Keeping frivolous lawsuits out of court

To prevent frivolous medical malpractice suits, Connecticut law requires every patient who sues a doctor or hospital to first obtain a written opinion from a medical expert who practices in the same specialty as the doctor.

A new state Supreme Court ruling helps clarify that law, continuing to help prevent frivolous cases from being filed while at the same time ensuring that individuals can pursue justice when they have been wronged.

The court has helped preserve an important balance. We need to make sure that balance remains in place.

Under the law, the expert reviewing a potential lawsuit must state that he or she believes there is evidence of medical negligence, meaning the doctor did not meet the required standards of his or her medical profession while treating the patient. The opinion must recite the author’s credentials, provide a detailed explanation of the opinion. The name of the author is removed, however, to encourage health care providers to come forward with opinions supporting valid medical malpractice claims without being subjected to the criticism of their peers. When the case is filed in court, the opinion letter is attached to the first pleading, or complaint, as proof that the claim has been vetted before entering the legal system.

If the health care provider being sued believes that the author of the opinion was not the correct doctor to write the opinion, or the opinion is deficient in some other way, the statute allows a lawyer to challenge the opinion and the lawsuit.

In the nearly two decades since this law was passed (it can be found at General Statutes § 52-190a), there has been an incredible amount of litigation as to its proper meaning. Lawyers representing health care providers argued for interpretations of the law never intended by

the legislature. Both the Supreme and Appellate Courts of Connecticut struggled to stay true to the law’s original purpose, sometimes losing their way. The recent decision (Carpenter v. Daar ), resets the proper balance and removes “the roadblocks for otherwise meritorious cases that are squarely at odds with the legislature’s limited goal of ensuring an adequate, good faith investigation and eliminating only frivolous lawsuits.”

Often a patient does not know if he or she has a valid medical malpractice claim until consulting with a legal professional who will, in turn, have to consult with the correct medical specialist to determine if a lawsuit could and should be brought. This process can take a significant amount of time and, while the legislature has added an additional 90 days to the time allowed for filing such a claim, there is no good reason to delay because without a proper opinion letter, a medical malpractice case cannot be filed.

For the most part, Connecticut

patients should count themselves among the very lucky when it comes to pre-suit requirements and the legislature’s lack of intrusion into medical negligence claims — minimal compared to some other states. In our state, a patient’s right to sue a doctor has been preserved pretty much like it always was. For example, there are no caps on damages or restrictions on recovery for pain and suffering. A patient injured by a health care provider can recover the full amount of damages caused by medical negligence. This right is invaluable when you need it.

Make sure your congressman and your state legislators know that you support their continued restraint in the area of medical malpractice lawsuits

Ned Gerard/Hearst Connecticut Media The main Hartford Superior Courthouse building, in Hartford.