- I. Overview of Basic Principles and Concepts
- II. Filing Deadlines for Medical Malpractice Claims
- III. Statute of Repose—Absolute Bar to Recovery
- IV. Immunities and Limitations on Liability
- V. Required Elements of a Medical Malpractice Complaint
- VI. Good Faith Certificate
- VII. Expert Medical Witnesses
- VIII. Modified Comparative Negligence with 51% Bar Rule
- IX. Limitation on Damages
- X. Limitations on Attorney Fees
- XI. Apologies and Gestures of Sympathy
- XII. Disclaimer
Bridgeport, New Haven, Stamford, Hartford, Waterbury
The Law of Medical Malpractice in Connecticut: A Survey of Basic Considerations
Connecticut medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Connecticut are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Connecticut exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.
Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Connecticut by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Connecticut medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.
Section I below discusses the broad basic principles and concepts of medical malpractice law in Connecticut. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Connecticut.
Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.
I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Connecticut?
-Required Elements of a Medical Malpractice Claim in Connecticut
-The Basic Elements
-Standard of Care and Breach
II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Connect icut
-The Discovery Rule
-The Discovery Rule in Connecticut
III. Statute of Repose—Absolute Bar to Recovery
-Statute of Repose in Connecticut
-Continuing Course of Conduct
IV. Immunities and Limitations on Liability
-Sovereign Immunity in Connecticut
-Good Samaritan Law
-Good Samaritan Law in Connecticut
-Additional Immunities and Limitations on Liability
VII. Expert Medical Witnesses
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Admissibility of Scientific Principles and Discoveries in Connecticut
IX. Limitations on Damages
X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Connecticut
I. Overview of Basic Principles and Concepts
What is Medical Malpractice in Connecticut?
Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.
According to the Connecticut Supreme Court, “professional negligence or malpractice … [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.” [emphasis in original] Gold v. Greenwich Hospital Association, 262 Conn. 248, 254 (2002) (quoting Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-358 (2001)). The Supreme Court explained:
we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. Id.
Required Elements of a Medical Malpractice Claim in Connecticut
It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Connecticut law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.
Connecticut medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. “It is axiomatic that a plaintiff must establish a causal relation between the defendant’s negligence and his injuries.” Green v. Ensign-Bickford Company, 25 Conn. App. 479, 491 (1991). The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.
The Basic Elements
The Connecticut Supreme Court described the necessary elements of a compensable medical malpractice claim that the plaintiff must prove as follows:
1. The requisite standard of care for treatment;
2. A deviation from that standard of care; and
3. A causal connection between the deviation and the claimed injury. Boone v. William W. Backus Hospital, 864 A.2d 1, 14 (Conn. 2004).
In addition, the general rule under Connecticut law is that the plaintiff must provide expert medical witness testimony to support his or her “medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons.” Id. Expert testimony is generally required to establish both the applicable standard of care as well as causation between the alleged negligence and injury. Shelnitz v. Greenberg, 200 Conn. 58, 66 (1986). When seeking to establish causation, the expert opinion testimony must constitute more than mere surmise or conjecture. Id. The expert opinion must establish reasonable probability of a causal connection, not the mere possibility that the negligence and injury are causally connected. Id.
However, in cases where the defendant’s conduct or behavior is sufficiently egregious as to constitute gross negligence, expert medical witness testimony is not required. Boone, 864 A.2d at 15. This exception to the general rule requiring expert testimony is based upon the fact that the defendant’s negligence is within the common knowledge and experience of a layperson, and as a result, expert testimony is not necessary to inform the trier of fact that the defendant’s actions deviated from the accepted standard of care and the complained of injury occurred as a result. Id. at 14-15.
The Connecticut Supreme Court noted that cases involving “foreign objects discovered in the body of a patient after surgery” are common examples where expert testimony is not required to establish standard of care and causation. Id. at 14. Another example where expert testimony was not required involved hospital staff grafting human tissue material upon a patient that was clearly labeled “For Investigational Use Only,” “For Use in Canada Only,” and “Laboratory Sample—For Testing Only.” Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 305-306 (1996). Similarly, expert testimony was not needed where a chiropractor who was not licensed to issue prescriptions prescribed medication not approved by the Federal Drug Administration to decedent who was undergoing cancer treatment. Shegog v. Zabrecky, 36 Conn. App. 737, 747-748 (1995). The foregoing scenarios are the types of cases where expert medical testimony is not needed because the average person is capable of understanding that the conduct involved amounts to negligent actions or decision making.
Standard of Care and Breach
The standard of care in medical malpractice actions is codified in Connecticut General Statutes (“CGS”) §52-184c. It states:
the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
Preponderance of the evidence is defined as “the better evidence, the evidence having the greater weight, the more convincing force” in the juror’s mind. Cross v. Huttenlocher, 185 Conn. 390, 394 (1981). This standard is satisfied “with respect to a fact if all the evidence considered fairly and impartially evinces a reasonable belief that it is more probable than not that the fact is true.” Id. at 395.
The general rule holds that the applicable standard of care in a medical malpractice case must be established by expert medical witness testimony. Pisel v. Stamford Hospital, 180 Conn. 314, 334 (1980). The Connecticut Supreme Court explained: “The requirement of expert testimony … serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” LePage v. Horne, 262 Conn. 116, 125 (2002). Expert testimony is mandatory when the issue involved is beyond the field of the ordinary knowledge and experience of judges or jurors. Id. Furthermore, expert testimony is needed not only to establish the applicable standard of care “but also that the defendant’s conduct did not measure up to that standard.” Pisel, 180 Conn. at 334.
