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Connecticut Medical Malpractice: A Manual of Practice and Procedure

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Joyce Lagnese, Calum Anderson, Frank Santoro


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"Joyce Lagnese, Calum Anderson and Frank Santoro have provided Connecticut attorneys with a remarkably complete and up-to-date analysis of our State’s medical malpractice law. This thoroughly researched, well-balanced and comprehensive treatise needs to be in every lawyer’s library if their practice area includes the complex and ever-changing law of medical malpractice." —James D.Bartolini, Esq.


Newly revised and reorganized, Connecticut Medical Malpractice: A Manual of Practice and Procedure is the "go-to" legal reference handbook for all Connecticut medical malpractice litigators, both the defense and plaintiff's bar. Three well-known Hartford area attorneys (from the firm of Danaher, Lagnese & Sacco, P.C.) have thoroughly covered this overdue subject.

Reviewed by one of the leading plaintiff's attorneys in the state, James D. Bartolini, has said "This is Black Letter Law written with an eye toward helping the novice as well as seasoned malpractice attorney."

Chapters Include:

  • General Duty of Health Care Providers
  • Causation
  • Damages
  • Certificate of Good Faith and Opinion Letter
  • Statute of Limitations
  • Informed Consent
  • Hospital Liability
  • Expert Testimony
  • Evidentiary Issues
  • Trial Management Issues
  • Apportionment
  • Areas of Special Statutory Regulation
  • Claims Distinct From but Related to Medical Malpractice
  • Privileges and Immunities
  • Disclosure of Patient Information
  • Duty of Mental Health Provider to Third Parties
  • Actions Against the Government
  • Insurance Issues
  • Administrative Regulation of Health Care Providers

New! Important discussion of recent case law, statutory changes and rules.

New Sections:

  • Habit and Practice Evidence
  • The Reptile Theory
  • The Affordable Care Act (Obamacare)


Also New Discussions of:

  • Apparent Authority
  • Miscellaneous Holdings that Cases are Not Medical Malpractice and Therefore Do Not Require Letter
  • Miscellaneous Holdings that Cases are Medical Malpractice Cases which do Require Letter
  • Cases Holding that Author is a Similar Health Care Provider
  • Cases Holding that Author is Not a Similar Health Care Provider
  • Relationship Between Opinion Letter Statute and Practice Book Provisions Relating to Disclosure
  • Suitable Tolling

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  • Availability: Available
  • Brand: The Connecticut Law Tribune
  • Product Type: Books
  • Edition: 5
  • Page Count: 410
  • ISBN: 978-1-62881-631-0
  • Pub#/SKU#: QBKMED20
  • Pub Date: 07/28/2019
  • Volume(s): 1

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  • Joyce Lagnese
Ms. Lagnese is one of the founding principals of Danaher, Lagnese & Sacco, P.C. in Hartford, CT. She serves as co-managing principal of the firm and head of the Medical Malpractice Defense Unit. Her practice concentration is complex civil litigation, principally high exposure medical malpractice defense litigation. She has defended medical malpractice cases in all venues in Connecticut on behalf of physicians, hospitals, nursing homes, community health organizations, nursing staff contractors and mobile medical service providers. Her practice also includes representation of medical practitioners and institutions in administrative proceedings before the Connecticut Department of Public Health.

Ms. Lagnese has extensive trial experience in high exposure complex litigation. This includes medical malpractice cases including wrongful death and permanent injury due to surgical complications; hypoxic induced brain injury and Erbs palsy in babies; delayed diagnosis of cancer and cardiovascular disease; permanent neurologic injury following general anesthesia; patient suicide in the psychiatric and primary care setting; catastrophic outcomes in the Emergency Department setting; and blindness following ophthalmologic treatment.



Author Image
  • Calum Anderson
Mr. Anderson is a partner in the law firm of Danaher, Lagnese & Sacco, P.C. in Hartford, CT. His major areas of practice are Civil Litigation, including Insurance Coverage, Construction, Product Liability, Toxic Tort Litigation and Medical Malpractice.



Author Image
  • Frank Santoro
Mr. Santoro is a partner in the law firm of Danaher, Lagnese & Sacco, P.C. in Hartford. He practice focuses on appellate litigation the context of medical malpractice and insurance litigation.

