to define similar healthcare provider to mean, in my view, exact healthcare provider. I'm not sure that any of us had intended that in 2005.

MICHAEL RIGG: And I don't agree that similar healthcare provider means exact healthcare provider, for example.

SENATOR COLEMAN: Well, there were a number of people who testified prior to you today that the certificate of merit required someone from the same -- by "same," I'm assuming they mean exact same specialty to author the certificate of merit in a malpractice case against a particular healthcare provider.

MICHAEL RIGG: The definition of specialty in this context is defined by whether there is a recognized American board that has that specialty. But there are, within a specialty, many subspecialties. So, for example, within the specialty of cardiology, there are interventional cardiologists. An interventional cardiologist is not entitled to have another interventional cardiologist to opine. He is only entitled to have a cardiologist.

SENATOR COLEMAN: Doesn't that go to qualified healthcare provider? Is not or -- I would agree with you that an interventional cardiologist is not qualified to author a certificate of merit against some other type of cardiologist.

MICHAEL RIGG: The question is what type of hearing process do you want to have at the very start of the case? If you're going --

SENATOR COLEMAN: But my intention was not have a hearing process, at all.

MICHAEL RIGG: There currently isn't.

SENATOR COLEMAN: Well, if there isn't, that may be a little bit different than the information that I'm receiving. But if there isn't that was what I intended. I intended -- and I hope others agreed with my intention -- was just to have someone sign off and, in essence, say that there is some reasonable basis. Not that this is conclusive of the ultimate issue, but there is some reasonable basis to go forward with this malpractice lawsuit.

MICHAEL RIGG: Senator, I was involved in the Plante case. And in that case, the attorney swore up and down that he had somebody who was qualified because this was before the Supreme Court had decided this whole issue. The person who he got was retired nurse who had represented in the past in Workers' Comp hearings. And she was used to accuse two board certified ER physicians, a board certified psychiatrist, and a licensed crisis worker in failing to properly treat a mentally disturbed individual. She'd never worked in an emergency department in over 30 years, and it took a long time for that case to final get weeded out of the system, and it's an important precedent that was established.

The fact is that there are people who are going to say I think Joe here is qualified. So if it's just based on the word, oh, yeah, he's qualified. Well, then we are going back to pre-2005. That was the whole point prior to 2005 was, as long as the attorney just said, I did a reasonable investigation, that should be good enough. Well, that didn't --

SENATOR COLEMAN: But the certificate of merit requires much more than that. While it doesn't require the identity of the healthcare provider, it does require some detailed basis for the conclusion.

MICHAEL RIGG: The detailed that's required, according the Wilcox decision, is not very much. In Wilcox versus Schwartz, they said that relatively conclusary allegation was enough to satisfy the detailed basis requirement. The only real protect here is the matching up, at least, the similar healthcare provider standard is not perfect by no means. If I can give you an example of what I'm talking about.

Let's say I represent an internist and the plaintiff sues the internist for failing to diagnose a cardiac condition and he uses a cardiologist. Cardiologists are also dual certified, most of them, if not all of them in both internal medicine and cardiology. So while I may be saying, he's not a similar -- he's really applying the cardiology standard of care. I'm not going to be allowed to move to dismiss because he is a board certified internist, as well as a board certified cardiologist. So under the standard right now, he's similar enough. He's a similar healthcare provider. It's just enough to get over the hump. That's current law that is what it is.

It's not an exact healthcare provider requirement. I practice in this area. Attorney Nastri told this committee that my firm files all these motions to dismiss. Yes, I've done that. The fact is that no, it's not an exact requirement. Just because somebody does have the same board certification, doesn't mean he'll be allowed to testify at trail. And there is a well-known appellate court case where that exactly happened. The plaintiff had tried to use a cardiologist against an internist, and the judge said even though that person is a similar healthcare provider, I'm not going to let him testify because he's applying the wrong standard of care. He's applying the cardiology standard of care, not the internist standard of care. So while I have that right at the time of trial to flesh that out and argue it, at the pre-suit stage, the way it works is it's just a quick and dirty, is he board certified in the specialty in which the defendant is practicing. If the answer is yes, then that's it. There is nothing more. There is no evidentiary hearing that's just it.

So it's a very, especially, now that the Supreme Court's decision came out. It came out in January of 2011. It's just a very quick analysis.

The only area left of any kind of dispute, and it's not really much of anything now, is when a lawsuit is against an institution, like a hospital, because an institution is not a person. But even that's now been resolved by the Appellate Court.

So I don't believe the phrase, "similar healthcare provider" was misleading in any way. I think it's a very accurate description. It's not exact. It's only if -- you're only entitled to have a similar healthcare provider opine. We call it apples-to-apples requirement. There's lots of different types of apples: there's Macintosh, there's Granny Smith. But it doesn't have to be the same type of apple. But it is apples-to-apples requirement and that's what this law is. It's simple to understand. It's only based on an existing American board. That's what specialist is defined as. Perhaps, there are some doctors that would be surprised to hear this under this statute that it's not that precise because there are lots of subspecialties within recognized American boards, but they are not entitled to have somebody in that more precise subspecialty be the expert. But at the very least, they are entitled to have somebody within that same general specialty.

And that's why the statute -- at least, if we're going continue to keep the expert, his identity a secret, there's not going to be a hearing. There's not going to be this cross-examination. You have to have some sort of objective standard by which to measure his qualifications. You can't have an argument over whether somebody is board certified or they are not. Either you are board certified or you are not board certified. You can have a big argument on whether somebody is qualified, though.

SENATOR COLEMAN: Well, we define what qualified means in that context. Let me ask you question that I've asked some others.

Do you think that it comports with the current statute that an obstetrician would be permitted to author a certificate of merit in a case that involved whether or not a midwife followed the applicable standard of care?

MICHAEL RIGG: Definitely not, definitely not. I have a big problem with physicians being allowed to opine against nurses. And the fact is that they are not the same. And the problem with allowing a physician to criticize a nurse is that he's either consciously or unconsciously holding that nurse to a standard of care that is too high. It's not that the OB doesn't understand obstetrics, of course, he does, but he's criticizing a nurse. She doesn't have the same level of qualifications as he does. And so it's not fit that -- the issue is whether he understands and is applying the correct standard of care. That's the danger if you allow a board-certified OBGYN to criticize nurses, nurse midwives. That's a problem if -- and at least in the absence of a real hearing where he can be cross-examined about his nursing experience, and there is generally none. Is he applying the correct standard of care? Now, if we don't like --

SENATOR COLEMAN: But the issue, at that initial stage, is whether or not the case is frivolous or not. Right?

MICHAEL RIGG: Well, the statute doesn't say frivolous. The statute does --

SENATOR COLEMAN: But that was the whole premise for moving forward with the certificate of merit legislation --

MICHAEL RIGG: Frivolous --

SENATOR COLEMAN: -- to eliminate frivolous cases from being in the system.

MICHAEL RIGG: I know the word "frivolous" has been used. It's in the eye of the beholder as to whether something is frivolous. The question is whether it's been -- to me and Supreme Court has said this that the purpose of the certificate of merit statute is to ensure that it's been adequately investigated.

SENATOR COLEMAN: Let me rephrase my question then, if an obstetrician says that there is a reasonable basis for proceeding to litigation in a case where a midwife is a defendant; is that inappropriate?

MICHAEL RIGG: Yes.

SENATOR COLEMAN: If the obstetrician says this is not a frivolous case?

MICHAEL RIGG: Yeah. I think that would be inappropriate.

The Appellate Court has also agreed that that would be inappropriate. What they need to do is get an opinion from a nurse midwife, and I guess my point there is what's the big deal?

SENATOR COLEMAN: Okay.

MICHAEL RIGG: I think a nurse midwife would charge less money than the OBGYN to do the expert review --

If that's the analysis, then I'm sure that we went too far in our 2005 legislation.

MICHAEL RIGG: Yeah, I think the problem also, Senator, is that I understand you brought out that one example, but you're talking about a law that's going to cover all sorts of exams that we haven't even thought of.

And if you open it up again, as I said before the notion of the person can just be qualified, who makes that determination? Well, the way that this is written it's the plaintiff's lawyer who gets to make the determination as to whether the expert's qualified.

If you were to put forth a bill, and I'm sure you'll never do this, but a bill that says defense lawyers get to decide if the person's qualified, I'm fairly sure they wouldn't think that's fair.

So if it's the plaintiff's attorney gets to determine whether an anonymous person is qualified, that's no protection to the medical community from the types of lawsuits that are filed.

And the one thing that was very good that the General Assembly did back in 2005 was, it ordered the Department of Insurance every year to issue a report on malpractice claims, and I know it was mentioned before by Dr. Krinsky, but you know, 50 percent of all malpractice claims result in no payments, zero, more than 50 percent.

And I think on top of that, I think another 25 percent result in payment of $50,000 or less. Those numbers are terrible. The plaintiffs should be doing much better than that if they're filing meritorious claims.

The purpose, and this is the irony with the Bennett case is that from the defense perspective, be careful what you wish for. You might just get it, and that's what happened. They got the case dismissed. Sure, they won the battle, but now they've got a plaintiff who's got a much stronger case.

So the worst that can be said about this is, it will make sure that they have much stronger cases when they go to trial, and since nobody can tell you about a case in which there was this gross injustice because somebody didn't get his or her day in court, because that's impossible under the current legislative scheme that's been interpreted by the Supreme Court, I don't understand these bills. They are a solution in search of a problem.

Yes, you will have to get somebody, and I understand in your opinion, Senator, that someone arbitrary or it's unnecessary but what's the big deal? Get an opinion from a nurse midwife instead of an OB-GYN. She'll charge you less than the OB-GYN. Just get the opinion from somebody who will match up and you'll have stronger lawsuits.

I noticed higher quality lawsuits being filed since the Bennett decision was released. I notice that they're more targeted. There are fewer motions to dismiss being filed. So, in certain aspects the medical community is getting what they asked for, which is better investigated lawsuits when they are filed, but there has been, from what I see, a decrease in the number of defendants who are being sued.

And typically what happens is, an attorney will have a target defendant and then once they make the decision to sue, they'll want to cast the net and it's really a big drag net and sue anybody else to bring them in, just in case, and that way, but this law makes it so that they have to have an expert that matches up with the health care provider, with that person's area of discipline.

SENATOR COLEMAN: So not to belabor any of the points, I appreciate your responses to my questions. I have one final question, and that is, do you have any information from any malpractice insurance carrier that would indicate that they would have to increase their premiums for their policies if the General Assembly adopted the bill that's before us today?

MICHAEL RIGG: Yeah. I believe there's written testimony that you got from Coverys and also CMIC. Those are two leading commercial health insurance carriers in the state. I believe that they speak to that and I think it's, and I actually remember you, Senator Coleman, when two years ago you were introducing this same bill and you had mentioned in your opening remarks that the number of insurance companies since 2005 had dramatically increased who were willing to write insurances in Connecticut.

So, there used to be only three in the state and there's many more. I don't know the precise number now, but it's had a beneficial effect and the testimony, the evidence that was before the General Assembly back in 2005 is that insurance companies just weren't interested in writing insurance in Connecticut and the number has increased dramatically over the last eight years. There's more insurance companies willing to come to Connecticut and insure health care providers.

But I don't have the specific numbers.

SENATOR COLEMAN: But my question was, though, would that change as a result of the bill that we're considering today?

MICHAEL RIGG: I believe it would because the bill would essentially take us back to pre-2005. As I said, you know, I can only tell you. There's my personal experience --

SENATOR COLEMAN: Pre-2005 there was no threshold, right? Anyone who had a claim could go to court.

MICHAEL RIGG: The certificate of merit statute did exist. It was first passed in 1986.

SENATOR COLEMAN: Okay.

