October 25, 2010 by matray

Connecticut recently enacted a law 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 Gov. M. Jodi Rell. Under the new law, the presiding judge is required to refer medical malpractice cases to a 120-day period of 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 be overseen by the presiding judge or another designated judge. The law stipulates that if the parties do not come to an agreement by the end of the first session, they have the option of moving forward with additional mediation sessions or returning to court to resolve their dispute. In cases where the parties choose to move forward with mediation, the presiding judge must refer the case formally to mediation, which must be overseen by a Connecticut-licensed attorney experienced in medical liability actions. Even if the parties agree to attend additional mediation sessions, they can still abandon the mediation 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. 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 meritless medical liability claims. While the medical community preferred to see the legislature 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 professional liability insurance premiums and 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 from a healthcare professional—with similar training as the healthcare provider named in the lawsuit—maintaining that there is evidence to suggest malpractice has occurred. Statistics show that the number of medical malpractice actions filed in the state decreased once certificates of good faith became a requirement. Proponents of mandatory mediation hope the new ADR law will provide similar results and further help reduce the number of medical liability lawsuits in Connecticut. Both plaintiff and defense lawyers are skeptical that the mandatory mediation law will have much of an impact on the rate of settlement of medical malpractice claims. One of the biggest potential problems with the law is the timing of the mediation. Legal commentators say 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 unlikely. This is particularly true for doctors who may face other repercussions for admitting to medical malpractice, including reporting the act 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.