A new Connecticut law went into effect July 1, 2010 that requires parties in a medical malpractice action to attend at least one session of mandatory mediation before moving forward with the lawsuit. The mandatory mediation requirement was included in a broader patients' rights bill (SB 248) signed by Governor M. Jodi Rell.
The New Bill
Under the new law, the presiding judge is required to refer all medical malpractice cases to mediation, or another form of alternative dispute resolution (ADR) of the parties' choosing. The mediation must be completed before the close of pleadings, which generally occurs after the complaint and answer have been filed with the court.
The law also requires the mediation session occur within 20 business days after the initial referral and is to be overseen by the presiding judge or another designated judge. The law provides that if the parties do not reach an agreement by the end of the first mediation session, they have the option of requesting additional mediation sessions or returning to court to resolve their dispute.
In cases where the parties choose to proceed with mediation, the presiding judge must refer the case formally to mediation, which must be overseen by a Connecticut-licensed attorney experienced in medical malpractice actions and who has been a member of the state bar for at least five years. Even if the parties agree to attend additional mediation sessions, they can still terminate the process at any time and return to the traditional litigation process. If the parties come to an agreement on any of the issues before returning to court, they can stipulate to these matters in the court case. The cost of mediation is split equally between the plaintiffs and defendants.
Bill Meant to Decrease Health Care Provider Costs
The mandatory mediation measure was passed in-part due to pressure from the Connecticut medical community. Concerned about rising medical malpractice insurance premiums, doctors, hospitals and defense lawyers lobbied the state to take action to limit the number of medical malpractice claims. While the medical community preferred to see Congress create health courts or implement caps on medical malpractice jury awards, mandatory mediation became the compromise.
The mandatory mediation law comes seven years after the Connecticut General Assembly passed a similar law to help reduce medical malpractice insurance premiums and the insurance companies misguided belief as to the existence of meritless legal claims. In 2003, the state legislature passed a law requiring those wishing to file a medical malpractice suit to first obtain a certificate of good faith – i.e. a statement from a health care professional (with similar training as the health care provider named in the lawsuit) maintaining that there is evidence to suggest malpractice has occurred.
Impact of Bill Uncertain
Both plaintiff and defense lawyers are skeptical that the mandatory mediation law will have much of an impact on the rate of settlements in medical malpractice claims.
One of the major problems with the law is the timing of the mediation. Legal commentators conclude that requiring the parties to attend mediation so soon in the legal process—before the close of pleadings—is too early. They argue that at this stage in the process, discovery has not begun, expert witnesses have not been deposed, and the true value of the case generally is unknown. They contend that asking victims of medical malpractice to accept a settlement before the true extent of their damages has been determined is simply unfair.
Additionally, hospitals or physicians admitting to negligence so early on is extremely unlikely. This is particularly true for doctors who may face other repercussions for admitting to medical malpractice, including reporting the act of malpractice to the state Department of Public Health and facing possible disciplinary action. Moreover, most medical malpractice insurance policies include a "consent to settle" clause that requires the insurer to gain the approval of the physician prior to agreeing to a settlement. Thus, if the doctor is unwilling to settle so early in the case, then mediation cannot be successful.
Mediation was still an option in medical malpractice cases prior to this new law. Some argue that cases most likely to settle during mandatory mediation are the same cases likely to settle with or without the new law. To be successful however, mediation is something that cannot be forced and requires that all parties willingly work towards a settlement.
While mediation can be an efficient, cost-effective way to resolve legal disputes, it is not the best forum for all types of cases. Medical malpractice lawsuits are very complex and dependent on expert witness testimony. Because of this, experienced trial lawyers believe that mandatory mediation may not help parties to a medical malpractice action reach a quick settlement.
For more information on Connecticut's new mediation requirement, or for information on filing a medical malpractice lawsuit, contact an experienced Connecticut medical malpractice attorney today at Tooher Wocl & Leydon, LLC.