MICHAEL RIGG: All right? And the statute was rather unclear. I, for the last 12 years I've done defense work, but prior to that in plaintiff's work and I didn't do too much med mal, but I mean, it was our opinion that the old firm that I used to work at, that you were supposed to get an opinion from a similar health care provider.

Then when I started doing defense work, I was absolutely astonished at some of the really poor quality lawsuits that I was defending, that was clear to me that never had been properly vetted at all.

SENATOR COLEMAN: Okay.

MICHAEL RIGG: So that's, you know, that's been the beneficial effect that's there is that it's an objective standard. It's not a perfect law.

SENATOR COLEMAN: You mentioned CMCI and what was the other company?

MICHAEL RIGG: Coverys. C-o-v-e-r-y-s. They've written testimony. I haven't reviewed their testimony closely, but I'm sure if necessary, you can get numbers from them, but they've submitted testimony on both these bills.

SENATOR COLEMAN: Thank you very much. I appreciate your responses. Thank you.

REP. G. FOX: Thank you. If I could ask a question, because you mentioned the way the law since 2005 has been interpreted by our courts, and they've created a statutory scheme over the years, and I was wondering if you could articulate for us what the scheme is now.

MICHAEL RIGG: Absolutely. The Bennett case, which I know you've heard of and that's mentioned the most, but Bennett was argued on the same day as the Plant case, and these are the two, and they were decided on the same day and they refer to each other as companion cases, and the scheme is this.

That yes, you have to get an opinion from a similar healthcare provider. We've already talked about that. And if you don't, dismissal is mandatory. But, the dismissal is without prejudice and you have the right to re-file under the accidental failure of suit statute, and the specific standard that the Supreme Court articulated was, a plaintiff or a plaintiff's attorney can take advantage of the accidental failure suit statute if his failure to comply with the COM was the result of mistake, inadvertence or excusable neglect, rather than gross negligence or egregious misconduct. That's the law now.

So if the attorney's behavior is egregious, as it was in the Plant case, he was not allowed to take advantage of the accidental failure to suit statute, although his client is not out of luck because they now have a slam dunk legal malpractice action against him.

So when I say it's just not possible for a plaintiff to have his or her day in court if that plaintiff has a legitimate lawsuit, it's just not possible under the current scheme as interpreted by the Supreme Court.

REP. G. FOX: Are you aware of any other plaintiffs who have been unable to avail themselves of the accidental failure of suit statute?

MICHAEL RIGG: Yes.

REP. G. FOX: How many? Were they all for the same reasons? I'm trying to --

MICHAEL RIGG: Yeah. It's for failing to, either for obtaining an opinion letter that was just totally insufficient or for not doing it at all. I'm amazed at how many attorneys, every so often I will get in a lawsuit and it's clear the attorney doesn't even know of the existence of the certificate of merit statute, and they'll just sue for medical malpractice.

And so those cases will be dismissed and they could try to re-file, but they have to have a decent explanation as to why they didn't comply with the law to begin with, although again the standard is very generous. I'm sure the doctors here would love to have that same standard, as long as their behavior was not grossly negligent and not egregious, you're covered. That's very generous.

There's no accidental medical treatments statute. They'd probably like to have something similar.

REP. G. FOX: Because one of the things that I think some Members of the Committee found somewhat persuasive was the fact that once this statute was enacted, I think the effective date was 2006, it reached the point where every malpractice case had to defend a motion to dismiss and was that your experience back then?

MICHAEL RIGG: Every one? No. Not every one. But my experience was there was a lot of uncertainty. For example, there was the phrase detailed requirement. That spawned a lot of litigation. That's now over because of the Wilcox decision. It was a split, four to three, but you know that's now decided, that issue.

So from a defense perspective I'll never file, I mean, it would have to be the most spare opinion and would have to say just nothing for me to file a motion to dismiss based on the detail, lack of detail, for example.

The similar health care provider requirement is very clear now, or in most situations it's very clear. There could be some arguments on that. There might be some in the future that I can't think of, but because of the stability that the case law has brought, I mean, the Supreme Court has been very attuned to this statute and the litigation and they were bringing cases up to decide them, to finally, like for example.

One question was, when does a defense lawyer have to file a motion to dismiss? There was a case where the defense lawyer didn't file a motion to dismiss for 19 months, filed it, and then it was granted. The Supreme Court reversed and said no, you have to file a motion to dismiss within 30 days.

So things like that have gone through by the Supreme Court now so the Appellate Court creating the certainty in the litigation.

So definitely, since 2011, new lawsuits have not required nearly the amount of litigation on this provision as they did let's say 2006, 2007 through to 2009. It's definitely gone down in my experience and my firm's experience.

REP. G. FOX: Okay. And I know you're aware that it was a concerned fact initially that it could not have been the intention of the Legislature to pass something that's going to have a motion to dismiss filed in virtually every action.

MICHAEL RIGG: Well, and I mean, I know that you wrote it, but it wasn't a model of clarity when it first passed, and now it's been, there's a lot of, I don't agree with some of the Supreme Court's decision on the statute.

REP. G. FOX: No, I'm sure you don't. I'm sure you argued against them. Okay.

MICHAEL RIGG: And so it's not as if the defense has always won. But I'm not advocating that those decisions be overturned, either, because you're just going to be spawning more litigation, more uncertainty, especially I mean, with the qualified (inaudible).

REP. G. FOX: Is there a way to codify those decisions? Is that why it's clear?

MICHAEL RIGG: Well, they're codified now. I mean, the Supreme Court's opinion is the law of the land unless and until they --

REP. G. FOX: Somebody reading the statute, I don't mean to interrupt you, but somebody reading the statute could understand how the law is being interpreted as opposed to going through the same process, you know, obviously they can read the cases and of course they should read the cases but I'm just --

MICHAEL RIGG: Well, you know, the basic case law is, you know, ignorance of the law is no excuse and that includes controlling Supreme Court interpretations of the statutes and I just don't see how an attorney now, today, let's say I was going to file a lawsuit tomorrow and gee, hell's bells, I didn't know I was supposed to get an opinion from an ER physician when I'm suing an ER physician. The Bennett case clearly says that you do.

So, the statute is workable. I think, it's the only workable solution if you're going to have the provision that the identity is expunged. I don't see how you can have any kind of a hearing to have a meaningful inquiry as to whether the person's truly qualified.

I understand the desire to make the expert, the pre-suit expert the same as the trial expert, but my thought on that is, well then you have to make them the same. The trial expert, his identity is not a secret. He's been deposed. We know all about him. It would have to be the same for the pre-suit expert.

So if you're not going to do that, then I'd say you have to leave the statute alone so that you have the simple matching up requirement, and that means there is no evidentiary hearing. It's all done on the papers, and now that the law is so established, I think it's really opening up a can of worms to tinker with it.

This law is not the one that I would have written if I could just write anything, but now that it's been litigated so much and since nobody can tell you about some case that was a gross injustice because of the way that both the accidental failure to suit statute and this statute have been interpreted, I just don't, I can't think of any plausible scenario where somebody who truly has a legitimate case can't bring it because you're not limited to Connecticut in terms of your experts.

You can go anywhere in the United States of America, and again, it just has to be, you know, somebody within that recognized American Board specialty as opposed to the sub, sub specialties that exist.

REP. G. FOX: Okay, well thank you, Attorney Riggs. Representative Smith.

REP. SMITH: Thank you, Mr. Chair, and I guess it's good evening, already. I didn't catch all your testimony, but I heard some of it. The biggest concern I have is with all these positions on both sides of the issue here is to make sure that the victim is protected and has his or her rights heard by a court because ultimately they're the ones that suffered here.

So I'm always concerned if somehow that person does not get their day in court because of some technicality or some procedure that's been set up by the Legislature that we have to go through and I know you testified about well, there's an accidental failure of suit statute out there, which there is and I'm aware of, but I can tell you, not from firsthand experience, but just having read some of the cases that you know, it's not as easy as it sounds.

And even if you get through that, or if you don't get through it, as you said, well there always the malpractice case against the lawyer for messing up.

And that's not as easy as it sounds because just to prove malpractice you have to first prove the underlying case and the damages that you would have won and this could have been the result and you know, that's not easy.

So my concern, and I don't know where you stand on this. I have an idea where you stand but my concern is, how do we protect the victims and make sure they have their day in court?

MICHAEL RIGG: Yeah, with respect to the issue of legal malpractice, yes, the plaintiff would have to prove in a legal malpractice action that he had a viable medical malpractice action, but of course that's what the plaintiff would have to prove anyway in the regular medical malpractice action. That would leave the legal malpractice that the attorney breached the standard of care.

But if there's been a finding that the attorney is not allowed to take advantage of the accidental failure to suit statute because his behavior was egregious, I think that's a pretty indefensible legal malpractice claim by the attorney because you know, legal malpractice claim, the plaintiff only has to prove negligence, not egregiousness.

So if his behavior rose to the level of egregiousness, I don't see how that's a defensible legal malpractice claim.

As far as, you know, what is required to take advantage of the accidental failure to suit statute, I would urge you to take a look at the Plant case. It's, the site is 300 Conn 33 and look at specifically Page 56 of that decision and it lays out what the legal standard is, and they say yes, you can re-file. The Supreme Court said you can re-file under the accidental failure to suit statute in cases where the original dismissal was the result of mistake, inadvertence or excusable neglect rather than gross negligence or egregious misconduct. So that's the legal standard that the Supreme Court has set down.

Now, that could be somewhat fact specific. It would depend. I could see a situation. Let's say an attorney files a lawsuit, a civil lawsuit, doesn't get any opinion letter and I file a motion to dismiss, and his argument is I don't think that I've really alleged a medical malpractice action.

And let's say the judge agrees with me and the case gets dismissed, he re-files. The question would be, was he reasonable in his belief, or at least not grossly negligent in his belief that he originally didn't have to comply with the certificate of merit statute.

And a judge would look at that and decide, you know, was it not egregious or not grossly negligible. It was excusable neglect on the part of the attorney, then he'd be allowed to proceed in the case assuming he did then, get the proper opinion. But that's the standard that's currently in place.

And that, the plaintiff in the Bennett case successfully took advantage of that. The judge rejected the defense motion. The defense did try to argue they shouldn't be allowed to re-file and they lost, so the trial date is July 9th of this year.

REP. SMITH: Thank you for that. Just so I'm clear because I was taking a look at the statute the same time you were talking.

If I commit just regular negligence or common law negligence as an attorney, I actually retained an expert, got a certificate stating that there was some type of malpractice but it wasn't under the right, it wasn't an emergency room doctor, as opposed to general practitioner.

So, I had a certificate but it wasn't the right one as far as the court was concerned and the case was dismissed. Under that scenario, I can re-file under the accidental failure of suit statute?

MICHAEL RIGG: Yes. Yeah, I mean, I'm going by, you know, the assumption in your scenario, which is that you or the attorney who did it was acting reasonably in his belief that he had gotten an opinion but it turned out he was mistaken. In that scenario, then he can take advantage of the accidental failure to suit statute.

REP. SMITH: Okay. And just to look at the change that's being proposed here to this bill. Are we going to run into the same scenario again with the whole definition of similar versus qualified? I mean, are we recreating the wheel here in your mind just because it's now, you know, we've changed the statutory term from similar to qualified?

MICHAEL RIGG: Yeah. I think the, just so that everyone understands. The phrase similar health care provider has been around since 1986. Juries have been instructed on the similar health care standard of care since 1986.

The purpose of the similar health care provider statute is primarily to establish what the standard of care is. I never have to wonder what the standard of care is in a medical malpractice case because the statute tells me.

The standard of care to which my client will be held is that of a reasonably prudent similar health care provider under similar circumstances. So it logically follows, well, who's the type of person who should be allowed to opine on the similar health care provider standard of care?

That would be a similar health care provider. So certainly the attorneys who practice in this area were not, kind of off guard as to what similar health care provider meant.