Chapter 1: General Duty of Health Care Providers
1-1 INTRODUCTION
1-2 DUTY IN GENERAL
1-3 STANDARD OF CARE
1-4 DUTY TO NONPATIENTS
1-5 FIDUCIARY DUTY
1-6 SEXUAL EXPLOITATION CASES
1-7 RECKLESSNESS
1-8 VICARIOUS LIABILITY
1-8:1 Respondeat Superior
1-8:2 Borrowed Servant Doctrine
1-8:3 Successor Liability
1-8:4 Apparent Authority
1-9 CONTRIBUTORY NEGLIGENCE
1-10 THE WRONGFUL CONDUCT RULE
1-11 PRENATAL DUTY OF CARE

Chapter 2: Causation
2-1 CAUSATION GENERALLY
2-2 CAUSE IN FACT
2-3 PROXIMATE CAUSE
2-3:1 Substantial Factor Test
2-3:2 Case-by-Case
2-4 MULTIPLE CAUSATION
2-5 SOLE PROXIMATE CAUSE
2-6 INTERVENING/SUPERSEDING CAUSE
2-7 SUBSEQUENT MEDICAL TREATMENT

Chapter 3: Damages
3-1 DAMAGES GENERALLY
3-2 COMPENSATORY DAMAGES
3-2:1 Pain and Suffering
3-2:2 Physical
3-2:3 Mental
3-2:4 Loss of Consortium
3-2:5 Loss of Chance and Increased Risk
3-2:6 Loss of Life’s Enjoyment and “Death Itself”
3-3 NOMINAL DAMAGES
3-4 PUNITIVE DAMAGES
3-5 PRESENT VALUE
3-6 MITIGATION OF DAMAGES
3-7 COLLATERAL SOURCES
3-7:1 Legislation
3-7:2 Decisional Law
3-8 ADDITUR AND REMITTITUR
3-8:1 Remittitur Denied
3-8:2 Remittitur Granted
3-9 LIFE EXPECTANCY

Chapter 4: Certificate of Good Faith and Opinion Letter
4-1 INTRODUCTION
4-2 THE CERTIFICATE OF GOOD FAITH
4-3 THE 90-DAY EXTENSION
4-4 THE OPINION LETTER
4-4:1 Whether the Action Requires an Opinion Letter
4-4:2 Remedy for Non-Compliance with the Opinion Letter Requirement
4-4:3 The “Detailed Basis” Requirement
4-4:4 Causation
4-4:5 Whether the Letter Should Indicate That the Author Is a Similar Health Care Provider
4-4:6 The Author Must Be a “Similar Health Care Provider”
4-4:7 Hospitals as Defendants
4-4:8 Multiple Defendants
4-4:9 Revival of Dismissed Claims Under the Accidental Failure of Suit Statute
4-4:10 Relationship Between Opinion Letter Statute And Practice Book Provisions Relating to Disclosure

Chapter 5: Statute of Limitations
5-1 INTRODUCTION
5-2 MEDICAL MALPRACTICE NOT RESULTING IN DEATH
5-2:1 The Two-Year Limitations Period
5-2:2 The Three-Year Repose Period
5-3 MEDICAL MALPRACTICE RESULTING IN WRONGFUL DEATH
5-4 TOLLING DOCTRINES
5-4:1 Continuing Treatment
5-4:2 Continuing Course of Conduct
5-4:3 Fraudulent Concealment
5-4:4 Equitable Tolling
5-5 BREACH OF CONTRACT THEORY
5-6 RELATION BACK
5-6:1 Relation Back Applied
5-6:2 Relation Back Not Applied
5-7 ACCIDENTAL FAILURE OF SUIT

Chapter 6: Informed Consent
6-1 INTRODUCTION
6-2 REVOCATION OF CONSENT
6-3 BATTERY
6-4 THE NATURE OF THE DUTY TO INFORM
6-4:1 Common Law
6-4:2 Statutory Law
6-5 THE LAY STANDARD
6-6 EXPERT TESTIMONY
6-7 HOSPITALS’ DUTY
6-8 CAUSATION
6-9 WHEN INFORMED CONSENT IS NOT REQUIRED
6-9:1 Therapeutic Privilege
6-9:2 Incompetence, Disability or Infancy
6-9:3 Emergency
6-10 CHANGE OF CIRCUMSTANCES MAY REQUIRE A NEW INFORMED CONSENT DISCLOSURE

