Connecticut Medical Malpractice Summary
Statutes of Limitations
Actions for personal injury, including those based on medical malpractice, must be brought 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, except that no such action may be brought more than three years from the date of the act or omission complained of. Conn. Gen. Stat. Ann. § 52-584 (Westlaw 2007). There is no exception in favor minors, Burns v. Hartford Hospital, 472 A.2d 1257 (Conn. 1984), or the mentally disabled. Lopez v. United Nurseries, Inc., 490 A.2d 1027 (Conn. App. 1985). Wrongful death actions must be brought within two years from the date of death, except that no such action may be brought more than five years from the date of the act or omission complained of. Conn. Gen. Stat. Ann. § 52-555 (Westlaw 2007).
Contributory or Comparative Negligence
Connecticut has adopted the doctrine of modified comparative negligence. Conn. Gen. Stat. Ann. § 52-572h(b) (Westlaw 2007). Under this doctrine, a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence. Id.
Joint and Several Liability
Connecticut has adopted a modified form of several liability. Conn. Gen. Stat. Ann. § 52-572h(c) (Westlaw 2007). Under this rule, joint tortfeasors are generally only severally liable; however, a claimant may seek relief from the court within one year from the entry of final judgment if any portion thereof has not been satisfied. Upon such a showing, the court must re-allocate liability for the unsatisfied portion of the judgment based upon the other joint tortfeasors’ relative degrees of fault. § 52-572h(g).
A right of contribution exists in favor of a defendant required to pay more than his proportionate share a judgment. Conn. Gen. Stat. Ann. § 52-572h(1) (Westlaw 2007). An “apportionment complaint” may be used to make a third person from whom contribution is sought a party to the main action. Conn. Gen. Stat. Ann. § 52-102b (Westlaw 2007).
There are no Connecticut Supreme Court or other appellate cases applying the doctrine of ostensible or apparent agency as a means of imposing liability on hospitals for the negligence of their independently-contracted physicians; however, a series of Superior Court cases have done so. Kafri v. Greenwich Hospital Association, No. 3:98CV720(AHN), 2000 WL 306620 (D. Conn. February 24, 2000) (citing cases). The lower court opinions vary in their statement of the law, so absent controlling authority it is not possible to state what the Connecticut rule is.
Expert testimony is required to establish a claim for medical malpractice, unless the lack of due care is so gross as to afford “an almost conclusive inference of negligence.” Puro v. Henry, 449 A.2d 176, 178 (Conn. 1982). An expert testifying against a physician should be qualified in the same specialty, but a judge may accept other evidence of qualification. Conn. Gen. Stat. Ann. § 52-184c (Westlaw 2007). When filing a medical malpractice complaint, the attorney or party must certify a good faith belief that grounds exist for an action against each defendant. To do so, he must obtain a signed opinion from a qualified expert. Effective October 1, 2005, a copy of the opinion with the name of the expert expunged must be attached to each such certificate. Conn. Gen. Stat. Ann. § 52-190a (Westlaw 2007).
Connecticut does not impose a cap on compensatory damages recoverable in medical malpractice actions. By judicial decision, rather than legislation, common law punitive damages are limited to a plaintiff’s litigation expenses less taxable costs. Berry v. Loiseau, 614 A.2d 414, 435-438 (Conn. 1992). There is no statute authorizing punitive damages in excess of this amount for medical malpractice.
Statutory Cap on Attorneys’ Fees
Ordinarily, in personal injury and wrongful death cases, an attorney may only receive a contingency fee up to the following amounts: 33 1/3 percent of the first $300,000, 25 percent of the next $300,000, 20 percent of the next $300,000, 15 percent of the next $300,000, and 10 percent of any amount that exceeds $1,200,000. Conn. Gen. Stat. Ann. § 52-251c (Westlaw 2007). These limits may be waived for complex or unique cases, but for causes of action accruing on or after July 13, 2005, a 33 1/3 percent cap applies to these cases as well. § 52-251c(c) and (f).
Damages up to $200,000 must be paid in a lump sum. Conn. Gen. Stat. Ann. § 52-225d (Westlaw 2007). For damages in excess of $200,000, the parties must attempt to agree on the manner of payment, and following such an agreement, the court’s approval must be sought. If the parties are unable to agree, however, the court must order a lump sum payment of the remaining damages. Id. The claimant’s death does not terminate the judgment debtor’s obligation under a periodic payment plan. § 52-225d(f).
Collateral Source Rule
Connecticut has substantially modified the collateral source. After damages are determined, the judge must reduce economic damages by the amount received from collateral sources (offset by any payments made to secure such benefits). Conn. Gen. Stat. Ann. § 52-225a (Westlaw 2007). Collateral sources include health insurance but not life insurance. Conn. Gen. Stat. Ann. § 52-225b (Westlaw 2007). Unless otherwise provided by law, the provider of the benefit has no subrogation rights against the recovery. Conn. Gen. Stat. Ann. § 52-225c (Westlaw 2007). If a right of subrogation exists, the benefit is not deducted. § 52-225a(a).
Connecticut law provides that a claimant may file an offer of judgment with the clerk of court before trial, and the defendant must either accept the offer and have judgment entered accordingly, or reject the offer. Conn. Gen. Stat. Ann. § 52-192a(a) (Westlaw 2007). If, after trial, the court determines the claimant recovered an amount equal to or greater than that stated in the offer of judgment, the claimant is entitled to pre-judgment interest at eight percent (12 percent for actions accruing before October 1, 2005). Interest accrues from the date the action was filed, unless the offer of judgment was filed eighteen months or more from the time the action was filed, in which case interest accrues from the date the offer was filed. § 52-192a(c). For medical malpractice actions accruing on or after October 1, 2005, a plaintiff must disclose medical records and experts before filing an offer of judgment, and must itemize damages. § 52-192a(b).
Patient Compensation Funds and Physician Insurance
Connecticut does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians. Physicians must carry professional liability insurance with limits of at least $500,000 per occurrence and $1,500,000 in the aggregate. Conn. Gen. Stat. Ann. § 20-11b (Westlaw 2007).
Political subdivisions are generally liable to the same extent as private individuals, subject to a number of exceptions not relevant to health care. Conn. Gen. Stat. Ann. § 52-557n (Westlaw 2007). Actions against the state must be presented to the state Claims Commissioner. Conn. Gen. Stat. Ann. § 4-142 (Westlaw 2007). In any action alleging medical malpractice, if the claimant submits the certificate discussed above under Expert Testimony, then the Commissioner must waive the state’s immunity and allow the claim to be brought in court. Conn. Gen. Stat. Ann. § 4-160(b) (Westlaw 2007). An action must be brought within a year of being authorized and tried to a court without a jury. § 4-160(d) and (f). No state officer or employees shall be personally liable for injuries not wanton, reckless, or malicious, caused in the scope of employment. Conn. Gen. Stat. Ann. § 4-165 (Westlaw 2007).
Connecticut does not require the reference of medical malpractice panels to an arbitrator or screening panel. Provisions governing voluntary submission to a malpractice screening panel were repealed in 2005. See notes to Conn. Gen. Stat. Ann. § 38a-33 (Westlaw 2007) (repealed).
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Revision Date: February 6, 1998