Now, the statute does allow a non-similar health care provider to testify at the time of trial and that's only if, to the satisfaction of the court, the expert possesses the qualifications to understand the similar health care provider standard of care, but that's only after an evidentiary hearing that the expert's identity is known, as opposed to under the current certificate of merit statute, so I think it's just opening up the Pandora's box to more litigation that is now behind us in light of the Supreme Court's decisions.

I mean, I note, for example, the Appellate Court rejected a challenge that the statute was

unconstitutional that basically, I'm paraphrasing, but they basically said the statute's really no big deal.

I don't see what is so difficult about being required, if you accuse an ER physician of malpractice, get an opinion from an ER physician. If you accuse a nurse of malpractice, get an opinion from a nurse. If you accuse an orthopedic surgeon, get an opinion from an orthopedic surgeon, so on and so forth, and you're not limited to the jurisdiction of Connecticut. You can go anywhere in the United States of America.

It's now a very easy standard to understand and to follow and in the Internet age, where there's loads of expert website that can match you up with experts, I don't, I understand there's a cost, for sure. I know that because I have to get experts myself to defend cases.

So I think that it really is going to create more problems than it solves by opening it up. I can tell that the, you know, the argument will be, well, we're guaranteed to have a so-called qualified health care provider, so we want an evidentiary hearing in whether he's qualified.

And I'm going to argue the due process clause of the Fourteenth Amendment says I'm entitled to cross examine him, regardless of what the statute says in terms of his right to remain anonymous. So it will be more litigation.

REP. SMITH: Well, I don't think that's the intent of the Committee's bill here. We're trying to eliminate all these motions and I think the Chairman indicated that there is a perception out there, whether it's real or not, I don't practice in medical malpractice areas, so I don't know whether it's true or not true.

But the perception certainly is, that as the Chairman indicated, that pretty much every file that's filed or could be claimed as filed, there is a motion to dismiss based on the fact that this is not a similar health care provider.

And it just creates an enormous amount of costs to the courts, to the system dealing with these motions. So it's not the intent here to create more litigation, certainly. I know that's your opinion as to what might happen if this bill goes through. We're hoping that's the opposite.

Just one more question if I may, Mr. Chairman. The similar health care provider, as you know, I mean, the lawyers can practice in so many different areas. I'm assuming doctors practice in many different areas. They're not just all specialists and they may have general practice.

How do we deal with the doctor who has expertise in several different areas so that he or she may be considered a similar health care provider, even though that's not his or her sole expertise?

MICHAEL RIGG: He'll be a similar health care provider. What, I gave an example previously. You might not have been here. But for example, let's say I'm defending an internist. He's a primary care physician and he's accused of failing to diagnose a cardiac condition, and the plaintiff gets a cardiologist.

Well, the cardiologists, typically they have dual certification. They're board certified in both internal medicine and cardiology under the certificate of merit statute. I can't file a motion to dismiss saying he's not a similar health care provider because he is, even though he's also a cardiologist.

Now, there is a case, an Appellate Court case that said the trial judge was correct in precluding a cardiologist from testifying against an internist because the judge felt that the cardiologist was applying the cardiology standard of care, not the internist standard of care, even though he was a similar health care provider.

So the way the statute works is, in that scenario, no, I would not be allowed to file, or I could file a motion to dismiss but I'd lose and I'd have to tell my client, I just wasted a bunch of your money filing a motion to dismiss that was doomed right from the beginning because even though he, maybe he is applying the wrong standard of care, we're not going to have like a mini-trial at the start of the case.

It's just a matching up requirement and so therefore, he matches up. He's a similar health care provider. That gets them over the hump.

At the time of trial, he may very well be precluded, but that's not for a motion to dismiss under the certificate of merit statute.

REP. SMITH: All right. Thank you very much. I did say one more question but I actually do have one more, so Mr. Chairman, if I may indulge.

Is your primary practice the defense of medical malpractice claims?

MICHAEL RIGG: Yes. Yeah. I defend hospitals and physicians.

REP. SMITH: During the past year then, I don't know how many claims you have defended, but could you tell me how many motions to dismiss you filed in the number of claims, roughly, estimate?

MICHAEL RIGG: Over the last 12 months? I would guess I personally filed, and this is a guess, I'd say I probably filed six motions to dismiss. A few of them where there was just no opinion whatsoever, and there was one case, I think it's still pending as to the question of whether, it's a claim that a doctor was an employee of my client, which is a hospital, and our position is, he's not the hospital's employee and so therefore he's not a similar health care provider to any actual hospital employee.

REP. SMITH: So in the past 12 months, six motions to dismiss out of how many actual claims that you defended, roughly?

MICHAEL RIGG: New lawsuits, I'd say 30.

REP. SMITH: All right, thank you.

MICHAEL RIGG: I'm guesstimating, but I can get you the specific information.

REP. SMITH: Well, I'm just trying to get a feel for whether, you know, whether the perception is real out there. Every claim that's filed, there's a motion to dismiss that goes with it.

MICHAEL RIGG: Yeah. I can tell you that there were a lot more in the past than there are today.

SENATOR COLEMAN: Representative O'Dea.

REP. O'DEA: Thank you, Mr. Chair. And sorry I missed the earlier part of your testimony. I apologize.

I think I understand your testimony on 6687 and I just want to get clarification on 1154. There's a proposal that basically 52-592 read, or add language, or because the action has been dismissed pursuant to Subsection c of 51-190a and I assume based on what I've heard so far, you're opposed to that additional language?

MICHAEL RIGG: Yes, I definitely am.

REP. O'DEA: And let me give you two hypotheticals that I think I'm kind of torn with. One is the case that you're talking about where the lawyer doesn't put in any certificate and the case is dismissed. It's your opinion, based on what I've heard is that that person who was harmed, let's assume that there was clear malpractice by the doctor.

In that scenario, you think that the person who was harmed should bring a malpractice action, in essence, and not be saved by the accidental failure to suit statute because it was clear gross negligence by the lawyer.

MICHAEL RIGG: Yeah. If the attorneys, and this goes to basic principles in case law, which is that the courts are there to assist the diligent suitor not somebody who is engaging either in fraud or egregious behavior, or even gross negligence and it would appear from the Connecticut Supreme Court standard that if the attorney's behavior is negligent, he actually can take advantage of the accidental failure to suit statute.

They'd say excusable neglect is okay. You can take advantage of that. Now, I just point out, doctors don't get that protection.

REP. O'DEA: Fair enough. But that decision, whether or not it's excusable really is another judge's interpretation of fact sensitive inquiry.

MICHAEL RIGG: It's got to be fact specific, absolutely. You know, I mean, there's just no way you could lay down a bright line and rule that would take into account this would be okay, this would not be okay. It's going to have to be fact specific.

REP. O'DEA: Now, and now the second hypothetical I wanted to ask you about was the scenario where the lawyer gets a certificate but it's not close enough, okay? And so the case is dismissed and from what I understand from your belief on what the court would rule on in that scenario is that that case would be saved by the accidental failure of suit statute anyway because it was close, but not quite close enough and in your interpretation the judge would agree most likely that that's the exact kind of case that the accidental failure to suit statute was designed for.

MICHAEL RIGG: Yeah. I mean, it's going to be a focus on the attorney's behavior. That's what the Supreme Court has said. You're going to look at the behavior.

If I can give you a little bit more background, in the Plant case, it was my case, so take that with a grain of salt, but I had argued to the Supreme Court it makes no sense that you can ever re-file under the accidental failure to suit statute because somebody who actually complies with the statute only gets a 90-day extension. By violating the statute you get a one-year extension. That makes no sense. That was my argument.

And the Supreme Court said, we don't agree with that argument because the attorney is placing his own conduct at risk when he re-files under the accidental failure to suit statute. And I mean, that's only fair because otherwise an attorney can just blow off the requirements, say, well, I just didn't do it.

So you can waste a bunch of time and move to dismiss or just waive the whole requirement of the certificate of merit statute because I'm going to be allowed to re-file anyway.

REP. O'DEA: Okay, but what if we simply added that language in, you know, as long as there was a certificate of merit filed and it was done less than two occasions.

So in other words, you don't have the ground hog day effect or re-doing it.

MICHAEL RIGG: You're going back to Bill 6687, I believe, the certificate of merit bill, and you're going to line 60, 361?

REP. O'DEA: Well, that was discussed earlier. I'm sorry. No, I'm actually just sticking with --

MICHAEL RIGG: Okay.

REP. O'DEA: -- trying to basically use 1154 and slightly amend that and just theoretically ignore the other one, say that the other one doesn't get out of Committee, which I'm just trying to deal with everything in the one here.

So if we added language where it says, or because the action has been dismissed pursuant to subsections c of Section 52-190a on less than two occasions. So in other words, on one occasion or less, so that you try and limit the ground hog effect of coming back under the accidental failure. What's your thought on that?

MICHAEL RIGG: Well, the, what I would suggest instead is you'd just be, whether or not they can keep coming back, a judge would take that into account. But see, you blew it off again and it still got dismissed. The behavior is going to get more and more suspect as not being allowed to take advantage of the statute.

So I think the Supreme Court's decision on Plant would cover that. So I would, if we want to codify something, then I would, as long as we kept in the standard is that language in this bill reads, or because the action has been dismissed pursuant to subsection c of Section 52-190a, I would say provided the original dismissal was not the result of, or provided the original dismissal was the result of a mistake, inadvertence or excusable neglect.

What's so unfair about that, or unworkable?

REP. O'DEA: Okay. Understood.

MICHAEL RIGG: And then that would prevent the ground hog effect and it would ensure that attorneys are, the whole, it's not that I want more lawsuits, more legal malpractice lawsuits, but the whole point of the tort system is number one, to compensate the innocent victim and number two, to deter bad behavior.

Well, if you want to deter bad behavior, don't give a free good to the attorney who violates the law, and there's a certain hypocrisy here.

I mean, if doctors are being told, you should be held accountable for negligence, then I don't see why the trial lawyers who are suing them shouldn't be held accountable to the same degree.

Now, the Supreme Court appears to have set up something more generous than what I'm talking about. If it were up to me, I'd make it more strict. But at the very least, that holding of the Supreme Court ought to be, I think, preserved because the attorney, they said the attorney in the Plant case, his behavior was blatant and egregious, and that was after a full hearing before Judge Pickerd in Litchfield. He heard the evidence and he ruled that that attorney, his behavior, his misconduct was blatant and egregious and based on Mike Walsh's testimony before this Committee, they're saying we want to overrule that and allow blatant and egregious behavior to go without any consequence. That's how I interpret the intent here.

As long as there's accountability, not just to doctors, but to lawyers, I feel strongly about that because I mean, I can't imagine saying to anyone, well, there ought to be special treatment for trial lawyers.

If doctors are going to be held to a negligence standard of care, I think it ought to be the same for lawyers and it would ensure compliance with the current law, so that. In other words, it won't only bolster the salutary effect of the certificate of merit statute.

Like I said before, the Bennett case has been re-filed and it's a better case now for the plaintiff, for his clients. He's got a better (inaudible).

REP. O'DEA: Thank you. Thank you, Mr. Chair.

SENATOR COLEMAN: Thank you. Are there other Members with questions? Seeing none, thank you very much for your input.

MICHAEL RIGG: Thank you very much.

SENATOR COLEMAN: Rio Comaduran.

RIO COMADURAN: Good evening.

SENATOR COLEMAN: Good evening.

RIO COMADURAN: Honorable Senators, Representatives, and Committee Members. Thank you for having me. My name is Rio Comaduran and I'm a graduate level student studying social work at the UConn School of Social Work, focusing in community organizing.

Unlike many people in the Hartford area, I do not have much personal experience with violence, gun violence, especially gang related violence.

I was born in Oakland, California. I have heard my parents tell me much about how they loved the Bay Area and could have stayed there their entire lives, however due to increasing gang violence at the time, they decided to move their new, young family to safer grounds and thus, forever change the course of our lives.