To prevail on a medical malpractice claim, the plaintiff must “establish that the defendant’s negligent conduct was a cause in fact and the proximate cause of” the plaintiff’s injury. Boone v. William W. Backus Hospital, 864 A.2d 1, 17 (2004). Cause in fact asks the question whether the plaintiff’s injury would have occurred were it not for the defendant’s negligent conduct. Id.
On the other hand, proximate cause is not as easily defined and understood. The Connecticut Supreme Court described proximate cause1 as follows:
The proximate cause requirement tempers the expansive view of causation in fact by the pragmatic shaping of rules which are feasible to administer, and yield a workable degree of certainty. Remote or trivial actual causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences of inconsequential causes. In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice.
This court has often stated that the test of proximate cause is whether the defendant’s conduct is a substantial factor in producing the plaintiff’s injury. That negligent conduct is a cause in fact, however, obviously does not mean that it is also a substantial factor for the purposes of a proximate cause inquiry. The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. In applying this test, we look from the injury to the negligent act complained of for the necessary causal connection. [internal citations and quotation marks omitted] Doe v. Manheimer, 212 Conn. 748, 758 (1989).
The Supreme Court instructed that “[p]roximate cause is ordinarily a question of fact.” Mather v. Griffin Hospital, 207 Conn. 125, 130 (1988). As such, the trier of fact must determine whether proximate cause is established in a medical malpractice case. The Court attempted to clarify the basic meaning of proximate cause as follows: “Establishment of the causal relationship between a defendant’s actions or failure to act and a plaintiff’s injuries requires a showing that the action or omission must have been a substantial factor in producing those injuries.” Id. The Court opined that the “meaning of the term ‘substantial factor’ is so clear as to need no expository definition …. Indeed, it is doubtful if the expression is susceptible of definition more understandable than the simply and familiar words it employs.” Id. (quoting Connellan v. Coffey, 122 Conn. 136, 141 (1936)).
Expert medical witness testimony is generally required to establish causation in medical malpractice cases. Shelnitz v. Greenberg, 200 Conn. 58, 66 (1986). In addition, causation may be established by circumstantial evidence as well as expert testimony. Slepski v. Williams Ford, Inc., 170 Conn. 18, 22 (1975). In establishing causation, the plaintiff is not required to demonstrate only one possible theory of causation to the exclusion of all others. Terminal Taxi Company v. Flynn, 156 Conn. 313, 318 (1968).
II. Filing Deadlines for Medical Malpractice Claims
Introduction to Statute of Limitations
Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.
These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.
A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.
Statute of Limitations for Medical Malpractice Claims in Connecticut
Connecticut’s standard statute of limitations governing medical malpractice claims is contained in CGS §52-584. Basically, a plaintiff seeking to bring a civil action based upon a claim of medical malpractice must commence that action within two years from the date when the injury complained of was first sustained or discovered. Id. The statute reads, in pertinent part, as follows:
No action to recover damages for injury to the person … caused by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered…. Id.
The Connecticut Supreme Court has repeatedly stated that the relevant date for triggering the standard two-year limitations period is the date upon which the negligent conduct occurred, not the date when the plaintiff first sustained damaged. Blanchette v. Barrett, 229 Conn. 256, 265 (1994). According to the Court, “[w]hen the injury is complete at the time of the act, the statutory period commences to run at that time.” Id. at 274. Thus, when the injury is considered complete by the defendant’s negligence, the limitations period begins to run on the date the negligence occurred.
The Discovery Rule
Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.
The Discovery Rule in Connecticut
Connecticut has codified the Discovery Rule with respect to medical malpractice claims in the same statute as its standard two-year statute of limitations, i.e., CGS §52-584. The relevant portion of the statute provides that a claim based on medical malpractice must be commenced within two years from the date the injury is first “discovered or in the exercise of reasonable care should have been discovered….” Id.
According to the Connecticut Supreme Court, “an injury occurs when a party suffers some form of actionable harm. The harm need not have reached its fullest manifestation before the statute begins to run.” Burns v. Hartford Hospital, 192 Conn. 451, 460 (1984). Actionable harm occurs when the injured party discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action. Lambert v. Stovell, 205 Conn. 1, 6 (1987). In making the determination whether the injured party’s claim has accrued for purposes of triggering the two-year limitations period under the Discovery Rule, the focus is on the injured party’s knowledge of facts, not legal theories of recovery. Catz v. Rubenstein, 201 Conn. 39, 47 (1986).
Discovery of the essential elements of a possible cause of action means that the injured party has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. Id. Notice that discovery of the injury alone is not sufficient to trigger the running of the limitations period. Discovery of the injury must be coupled with knowledge that the injury was caused by someone’s wrongful conduct.
The Connecticut Supreme Court summed up the triggering of the limitations period under the Discovery Rule as follows:
the limitation period … does not begin to run until a plaintiff has knowledge or in the exercise of reasonable care should have had knowledge of sufficient facts to bring a cause of action against a defendant, which, in turn, requires that a plaintiff is or should have been aware that he or she has an injury that was caused by the negligence of the defendant. [emphasis in original] Lagassey v. State, 268 Conn. 723, 743 (2004).
The application of Connecticut’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. This is especially true when the statute of repose is also implicated (see next Section of this article). The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Connecticut medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Connecticut attorney who specializes in medical malpractice law at the earliest possible opportunity.
