Increased Risk of Malicious Prosecution Suits Against Attorneys: War by Health Care Providers and their Medical Malpractice Defense Bar on Attorneys Who Fail to Follow Connecticut’s Statutory Good Faith Requirements Governing Claims Against Health Care Providers

Charlotte Hungerford Hospital v. Kevin Creed, et. al. 2012 Conn. Super. LEXIS 139 (January 11, 2012)

Imagine you are a medical malpractice attorney and a client enters your office seeking legal advice. His wife has just taken her own life, and he wants to bring suit against a hospital for prematurely discharging his visibly delusional and depressed wife prior to her suicide.

After reviewing the medical records, death certificate, and other materials, you learn that your client’s wife was never even seen by the treating psychiatrist and that the hospital discharged her, despite her request to be admitted, merely because they did not have enough beds. You discover that your client’s wife took her own life by ingesting the very pills that were prescribed to her by the hospital upon her forced discharge.

Based on this information, you think you have a good case against the hospital. You bring suit. But much to your chagrin, the case is dismissed, not because the case lacked merit but because you failed to adhere to one small detail. You did not obtain a sufficient letter of a similar health care provider pursuant to statutory requirements. You might expect a legal malpractice action by your client to follow because of this failure. You are in fact served with a summons shortly after the dismissal, but much to your surprise, it is not your client who has sued you; rather it is the hospital that has sued you in a retaliatory malicious prosecution action.

This is the exact scenario that recently unfolded in the Connecticut case of first impression, Charlotte Hungerford Hospital v. Kevin Creed. This recent landmark case marked the escalation of an aggressive war by health care providers on a simple failure of a plaintiff’s attorney to follow the statutory good faith requirements governing claims of medical negligence.

Good Faith Certificate Requirements

The use of Connecticut’s good faith certificate requirements by the defense bar as a sword against medical negligence actions is not new. For almost 30 years, Connecticut hasrequired that a certificate of good faith be filed in any medical negligence claim by counsel attesting that he or she had made a reasonable inquiry into the validity of the case and that this inquiry gave rise to a good faith belief that there were grounds for the suit, Connecticut General Statutes § 52-190a. In 2005, as part of a “comprehensive effort to control significant and continued increases in malpractice insurance premiums” Connecticut amended its good faith statute to include a new additional requirement. Bennett v. New Milford Hospital, 300 Conn. 1, 18 (2011). Since 2005, the statute now requires, in addition to the good faith certificate, that a “plaintiff in a medical malpractice action … obtain the written opinion of a similar health care provider” attesting that there is evidence of medical negligence and attach it to the complaint prior to bringing suit. Id.

Since this 2005 amendment, a flurry of litigation has ensued surrounding this opinion letter requirement. The defense bar has capitalized on the statute’s notable ambiguity, the plaintiff’s bar’s confusion, and the court’s stringent application of the statute, and utilized the statute as a defense tool to secure a vast number of procedural dismissals of otherwise meritorious medical negligence claims brought by plaintiffs.

The Offensive Use of the Similar Health Care Provider Requirement

However, in the recent Creed case, the plaintiff hospital has taken this aggressive attack a step further. The hospital for the first time has used the procedural requirement offensively, directly attacking attorneys bringing medical malpractice suits that fail toadhere to the stringent application of the statute by the courts. The plaintiff hospital, in a dangerous maneuver, combined another retaliatory tool available to defendants in Connecticut, the claim of vexatious litigation with the statutory opinion letter requirement, and filed its own suit against the attorney and firm for the attorney’s prosecution of two medical malpractice actions against the hospital.

More specifically, in Creed, the attorney had commenced a total of two actions for medical negligence against the hospital for its failure to render appropriate psychiatric care to his client’s wife. The first suit resulted in an immediate dismissal as the attorney neglected to attach the letter of a similar health care provider to his original complaint and then only later sought to amend the complaint to attach the letter of a nurse. Because the statute of limitations had since run out after the dismissal of the first suit, the attorney then commenced a second suit alleging similar claims under Connecticut’s Accidental Failure of Suit Statute, a savings statute, in effort to cure the dismissal of the first action and save the claims therein. The court again dismissed the second suit and found that because the only letter that the attorney had at the commencement of the suit was that of nurse who the court did not consider a similar health care provider under the good faith statute, he could not avail himself under the savings statute and save his claims. According to the court, the attorney needed to a have a sufficient letter of a similar health care provider prior to commencing the first action in order to avail himself under this remedial statute and bring the case anew.

Upon dismissal of the two actions, the hospital brought suit against the attorney and its firm claiming that the attorney and firm had engaged in vexatious litigation in commencing the two suits. The hospital essentially piggybacked off the pre-suit opinion letter requirement to argue that because the attorney had failed to obtain a letter of a similar health care provider prior to commencing suit, he lacked probable cause to bring the two actions, as he lacked a requisite ingredient of a cognizable claim for a medical negligence action. In other words, the hospital claimed that in order to have probable cause to bring his claims against the hospital, the attorney needed to have the letter of a similar healthcare provider prior to bringing suit.

Specifically, the hospital made two claims. In its first claim, the hospital alleged that the attorney and firm lacked probable cause to bring the first medical malpractice action because it was filed without the requisite opinion letter from a similar health care provider and any attorney familiar with Connecticut law would not have reasonably believed that the individual consulted prior to bringing suit, the nurse, qualified as a similar health care provider. As to the second claim, the hospital alleged that the attorney and firm lacked probable cause to commence and prosecute the second action because no reasonable attorney would believe that he or she could utilize the Accidental Failure of Suit Statute to save a suit that the attorney never had probable cause to bring in the first case.