This is my only personal experience with gang violence. However, today I probably represent the social worker's voice in regards to this initiative. The Raised House Bill Number 6676 and the potential that it holds and the impact that it can make.

I mention potential, because like all initiatives, there is a certain delicate and naïve idealistic quality that exists before it is put forth into the real world. One advantage that this initiative holds is that it has already been rather successful in various communities around the state and the country, and this is why I implore the bill to be passed in order to implement project longevity on a statewide basis.

According to an Office of Legislative Research report put out recently, Hartford leads the way in juvenile convictions for weapons related charges. We cannot afford to not implement this initiative.

As a future social worker I feel proud to be included as one among the key players to the success of this initiative and I want to commend Governor Malloy and his administration for making this a real priority.

That being said, this point about communities should not be, the point about it being community-based initiative should not be taken lightly. Governor Malloy recently said that we are working to regain the trust of African-American and Latino communities. We need their help. The lives of these young people are too valuable not to act. This is a very bold attempt to say and very true, that this should be a community initiative.

The NAACP most recently had made an excellent point as well, that in implementing this initiative the program, however, could unfairly target and disrupt minority communities. Let us heed this warning as extreme as it might be. Let us reflect on this idea that it could be true. How could it be mitigated? How could this impact be lessened if it indeed holds just a kernel of truth?

Know that there is a great potential to have a very real impact on those who are not directly associated with these gangs, but because of familial or neighborhood association, may also become targets.

This initiative is an innovative approach to gang-related violence. It's a multi professional interdisciplinary strategy, which will surely make it a richer and more holistic solution to our collective social problems, especially related to gun violence.

I want to conclude that Project Longevity is a great initiative and that it targets repeat criminals, creates alternatives for potential gang members and rallies neighborhoods against violence.

In so doing, we should take care to not forget to be compassionate in our understanding of violence and why it manifests in the first place. Part of this holistic approach should be an act compassionately toward gang members and their motivations, their circumstances, their lack of choices and opportunities, to address the cause as well as the symptoms.

Let us heed the warning of the potential harmful effects that this very noble initiative can have. Let us go in with our eyes wide open, monitoring and evaluating the process all along the way, and gauging the communities' perspective each step along the way.

Let us employ strategies such as community by-laws, public action forums, town hall type dialogues, creating coalitions and task forces, working groups, to ensure that we're getting the communities' perspective on the progress of this project.

Lastly, let us employ social workers to work directly with the trauma and vicarious trauma that occurs with gun violence, gang-related violence and those working with these populations.

The fear that deeply shapes peoples' lives should not be minimized. It can drive all other decision-making processes as I've seen with my own eyes in my own work. The traumas, trauma can really have an effect on people.

I thank the Judiciary Committee for your time in allowing me to speak today. Thank you very much. I apologize for my nervousness.

SENATOR COLEMAN: Thank you. Are there questions? Seeing none, we appreciate your time and your testimony.

RIO COMADURAN: Thank you very much. Thank you.

SENATOR COLEMAN: Dr. Patrick Felice. No response. Ron Pinciaro is next.

RON PINCIARO: Good evening, Chairman Coleman and

Chairman Fox and Members of the Committee. I came this evening to talk about HB Number 6676 AN ACT CONCERNING IMPLEMENTATION OF THE PROJECT LONGEVITY INITIATIVE ON A STATEWIDE BASIS.

I like this program. I think it's done very good things so far in the short time it's been in effect. It originally started in New Haven and then Governor Malloy sanctioned the program at which time it was called Focus Deterrence and then I think it was in November of this past year where Attorney General Eric Holder came in and also sanctioned the program and then it became Project Longevity.

And there were essentially three principal elements to the program, which had to do with specifically urban gun violence since 75 percent of the gun homicides typically, in Connecticut, happened in those three cities of Hartford, New Haven and Bridgeport.

And the idea was that in those cities of combined population of about 400,000, there were probably about 1,000 to 1,500 individuals who were considered to be the most at risk in terms of committing these gun crimes or being the victims of the crimes.

And about 80 percent of these crimes are committed by people who are prohibited from owning guns.

So the idea of this program was to one, keep a close eye on these individuals who were known to the system, were probably within the system already under the supervision, I'm sorry, of probation and parole officers and two, to have, to initiate re-entry programs to give training and other types of programs to provide better alternatives for these individuals.

And third, and perhaps the most important element was to bring in all members of the community, parents, clergy, neighborhood leaders, everyone working toward one goal, which was necessary for the program to achieve the success that was expected of it.

The communities had to come together and demand that the level of urban gun violence had reached a point where it was unacceptable and must be a top priority of law enforcement.

So what happened? In the last year, really the first full year of the program, which had already been started in New Haven, but now had migrated to Hartford and started to go into Bridgeport as well, the firearms homicides in New Haven dropped from 29 in 2011 to 18 in 2012 and in Hartford from 29 to 20. Bridgeport had a slight increase from 17 to 18, but it was the last of the programs to be initiated.

So the results were, either looked very good, 25.3 percent decrease in gun homicides in those three cities in the first year of the program, even though in the other towns, even excluding what happened in Newtown last year, but in the other towns outside of those three cities there was not a reduction. In fact, there was a slight increase from 29 to 32 in gun homicides.

So it's early, but it seems the program is really working, so I think this idea where we give more focus asking the Office of Policy and Management to sort of shepherd this program, get the resources that are needed, both federal and state resources has to be a good idea and has to result in even increased improvement.

And in fact, in the first quarter of this year, I guess it just ended yesterday, so I could say first quarter of this year, the results have been even better, even though Hartford has had a bad week. They had three gun homicides this week, which were the first ones of the year, so it took until the very end of March before Hartford even had one this year. And New Haven and Bridgeport, keep your fingers crossed, haven't had any since.

The indications are that the program is helping. I think it's a little bit too early to say it's absolutely conclusive, but it certainly looks good and deserves to be continued and certainly in my 11 years in this business has been the best statewide program that I've ever seen.

SENATOR COLEMAN: Is that the conclusion of your remarks?

RON PINCIARO: Yes, it is.

SENATOR COLEMAN: Okay. Are there questions for Mr. Pinciaro? If not, thank you, Ron.

RON PINCIARO: Thank you.

SENATOR COLEMAN: John Foley.

JOHN FOLEY: Good evening, Senator Coleman, Representative Fox and Members of the Committee who are here with us tonight. My name is John Foley. I'm a cardiologist and President of the Connecticut State Medical Society.

I'm in private practice in Norwich, Connecticut and also teach at Yale New Haven Medical School. I am here representing the 8,500 physicians and physicians in training for the state Society, as well as the Connecticut Chapters of the American College of Surgeons and the American College of Physicians. I'm here to ask you to oppose House Bill 6687 AN ACT CONCERNING MERIT.

You've been hearing testimony, I'm sure you're exhausted, from many of my colleagues and several legal professionals all day. There's little doubt in our mind that passage of House Bill 6687 will worsen the medical malpractice climate in Connecticut, in a state where we struggle, and I'm telling you we are struggling, to attract and keep physicians practicing and taking care of patients, weakening what is already a frail malpractice system. It will serve only to drive the best and brightest out of our state.

The question was asked earlier, and I believe there was a letter circulated last year by Denise Funk, who is the CEO of CMIC. In her letter she made it clear that it will be a necessity to increase premiums if the bill similar to what we're talking about this year passes, because in essence, the increased cost of defending policy holders will be transmitted essentially to increase premiums.

It's also come up a few times while I've been here this issue of nursing and medicine. I'm in a unique position in that I was a nurse before I went to medical school, and I just want to make it clear that the practice of nursing and the practice of medicine are two, separate professions.

We both take care of patients, but our, what we do and the science behind what we do is uniquely different.

With that in mind, again I mention that I'm a cardiologist. I specialize basically in heart transplant. If I were to be sued under the current certificate of merit statute, another board certified cardiologist could sign the certificate of merit in a suit, and I'm confident in this law. I'm confident that another board certified cardiologist could review adequately my skills.

If House Bill 6687 passes, this very minimal protection that I have will be thrown out the window. My skill in practicing cardiac medicine would have the potential to be judged, for example, by someone like an oncologist, who does not have anything to do with treating cardiac disease.

It's also been asked in terms of similar versus qualified, and I would say that if you had someone in your family, a loved one who needed a heart transplant, you would want to see someone with years of experience in cardiac transplantation and not somebody simply in medicine who knew something peripherally about the field of heart transplantation.

If you were to seek that level of care for a loved one, is it not reasonable to expect that that same level of expertise should be brought to evaluate the care of a person who's practicing in that field?

At a time when the goal is to ensure more patients are currently, who currently have no health care, are covered, and we need to find more and more physicians to provide that care.

House Bill 6687 is absolutely the wrong approach.

We know the certificate of merit is working. You have heard from patients and doctors, insurance companies, and hospitals, the business community and many within the legal community that are all here opposing this bill.

So those with a vested interest in eviscerating physician protections and making it easier to file lawsuits seem to be standing alone.

The purpose of the law should be about finding truth and standing for fairness. The physicians of Connecticut ask each of you to stand for fairness and truth. We ask that you stand with doctors and hospitals for fairness. We ask that you stand with patients, who are your constituents to oppose House Bill 6687 and House Bill 1154.

Make no bones about it. Access to quality care in Connecticut is at stake. The health of your communities, your constituents, your families and your friends is at stake. Please oppose House Bill 6687. Thank you.

SENATOR COLEMAN: Thank you, Doctor. Are there questions? Representative Smith.

REP. SMITH: That's a strong statement that you just made. I'm just wondering why you haven't backed that up in terms of constituents are at stake, the cost of medicine is at stake. I mean, you just rambled on, not to be disrespectful, but a litany of items where the system seems to be at stake if this bill goes forward, and I'm just wondering where does that come from, because I'm looking at the changes that are being proposed and I don't see that they're Draconian, but maybe you can help me out.

JOHN FOLEY: Well, I believe that the physicians as I see them, basically eliminates the strength. It basically, it does eviscerate this law. It makes it basically just a little hole to jump over.

I've had the good fortune to travel across the state and across this country as President of the State Medical Society. I can tell you a few things.

One, in general, the physicians are demoralized across the country, but in Connecticut more so than what I've seen in many of the other states.

I have compared the malpractice laws in Connecticut protecting physicians and we are woefully inadequate compared to many other states where people from the University of Connecticut and Yale, where I teach, leave the state when they're done training and go to practice.

It is a decision-making point for people who are young and who are, you know, out of school. It is a decision as to where they go to practice. We are in a, we have a problem here. We cannot recruit enough doctors. And as the Governor is trying to cast a wider net to bring more people to receive health care, which is all our goals, we have to have actually physicians to provide that care and we're very concerned we're not going to have that.

REP. SMITH: You know, I'm concerned also, I'm concerned about the cost in malpractice premiums, but I just want to make sure that I understand you testimony, that changing the language from similar to qualified health care provider causes doctors who are trained here at Yale and perhaps other great universities throughout Connecticut that they're now deciding to leave Connecticut and practice in another state because of that, or what (inaudible) your point correct?

JOHN FOLEY: Thank you, Representative Smith. What's causing physicians to leave practice and actually sell their practices and become part of hospitals and larger groups is the refusal to continue to work in isolation in this environment.

When I talk to medical students about coming here as they look around for states to practice in, you know, when you look at the AMA that have looked at states and rate them, Connecticut does not rank well in terms of its malpractice climate. That is a decision that young people use to make.

Now, somebody like me who's becoming quite old, my kids remind me that I'm getting older by the minute, we have less choices, but I have a choice as to what type of practice I continue, how busy I stay, and yes, I have actually thought about moving out of the state as well.

