Don't weaken malpractice reform

In 2005 the Connecticut legislature, in an attempt to discourage meritless malpractice lawsuits, added a requirement that any such lawsuit include certification from a "similar health care provider" that the litigation raises legitimate claims. This certifying expert must be "trained and experienced in the same discipline or school of practice" as the health professional accused of malpractice.

For the second year in a row the Connecticut Trial Lawyers Association (CTLA) seeks to amend the certification requirement. They contend it is too rigid and can make certification impossible. Intended to discourage frivolous lawsuits, the malpractice attorneys claim it is instead blocking legitimate claims.

Their argument is not persuasive.

In a meeting with the editorial board, representatives of the CTLA conceded few cases are blocked by the certification condition. Yes, it does appear burdensome. Defense attorneys routinely challenge the qualifications of the expert making certification. But this is not necessarily a bad thing. Trial lawyers will be motivated to pursue the most grievous of malpractice cases and set aside marginal cases, which was the intent of the requirement.

Senate Bill 243 would amend the certification rule to mirror instead the mandated qualifications for an expert at trial, defined as someone who, "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 …"

In other words, the proposed amendment lowers the qualifications necessary to certify a lawsuit.

Mike Walsh, CTLA president-elect, argues it makes no sense that a person can be sufficiently qualified to testify at trial but not qualified to certify the lawsuit to begin with. The point he is missing is that the expert witness at trial is subject to a cross-examination that challenges those qualifications, but not so the specialist certifying the lawsuit.

Litigation and the resulting high malpractice insurance rates drive up the cost of medical care and discourage physicians from joining high-risk fields, such as obstetrics and neurology. Victims of gross negligence by doctors deserve their day in court, but in 2005 the legislature took a reasonable step toward medical liability reform. It would send the wrong message to now take a step back.