Chapter 7: Hospital Liability
7-1 INTRODUCTION
7-2 INSTITUTIONAL LIABILITY
7-2:1 Hospital-Acquired Infections
7-2:2 Negligent Credentialing
7-2:3 Responsibility to Accept Patients
7-3 RESPONDEAT SUPERIOR
7-4 APPARENT AUTHORITY
7-5 NON-DELEGABLE DUTY
7-6 ADVERSE EVENTS REPORTING REQUIREMENTS
7-7 NURSING HOME LIABILITY

Chapter 8: Expert Testimony
8-1 EXPERT TESTIMONY REQUIREMENT
8-2 THE PERMISSIBLE BASES FOR AN EXPERT’S OPINION
8-3 EXCEPTIONS TO THE EXPERT TESTIMONY REQUIREMENT
8-4 SIMILAR HEALTH CARE PROVIDER
8-5 RES IPSA LOQUITUR
8-6 EXPERT WITNESS DISCLOSURE REQUIREMENTS
8-7 MEDICAL LITERATURE
8-8 SCIENTIFIC EVIDENCE—PORTER HEARINGS
8-8:1 Porter Law Generally
8-8:2 Porter Challenges in Medical Malpractice Cases in Connecticut
8-8:3 Selected Porter Issues in Other Jurisdictions
8-9 CIRCUMSTANCES UNDER WHICH A TREATING PHYSICIAN’S MEDICAL RECORDS MAY BE ADMITTED AS EXPERT EVIDENCE OF CAUSATION
8-10 SCOPE OF CROSS EXAMINATION OF EXPERT
8-11 COMPELLING DEFENDANT OR NON-PARTY TREATERS TO PROVIDE EXPERT OPINION
8-12 REASONABLENESS OF EXPERT WITNESS FEES
8-13 DISQUALIFICATION OF EXPERT WHEN HE HAS CONSULTED WITH BOTH PARTIES
9-1 INTRODUCTION
9-2 EXPERT TESTIMONY
9-3 SIMILAR HEALTH CARE PROVIDER
9-4 MEDICAL LITERATURE
9-4:1 Medical Records
9-4:2 Instruction Manuals
9-5 DAUBERT/PORTER ISSUES
9-6 THE DEAD MAN’S STATUTE
9-7 INFORMED CONSENT ISSUES
9-7:1 Expert Testimony in Informed Consent Cases
9-7:2 The Admissibility of “What I Would Have Done” Evidence
9-7:3 Admissibility of Informed Consent Evidence in a Medical Malpractice Case Without an Informed Consent Claim
9-8 STATEMENTS OF APOLOGY
9-9 INSURANCE-RELATED EVIDENCE
9-10 DAY IN THE LIFE FILM
9-11 SPOLIATION OF EVIDENCE
9-12 TESTIMONY OF ECONOMISTS
9-13 FAILURE TO BILL AND ADVANCE PAYMENTS
9-14 CUMULATIVE TESTIMONY
9-15 THE NON-COMPLIANT PATIENT
9-16 ADMISSIBILITY OF SOCIAL MEDIA
9-17 HABIT AND PRACTICE EVIDENCE
9-18 THE REPTILE THEORY
9-19 CONFIDENTIALITY OF RECORDS MAINTAINED BY THE DEPARTMENT OF CHILDREN AND FAMILIES
9-20 EVIDENCE OF A RELEASE OR AGREEMENT NOT TO SUE WITH ANOTHER TORTFEASOR

Chapter 10: Trial Management Issues
10-1 BIFURCATION
10-2 ORDER OF DISCOVERY
10-3 CAUSATION EVIDENCE AS HARMFUL ERROR
10-4 CLOSING ARGUMENT
10-5 MEDIA COVERAGE
10-6 STANDARD OF REVIEW
10-7 APPEALABILITY OF DISCOVERY ORDER