This year, we had hoped to actually advance malpractice law for doctors in the state. We had hoped not to have to be defending a piece of legislation, which has worked and it has worked for patients and it has worked for physicians, and we are once again, we're fighting the trial bar who really wants to take this away and this is a real concern.

Our members, this is our number one concern. I have been in every corner of this state. I have talked to physicians large and small practices, hospitals alike, malpractice, tort reform and the certified of merit is their number one issue, which is why we are here and we're not going away and we're going to fight this bill because it's that important.

REP. SMITH: Well, listen, I'm glad you came to testify because you know, Connecticut right now is struggling not just with doctors, but with many industries and businesses and professions to keep people here working. So we're looking to retain them, not scare them away.

Maybe you can help me out with the cost of malpractice. I know it's significant. I've spoken to my docs in my area and I'm amazed at what they pay compared to other professionals.

But are we, is Connecticut that much higher than say, let's use New England or the states in our area. How much higher are we?

JOHN FOLEY: I think that if you look at the sort of, the trends, we sort of have leveled off. I think the certificate, I think what happened in 2005 took what looked to be a trajectory of prices and sort of leveled it off.

So I'm not here and I haven't really mentioned or argued much about premiums. What I've really talked about is the climate for decision making.

When I take care of a patient in the office and I have to make decisions as to how I'm going to take care of them, what testing I'm going to do, you know, defensive medicine comes from real and also perceived but mostly real concerns for being sued, and what that would mean, and I've watched friends be sued and basically become so depressed that they can no longer practice.

This has real impact and when those doctors go out of practice what do those patients do when they no longer have a physician to care for them?

So we're not talking, I'm not here talking about insurance premiums. What I'm here to talk about is a climate in Connecticut where physicians are quite nervous about the climate we practice in and we look to very few protections and this is one we look to and it's looking like each year we have to defend this.

Instead of talking about health courts and other things, which might really help curb the cost of defensive medicine, which by the way is not only economic but it's also, it also is a physically damaging thing when physicians are practicing defensively. This is not good medicine. It's happening everywhere in the country and it's happening and the lawyers don't want to take any ownership of this but part of the issue is the climate of defensiveness comes from the fear of being sued.

And I don't believe that it's an unreasonable standard to have my cardiology care reviewed by a cardiologist. I don't think that a lawyer should be judged by someone who kind of knows the law or who's read peripherally about the law. You know, there's a reason why you're an expert as an attorney. There's a reason why I'm an expert as a physician. I wouldn't judge an obstetrician. I certainly don't want them judging me.

REP. SMITH: You know what? And I can appreciate that, but I'm not sure that's what we're trying to do here so, and I understand what you're saying that doctors are practicing defensively. I think it's unfortunate because I think a lot of tests are being performed that are unnecessary, but everyone's so scared that they have this random number of tests that are done just to make sure that we did everything and we're not sued.

I know that's a concern. It's a huge cost to our society. Lawyers go through the same thing, you know. The first thing I learned years ago when I started practicing was, you know, cover your butt.

So we all do that no matter what profession we're in and there's a cost to doing that, but I'm just not concerned. I'm concerned about it but I'm not sure that this bill does what you're saying it's going to do and the last thing I think this Committee wants to do is to make it harder for doctors, undesirable for doctors to practice here in Connecticut.

We want doctors to come here, so I'm happy to work this bill. I think we worked on it last year. Maybe those no need for a change, maybe there is for a change, but when I look at the word qualified versus similar and what we're trying to do, I think we're trying to get to the same goal, honestly.

But I guess, you know, you have a different opinion as to, you know, how we're getting there and what we're doing. So I appreciate your testimony and your concerns and I'm sorry I missed some of the earlier testimony about this issue, but it is a huge issue on many levels, so I do appreciate your coming tonight. Thank you, Mr. Chairman.

JOHN FOLEY: Could I just throw something out in response to that?

REP. SMITH: Sure.

JOHN FOLEY: And I really appreciate this dialogue greatly. The word qualified is concerning because we don't know what that is and I think lawyers who have given testimony earlier and I don't pretend to be a lawyer, not even on television.

So we'll leave it to the experts. But I think they brought up the concern about you know, somebody signing the certificate, it's anonymous, that that's a good protection, but all the concerns there.

And I would simply say again, if you had a child that had a cardiomyopathy and needed potentially a heart transplant, would you bring them to me, that's if you looked into it and felt that I was reasonably qualified. I tell you that I am, but you would check that out. Would you take that to somebody who's a trained transplant physician or would you take that to an internist who's done some work in cardiology?

And if this Committee can't look at that and say that that standard when used to seek care shouldn't be the same standard to evaluate care, that does not make sense. And this law does not protect physicians. We are not in the business of protecting physicians who commit malpractice.

What we're saying is, there should be a same standard applied to evaluating care as to evaluating who should provide the care.

And I just ask that you realize that we are in trouble here in Connecticut. We're in trouble as physicians. We need the help of this Legislature. If they do not feel like there's much coming down the pike to hold onto and I'm here just to try to turn the thing around and I really appreciate your listening. I know the hour's late and it's very difficult, but I really appreciate what you're doing.

REP. SMITH: Thank you very much. Thank you, Mr. Chairman.

SENATOR COLEMAN: Thank you, Representative. Representative O'Dea.

REP. O'DEA: Thank you for being here, Doctor, and I'm sorry I missed the middle. I was here earlier this morning, and just for a perspective, my father is a general surgeon, was, he retired down in Philadelphia area and to your point, Pennsylvania.

And I'm curious as to what your knowledge is of the Pennsylvania law down there because my father was going to retire early because the HMOs have such a grip and they make so little and that all his younger doctors were leaving his practice, his general surgery practice because they made a lot more money just across the river and then the malpractice insurance was so much larger, and he was, in fact, sued for lack of consent case that was frivolous and Pennsylvania didn't have this type of law in place.

So I am very much understanding of your problem and dilemma and I want to make sure that Connecticut, unlike Pennsylvania, the only doctors that are going there from what I've been told are doctors that can't get jobs anywhere else, and I don't want that to be Connecticut, believe me.

JOHN FOLEY: Right.

REP. O'DEA: So my question to you is, how does Connecticut compare to Pennsylvania in those kinds of situations, if you know.

JOHN FOLEY: You know, I would like to give you an answer but you know, I can get that information for you because we certainly, we review state by state and I'm not sure exactly what the provisions are, you know, in Pennsylvania in particular.

We looked at the experience that states like Texas had and California had when they went through various propositions and brought in other types of malpractice reforms and it did actually make a difference, not only in lowering insurance premiums, which, you know, is a big part of it, but honestly, I don't believe from what I've heard from talking to physicians in Connecticut that what people are complaining about the most is insurance premiums.

They're talking about the climate that they're practicing in. They're stressed. And you know to Representative Smith's point, you know, we are in the ultimate double bind because, and when you look at why is the certificate important. Why is it important to have someone who's similar?

As a cardiologist I have a board that I'm board certified. I had to take an exam and they have specified what the standards are for treating every single problem.

It is, I think, most appropriate to be judged on my performance by someone who understands those standards. I don't pretend to be an oncologist, nor would I want to evaluate the case of an oncologist because they have their own set of standards. And so, I think applying standards is important.

Physicians are most concerned about practicing defensively, meaning, cover your behind. But in an environment where access to actually the tests that you would use to cover your behind are now being restricted. This is the ultimate Catch 22.

Picture yourself in a room not knowing exactly what's going on, wanting to cover yourself because you're afraid of being sued, wanting to do particular tests, but getting denials and refusals to do that. You're hanging out there completely exposed and at the end of the day if there's an outcome that's bad, you're held liable.

We need some protections, and again, this is one of them. At least we'll be able to say, he followed the standard of care. This person had chest pains. He did X, Y and Z. He followed the standards. It was a bad outcome, but he did everything he should have done.

Or, no, he didn't follow those standards and this is the case that should go forward.

We're not attempting to block meritorious lawsuits. What we'd like to do is block the non-meritorious ones, and I think this bill has done it.

REP. O'DEA: But may I, Mr. Chair, just one last follow up. On the accidental failure to suit statute, I don't know how familiar you are with that, but I'm trying to look at somewhat of a compromise, if you will, because there are two different sides to this bill.

JOHN FOLEY: There are.

REP. O'DEA: They don't seem to be bridging the gap too well, with that, a little help. So in looking at the accidental failure to suit statute, and you're the second doctor to come up here and state that you're not looking to preclude the meritorious claim from going forward, my question is, would you have a problem with specifically allowing the accidental failure of suit statute to apply in the language of the statute where, say you have a certificate that's found to not be similar enough, in that kind of a case, if you understand the question, if I've articulated it properly.

JOHN FOLEY: You know, I would have to defer that to attorneys, I think, because you know, I want to be thoughtful in my response.

What I would not want to do is give an answer that in any way would seem that if 6687 is, you know, voted down, that there's a back door approach to allowing, in essence, a softening of the standard.

We believe that the standard of similar as has been applied thus far, is a reasonable standard and we'd like that standard to continue.

REP. O'DEA: Thank you very much Doctor, again, for your time and testimony. Thank you, Mr. Chair.

JOHN FOLEY: Thank you.

SENATOR COLEMAN: Thank you. Are there other questions? Seeing none, thank you very much, Doctor.

JOHN FOLEY: Thank you very much. Good luck with the rest of the night.

SENATOR COLEMAN: Steven Sweeney. Steven is not here. Dr. David Kwesno is next. How about M.C. Cobert, M.D. Maryann McDonald. Greg Shandle. Dr. Mark Glickstein. Sasha Jay.

SASHA JAY: Hello. Good evening, Honorable Senators, Representatives --

SENATOR COLEMAN: Good evening.

SASHA JAY: -- Members of the Judiciary Committee. Thank you for being with us this late in the evening. My name is Sasha Jay. I am an MSW candidate of the University of Connecticut School of Social Work, and I am speaking today in the capacity of a future professional social worker and as someone with nearly a decade of experience in the social services field, working in front line service.

I'm here today to support House Bill 6676 AN ACT CONCERNING IMPLEMENTATION OF THE PROJECT LONGEVITY INITIATIVE ON A STATEWIDE BASIS.

Project Longevity seeks to reduce gun violence and group-based violence in major cities throughout Connecticut by strategically uniting community stakeholders, law enforcement personnel and social service providers to offer real and solid alternatives to violent groups and group members who want to break the cycle of violence and to offer a unified front of deterrence for any future violence. I hope that you will support this legislation.

The prevalence of group-based violence and the prevalence of gun violence in America is a well known and well documented problem. The statistics are staggering and unconscionable. Many efforts in the past to get tough on crime have unfortunately failed.

Project Longevity is different in its approach because it is a partnership model where all members of the community, including members of violent groups have a voice and a stake in the success of this initiative.

I support House Bill 6676 because as a social worker, I know that creating partnerships and creating engaged relationships is how work gets done. The model used by Project Longevity creates relationships between providers, law enforcement and communities, but most importantly it changes the existing dynamics within a struggling community and makes them healthier and safer.

I have personally worked with young people who are members of violent groups. There is a pervasive feeling of inevitability and despair that they carry with them. Many of them truly believe that this is it, this is their whole life and they have no other viable options.

As you may know in the past the Group Violence Reduction Strategy on which Project Longevity is based, has been implemented in major American cities such as Chicago, Boston and Cincinnati as well as others, where the strategies employed have resulted in group-based homicide reduction of 40 to 60 percent.

That statistic is remarkable on its own, but speaking today as a social worker, when I hear that a group=based homicide reduction rate of 40 to 60 percent was achieved, I hear that thousands of lives have either been saved or changed forever by this model of violence reduction.

I hear that young people have had the course of their lives altered for the better. I hear that brothers and sisters, parents and children are benefitting directly from a reduction of violence in their communities, and I hear that young people who may have believed that a life on the streets as a member of a violent group was their only option, have come to realize and be shown through Project Longevity that this is not the case, that there are, in fact, better options for a better life.

