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Urging state lawmakers not to postpone action until their regular winter session, Connecticut Insurance Commissioner Susan Cogswell openly embraced $250,000 caps on pain and suffering awards Sept. 18 as a remedy for the state’s medical malpractice insurance crisis. Her testimony kicked off over five hours of sometimes-passionate debate before the Legislative Program Review Committee, which drew advocates for obstetricians, trial lawyers and victims of medical blunders. The CEO of state’s top medical malpractice insurer, Connecticut Medical Insurance Co.’s Denise Funk, told legislators a $250,000-caps law would allow CMIC to immediately reduce rising premiums by 10 percent. Funk attacked the 12 percent interest rate in Connecticut’s offer of judgment statute, which penalizes defendants who refuse to settle and later lose a higher amount at trial. Funk also criticized plaintiffs’ lawyers who get clients to waive statutory fee percentages. The most dynamic testimony, however, came from George Meder, whose 5-year-old daughter, Andi, died three years ago during a 15-minute ear-tube procedure in an outpatient surgery clinic. The doctors had turned down the warning sound on the oxygen depletion sensor, and didn’t notice Andi’s condition until she was brain dead. Meder, of Beacon Falls, Conn., is the treasurer of the Connecticut Patients Rights Group. His voice tightened, but he remained composed and articulate while blasting the state Health Department and doctors’ insurers for their ineffectiveness in curbing patient injuries and deaths. Meder said Connecticut ranks 40th among states in disciplining doctors. He estimated that 6,000 to 10,000 patients are negligently injured annually in Connecticut, and said he’s surprised only 350 lawsuits are filed each year. Insurers, doctors and the health department, Meder maintained, know the repeat offenders, or “frequent fliers,” who make excessive mistakes — but still keep practicing. An obstetrician Meder met at the Capitol told him “the reason doctors like to practice in Connecticut is, between the Department of Public Health and the insurance companies — one in particular — we are basically untouchable. And we know it,” he recounted. Instead of simply looking at the dollar cost of insurance, Meder suggested, “[W]hy don’t we start looking at not killing any more patients and not injuring 6- to-10,000 a year, and fixing what’s wrong with the system.” He said the reason a $500,000 cap would not “work,” from the insurer’s viewpoint, is because the $250,000 difference actually prevents people from filing suit. “Whereas if they can get the cap down to $250,000, they’re going to knock out the children, they’re going to knock out the elderly and they’re going to knock out the nonworking women, because none of those people are going to be able to litigate, which is about 60 to 65 percent of today’s lawsuits,” Meder contended. Kathleen Nastri, president of the Connecticut Trial Lawyers Association, said her group is open to reducing the 12 percent offer of judgment amount and pretrial mediation to keep the weakest and strongest cases from clogging courts. It also is not opposed to reviewing limits on contingent fees, she said. But Nastri, of Koskoff, Koskoff & Bieder, drew the line on “flexible” caps. “We would never agree to any cap,” she said, “and that is because constitutionally we’re guaranteed a right to a jury trial, and it’s a jury issue. A basic tenet of tort law is that a victim deserves to be compensated fully in the event that someone is responsible. And,” Nastri added, “as a matter of public policy, people who injure other people ought to be accountable. … I could never agree to any kind of a cap — flexible, pierceable or otherwise.” Joyce A. Lagnese, a defense lawyer with Hartford’s Danaher, Lagnese & Neal, said doctors are constantly intimidated by threats that they might lose personal assets in a malpractice case. But she admitted she never actually knew of a doctor’s personal assets being tapped by malpractice litigation, a fact which surprised at least a few lawmakers. Lagnese said high-risk specialties are more likely to have problems, even for excellent doctors. Excessive litigation risk is already “discouraging physicians from getting into the high-risk specialties, which is what is happening in the south, where you can’t get neurosurgery in Louisiana or Mississippi, because the doctors can’t afford the insurance.” Roland F. Young III, a medical malpractice defense partner at Hartford’s O’Brien, Tanski & Young, suggested that defense counsel learn at the outset which doctor certifies a matter as worthy of suit, so the grounds of the action can be discerned earlier. He also recommended changes in the law of bystander emotional distress, and urged lawmakers to focus on a way to remove the element of sympathy from jury verdicts. When a lawmaker proposed an informed consent form to limit risk for difficult operations, “like when you ride a bull in a bar,” Young responded that even in elective surgery there might be serious public policy problems with that approach.

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