2005 Medical Malpractice Legislation

By: David K. Jaffe

On July 13, 2005, Senate Bill 1052, "An Act Concerning Medical Malpractice," was signed by the Governor. This was, as always, a contentious bill with much debate of many of its provisions, as is evident from a review of the legislative history. The most hotly contested topic, that of caps on jury awards, was not passed in this session. Some of its provisions took effect upon signing. In addition to radically changing our practice in regard to medical malpractice cases, the bill changes the offer of judgment procedures and the interest rate recoverable.

Areas covered in the legislation include:

  • Waivers of the Statutory Fee Schedule
  • The New Good Faith Certificate
  • The Complex Litigation Docket
  • Changes in the Offer of Judgment
  • Evidence of Prior Award
  • Evidence of Apology
  • Scrutiny of Non-economic Awards over $1 Million
  • Medical Malpractice Insurance and Prior Rate Approval
  • Disciplinary Actions, Licensing and Hospital Protocols

To briefly summarize some of the provisions, the Medical Malpractice Act:

Contains new restrictions on waivers of the statutory fee schedule which must be clearly set forth in writing;

Requires attorneys to attach an actual copy of the expert's report to a medical malpractice complaint, instead of simply verifying that a good faith review had been undertaken;

Changes the time frame in which an offer of judgment can be filed, and decreases the interest rate from 12% to 8%;

Allows for evidence of a collateral source of money in the form of a damage award to be presented to the jury, if the plaintiff had filed a separate action against a different health care provider;

Provides that evidence of an apology by a health care provider in regard to an unanticipated outcome shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest;

Provides for a conference to be held within six months from the filing a medical malpractice action to determine if the matter should be transferred to the complex litigation docket; and

Provides specific guidelines for automatic judicial review of any jury award over $1 Million.