This week Governor Rell signed a landmark patient’s rights bill, requiring disclosure of medical errors. The new law gives patients access to information compiled by the department of Public Health on adverse events reported by hospitals or surgical centers. While a great step forward in protecting patients by insuring that adverse events are not withheld from public scrutiny, the law doesn’t go far enough. Adverse events that occur in a hospital or surgical clinic are a fraction of mal-occurrences that can lead to potential malpractice actions.
Medical and dental errors that occur in the confines of a doctor’s office will not be affected by this new law. A major focus of my practice is representing plaintiffs in dental malpractice cases. With the exception of oral surgery, most adverse dental events occur in a practitioner’s office. There is no peer review committee to review such events. If patients do not file complaints with the Department of Public Health (DPH) or engage a lawyer to investigate a possible malpractice lawsuit, there is no independent review of a dentist’s actions.
Since 1986 the legislature has continued to address how malpractice cases are filed. Plaintiffs are now required to append to the civil complaint an unsigned copy of a report from a similar health care provider, setting forth, in detail, the basis for the claims of malpractice. This requires that the plaintiff commit to a theory of his or her case before having an opportunity to depose the target health provider. Plaintiffs’ experts are often hamstrung in their review by a paucity of information contained in a medical or dental record. The new law will aid potential plaintiffs by the required disclosure of adverse events.
The new law also mandates mediation in all medical and dental negligence actions that are filed after the effective date of July 1st. While laudable, the act will have little impact on the course of malpractice actions. I have always been a proponent of mediation as a vehicle to bring two motivated litigants together to settle their dispute. The key to successful mediation is that both parties must approach mediation in the hope of achieving a fair settlement. 
Medical and dental malpractice insurance policies all contain a “consent to settle” clause. Regardless of the merit of the claim, defense attorneys and claims handlers are powerless to negotiate a settlement unless the doctor consents in writing. It is the rare case where a practitioner is willing to concede a mistake early on in litigation. There are too many potential adverse consequences that health providers fear. Cases that are settled are reported to DPH and a national database. In some instances, the provider can be subject to disciplinary action and, in the extreme, loss of insurance. Those cases that do settle do so only after there has been a thorough discovery by each party of the opinions of experts.
In those instances where a defendant doctor has consented to settle, we approach mediation very seriously. In order for the mediator to effectively guide the parties a thorough synopsis of the case and the claims of malpractice and damages is necessary. In our office we prepare a detailed mediation position statement to educate our mediator on the elements of our case. It is time intensive. In those instances where there is a sincere effort by the defense to discuss settlement it is well worth the investment of the attorney’s time. In addition, plaintiffs’ expectations are heightened when mediation is suggested.
The mandatory mediation required by this new law is a “toothless tiger.” It does not mandate that the health professional consent to settle. It contains no adverse consequences for the health provider who stubbornly refuses to mediate and settle a meritorious claim. While a step in the right direction, the new law will only be effective if there is a disincentive for those who refuse to participate.
Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com