Cross motions for summary judgment were filed by both parties. The hospital again continued to argue that the lack of a letter of a similar health care provider was the equivalent to a lack of probable cause on the part of the attorney and the firm. In contrast, the attorney and firm argued that the opinion letter was merely a procedural prerequisite andwas not the “be all to end all” indicator of a lack of probable cause on the part of the attorney to bring his claims. The attorney and firm asserted that the court needed to look to other factors to assess the attorney’s belief in the viability of the action, including other aspects of his investigation.

In its decision on the cross motions, the trial court declined to allow this type of offensive action by the hospital against the attorney and firm. The court rejected the hospital’s argument that the lack of an adequate opinion letter prior to the commencement of suit is tantamount to a lack of probable cause to bring the negligence action. Instead, the court agreed with the attorney and the firm and concluded that in terms of a claim for vexatious litigation, the opinion letter is just one factor in determining whether there is probable cause and that the court must look to other aspects of the attorney’s investigation which demonstrate that probable cause existed to bring the first action.

In so holding, the court determined that the plaintiff’s argument, that the lack of probable cause can be based solely on the insufficiency of a written opinion letter, defines the scope of the court’s inquiry too narrowly. Looking to a recent Connecticut Supreme Court decision in which the court held that an opinion letter did not have to address causation, the court determined that here it must look beyond the sufficiency of the written opinion letter to determine whether probable cause existed to bring the first medical malpractice action. The court looked to the attorney’s affidavit in which he attested to the investigation that he undertook prior to commencing the first action. The court next held that it could not say that the facts and evidence known to the attorney at the time thatthe first action was commenced were such that no reasonable attorney would have found the claim worthy of litigation, finding that the attorney and firm had probable cause to institute the first action.

Similarly, the court also rejected the plaintiff’s assertion that because the attorney did not have probable cause to bring the first action, he could not utilize the Accidental Failure of Suit Statute to bring the second suit. The court stated that this issue was a matter of first impression, and given that and the fact that the hospital had presented no evidence to show that no reasonable attorney would have instituted the second action, there was no issue of material fact as to whether the defendants had probable cause to commence the second action.

The court then granted the attorney and firm’s motion for summary judgment, denied the hospital’s motion for summary judgment, and concluded that the attorney and firm had not engaged in vexatious litigation.

A Trend Toward Increased Liability?

The impact of the Creed case is far reaching. It demonstrates the heightened aggressive approach that defendant health care providers have taken to stave off medical malpractice claims, and a new use of the good faith statutory requirements that could have a damaging impact on all attorneys.

Further, the Creed case is instructive not just for legal attorneys in Connecticut but nationally as many states have similar statutory requirements regarding similar health care opinion letters. It begs thequestion: could attorneys prosecuting medical negligence cases be exposed to an increased risk of liability in the form of a claim for vexatious litigation, malicious prosecution, or the like? Could this procedural requirement breed a bevy of new claims against counsel for their role in medical negligence cases? The Creed case seemingly suggests that this is not the case and that this type of claim goes too far. However, an appeal is currently pending with respect to the trial court’s decision in Creed and the Connecticut Appellate Courts have yet to weigh-in on this issue, leaving the liability question open for the time being.

Notably, while it does not appear that this issue has reached the courts of other states, some states, such as Illinois, have specific statutes which make it easier for a physician to bring a malicious prosecution suit after he prevails on a medical negligence suit brought against him. Illinois, for example, reduces the injury requirement needed for a claim of malicious prosecution in medical negligence cases, thereby lowering the burden of proof on physicians seeking retribution for allegedly “frivolous” medical negligence claims. The Illinois Supreme Court has upheld the constitutionality of this statute. In upholding the constitutionality, the Illinois Supreme Court emphasized that the state’s legislature enacted the statute to specifically ease “the burden of bringing a malicious prosecution action for health care professionals with the specific intent of not only ‘discouraging’ the filing of frivolous medical malpractice suits, but also as a way of ‘punishing’ those plaintiffs who bring baseless medical malpractice claims.” Miller v. Rosenberg, 196 Ill.2d 50, 64 (2001). It does not appear, however, that there have been any attempts to utilize Illinois’s malicious prosecution statute against attorneys for their role in prosecuting medical negligence actions.

On the other hand, there has been some notable backlash with respect to the opinion letter requirement in Connecticut and other states alike. Several states have declared similar laws imposing similar requirements unconstitutional. Additionally, the Connecticut legislature has since tried to make amendments to the statute, scaling back the court’s stringent imposition of the statutory requirement in medical negligence actions. Although the attempt failed in 2011, it is believed that a new attempt to change the statute will be made in the 2012 legislative session. See Dave Collins, “Law Nixing Legitimate Malpractice Claims,” Connecticut Post, January 8, 2012. It will remain to be seen how the Connecticut Appellate Courts will address this hospital’s offensive use of the statute in light of this backdrop.

Accordingly, whether an increased risk of liability will arise in connection with these types of suits presents an open yet precarious question. If ultimately the Connecticut Appellate Courts allow this type of retaliatory action, a full out war against plaintiff’s attorneys bringing medical negligence suits could ensue changing the entire landscape of how and when these suits are brought. Given the national trend toward the use of similar health care provider opinion requirements such a war could be far reaching and take place on a national level. With little information on the horizon, presently we are left to hold our breath to see how this all shakes out.

However, as this issue plays out in the appeals process, attorneys should be wary that these types of claims could be lurking and should proceed with the utmost caution in performing their presuit inquiry prior to bringing claims of medical negligence. In states imposing the opinion letter requirement, a detailed letter from a reputable physician in the exact same specialty as the defendant physician will be helpful in staving off these types of claims. Without such a letter, any attorney practicing in this field could find themselves facing down a summons by a hostile health care provider.