Legitimate Medical Malpractice Claims Denied Their Day in Court
A particular medical malpractice provision blocks certain valid claims in Connecticut.
June 20, 2012 /24-7PressRelease/ -- Tort reform was designed to prevent frivolous claims from entering the court system. Unfortunately, it appears that some provisions may also block legitimate medical malpractice claims and keep victims from holding negligent medical professionals accountable for wrongdoing.
A prime example involves a mother who took a proactive role in her pregnancy after losing a child to miscarriage. She found a doctor who agreed to work in collaboration with specialists at Yale University to help ensure the success of her high risk pregnancy. The doctor allegedly did not follow the agreement and refused to work with the specialists while withholding information from the patient. As a result, her infant was born with a plethora of complications and died within two months of delivery.
Another example includes a man who suffered a car accident while having a diabetic seizure. The hospital treated the man for his seizure, but failed to diagnose spine and leg fractures that ultimately led to his death.
Although these cases are likely valid medical malpractice claims, the allegations will never reach court. The cases were dismissed based on a technicality, and are just a sampling of several similar claims which do not reach court although they appear founded in legitimate causes of action.
Provision Which Blocks Valid Claims
The reason for dismissing these claims stems from "tort reform" implemented in medical malpractice law in 2005. This reform has dropped the number of lawsuits filed from an average of 364 suits annually to less than 300.
One provision of The 2005 Connecticut Act Concerning Medical Malpractice requires plaintiffs to provide a written opinion stating that there is evidence of medical malpractice in an attempt to provide authenticity to the allegations. The letter must include a detailed basis for the opinion and be written by a doctor who holds similar credentials to the accused. Courts are struggling with two issues based on this provision:
- The scope of similar credentials
- The level of detail required
The law defines a similar health care provider as one who is trained, experienced and certified by the appropriate American board in the same specialty as the doctor facing charges. It further states that if the patient was treated by a physician for a condition outside of the doctor's practice area, an appropriate specialist can be substituted. Additional flexibility is provided, allowing the court to substitute another medical professional if it finds sufficient training, experience and knowledge are present to allow an exception.
This ambiguous language has caused confusion in the courts, which has lead to the dismissal of many medical malpractice/personal injury claims, often because judges interpret the term "similar" to mean "identical."
In addition to confusion on how to satisfy the similar health care provider criteria, courts are struggling with the level of detail required to explain the breached duty of care. Specifically, the law states that the letter must include a "detailed basis for the formation of" an opinion that the allegations of medical malpractice have merit. There is no further information provided defining this term or giving guidelines to the physician preparing the letter.
As a practical result, the opinion letters can overshadow the medical malpractice allegations.
Other States Declare Similar Laws Unconstitutional
Other states, including Washington, Arkansas, Ohio and Oklahoma, have declared similar laws unconstitutional. In Arkansas, the ultimate decision was tied to a case alleging negligence on the part of doctor for withholding treatment of serious burns for three weeks.
The defendant argued that the case should be dropped since the plaintiff's witness did not satisfy the "substantially similar" requirement. The court held provisions on procedural determinations, including qualifications of expert witnesses, are unconstitutional.
Future of Medical Malpractice Laws in Connecticut
An attempt to clarify the requirements of the opinion letter provision recently failed in the legislature. However, efforts continue to alter the language of the law. Currently, the law states that judges "shall" dismiss claims with inadequate opinion letters. Victims of medical malpractice are asking that the term "may" be used instead. If eventually allowed, the likelihood of legitimate claims reaching court will increase.
A properly prepared medical malpractice claim increases the chances of a valid allegation reaching court. Those injured by negligent medical practices are eligible for compensation to cover medical and rehabilitative costs, as well as pain and suffering. Even though meeting the requirements for a medical malpractice claim can be difficult, an experienced medical malpractice lawyer can help ensure that your legal rights and remedies are protected.
Article provided by Kennedy, Johnson, D'Elia, & Gillooly, L.L.C.
Visit us at www.kennedyjohnson.com
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