SB 940 — AN ACT CONCERNING A REDUCTION IN MALPRACTICE COSTS.

AN ACT ESTABLISHINGCONCERNING A PROGRAMREDUCTION TOIN REDUCE MALPRACTICE COSTSCOSTS. AND REQUIRING A COOL-DOWN PERIOD PRIOR TO COMMENCING A MALPRACTICE ACTION.

General Assembly   RaisedSubstitute Bill No.

940 January Session, 2017   LCO*_____SB00940PH____032917____* No.AN ACT CONCERNING A REDUCTION IN MALPRACTICE COSTS.

4578   *04578_______PH_* Referred to Committee on PUBLIC HEALTH   Introduced by:

  (PH)   AN ACT ESTABLISHING A PROGRAM TO REDUCE MALPRACTICE COSTS AND REQUIRING A COOL-DOWN PERIOD PRIOR TO COMMENCING A MALPRACTICE ACTION.

(NEW) (Effective OctoberJuly 1, 2017) Not later than January 1, 2019, The University of Connecticut Health Center shall adopt a program to reduce malpractice costs using the communication and optimal resolution toolkit developed by the federal Agency for Healthcare Research and Quality.

(NEW) (Effective OctoberJuly 1, 2017) (a)The AsDepartment usedof Public Health shall convene a working group to evaluate methods to reduce malpractice costs in thisthe section:state.

(1)The "Claimant"working meansgroup ashall personinclude, whobut commencesneed ornot intendsbe tolimited commenceto, anthe actionfollowing tomembers, recoverwho damagesshall forbe injuryappointed caused by malpractice;the Commissioner of Public Health:

(1) A member of the Connecticut Trial Lawyers Association, (2) "Healtha caremember provider"of hasthe Connecticut Hospital Association, (3) a physician licensed pursuant to chapter 370 of the samegeneral meaningstatutes who specializes in obstetrics and gynecology, (4) a physician licensed pursuant to chapter 370 of the general statutes who specializes in radiology, (5) a nursing home administrator licensed in accordance with the provisions of sections 19a-511 to 19a-520, inclusive, of the general statutes, (6) a representative of a risk management program that is administered by a hospital, as provideddefined in section 19a-7219a-490 of the general statutes;statutes, and (7) a representative of the insurance industry.

andNot (3)later "Malpracticethan action"January means1, an2019, actionthe toworking recovergroup damagesshall forreport injuryits tofindings aand personrecommendations causedto bythe malpracticedepartment. of a health care provider.

(b) No person shall commence a malpractice action unless such person has, not less than six months prior to commencing the action, provided written notice to the health care provider who is the subject of the action of such person's intention to commence the action.

Such person shall mail the written notice to the last-known professional business address or residential address of the health care provider.

(c) The written notice required under subsection (b) of this section shall contain, but not be limited to, the following information:

(1) The factual basis for the malpractice action;

(2) The applicable standard of care alleged by the claimant;

(3) The claimant's contention regarding whether the health care provider breached the applicable standard of care;

(4) The claimant's contention regarding any action the health care provider should have taken to ensure compliance with the applicable standard of care;

(5) The claimant's contention regarding whether the breach of the standard of care was the proximate cause of the alleged injury;

and (6) The name of any other health care provider the claimant intends to notify under subsection (b) of this section as a subject of the malpractice action.

Nothing in this subsection shall be construed to require the disclosure of the written opinion of a similar health care provider, as defined in section 52-184c of the general statutes, required under section 52-190a of the general statutes, as amended by this act.

(d) The six-month notice period required under subsection (b) of this section shall be reduced to ninety days if (1) the claimant provided six months' written notice pursuant to subsection (b) of this section to another health care provider of such claimant's intention to commence a malpractice action against such health care provider for damages for the same injury, or (2) the claimant previously commenced a malpractice action to recover damages for the same injury against another health care provider.

(e) The notice required under subsection (b) of this section shall not be required if the claimant did not identify and could not have reasonably identified a health care provider as a potential party to the malpractice action prior to commencing the malpractice action.

(f) Not later than eight weeks after providing the written notice required under subsection (b) of this section, the claimant shall (1) allow the health care provider who received such notice access to all of the medical records related to the malpractice action that are in the claimant's control, and (2) furnish a release for any medical records related to the malpractice action that are not in the claimant's control, but of which the claimant has knowledge.

The provisions of this subsection shall not be deemed to restrict a patient's right to access his or her medical records under any other state or federal law.

(g) Not later than one hundred fifty days after receipt of the written notice required under subsection (b) of this section, the health care provider against whom the malpractice allegation is made, or the health care provider's authorized representative, shall provide the claimant, or the claimant's authorized representative, with a written response that contains the following information:

(1) The factual basis for any defense to the claimant's claim;

(2) The applicable standard of care alleged by the respondent;

(3) The respondent's contention regarding whether there was compliance with the applicable standard of care;

and (4) The respondent's contention regarding whether the alleged malpractice was the proximate cause of the claimant's alleged injury.

(h) If the claimant does not receive the written response required under subsection (g) of this section on or before expiration of the one hundred fifty-day time period, the claimant may commence a malpractice action against the health care provider prior to the expiration of such time period.

(i) If a health care provider who received written notice under this section of a claimant's intention to commence a malpractice action informs the claimant in writing, at any time during the applicable notice period under subsection (b) or (c) of this section, that the health care provider does not intend to settle the action within such notice period, the claimant may commence a malpractice action, provided the claim is not barred by the applicable statute of limitation established in section 52-584 of the general statutes.

(j) A claimant who commenced a malpractice action against a health care provider six months or less prior to the expiration of the applicable statute of limitation established in section 52-584 of the general statutes shall be exempt from the notice requirements set forth in subsections (b) to (d), inclusive, of this section.

(k) Nothing in this section shall prohibit a person from commencing an action at any time for purposes of seeking a court order to preserve or permit the inspection of tangible evidence relevant to a malpractice claim.

Sec.

3.

Section 52-190a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2017):

(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has (1) made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant, and (2) complied with the notice requirements set forth in section 2 of this act.

The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.

To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.

Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.