III. Statute of Repose—Absolute Bar to Recovery
Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.
Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.
In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.
Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.
While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.
Statute of Repose in Connecticut
Connecticut has a three-year statute of repose1 that runs from the date of the occurrence of the act or omission that forms the basis of the medical malpractice claim, i.e., the date of the alleged negligent conduct. CGS §52-584. The statute reads, in pertinent part, as follows: “no such action [for medical malpractice] may be brought more than three years from the date of the act or omission complained of….” Id.
The Connecticut Supreme Court instructed that the date upon which the three-year repose period begins to run is “the date the negligent conduct occurred and not the date when the claimant first sustained damage or discovered or should have reasonably discovered the wrong.” Stein v. Katz, 213 Conn. 282, 285 (1989). The statute of repose extinguishes claims three years after the date of the alleged negligence even if the injury has not been discovered or could not reasonably have been discovered during the three-year repose period. Id. In reality, that means the Discovery Rule is limited by the statute of repose to three years from the date of the negligence.
In Stein, the Supreme Court stated that the statute of repose “must be construed to bar malpractice actions not commenced within three years after the act or omission complained of, even where the plaintiff could not reasonably have discovered the basis for a claim within that period.” Id.
The statute of repose may be tolled under the continuous treatment doctrine. Grey v. Stamford Healthy System, Inc., 924 A.2d 831, 836 (Conn. 2007). The Connecticut Supreme Court explained that when “the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated. Id. As long as the physician continues to treat the patient for the particular injury or malady in question, the treatment is considered to be ongoing and continuous. Id.
In order for the continuous treatment doctrine to toll the statute of repose, the plaintiff must prove (1) that the plaintiff had an identifiable medical condition that required ongoing treatment or monitoring, (2) that the defendant provided treatment or monitoring of that condition after the allegedly negligent conduct, and (3) that the plaintiff brought the action within the appropriate statutory period after the date that the treatment terminated. Id. at 838-839.
According to the Supreme Court, the rationale for the continuous treatment doctrine “is to allow the plaintiff to complete treatment for an existing condition with the defendant and to protect the doctor-patient relationship during that period.” Id. at 839.
Continuing Course of Conduct
The statute of repose may be tolled under the continuing course of conduct doctrine (also referred to as continuous wrong doctrine). Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 369 (2000). Under this doctrine, a plaintiff is permitted to commence a medical malpractice action more than three years after the date of the alleged negligence. To support a finding of continuing course of conduct, the Connecticut Supreme Court explained:
there must be evidence of the breach of a duty that remained in existence after the commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong…. Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. [internal citations and quotation marks omitted] Sherwood v. Danbury Hospital, 252 Conn. 193, 202-203 (2000).
To successfully invoke the continuing course of conduct doctrine to toll the statute of repose, the plaintiff must prove that the defendant (1) committed an initial wrong upon the plaintiff, (2) owed a continuing duty to the plaintiff that was related to the initial wrong, and (3) continually breached that duty. Id. The continuing wrongful conduct may include both acts of omission and affirmative acts of misconduct. Witt, 252 Conn. at 371.
The Connecticut Supreme Court attempted to distinguish the continuous treatment doctrine from the continuing course of conduct doctrine as follows:
the primary difference between the doctrines is that the former focuses on the plaintiff’s reasonable expectation that the treatment for an existing condition will be ongoing, while the latter focuses on the defendant’s duty to the plaintiff arising from his knowledge of the plaintiff’s condition. As we have indicated, the policy underlying the continuous treatment doctrine is to allow the plaintiff to complete treatment for an existing condition with the defendant and to protect the doctor-patient relationship during that period. Accordingly, when the plaintiff had no knowledge of a medical condition and, therefore, had no reason to expect ongoing treatment for it from the defendant, there is no reason to apply the doctrine. [emphasis in original] Grey, 924 A.2d at 839.
The Supreme Court acknowledged that the two doctrines may overlap in cases and instructed as follows:
Although the continuing course of treatment and the continuing course of conduct doctrines are analytically separate and distinct, their relevance to any particular set of circumstances … may overlap. Because of this overlap, when plaintiffs have raised both doctrines in response to a statute of limitations defense and the evidence would support either one, we frequently have found it unnecessary to disentangle the doctrines and to specify which particular facts support which doctrine. Id. at 838.
The statute of repose may also be tolled for fraudulent concealment by the defendant. CGS §52-595. The statute states: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” Id.
In order to establish fraudulent concealment, the plaintiff has the burden of proving that the defendant was aware of the facts necessary to establish a cause of action against him or her and that the defendant intentionally concealed those facts from the plaintiff. Bound Brook Association v. Norwalk, 198 Conn. 660, 665 (1986). The Supreme Court instructed: “To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of ‘clear, precise, and unequivocal’ evidence.” Id. at 666.
IV. Immunities and Limitations on Liability
Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.
Sovereign Immunity in Connecticut
Connecticut has waived sovereign immunity to the extent articulated in specific statutes. CGS §52-557n governs medical malpractice actions against political subdivisions of the state and employees. In general, the statute provides that political subdivisions are liable for tort actions to the same extent as private parties. It reads, in pertinent part: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties….” CGS §52-557n (a)(1).
However, under the statute, the state is not liable for damages to person or property caused by:
- Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or
- Negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. CGS §52-557n (a)(2).
- The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented;
- a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of;
- a statement of the amount requested; and
- a request for permission to sue the state, if such permission is sought. Id.