The reduction of violence in our cities is measurable not only in statistics and economics, but also in the ripple effect of every life change and every life phase through the Project Longevity.

In conclusion, I respectfully strongly recommend that you support House Bill 6676 and I thank you for the opportunity to testify. I'd be happy to answer any questions.

SENATOR COLEMAN: Are there questions for Miss Jay? Seeing none, thank you for your testimony. Linda Strumpf is next.

LINDA STRUMPF: I guess it's good evening, Chairman Coleman, Chairman Fox and distinguished Members of the Committee. My name is Linda Strumpf. I'm an attorney in New Canaan, and I'm here today in support of Raised Bill 1121 regarding post-judgment interest.

Post-judgment interest should not be discretionary, but should be awarded as a matter of law, keeping in mind that the law ordering post-judgment interest involves cases where there has already been a judicial determination that the money is owed. There is no question and no longer any dispute that this money is owed.

As it presently stands, post-judgment interest is awarded throughout the courts in this state anywhere from zero percent to ten percent completely on a judge's or a magistrate's discretion and on the same type of case one judge could award zero, one judge could award ten percent on identical cases. There's no consistency.

If you are a judgment creditor who's awarded a judgment of $10,000 or $20,000, it could happen that no interest at all is awarded on that judgment. You could be holding onto that judgment for up to 20 years that's completely interest free. Clearly, that's inequitable to the judgment creditor.

Connecticut is the only state which orders installment payments permitting debtors to pay off the debt in weekly or monthly payments, usually nominally of $35 or $100 a week or $140 a month. No windfall for judgment creditors.

Many times the judgment debtor may order the, may ask the court to lower the weekly payments or the monthly payments from $140 a month to $50 a month, which the courts frequently do.

The failure to award post-judgment interest encourages the judgment debtor to delay payment of the debt, not to pay it and the award of it is in no way unfair to judgment debtors who might sometimes be paying $50 a month on a $5,000 or $10,000 judgment.

This is an issue which affects businesses, has a direct effect on the employment rate on the state and the attractiveness of the state to businesses. There are small business, landscapers, plumbers, oil companies, mom and pop shops, who virtually are giving interest-free loans for many years on these judgments. These businesses are not getting paid and are losing out on the time value of their money.

Many businesses must take loans from banks in order to maintain their businesses, and of course must pay interest on their loans, yet they are not receiving interest from judgment debtors who are failing to pay their bills.

This is not good for business and it's not good for the state. A judgment creditor is being victimized twice. First, in not getting paid on a valid debt, frequently having to retain and pay an attorney to obtain the judgment and then once the judgment is issued, failing to be awarded any interest on the judgment. Thank you. Any questions?

SENATOR COLEMAN: Are there questions? Representative Smith.

REP. SMITH: Thank you, Mr. Chair. I know the hour is getting late and I'm sure the Committee wants to get home. Just a quick question. As I'm reading the bill now, it talks about interest being assessed at the rate of ten percent. Am I correct in reading that?

LINDA STRUMPF: That's correct.

REP. SMITH: And I think you're right, that the creditors should be allowed some interest on their debt, on their judgment. I question whether ten percent is the right number. I mean, today, I can't go to a bank, I wish I could go to a bank and get an interest rate of three percent, three and a half, no more than four, so why is ten per cent the right number for you?

LINDA STRUMPF: Well, I feel the better number may be eight percent. If the court looks at 37-1 that's what's awarded, eight percent. And the problem with awarding two or three percent or four percent is that these are debts that are already three and four and five years old and might not be paid for ten years.

So to award such a small number might still be inequitable, whereas if ten might be too much, if you look at 37-1, eight is awarded and that might be a better number to award.

REP. SMITH: You know, I'm not sure when the statutes were first enacted, but I suspect at the time eight and ten percent were probably in the norm as to what you might pay and also you might get a return from a lender, you know, not so much eight and ten percent.

But certainly, mortgages you were paying back then, eight percent, ten percent. I remember when I got my first loan it was eight percent. I was thrilled and now being really happy but if you think about the climate that we're in today where many people are unfortunately in a situation where they're going into debt and they're incurring judgments against them, and there's just no way out.

And I think we have to be mindful of the economic times, and I'm not sure whether we want to put a flat, fixed rate in here or whether we want to put something in there that allows the court some discretion perhaps in keeping in mind what the realities of the economic climate are out there.

So I'd be in favor of something along those lines. I'm a little concerned about ten percent.

LINDA STRUMPF: I understand what you're saying about that ten percent and I certainly think we'd agree to a lesser rate.

The problem with discretion is, as I said, there's no consistency. You can have the same exact debt and if you give too much discretion, one judge can award one percent and another judge could award ten percent or eight percent.

So I think we need a fixed rate. I'm not saying it has to be ten percent. The difference in these situations is, you have to remember, that there already is a judgment. The debt is already years old maybe without any interest before, and the judgment creditor may have to wait on a $5,000 judgment if somebody's paying him $50 a month, eight years and that's a long time not to get any interest or even to get two or three percent. I don't know that would be a fair number.

And the problem we have with the discretion is, it's just too much inconsistency as opposed to a straight rate.

REP. SMITH: And I agree with you that there should be some rate, and I think one percent is too low. Perhaps we could come up with something on the Committee that would have a range, not greater than, not less than type of thing wherein based on how long the debt's been out there, what the creditor has gone through, the circumstances of the decision, et cetera gives the court some discretion, but also it is mindful that one percent is really not going to help the creditors so, you know, I'm not sure what the Committee wants to do with it, but perhaps they'll look into that. But thank you for your testimony.

LINDA STRUMPF: Thank you very much.

SENATOR COLEMAN: Did you say that Connecticut was the only state that allows creditors to be paid by installments?

LINDA STRUMPF: That's correct. In the law. Other states you may have agreements, but it's the only state that has an installment payment order and you cannot proceed on a wage execution or other various forms of execution unless the debtor defaults on the order.

So first there is a payment order. The courts award $35 a week. Sometimes the judgment debtor can come in and ask for less and the court will do it, and as long as that debtor pays that amount, it could be $50 a month, $10 a week, whatever it is, the judgment creditor can't proceed on a wage execution or various other forms of collecting the debts.

So as long as he makes those payments on an interest-free loan, the judgment credit can do nothing.

SENATOR COLEMAN: In other states, how do they collect the debt? How does a credit collect a debt?

LINDA STRUMPF: Wage executions. In other words, once there's a judgment --

SENATOR COLEMAN: How is the amount of the wage execution determined? Is that merely based upon the earnings of the debtor?

LINDA STRUMPF: No. Well, yes, in this state it's 25 percent of disposable earnings, and of course you can come in and ask for less.

Believe it or not, the majority of the states it is 25 percent of disposable earnings and you have the option to come in and ask for less.

In New York, it's ten percent of the gross earnings and you really don't have an option to come and ask for less.

But every day you do have the option to come in and ask for less in court or you can call the judgment creditor and the judgment creditor's attorney and make an arrangement.

Variably, 99 times out of 100, if a debtor comes into court, a judgment debtor and says listen I can't afford 25 percent of my disposable earnings, the court will reduce it to less. But you can't do that in this state as long as the judgment debtor is making payments under the installment payment order. You can't even go for a wage execution.

So if the judgment debtor goes in and gets an installment payment order reduced at $50 a month or whatever it is, and as long as he's making those payments, you can never do a wage execution in this state.

SENATOR COLEMAN: Just as a practical matter, if a judgment debtor is making the payments, why would you want a wage execution?

LINDA STRUMPF: Well, because if he's making payments of $50 a month it might take forever to pay the debt and you might want more money, that's why.

It might take forever to pay it off. If it's a $20,000 debt or a $25,000 debt and he's paying even $140 a month, I mean, it would take, we'd all be retired by the time he paid it off. So you might want, if he can afford 25 percent of his disposal earnings, you might want more, especially if no interest is awarded.

SENATOR COLEMAN: Okay. So you're saying it's not until the judgment debtor defaults on the payment ordered by the court of $35 a week that you can, as a creditor, come in and ask for a wage execution of 25 percent of the total.

LINDA STRUMPF: Right, a wage execution. I believe it's a, I do not come in and ask for a bank execution unless he defaults. I don't know that the law's 100 percent clear on that, but a wage execution definitely can come in and ask for.

SENATOR COLEMAN: Thank you.

LINDA STRUMPF: Thank you.

SENATOR COLEMAN: Maureen Villani. Eric Roy. Amanda Alexander. Hi.

AMANDA ALEXANDER: (Inaudible) -- impact of a prison term. What would passing this bill mean in practice? Right now when a woman gives birth in state custody in Connecticut as 16 women did in 2011, the mother and newborn remain together in the hospital but are separated soon after, usually within 48 hours. The mother returns to prison and her baby is placed with a relative or in foster care.

If the infant is placed in foster care, he or she is likely to be separated permanently from his or her mother.

Under federal law, as Susan Storey mentioned this morning, states are required to file a petition to terminate parental rights if a child has been in foster care for 15 of the past 22 months, a timeframe that is shorter than the average prison sentence.

If instead, mothers and babies are allowed to stay together for up to 18 months as this bill proposes, this outcome could be avoided. With a prison nursery, the mother and child are usually able to leave the prison together at the end of the mother's sentence.

States across the country are realizing more and more that putting someone in prison affects not only the person locked away but their children and family as well.

Among female state prisoners, two thirds are mothers of minor children. Incarcerated mothers are at particularly high risk of having their children placed in foster care, as most are primary caretakers of the children before arrest. Many are single parents.

Many states including Connecticut, now recognize that it is good public policy to make sure that families remain intact as far as possible when a parent goes to prison.

In our meetings with incarcerated mothers, DCF officials, prison officials and service providers here in Connecticut, our team has found that they share a common goal of family reunification and keeping families intact.

Studies have also shown that frequent visitation, parenting classes and prison nursery programs transcend into better outcomes for children as well as for their parents, families and their communities. These programs help keep children out of foster care and lead to better emotional and educational outcomes for children with the parents in prison and help keep parents from ending up back in prison after their release.

My team at Yale has heard firsthand from the staff of the Children's Center and Nursery at Bedford Hills Prison in New York State, about the tangible and immediate gains from the families that they serve, and how these translate into long-term societal benefits.

Women who participate in nursery programs show lower rates of recidivism and their children show no adverse affect as a result of their participation.

On the contrary, nurseries help ensure maternal child bond are established during a critical period of infant development. The children are not placed in foster care and that a prison term does not mean permanent separation for families.

In conclusion, on behalf of the Women Incarceration and Family Law Project at Yale Law School, thank you to the Committee for recognizing the importance of this issue and for seizing this opportunity to improve the well being of Connecticut families and communities. I would welcome any questions.

SENATOR COLEMAN: Are there questions? What did you say your role is at Yale Law School?

AMANDA ALEXANDER: I'm a third year law student there and I founded this Woman Incarceration and Family Law Project that produces resources for parents in prison in Connecticut.

SENATOR COLEMAN: You're the founder?

AMANDA ALEXANDER: Yes, one of the co-founders.

SENATOR COLEMAN: Okay. Congratulations. Good luck.

AMANDA ALEXANDER: Thank you.

SENATOR COLEMAN: Preston Neil. Andrew Bloom. Richard Ohada. Deb McKenna.

DEBORAH MCKENNA: Good evening, Senator Coleman, Representative Fox, Members of the Committee. My name is Deborah McKenna. I am an attorney at Emmett and Glander in Stamford, Connecticut and I practice law in the area of plaintiff's side employment law.

I'm testifying today on behalf of the Connecticut Employment Lawyers Association, which is known as CELA on two bills. First, Section 17 of Raised Bill 667 AN ACT CONCERNING THE ESTABLISHMENT OF BENEFIT CORPORATIONS AND THE LIABILITY OF AN EMPLOYER WHO DISCIPLINES OR DISCHARGES AN EMPLOYEE ON ACCOUNT OF EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS.

