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Don't make malpractice suits easier

Published May 02. 2013 4:00AM

With the exception of trial attorneys, does anyone believe that one of the big problems with the health care system is a lack of malpractice lawsuits? No, the problem is quite the opposite - too many frivolous lawsuits that drive up the cost of health care due to higher malpractice insurance premiums and by encouraging the practice of defensive medicine, with its redundant and often needless tests and exams.

Yet the Connecticut General Assembly once again is considering legislation that would water down legislation passed in 2005 with the intent of making it just a bit harder to file a claim of medical malpractice. The Connecticut Trial Lawyers Association has been relentless in its efforts to eliminate what it sees as an impediment to litigation.

Since 2005, state law has required a patient claiming damages due to the negligence of a doctor or other health care professional to provide a "certificate of merit" from a "similar" medical professional stating that the claim has merit. This certification can come from a health expert in another state, and his or her name does not appear in the public file, meaning a doctor need not fear retribution for certifying another doctor may have acted negligently.

The courts have interpreted "similar" to mean someone in the same field - so if a cardiologist faces malpractice a cardiologist certification is necessary to pursue the lawsuit.

Trial lawyers don't like it, and again are seeking to change the language to a "qualified" health care provider. It may seem like a minor distinction, but it has major implications. It would allow certification by someone who, in the opinion of a judge, "possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine."

In other words, plaintiffs' lawyers would have far wider latitude in finding someone willing to certify a lawsuit, no longer needing a cardiologist, for example, to certify malpractice against a cardiologist. Perhaps a hematologist would do, since the heart pushes blood, or a nurse who has assisted in heart surgery.

Dr. John Foley, president of the Connecticut State Medical Society, who happens to be a cardiologist with a practice in Norwich, said the result would be "to replace a barrier to frivolous lawsuits with a speed bump that would offer no protection at all."

Another proposed bill would give plaintiffs who can't come up with an expert to verify the validity of their claims up to a year to find someone who will. If both bills were to pass it would send the message that Connecticut is unconcerned with the high cost of malpractice insurance and the threat that frivolous lawsuits pose to doctors and health care institutions.

"I am very much afraid. This has the potential to be a real catastrophe in the making," said Dr. Foley, warning that approval of the legislation would force more doctors into retirement or persuade them to take their practices elsewhere, aggravating the doctor shortage in Connecticut.

This is more infuriating because it is so unnecessary. The current certification does not prevent someone with legitimate claims of physician malfeasance to seek redress for damages. If a lawyer cannot find a doctor or other health professional in the same field to substantiate anonymously that a claim has some merit, it ought to raise serious doubts about the legitimacy of the assertion of negligence.

The General Assembly should leave the current certification requirements in place.

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