The Claims Commissioner must authorize suit against the state for any claim of medical malpractice. CGS §4-160. If the plaintiff submits a certificate of good faith as described in CGS §52-190a, then under the statute, the Claims Commissioner “shall authorize suit against the state on such claim.” CGS §4-160(b). The statute requires: “Issues arising in such actions shall be tried to the court without a jury.” CGS §4-160(f).
The plaintiff must file suit within one year after the date authorization to sue was granted. CGS §4-160(d). The statute further provides:
With respect to any claim presented to the Office of the Claims Commissioner for which authorization to sue is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted. The claimant shall bring such action against the state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident of this state, in the judicial district of Hartford or in the judicial district in which the claim arose.
All claims against the state must be presented under the provisions of Chapter 53—Claims Against the State. CGS §4-148(c). The statute provides that “no claim once considered by the Office of the Claims Commissioner, by the General Assembly or in a judicial proceeding shall again be presented against the state in any manner.”Id.
Good Samaritan Law
The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).
In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.
Good Samaritan Law in Connecticut
Connecticut has enacted a medical personnel Good Samaritan law that is codified in CGS §52-557b. It provides immunity from civil liability for personal injuries that result from acts or omissions by a Good Samaritan who renders emergency care that constitutes ordinary negligence.Id. The statute covers licensed physicians and dentists, registered nurses and licensed practical nurses, medical technicians, persons operating cardiopulmonary resuscitators, and persons trained in CPR or the use of an automatic external defibrillator.Id.In order to qualify for immunity, the following conditions must be satisfied:
- The Good Samaritan must be a covered medical practitioner enumerated in the statute;
- The emergency care must be rendered voluntarily and gratuitously;
- The emergency care must not be rendered in the ordinary course of the Good Samaritan’s employment or practice;
- The emergency care cannot constitute gross, willful, or wanton negligence1. Id.
Notice that under the statute, members of the general public are not covered by the Good Samaritan statute, only specified medical practitioners. If covered by the statute, it provides immunity from civil liability for actions or omissions while rendering emergency care that amount to ordinary negligence.
Additional Immunities and Limitations on Liability
There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Connecticut General Statutes. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Chapter 925 of the CGS.
1 “While we have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” [internal quotation marks omitted] Craig v. Driscoll, 262 Conn. 312, 342-343 (2003).
It does not appear that the term ‘gross negligence’ has been clearly defined by Connecticut courts. Footnote 10 of Matthiessen v. Vanech, 266 Conn. 822, 833 n.10 (2003), may shed light on the reason why courts in the state have not clearly defined the term. In it, the Connecticut Supreme Court stated: “We note, moreover, that gross negligence has never been recognized in this state as a separate basis of liability in the law of torts. We have never recognized degrees of negligence as slight, ordinary, and gross in the law of torts. We do not recognize a classification of standards of care into slight, ordinary, and gross, or the like, except in certain definite relationships.” [internal citations and quotation marks omitted] Id.
V. Required Elements of a Medical Malpractice Complaint
Under Connecticut law, there is only “one form of civil action.” CGS §52-91. The first pleading by a plaintiff to initiate a medical malpractice action is “the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought.” Id.
When money damages are sought in the demand for relief contained in the complaint, the demand cannot specify a specific amount but instead must set forth:
- That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or
- that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or
- that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. CGS §52-91
The complaint must “contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation.” Rules of the Superior Court (“RSC”) §10-1. The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action. RSC §10-25.
Connecticut is a fact pleading state.Amore v. Frankel, 228 Conn. 358, 375 n.2 (1994). Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms. The interpretation of a complaint is a question of law for the court. Boone v. William W. Backus Hospital, 864 A.2d 1, 10 (Conn. 2004). Connecticut courts construe complaints “broadly and realistically, rather than narrowly and technically…. [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” [emphasis in original] Id.(quoting DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79, 104 (2003)).
Notice pleading is the other (more common) system of pleading. For example, Ohio utilizes notice pleading. Morris Children’s Hospital Medical Center (1991), 73 Ohio App.3d 437, 443. Notice pleading serves “to simplify pleadings to a ‘short and plain statement of the claim’ and to simplify statements of the relief demanded … to the end that the adverse party will receive fair notice of the claim and an opportunity to prepare his response thereto.” Fancher v. Fancher (1982), 8 Ohio App.3d 79 (quoting Rule 8(A)). As such, a complaint “need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the nature of the action is provided.” Morris , 73 Ohio App.3d at 443 (internal citation omitted). This is in contrast to the requirements under Connecticut’s fact pleading system. The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.
VI. Good Faith Certificate
Prior to commencing a medical malpractice action, the plaintiff’s lawyer must prepare a good faith certificate and obtain an opinion letter from an appropriate healthcare provider. CGS §52-190a(a). A good faith certificate is basically the lawyer’s written statement indicating that he or she has investigated the merits of the claim and has concluded, in good faith, that medical malpractice has taken place. An opinion letter is prepared by an appropriate healthcare provider in which he or she states that medical malpractice occurred. The opinion letter must be attached to the good faith certificate, which in turn must be attached to the complaint.Id. The statute states, in pertinent part: The complaint … shall contain a certificate of the attorney or party filing the action … that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant….
To show the existence of such good faith, the claimant or the claimant’s attorney … shall obtain a written and signed opinion of a similar health care provider … that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. CGS §52-190a(a).