And I am also here to testify on behalf of Raised Bill 6658 AN ACT CONCERNING EMPLOYER USE OF NON-COMPETE AGREEMENTS.

First, I'll just briefly tell you a little bit about what CELA is. CELA is a voluntary membership organization whose members are attorneys from throughout Connecticut who devote at least 51 percent or more of their employment related practice to representing employees. As such, CELA attorneys represent individual employees in all types of employment related matters, including but not limited to discrimination actions, wrongful termination claims, claims involving state and federal SMLA.

A substantial part of our members practice involves reviewing and negotiating various types of employment contracts, including severance and non-competition agreements as well as representing employees who have suffered retaliation for exercising constitutional rights in the workplace.

First, I'll address the 6658, the non-competition agreement bill. CELA supports this bill for the following reasons. First, non-competition agreements are standard parts of many sectors of the workforce here in Connecticut but unfortunately not all employers adhere to Connecticut law when drafting such agreement, particularly with regard to whether or not the duration or the geographical limitations of such non-competition agreements are reasonable.

Additionally, some employers try to impose agreements in industries or on employees in their workforce where the non-competition is simply not appropriate, perhaps on the receptionist, when really what you need to do is protect your sales force, or your sales secrets.

What this bill will do is codify the factors that Connecticut courts presently apply in determining whether or not a non-competition agreement is reasonable.

Second, CELA supports this bill because presently there is little recourse for an employee who has entered into such an agreement without first having the benefit of fully understanding how that non-competition agreement will limit their future ability to work, and so by providing that an employer must allow an employee to have at least ten days to have an attorney review the agreement, or at least consult with an attorney about what his or her future obligations would be is a very important provision that doesn't exist now.

And unfortunately, what ends up happening on our side of the practice is that you see folks who have entered into these agreements and didn't understand the full implication, or felt they had no choice but to enter into these agreements and they didn't understand how that would impact their ability to get a job in the future.

Oftentimes, those same employees have lost a job where the non-competition agreement is seeking to be enforced.

I understand my time is up, so I don't know if I have a chance to talk on the second bill, or, I submitted, I provided written testimony as well.

SENATOR COLEMAN: If you can make it quick, you can summarize whatever thoughts you had on your second bill.

DEBORAH MCKENNA: Sure. I will do that. On Section 17 in regard to how it applies to exercising your free speech right, first of all, I think I'll just take a moment to briefly respond to the CBIA's testimony, which I believe is on line, in which they seem to forecast all of the horrors that will happen if this bill is passed, such as you will be, an employer will be forced to allow an employee to wear a racist tee shirt in the workplace and have no recourse. That's not what this bill does. That's not what the law provides right now.

What this bill would do is ensure that employees who speak out on a matter of public concern that they learn about through their job, meaning perhaps a police officer who uncovers some sort of misconduct in the police department in the course of his or her duties, or a person who's working as a bookkeeper who discovers malfeasance, financial malfeasance in the course of her job, can speak out and not be afraid that they are going to find themselves being fired for raising those concerns.

I'd be happy to answer any questions.

SENATOR COLEMAN: Are there questions? Representative Smith.

REP. SMITH: Thank you, Mr. Chair. I was taking a look at the non-compete bill. I don't know, I'm reading the statute. I'm just wondering how this actually helps us because I think you have a right already, don't you, to bring an action if there is a violation in the non-compete clause and the court has to find that it's reasonable in duration and geographic location and there's a bunch of qualifiers out there already.

So what does this bill do for us?

DEBORAH MCKENNA: The qualifiers are there, but what happens in practice now is that you have an employee who has left their employment, usually has been fired in many cases. They go out. They try to find another job. Then the former employer comes after them and sues them to enforce the non-compete. They do so by way of seeking a pre-judgment remedy. So now you're forcing the former employee into court. That employee has to, at present, there is no mechanism for allowing that employee to get attorneys fees or to have any type of recourse if it turns out that that non-compete is unreasonable.

The employee would have to hire a lawyer and go in as a defendant and defend against the action.

What this bill does in addition to codifying what is reasonable, it also allows for an employee to recover damages, or to recover attorneys fees if it's determined that those factors, the reasonableness part of the non-compete doesn't comply with the law.

REP. SMITH: Would they not be able to do that under the CUTPA laws right now?

DEBORAH MCKENNA: I suppose you could bring an action under the CUTPA law although in my experience, I mean, you would have to file another lawsuit. In this case, you would be, in my experience it just hasn't played out that way.

REP. SMITH: Okay, thank you.

DEBORAH MCKENNA: You're welcome.

SENATOR COLEMAN: Any other Members have questions? Representative Carpino.

REP. CARPINO: Thank you, Mr. Chairman. Just a very common sensical question. What prevents an employee from having someone look at this non-compete agreement before they sign it?

DEBORAH MCKENNA: Oftentimes it's presented in such a way that you just don't have that opportunity. There's no requirement that they give you even 24 hours to take it home and consider it, so it could be in the context of here's your bonus or we're giving you a raise next year, and oh, by the way, please sign this non-competition agreement.

And so there's no, there's nothing that requires an employer to make sure that the employee is fully understanding it. Obviously, if an employee signs something they can argue traditional contract defenses like duress.

But again, the way it works oftentimes is that an employee feels pressured and doesn't feel like they have any opportunity to say I need time to think about that. I have no choice. I have to sign this agreement.

REP. CARPINO: and thank you very much. I haven't made a decision on this, but I do struggle with imposing any additional restrictions on this one potential future employee is faced with many decisions. Their pay, their salary, their bonus schedule, their benefit package where they, too, have to make a decision, don't necessarily have legal recourse at the end, but thank you very much for your position.

DEBORAH MCKENNA: You're welcome.

SENATOR COLEMAN: Representative Smith.

REP. SMITH: Thank you, Mr. Chair, for the second time. Is it your understanding of this bill that the employer would also be able to recover legal fees and costs if in fact the agreement was upheld?

DEBORAH MCKENNA: If you could just give me one moment.

REP. SMITH: And I'm looking at Subsection C there.

DEBORAH MCKENNA: I read it as the language says any person who's aggrieved by a violation of this statute, so I suppose if you read it broadly, if you had an employee, if you had first determined that the non-compete agreement was enforceable and you had an employee who violated the terms of an enforceable non-compete agreement, then you could argue for the employer that they were the person who was aggrieved.

REP. SMITH: All right, thank you. Mr. Chair, I'm just not sure what the intent of this bill is in terms of whether we're looking to provide that right to both employers and employees in the event that there is a breach of a non-compete agreement, and I can't tell by looking at the language of the bill.

So it may be something that the Committee wants to look at if this bill is to go forward in terms of whether it's reciprocal or just intended to provide the employee with an avenue to defend and then recover in the event that the non-compete agreement is not found to be fair and reasonable. Thank you.

DEBORAH MCKENNA: Thank you.

SENATOR COLEMAN: Thank you. Angelo Ziotas.

ANGELO ZIOTAS: Good evening, Senator Coleman, Representative Fox, Members of the Committee. My name is Angelo Ziotas and I'm here to testify on behalf of the two bills that are before the Committee relating to the certificate of merit.

I am a current officer with the Connecticut Trial Lawyers Association as well as an attorney practicing in Stamford, Connecticut. I do a great deal of medical negligence work.

The bills that are before you are designed to deal with a problem that we've all known about for years and there is an anomaly in the statute where it was not intended in '05. Senator Kissel, Senator Coleman, those of us who were involved in the process at the time, it was not intended to create a higher burden to file a lawsuit than you needed to win one, and that's the current state of the law.

And we've known that for several years. There have been attempts to ameliorate this and change the law that had gotten through one Chamber or the other and I've testified each of the last few years on this issue.

So I realize that it's late and you've heard from a number of people but I did want to respond, I thought, at the end of the day to some of the testimony that you've heard already.

And I was going to focus on Dr. Foley, who was the most recent witness. Many of you were here for his testimony, and comment on just a couple of aspects of it, which I think really illustrate the issue that I think, it pushes this Committee toward doing something.

The first is, I was very surprised with one of Dr. Foley's comments when he indicated that the main issue that is concerning physicians in Connecticut is the certificate of merit bill. It seemed to be quite a bit of hyperbole, especially given the statistics that we all know and have been brought up several times today.

There are 280 lawsuits filed a year. Based upon the Institute of Medicine study, which we all understand to be definitive. It's a group that the federal government and state governments rely on throughout the country. There are 100,000 patients who die every year from preventable medical errors.

Just based upon Connecticut's population, we're talking about over 1,000 patients a year. Only a quarter of that many are filing lawsuits.

But the substantive point that I wanted to raise about Dr. Foley's testimony is the same issue that came up with Dr. Orlando today, Dr. Marks last year. There is a complete misunderstanding about this bill in the medical community.

I don't know if that stems from the aggressive attorneys who come before you and testify in hyperbolic ways about what this bill does or doesn't do. There is nothing in this bill that would allow an oncologist to sign a letter about a cardiologist. That was Dr. Foley's example.

Dr. Orlando came before you today and talked about the fact that because he's a general surgeon who specializes in gastroenterological diseases that that's the kind of doctor who should testify against him. There's nothing in this bill that would change that. That's exactly what should be happening.

Dr. Marks' testimony last year I know has been brought before you but basically he's a spinal surgeon and our example has always been a doctor who does spinal surgery should sign a letter against Dr. Marks, be it a neurosurgeon or an orthopedic surgeon. Dr. Marks agreed to that standard last year.

So each time the physicians come, I do think they misunderstand the import of this bill. These bills correct something that the court erred in Bennett and give, and basically allow meritorious cases to get to court without the five or six year delay that we now have in Bennett.

So I realize my time has expired but I'm happy to answer any questions the Committee may have.

SENATOR COLEMAN: Do Members have questions? Representative Smith.

REP. SMITH: Thank you, Mr. Chairman. I appreciate your testimony because I think that was the point I was trying to drive home with Dr. Foley as to really what is the significant difference between the qualified and the similar terminology, you know, under the current statute and the proposed bill.

And I do recall the oncologist versus the cardiologist thing. I wrote it down but I never got to deal with that question. I got off track with him, but I guess my question for you is, I mean, are we really, is this really a difference or not a difference?

I know we're trying to clean up the bill and that's the intent of the Committee, but in doing so, are we creating more problems?

ANGELO ZIOTAS: I don't think so, Representative. I think you're really just trying to bring the bill back to what it was originally intended in 2005.

If you have a board certified physician practicing in that field, you get a doctor who's doing the exact same procedures, you get a letter signed by that person and it says that. The new statute doesn't change that. That's still (inaudible).

What we are talking about are those overlapping fields. Cardiology is a good one of those because interventional cardiology has come up several times. There are cardiologists who do procedures where they make an incision, insert stents and they do things in an interventional way. They're called interventional cardiologists.

Well, there's a full school of radiologists who do the same procedures, and in those cases where you have a doctor doing the exact same procedure, you want an expert who has that background training and experience. That's all we're talking about, is including those kinds of overlaps.

I have a case currently that I think illustrates the point very, very well. We have an internal, an interventional radiologist performed a procedure that frankly, almost no interventional radiologists perform. This doctor has been doing this procedure for a very long time because he trained with vascular surgeons.

So in order to get an expert to look at his care and say it was inappropriate, to go to a vascular surgeon who does three hundred of those a year makes a lot more sense than going to another radiologist who's never done that, and that's what this bill would allow.

Because no matter how flippant some of the witnesses have been about how easy it is to find witnesses, it is not easy to find doctors who are willing to testify against other doctors.

And so to be able to go to that doctor who actually does a lot of the procedures, that's the kind of witness all sides should want.

