Medical Expert Opinion Required to File Med Mal Claim is Killing Some Valid Malpractice Claims

After years of injustice for some medical malpractice claimants, some legal commentators and even appellate court staff are raising the alarm on a what, at first glance, appears to be a minor requirement to file a medical malpractice claim: the medical expert opinion letter.

The medical expert opinion letter is required by Connecticut state law. Before 2005, plaintiff's lawyers were required to make a good faith effort to investigate a client's claim of medical malpractice before filing a claim. The law, enacted in 2005, was put in place because of perceptions by the defense bar, and perhaps in the courts, that plaintiff's lawyers were filing frivolous or unsubstantiated medical malpractice claims.

Medical Expert Qualifications under Connecticut Law

The new law requires that a medical malpractice claimant must include a letter from a medical expert with the malpractice complaint to serve as evidence that the claimant made a good faith effort to fully investigate the validity of the claim.

More specifically, the medical expert who writes the letter must be someone who is a "similar health care provider." The physician must be licensed by the state of Connecticut to provide health care or professional services under statute section 52-184b. If the defendant is not certified as a board specialist, under statute section 52-184c(b), the expert must be (1) licensed by the state in the same or greater qualifications as the defendant; and (2) trained and experienced in the same discipline, with active practice or teaching experience in the discipline within the past five years before the event in which malpractice was claimed.

But the qualifications for medical expert testimony under statute section 52-184c(b) do not apply if the defendant physician is (1) certified as a board specialist; (2) is trained and experienced in a medical specialty or (3) holds himself out as a specialist.

If the defendant doctor meets one of the three prongs under statute section 52-184c(c), then any medical expert that testifies must meet the higher qualification standards. With that in mind, many physicians defending themselves against a malpractice claim will attempt to claim that they fit within one of the three categories listed under 52-184c(c) instead of the categories listed in 52-184c(b).

If the defendant doctor does fit into one of the categories listed under 52-184c(c) and was diagnosing a condition that would fit within her specialty, then a "similar health care provider" must be a medical expert that is (1) trained and experienced in the same specialty; and (2) certified in the same specialty.

This bar has been significantly harder for medical malpractice claimants to meet, especially as the extent of the medical negligence and where the fault lies within the medical team may not be completely apparent at the start of litigation.

Medical Expert Requirements Have Led to Some Absurd Results

In a recent issue of the Connecticut Law Tribune, a legal commentator discussed the sometimes absurd results that can arise regarding medical expert opinion letters and medical malpractice claims.

In one example, an ER doctor was sued for medical malpractice after letting a patient go home with undiagnosed bone breaks in his leg and spine. The emergency room physician was not board certified, or trained in emergency surgery (his training was as a general surgeon), but he apparently held himself out as a specialist in emergency medicine. This meant that the more stringent requirements of 52-184c(c) applied.

The plaintiff obtained a medical expert opinion letter from a board certified surgeon in general surgery and surgical critical care who practiced as a trauma surgeon in the ER of a Level 1 trauma center. The medical expert also had numerous other appointments as a professor of emergency medicine, a committee member on several ER department committees, and he had published in the field of emergency medicine.

The appellate court ruled that the medical expert was unqualified to issue an opinion in the matter. Ironically, the defendant doctor would have also been unqualified to issue a medical opinion letter in the case against him because he lacked sufficient qualifications under the statute.

The case is now being reviewed on appeal.

Should the 2005 Law on Medical Expert Opinions Be Amended?

Clearly, legislators must not have intended to deny medical malpractice plaintiffs their day in court once they made a good faith effort to provide evidence that their claims have merit. But that has been the effect of the 2005 law change.

For now, medical malpractice victims must continue to jump through hoops. Unfortunately, some valid medical malpractice claims will be torpedoed before they even reach trial because the plaintiff cannot find a sufficiently qualified medical expert to provide an opinion letter.

Given the on-going anti-medical malpractice victim sentiments and calls for greater tort reforms, the law may not change any time soon. But an experienced medical malpractice lawyer may give victims the opportunity to have their claims heard at trial. Contact an experienced med mal lawyer for help with bringing your medical malpractice case to trial.