For purposes of the opinion letter, who qualifies as a similar healthcare provider is defined in CGS §52-184c and discussed in the following Section of this article. Although quite technical, it is important to note that in cases where the defendant is a specialist, the healthcare provider who writes the opinion letter must qualify as an expert medical witness under Subsection (c) of CGS §52-184c, not Subsection (d) (see following Section of this article for explanation of the difference between the two Subsections). Bennett v. New Milford Hospital, Inc., 12 A.3d 865, 878 (Conn. 2011).
In order to qualify as a similar healthcare provider under Subsection (c) of CGS §52-184c, an expert witness must be (1) trained and experienced in the same specialty and (2) certified by the appropriate American board in the same specialty as the person against whom the expert is offering expert testimony. In contrast, Subsection (d) of CGS §52-184c affords the trial court far more discretion and flexibility regarding whether a proposed expert witness is qualified to provide testimony. Under Subsection (d), an expert may qualify to provide testimony if “to the satisfaction of the court” the expert “possess sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony….”
In Bennett, the Court concluded that “in cases of specialists, the author of an opinion letter pursuant to §52-190a (a) must be a similar health care provider as that term is defined by §52-184c (c), regardless of his or her potential qualifications to testify at trial pursuant to §52-184c (d).” Id.
Failing to obtain the statutorily required opinion letter “shall be grounds for the dismissal of the action.” CGS §52-190a(c). Dismissal of the claim is mandatory both when a complaint fails to include an opinion letter at all as well as when a letter that does not comply with the statute’s requirements is attached to the complaint. Id. at 882. In Bennett , an opinion letter was attached with the complaint, but the letter was written by an expert who likely would qualify under Subsection (d) of CGS §52-184c, but not under Subsection (c) of CGS §52-184c, as required by statute. As a result, the Court concluded that it was appropriate to dismiss the complaint. Id. at 882. However, the dismissal is without prejudice, meaning that the complaint may be refiled after the defect has been cured. Id. at 884.
Under CGS §52-190a(b), “[u]pon petition to the clerk of the court … an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry” required by the statute. In addition, the 90-day extension “period shall be in addition to other tolling periods.” Id.
VII. Expert Medical Witnesses
The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.
Connecticut follows the general rule in requiring the use of expert medical testimony to establish the applicable standard of care in medical malpractice cases. Chubb v. Holmes, 111 Conn. 482, 486 (1930). Expert witness testimony is also generally required to “establish the existence, extent or cause of an injury or disease.” Aspiazu v. Orgera, 205 Conn. 623, 630 (1987). Such testimony is also generally required to establish causation between the alleged negligence and the injury. Id. at 631.
According to the Connecticut Supreme Court, “expert testimony can be presented in a number of ways: by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based on a hypothetical question.” [internal quotations marks omitted] Id. at 631.
Who Qualifies as An Expert Medical Witness
The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is CGS §52-184c. The statute provides for three methods in which a prospective expert witness may qualify to provide expert opinion testimony. The Connecticut Supreme Court explained the statute as follows:
A trial court evaluating a prospective expert’s qualifications to testify in a medical malpractice action must either decide that the expert is either a similar health care provider as defined by subsections (b) or (c) of § 52-184c, or make a discretionary determination that, to the satisfaction of the court, [the expert] possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim. General Statutes § 52-184c (d). [emphasis in original] [internal quotation marks omitted] Bennett v. New Milford Hospital, Inc., 12 A.3d 865, 875 (Conn. 2011).
Subsection (b) of CGS §52-184c sets forth the qualifications for an expert witness offering testimony against a defendant who is not board certified nor a specialist. In that case, a “similar health care provider” is one who: (1) is licensed by the appropriate regulatory agency of Connecticut or another state requiring the same or greater qualifications and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
Subsection (c) of CGS §52-184c sets forth the qualifications for an expert witness offering testimony against a defendant who is board certified as a specialist, trained and experienced in a medical specialty, or holds him or herself out as a specialist. In that case, a “similar health care provider” is one who: (1) is trained and experienced in the same specialty and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a “similar health care provider.”
As the Supreme Court noted, qualifying as an expert witness against a specialist defendant does not include a requirement that the proposed expert taught or practiced medicine within five years prior to the claim, in contrast to cases involving a defendant who is a general practitioner. Grondin v. Curi, 262 Conn. 637, 651-652 (2003). In addition, the Supreme Court noted that “the statute does not require board certified experts to have gained their knowledge by any particular method, such as from practice or experience, nor at any particular time.” Id. at 655-656. In Grondin, the Court concluded the fact a board certified expert witness was not board certified at the time of the alleged negligence (but was board certified at the time his testimony was being provided) does not preclude the expert from qualifying as an expert witness. Id. at 657.
Subsection (d) of CGS §52-184c provides trial courts with broad discretion in qualifying expert witnesses. It states that a proposed expert who is not a similar health care provider under Subsections (b) or (c) may still qualify as an expert witness if:
to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
The Connecticut Supreme Court stated: “With regard to the qualifications of the expert witness the crucial question is not whether he practices in the locale where the accident occurred but rather whether he knows what the standard of care is in the locale.” Pisel v. Stamford Hospital, 180 Conn. 314, 334. (1980). For example, in “determining the standard of care applicable to an accident occurring in Stamford, the pertinent area includes at least the entire state of Connecticut.” Id. at 334-335.