I mean, I was heartened to hear some of the doctors say that they don't want to eliminate meritorious cases. Well, that's what this would allow us to do, to make sure a patient with a meritorious case can get through the courthouse doors and have it litigated.

REP. SMITH: Okay, thank you. I appreciate it.

ANGELO ZIOTAS: You're welcome.

SENATOR COLEMAN: Chairman Fox.

REP. G. FOX: Thank you, Mr. Chairman and thank you, Attorney Ziotas. I know you've been here pretty much all day.

I asked Attorney Riggs this question, so I'll ask you the same because during his testimony he had indicated that the courts have essentially decided how we will interpret this statute and they've opened the door for cases to continue and we don't need to make any changes to it as a result.

And he gave some of the, I believe he identified just a couple of cases that created a statutory scheme, which were his words, and I just wanted to give you an opportunity as well to talk about how the courts have interpreted this and why you still feel that it's necessary that we do this.

ANGELO ZIOTAS: Thank you, Representative. I appreciate that. The way in which the courts have interpreted this statute still allow for an enormous amount of litigation.

I thought that Attorney Riggs' commentary about the percentage of motions that he's filing was very interesting in the sense of even off the top of his head, he knew that he had filed in about six out of thirty. I wasn't a math major for more than a couple of weeks, but that's still a significant percentage of cases.

It may not be the 100 percent of cases that his firm was filing after the advent of the law, but there are still significant issues. The Wilcox case that he referred to, and I know, the members who were here I note jotted down the cite. I apologize. I don't have that, but there was an Appellate Court decision that talked about one of the issues that was being litigated all the time, which was the detailed basis, a requirement under the statute.

I can tell you that those motions are still being filed, even under Wilcox, where there was an Appellate Decision that described the amount of detail that was required. Motions on that basis are still being filed.

So there is no question that there is still a need to clarify the law in order to ensure that these motions aren't before the court.

I can tell you from speaking to judges, they feel like they're still dealing with this in the vast majority of malpractices cases that are filed.

REP. G. FOX: And also, when I hear the examples that are given by the opponents of this bill, I, in terms of who can file a certificate of merit, I listened to them. I agree with that. I mean, you know, they talk about, I think one of the examples was an internist providing the certificate of merit for a heart transplant.

ANGELO ZIOTAS: Right.

REP. G. FOX: Or you hear of a nurse providing the quality of care in the emergency room for an emergency room doctor and in those examples I would agree, and that kind of certificate of merit should not be permitted to continue.

And I'd just like your perspective as to whether or not this bill would allow that?

ANGELO ZIOTAS: I don't think it would. In fact, I'm sure it doesn't and that's been the frustrating part about sitting and listening to the testimony on this bill the last couple of years.

It seems to me there's been some scare that's been run through the medical community about this. There is nothing about this bill that would allow an internist to talk about brain surgery. It can't happen under this bill.

There's no way that you could put in a good faith certificate the background, training and experience of an internist that would allow him to testify about brain surgery.

The example that Senator Coleman used, I do think would and should be permitted. I think that when you're talking a nurse more generally, maybe a physician shouldn't be testifying about that, but a nurse midwife who's delivering a baby, the issue in that case is whether the delivery was handled appropriately.

And so I do believe that in order to just get into the courthouse door, having reasonable suspicion of negligence, an obstetrician could sign a letter about a nurse midwife during a delivery. But that's what we're talking about, the overlap between fields, and OB-GYN delivers babies as does a nurse midwife.

Nothing about this bill or any way of reading this bill would allow the internist to sign that letter.

REP. G. FOX: Thank you. Thank you, Mr. Chairman.

SENATOR COLEMAN: Are there others with questions? So let me ask the reverse. Do you think a midwife should be able to sign a certificate of merit against an obstetrician?

ANGELO ZIOTAS: I don't think so. I don't. I think you could be over-qualified in that setting, but I think that maybe there's an issue there because frankly you're talking about an issue of supervision and almost all the nurse midwife practices that I'm aware of associate with an obstetrician practice such that if a C-section is necessary, an obstetrician is called in.

So I think it's much simpler to understand how an obstetrician would be able to supervise the delivery. They do the whole thing, where a nurse midwife might not have the full range of experience.

SENATOR COLEMAN: Thank you. I don't see any other Members seeking to ask questions, so thank you very much for your time and your presentation.

ANGELO ZIOTAS: Thank you, Senator.

SENATOR COLEMAN: Lew Chimes.

LEWIS CHIMES: Senator Coleman, Representative Fox and Members of the Committee. My name is Lewis Chimes. I'm here on behalf of the Connecticut Trial Lawyers Association but I am not here on the certificate of merit issue.

I am the Chairman of the Employment Section of the Connecticut Trial Lawyers Association and I'm here on behalf of two bills that deal with the workplace, which have been recently addressed by Attorney McKenna of the Connecticut Employment Lawyers Association, Raised Bill 6658, which deals with the non-competition agreements and Section 17 of Raised Bill 6667, which is a revision of Connecticut General Statutes 31-51q, the free speech statute.

Since she didn't get into too much detail, I'm going to talk about Section 17 and then if time permits I'll clarify some of the issues relating to the non-competition agreement.

Twenty years ago, or over twenty years ago, Connecticut passed, this Legislature passed 31-51q, which protected employees to speak out on matters of public concern in the workplace. This extended constitutional protections not only to public sector employees, which traditionally had it from the federal 1983 statutes, but to all employees within the State of Connecticut.

And over the years, this statute has worked very well to protect whistleblowers, among others, people who speak out on important matters of public concern. Such issues where 31-51q was used as advocacy for the disabled, cover up of environmental violations, airport security, complaints about unsafe maintenance of hazardous waste, unlawful Medicare billing practices where employees have been discharged in retaliation for speaking out and this protected them.

The misuse of this statute by disgruntled employees who really didn't have a legitimate claim was protected for 20 years under two important constraints.

The first is that the speech had to be a matter that related to public concern. In other words, if the employee's complaint was a work specific complaint, that's not free speech. It's not a matter of public concern.

It had to be a matter that really addressed not just the workplace but just citizens and general public policy issues.

Second, the speech had to not substantially and materially interfere with his performance in the workplace and his relationship with the employer.

And in the constitutional protection, under a case called Pickering, was that the interest of the employer and regulating the employee must outweigh the employee's right to speak out and if the employee's right to speak out outweighed the employer, then it was protected speech and this worked.

In 2006, the United States Supreme Court changed the law, the Pickering law, which was in a case called Garsetti vs. Sebalos and what Garsetti did was that it really only applied, any employee who was speaking out in the course of their employment was no longer protected because that was their speech and their duty as an employee.

The problem with that, and the problem of that standard, is that the people in the workplace who most dealt with the controversial issues that we wanted them to feel able to speak out about. The in-house lawyer talking about securities violations or tax fraud. The OSHA, the quality control inspector and a factory talking about possible safety violations, those people whose duty was to report on that stuff no longer had the protection.

Now, last year in two cases before the Supreme Court, the Supreme Court changed the application of 31-51q and incorporated this Garsetti standard.

So what this legislation does, quite simply, is it seeks to bring the 31-51q, the law that has existed and worked in the workplace for over 20 years, back to what it was before these two Supreme Court decisions. And the way we do that is very simple.

We add the language that it shall not be a defense that the employer was acting within the scope of his employment. Quite simply, that unlike Garsetti in our statute would not be, the employee would not lose the protection.

So all we're trying to do is bring it back to what has worked under the statute for the past 20 years.

And so, I'm going to address a couple of things on the non-compete agreement, which is Raised Bill 6658. I think there was, one of the questions was whether this statute also awards attorneys' fees to employers.

Now the way non-compete agreements that are imposed by employers work, they are generally, there is unequal bargaining power and they are contracts of effusion, meaning you sign this or you get fired.

They also generally, and I would say 95 percent of the ones I've reviewed and I've probably reviewed hundreds of them, they say, if we have to go to court and enforce this agreement, you agree, we have irreparable harm, and you agree we get attorneys' fees.

It doesn't say if we're wrong you get attorneys' fees. So right now, in the world of non-competes, the employer who tries to enforce an over broad agreement who has the resources, can basically force the employee, even if the employer's right, you have to pay for a lawyer and the employee gets no recourse. If he wins, or more likely he can't afford the lawyer and just gives up, even though he has a decent argument that the non-compete agreement is over broad. So I think this is a change.

I also think that the statute, the way that I read the statute and I think was the intent of the statute is, that this only applies to violations of the statute, so that, violations of the statute would mean either they didn't give the ten-day notice, it was unreasonable. So that, I would think the remedies apply to the employee.

Again, in most of these non-compete agreements, the employer provides their own attorneys fees remedy, so I think it does address, I think what Representative Smith talked about. And I think Representative (inaudible) you raised an issue, well, doesn't the employee have to make this choice just like any other choice like salary and wages and that's very, I would respectfully disagree.

Salary and wages cover what's at the workplace, what's going to happen when you are there, meaning you work there, you get X, you get Y, you get three weeks' vacation. Those are all workplace things. A non-competition agreement addresses what you can't do after you leave.

Now, most of the agreements that we, may I continue? Most agreements that employers will say when they list, this is what you get, they also say you are an employee at will, meaning we, the employer, can fire you at will.

But in a non-competition agreement says, you can't do, you can't work here, you can't work there. It's a very different type of regulation than a statement about wages, benefits or hours or terms of work while you're at this employment. So I do think it's different.

There are some states that outlaw non-competition agreements altogether because, in a workplace because they think they're unfair. And so I think this is not that, but I think this is a reasonable balance that does give some protections to employees who basically have no choice when they're given these options of signing these employment agreements.

So thank you, and does anyone have any questions?

SENATOR COLEMAN: Are there other questions? Representative Smith.

REP. SMITH: Mr. Chair, thank you. You'll admit, I think, that not all the agreements when we talk about non-compete agreements, are those that are just handed to the employee and say here, sign this or, you know, you're not going to have a job. I understand there are those circumstances in which that occurs.

But I suspect you'll agree with me that there are other situations where you're actually presented this agreement to get the time to review it with counsel, to have counsel involved and agreement where a meeting of the minds has occurred.

And in those situations, I'm looking at the statute, and while I understand your opinion is it just applies to employees or their rights to bring an action, I suspect if you have an arm's length agreement with counsel on both sides, then the violation of the agreement, whether it be by the employee or by the employer, should allow either party to recover under the statute. Would you agree with that?

LEWIS CHIMES: Yeah, I do think the situations you're talking about because I represent, those intend to be very high-level executives or people who have a great deal of bargaining power or pro athletes.

So yes, when the bargaining power is equally sided, represented by counsel and is a sophisticated consumer, I don't think protections in this are as necessary, but I do think that for 90 percent of employees in the workplace, they are.

So I would agree with you that there are situations, I would agree that there are situations where non-competition agreements for employees are appropriate, because people do go to workplaces and then they, you know, leave, open up down the street and steal the business and that's not fair.

But I do think that in most instances the bargaining power is unequal.

REP. SMITH: So just, I hate to interrupt you but in those situations where you just described where the employee signs an employment agreement represented by counsel. It's a three-year non-compete. Two years later they take off. They have all the information they desired and start a new firm down the street and the employer decides to bring an action to enforce the agreement.

My position under this bill should be that the employer would also be entitled to recover fees, attorneys' fees, costs, just as the employee should be able to recover if in fact there's a violation of the statute as well.

Are they, let me just finish here. In reading the statute that's proposed, I don't think it really helps identify those situations in terms of defining what is reasonable, what is unreasonable, because that always seems to be the case as far as I understand this area of the law, and I certainly don't want to represent I'm an expert, because I'm not.

But there's always the question, well, is the agreement reasonable? Is the radius limited enough? Is the time frame reasonable? You have all these qualifiers that the courts look to and I don't think this bill addresses any of those other than for the court to decide what they already have to decide.