Tort reform in Connecticut has had unintended consequences that have left some alleging that their legitimate medical malpractice lawsuits were intentionally left out of Connecticut’s court system in a move meant to minimize frivolous lawsuits.
According to a 2006 lawsuit filed by Patricia Votre, after becoming pregnant following a prior failed pregnancy, she began experiencing fever and back pain. Despite arrangements she made with her physicians to speak with high-risk pregnancy experts at Yale University and transfer her care to them, her doctors would not turn over her care and would not treat her in accordance to the Yale group’s recommendations and hid their care plan from her, said Delaware Online, citing the lawsuit.
Her baby Miles, nearly died at birth due to an E. coli infection, only to die 51 days later from a blood infection in 2003, said Delaware Online. Although the allegations are considered serious by any standards, the case never reached a jury and was dismissed over a technicality in the state’s medical malpractice law added in 2005, part of the nation’s “tort reform” debate, explained Delaware Online.
The technicality mandates plaintiffs in malpractice cases receive an expert medical opinion to confirm their allegations before filing a lawsuit; however, many cases have been dismissed over legal fights concerning expert credentialing, said Delaware Online. “It was just not right. It was just not fair,” said Votre. “They used the law to manipulate the situation. It wasn’t about my baby. It was about me,” Votre added, according to Delaware Online.
The law, sadly, has kept many legitimate lawsuits out of Connecticut’s court system, said Delaware Online, according to an AP review. Worse, say plaintiffs, health care professionals are not held accountable for any mistakes they may have made.
Since it was put into effect, the law has seen malpractice cases in Connecticut drop to 20 percent from about 292 annually to about 364, according to state’s records, wrote Delaware Online. While no one has been able to confirm that the opinion letter mandate is to blame, malpractice attorneys feel the requirement has a lot to do with the drop.
Similar laws in other states—Washington, Arkansas, Ohio, and Oklahoma—have been declared unconstitutional over the prohibitive cost of obtaining opinion letters, which run into the thousands of dollars, noted Delaware Online. A significant issue given that the Connecticut law mandates plaintiffs’ experts have “similar credentials to the medical professionals being sued. State’s judges appear to be interpreting the law to mean that the credentials must be identical, not just similar, causing many cases to be dismissed, said the AP.
Edmund Lohnes said he almost died in 2007 when hospital staff gave him a drug to which he had an allergy, despite that he wore a wristband advising staff of the allergy, said Delaware Online. Lohnes sued. The lawsuit was dismissed because the physician who wrote the opinion letter was a pulmonologist; the doctor accused of the mistake was an emergency medicine physician. “I’m not going to be able to hold this doctor and the hospital accountable,” he said, wrote Delaware Online.
State lawmakers—Democratic and Republican—who approved the law over doctor and hospital pressure and booming malpractice insurance rates, assert that this in not what they intended, said The AP. Despite attempting to ease the opinion letter mandate during the 2011 legislative session, the bill passed in the House, but failed in the Senate over strong opposition from doctors and hospital officials, who claim the law has helped reduce frivolous claims, said The AP. The law is scheduled to be presented in the form of another bill in the 2012 session.
“I don’t think anyone should be barred from the courthouse doors before the merits are heard,” said Republican state Senator John Kissel of Enfield. “The party’s that’s forgotten in all of this is the injured individual who is suffering because of what he or she believes in medical malpractice,” he added, the AP reported. Meanwhile, the AP noted that an appeal has been filed with the state Supreme Court in a malpractice case that challenges the law’s constitutionality.