Admissibility of Expert Testimony
According to the Connecticut Supreme Court, the “general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” [internal quotation marks omitted] Davis v. Margolis, 215 Conn. 408, 416 (1990). “The special skill or knowledge, however, must be directly applicable to the matter specifically in issue.” Siladi v. McNamara, 164 Conn. 510, 513 (1973).
The admissibility analysis has been stated as follows: “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” Hayes v. Decker, 263 Conn. 677, 683 (2003).
The Supreme Court clarified that the relevant special skill or knowledge must be directly applicable to the specific matter in question or at issue. Id. The proposed expert may be qualified and capable of speaking about a wide range of issues with great authority within his or her general area of expertise, but the only issue that matters for the admissibility inquiry is the specific issue or question for which his or her testimony is being offered. Id. at 513-514. That is, an expert may qualify as an expert witness to provide admissible expert medical witness testimony with respect to some issues but not others within his or her specialty or practice area.
The Supreme Court explained that in “malpractice cases, the expert’s testimony must be evaluated in terms of its helpfulness to the trier of fact on the specific issues of the standard of care and the alleged breach of that standard. Davis, 215 Conn. at 416. In addition, the proposed expert witness must demonstrate more than a “casual familiarity” with the standards of the specialty in question. Id. But it does not matter whether that familiarity is the result of practice or academic experience. Id. “It is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.” Fitzmaurice v. Flynn, 167 Conn. 609, 618 (1975). Finally, the Supreme Court instructed that “[o]nce the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not to the admissibility, of his testimony.” Davis, 215 Conn. at 417.
According to the Connecticut Supreme Court, the “jury is under no obligation to credit the evidence proffered by any witnesses, including experts. Johnson v. Healy, 183 Conn. 514, 516-517 (1981). This remains true even if the evidence is uncontroverted. Pisel v. Stamford Hospital, 180 Conn. 314, 344 (1980). The Supreme Court instructed: “the acceptance or rejection of an opinion or a qualified expert is a matter for the tier of fact unless the opinion is so unreasonable as to be unacceptable to the rational mind. Then too, a trier may accept part of the testimony of an expert and reject other parts; at least if the part accepted is not dependent on the parts rejected. The trier can accept the testimony of the experts offered by one party and reject that of the experts offered by the other.” National Folding Box Company, Inc. v. City of New Haven, 146 Conn. 578, 586 (1959).
Trial courts are charged with the task of determining the admissibility of expert witness testimony. Desrosiers v. Henne, 926 A.2d 1024, 1027 (2007). They are afforded wide latitude in making such determinations, and their decisions are given great deference. Id.
In fact, the standard upon review is that of abuse of discretion. Id. The Connecticut Supreme Court instructed that trial courts have broad discretion in ruling on the admissibility of evidence and that their rulings on evidentiary matters will be overturned only upon a showing of a clear abuse of discretion. Id. The Court added: “We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion…. Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” Id.
Admissibility of Expert Testimony About Scientific Principles and Discoveries
Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states1 follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.
Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Admissibility of Scientific Principles and Discoveries in Connecticut
When deciding whether to admit expert witness testimony regarding scientific evidence, the trial court must conduct the same basic admissibility analysis utilized with all expert witness testimony, that is, an examination of the following factors: (1) does the witness have a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 167 (2004). However, when the admissibility of scientific evidence is at issue, there is an additional analysis that must be performed: “the scientific evidence that forms the basis for the expert’s opinion must undergo a validity assessment to ensure reliability.” Id.
The Connecticut Supreme Court adopted the Daubert standard in the 1997 case State v. Porter, 241 Conn. 57, 59 (1997). In doing so, the Court announced: “We conclude that Daubert provides the proper threshold standard for the admissibility of scientific evidence in Connecticut.” Id. The Court also instructed that trial courts must serve as gatekeepers with respect to whether specific scientific evidence goes to the jury for consideration. Id. at 73. It reasoned that “it is proper for trial judges to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence.” Id.
The Connecticut Supreme Court explained that it adopted the Daubert standard in large part because it agreed with the general holding in Daubert, that is: “as a threshold matter, and subject still to the rules of evidence generally, scientific evidence should be admitted in court only upon some showing of its scientific validity.” Id. at 77. The Daubert standard embodies “a general, overarching approach to the threshold admissibility of scientific evidence…. Although such a standard is more vague on its surface, it will in fact discourage untrammeled discretion by giving trial courts a workable principle to follow.” Id. at 80-81.
Not only did the Supreme Court adopt the Daubert standard in Porter, it also set forth detailed guidance for trial courts to follow when applying Daubert to actual cases. Id. at 84-90. It is important to understand that the focus of the Daubert standard is upon “principles and methodology, not on the conclusions they generate.” Id. at 81. If the methodology that serves as the basis of the scientific opinion has the requisite validity, testimony based upon that methodology satisfies the Daubert threshold for admissibility, even if the trial court disagrees with the ultimate opinion derived from that methodology. Id. at 81-82.
Although the Frye standard of the general acceptance of a scientific principle or methodology is no longer the sole factor in determining admissibility, it remains an important factor, and in many cases general acceptance within the relevant scientific community may alone be sufficient to admit evidence.Id. at 84-85. The Supreme Court observed that “if a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible.” Id. at 85.
