July 10, 2013
Charlotte Hungerford Hospital v. Creed — A.3d —, 2013 WL 3378824 (Conn. App. 2013)
Connecticut’s Appellate Court ruled in yesterday’s decision that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from contesting that decision. The only issue will then be the amount of damages—double or treble—that the attorney and her firm will be obligated to pay the hospital or the doctor.
Whether this is going to be a trend in our medical malpractice law remains to be seen. In the meantime, I provide the details of that important decision.
Attorneys representing the family of a psychiatric patient, who committed suicide, filed a malpractice suit against a hospital and some of its doctors. They alleged that the defendants prematurely discharged the patient from the hospital’s emergency room while she was still experiencing a severe mental health crisis. Allegedly, this untreated crisis was the cause of the suicide that the patient committed four days later.
The suit was supported by an opinion letter from a registered nurse (!!). Under Connecticut law, as in many other states, the supporting opinion letter must come from “a similar health care provider.” The attorneys thus should have retained a psychiatrist, rather than a nurse, as an expert supporting the suit. Their failure to do so rendered the suit defective and the trial judge properly struck it out.
The attorneys subsequently filed a second malpractice suit against the same defendants. This suit was accompanied by an opinion letter from a board certified psychiatrist, but it was filed after the expiration of the limitations period. The attorneys relied on a statutory extension given to plaintiffs whose first suit had been dismissed due to a “matter of form.” However, the trial court ruled that “The plaintiff’s lack of diligence [in the first action] can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the ‘matter of form’.” Pursuant to this ruling, the judge dismissed the second suit as time barred.
Encouraged by its immensely successful appearance as a defendant, the hospital decided to try its hand as a plaintiff. It sued the attorneys under the following provision of Connecticut law:
“Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others … (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”
In that suit, the hospital alleged that the malpractice actions it had to defend itself against were lacking “probable cause.” Moreover, the hospital claimed that the collateral estoppel rule precludes the attorneys from denying this allegation. The trial court’s decision on that claim triggered appeals from both parties.
The Appellate Court decided that a medical expert’s opinion letter “is not the end-all and be-all of the issue of probable cause to bring the first action.” This decision made it open for the attorneys to show that their first suit was not vexatious despite its problematic appearance. However, the Court also ruled that the attorneys were “legally barred from bringing the second action because of [their] blatant and egregious conduct in the first action.” According to the Court, the trial judge’s ruling that the second action had no “probable cause” did create an estoppel against the attorneys because they had been in control of their clients’ action (as explained in § 39 of 1 Restatement (Second), Judgments (1982)).