In the event the scientific principle or methodology has not gained general acceptance, the proponent of the expert testimony may still demonstrate its reliability or validity via the factors described in Daubert and adopted for use in Connecticut. Id. Trial courts may also consider the following factors when making an admissibility determination: (1) whether the theory or technique can be, and has been tested, (2) whether it has been subjected to peer review and publication, and (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique’s operation. State v. Pappas, 256 Conn. 854, 877 (2001). The Supreme Court noted that the factors listed are not exclusive, and some will be relevant in a particular case while others will not. Id. at 876.
A so-called Porter inquiry (that is, a full admissibility analysis of the Daubert / Porter factors) is not always required even when scientific evidence is at issue. Maher, 269 Conn. at 169. The Connecticut Supreme Court noted that “certain forms of scientific evidence have become so well established that a formal Porter inquiry is rendered unnecessary….” Id. For example, the Supreme Court ruled that a blood alcohol test that screens for the presence of alcohol in a person’s bloodstream is universally recognized as reliable, and thus no Porter inquiry was required in admitting the test results. State v. Kirsch, 263 Conn. 398, 403-404 (2003).
The proponent of the scientific testimony has the burden of establishing that the testimony is admissible. Porter, 241 Conn. at 87. Challenges to the methodological “validity of proffered scientific testimony will generally go to the weight of such evidence, not to it admissibility.” Id. at 88. The Supreme Court instructed: “A trial judge should therefore deem scientific evidence inadmissible only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute.” Id. at 89.
In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.
VIII. Modified Comparative Negligence with 51% Bar Rule
By statute, Connecticut uses modified comparative negligence with a 51% bar rule. CGS §52-572h(b). It provides that a plaintiff’s contributory negligence does not bar:
recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons…. Id.
Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than (the 51% bar rule) all other persons who are determined to have contributed to the plaintiff’s injury regardless of whether they are a party to the lawsuit or not (that is, the combined fault of both defendants and non-parties to the lawsuit who are determined to share fault for plaintiff’s injury). The total fault, expressed as percentages, of the plaintiff, defendants, and non-parties must equal 100%. CGS §52-572h(f). If the plaintiff’s percentage share of determined fault is greater than the total of all defendants and non-parties to the lawsuit (i.e., plaintiff’s contributory negligence is determined to be 51% or greater), then the plaintiff is not entitled to any recovery. CGS §52-572h(b).
The Connecticut Supreme Court observed that CGS §52-572h “establishes two classes of persons whose negligence must be considered by the trier of fact: (1) the parties to the action; and (2) settled or released persons….” Viera v. Cohen, 927 A.2d 843, 852 (Conn. 2007).
Modified comparative negligence is a fault and damages allocation system. Under this system, fault is determined and apportioned among all parties (plaintiff, defendants, and non-parties to the lawsuit), and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury. As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault. CGS §52-572h(b) states that the “economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering….”
The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award. If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Connecticut imposes the 51% bar rule.
Upon a determination of the plaintiff’s negligence, the trier of fact must specify the following:
- The amount of economic damages;
- The amount of noneconomic damages;
- Any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages;
- The percentage of negligence that proximately caused the injury in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury including settled or released persons; and
- The percentage of such negligence attributable to the plaintiff. CGS §52-572h(f)
In any medical malpractice action, “it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care.” CGS §52-114. If the defendant elects to invoke contributory negligence as a defense, “it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.” Id. In addition, “the defendant shall specify the neglect acts or omissions on which the defendant relies” in asserting a contributory negligence defense. RSC §10-53. Accordingly, when contributory negligence is raised as a defense by the defendant, the plaintiff does not have to prove that he or she was not contributorily negligent; instead, it is the defendant who bears the burden of proving that the plaintiff’s own conduct contributed to his or her alleged injury.
For purposes of the comparative negligence statute, key terms are defined as follows:
- “Economic damages” means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages;
- “Noneconomic damages” means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering;
- “Recoverable economic damages” means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a;
- “Recoverable noneconomic damages” means the noneconomic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur. CGS §52-572h(a)
IX. Limitation on Damages
Connecticut is one of the few states that do not statutorily cap the amount of noneconomic damages a plaintiff may recover in a medical malpractice action. However, any award of noneconomic damages exceeding one-million dollars is subject to court review. CGS §52-228c. In any case where the jury renders a verdict specifying noneconomic damages in an amount exceeding one million dollars:
the court shall review the evidence presented to the jury to determine if the amount of noneconomic damages specified in the verdict is excessive as a matter of law in that it so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Id.
If the court makes such a finding, “it shall order a remittitur1 and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.” Id.
According to the Connecticut Supreme Court, “punitive damages cannot exceed the plaintiff’s expenses of litigation, less his taxable costs.” Berry v. Loiseau, 223 Conn. 786, 832 (1992). The Court explained that “[l]itigation expenses may include not only reasonable attorney’s fees, but also any other nontaxable disbursements reasonably necessary to prosecuting the action.” Id. An award of punitive damages requires evidence of the cost of litigation of the case being tried. Id.
X. Limitations on Attorney Fees
Contingent Fee Arrangement
Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.
This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.
It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.
Limitations on Attorney Fees in Connecticut
By statute, the plaintiff and his or her attorney in a “civil action to recover damages resulting from personal injury, wrongful death or damage to property” may enter into a contract in which “the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) the settlement amount received pursuant to a settlement agreement.” CGS §52-251c(a).
This statute is “commonly known as the ‘fee cap statute.’” Parnoff v. Yuille, 136 A.3d 48, 50 (Conn. App. Ct. 2016). It states the contingency fee “shall not exceed an amount equal to a percentage of the damages awarded and received by the claimant or of the settlement amount received by the claimant as follows:”
- 331/3% of the first $300,000;
- 25% of the next $300,000;
- 20% of the next $300,000;
- 15% of the next $300,000; and
- 10% of any amount which exceeds $1,200,000. CGS §52-251c(b)
The statute allows for the plaintiff to waive the limitations on fees provided that certain requirements are satisfied. CGS §52-251c(c). First, the plaintiff can waive the fee cap “if the claim or civil action is so substantially complex, unique or different from other” medical malpractice claims or civil actions “as to warrant a deviation from such percentage limitations.” Id. The statute lists four factors to consider in determining whether a claim or civil action may be complex, unique, or different enough to justify the waiver.
Next, the attorney is required to (1) explain the statutory fee limitations to the plaintiff and the reasons why the attorney cannot represent the plaintiff under those limitations, (2) advise the plaintiff of his or her right to find another attorney who is willing to accept the case subject to the fee limitations, and (3) allow the plaintiff a sufficient period of time to review the proposed contingency fee agreement and, if the plaintiff wishes, seek another attorney prior to entering into the proposed agreement. CGS §52-251c(d).
Finally, CGS §52-251c(e) requires that the contingency fee agreement (1) be in writing, (2) is signed and acknowledged by the plaintiff before a notary public or other person authorized to take acknowledgements, (3) sets forth the full fee limitation schedule contained in the statute, and (4) contains a conspicuous statement in boldface type in substantially the following form:
I UNDERSTAND THAT THE FEE SCHEDULE SET FORTH IN SECTION 52-251c OF THE CONNECTICUT GENERAL STATUTES LIMITS THE AMOUNT OF ATTORNEY’S FEES PAYABLE BY A CLAIMANT AND THAT THE STATUTE WAS INTENDED TO INCREASE THE PORTION OF THE JUDGMENT OR SETTLEMENT THAT WAS ACTUALLY RECEIVED BY A CLAIMANT. NOTWITHSTANDING THAT THE LEGISLATIVE INTENT IN ENACTING THAT FEE SCHEDULE WAS TO CONFER A BENEFIT ON A CLAIMANT LIKE MYSELF, I KNOWINGLY AND VOLUNTARILY WAIVE THAT FEE SCHEDULE IN THIS CLAIM OR CIVIL ACTION.
If a plaintiff elects to waive the fee limitations under the statute, the total agreed upon fee still may not exceed 331/3% of the damages awarded and received by the plaintiff or of the settlement amount received. CGS §52-251c(f).
The penalty for an attorney who violates the hard 331/3% fee cap is severe. An attorney who enters into a contingent fee agreement with a plaintiff that exceeds the 331/3% fee cap cannot enforce the agreement nor can the attorney recover the value of the work performed under the legal doctrine of quantum meruit2. Parnoff, 136 A.3d at 51. That means the attorney cannot recover any amount for legal fees.
The Court explained that the public policy rationale for the contingent fee cap:
was to protect the public from overreaching attorneys, enforcement of an overreaching fee agreement would violate such a policy even where recovery is limited to the statutory amounts because such are result would create no disincentive for an overreaching attorney…. In other words, if an attorney could be assured of a fee no less than the amount provided by the fee cap statute, such an attorney, if unscrupulous, would have no reason, based in law, to limit fees to the statutory prescribed amount because enforcement of the contract in accordance with the statutorily permitted amount would simply become the lowest possible fee recoverable. Id. at 52 (quoting Parnoff v. Yuille, 139 Conn. App. 147, 169-170 (2012)).
The Parnoff Court reasoned that the same public policy implications of permitting an attorney who entered into a fee agreement with a plaintiff that violates the fee cap to nevertheless recover under the contract but at the statutory maximum apply when an attorney seeks to recover in quantum meruit. Id. The Court explained:
An attorney who is permitted to recover in quantum meruit, although unable to recover under the unenforceable contract, would again, if unscrupulous, have no reason based in law to limit fees as required by § 52-251c if he knows that at the very least he can recover in quantum meruit. Accordingly, to permit a recovery in quantum meruit would render the statutory limits of the fee cap statute a meaningless legislative gesture. Id.
Therefore, attorneys have an extremely compelling incentive to ensure that their contingent fee structure does not exceed the statutory maximum of 331/3% of the damages awarded and received by the plaintiff or of the settlement amount received. If the fee rate does exceed that hard cap, then the attorney will receive no legal fee at all.
XI. Apologies and Gestures of Sympathy
Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.
Connecticut is among the states that has enacted an “I’m Sorry” law. It is contained in CGS §52-184d(b). The statute shields healthcare providers who communicate expressions of apology or sympathy by making such communications inadmissible as evidence of liability in an action for medical malpractice. The statute states:
In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim or a representative of the alleged victim and that relate to the discomfort, pain, suffering, injury or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. [emphasis supplied] Id.
Notably, in contrast to most other states’ “I’m Sorry” law, Connecticut’s also expressly excludes statements of fault from being admissible as evidence of liability.
For purposes of the statute, key terms are defined as follows:
- Relative: means a victim’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister or spouse’s parents, and includes such relationships that are created as a result of adoption and any person who has a family-type relationship with a victim;
- Representative: means a legal guardian, attorney, health care representative or any person recognized in law or custom as a patient’s agent; and
- Unanticipated outcome: means the outcome of a medical treatment or procedure that differs from an expected result. CGS §52-184d(a)
Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Connecticut understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.
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