Chapter 11: Apportionment
11-1 APPORTIONMENT IN MEDICAL MALPRACTICE
11-2 HISTORY OF APPORTIONMENT
11-2:1 Tort Reform I
11-2:2 Tort Reform II
11-3 PRACTICAL PROBLEMS
11-3:1 Triggering Process
11-3:2 Notice Requirement
11-3:3 Expert Testimony
11-3:4 Situations Allowing Apportionment
11-3:5 Pre-Trial Settlements
11-4 PROPORTIONAL RECOVERY
11-5 APPORTIONMENT IN CASES INVOLVING ASSAULT/BATTERY OR SEXUAL MISCONDUCT
11-6 REALLOCATION OF DAMAGES

Chapter 12: Areas of Special Statutory Regulation
12-1 INTRODUCTION
12-2 OFFERS OF COMPROMISE
12-2:1 Offers of Compromise by Plaintiff
12-2:2 Offers of Compromise by Defendant
12-3 ATTORNEYS’ FEES
12-3:1 Defendant’s Attorneys’ Fees
12-3:2 Plaintiff’s Attorneys’ Fees
12-4 MEDIATION
12-4:1 Mandatory Mediation
12-4:2 Malpractice Screening Panel
12-5 PATIENTS’ BILL OF RIGHTS
12-5:1 Nursing Home Facilities and Chronic Disease Hospitals
12-5:2 Psychiatric Treatment Facilities
12-6 WORKERS’ COMPENSATION LIENS
12-7 MEDICARE AND MEDICAID LIENS
12-8 CONNECTICUT UNFAIR TRADE PRACTICES ACT
12-8:1 CUTPA Claims Not Recognized
12-8:2 CUTPA Claims Recognized
12-9 NATIONAL PRACTITIONER DATA BANK
12-9:1 Overview of the Health Care Quality Improvement Act of 1986
12-9:2 Reporting Medical Malpractice Payments
12-9:3 Reporting Licensure Actions Taken By Boards of Medical Examiners
12-9:4 Reporting Adverse Actions on Clinical Privileges
12-9:5 Hospitals Are Required to Request Information From The NPDB
12-10 TAXATION OF COSTS
12-11 REGULATION OF CONFLICTS BETWEEN RELIGION AND MEDICINE
12-11:1 Physician’s Freedom of Conscience Generally
12-11:2 Engaging in Practices Because of Religious Beliefs
12-11:3 Engaging in Practices Despite Religious Beliefs
12-12 COMPLEX LITIGATION DOCKET
12-13 THE AFFORDABLE CARE ACT (OBAMACARE)
12-14 THE LEGISLATIVE PROCESS GENERALLY

Chapter 13: Claims Distinct From But Related to Medical Malpractice
13-1 CONTRACT THEORY
13-2 ORDINARY NEGLIGENCE
13-2:1 Reasons for Distinguishing
13-2:2 Distinguishing Factors
13-2:3 Fact-Specific Application
13-3 PRODUCTS LIABILITY
13-3:1 Learned Intermediary Doctrine
13-3:2 Blood Shield Statute
13-4 CONSTITUTIONAL CLAIMS

Chapter 14: Privileges and Immunities
14-1 INTRODUCTION
14-2 PRIVILEGES BELONGING TO PATIENTS
14-2:1 Physician-Patient Privilege
14-2:2 Psychiatrist-Patient Privilege
14-2:3 Psychologist-Patient Privilege
14-3 PRIVILEGES BELONGING TO HEALTH CARE PROVIDERS
14-3:1 Peer-Review Privilege
14-3:2 Medical Studies Privilege
14-4 IMMUNITIES OF HEALTH CARE PROVIDERS
14-4:1 Good Samaritan Immunity
14-4:2 Removal of Life Support Equipment
14-4:3 Reporting Child Abuse
14-4:4 Protection of Conscience Immunity
14-4:5 Service on Utilization Review Committee
14-4:6 Charitable Immunity
14-4:7 Peer-Review Immunity
14-4:8 Judicial Proceedings Immunity

Chapter 15: Disclosure of Patient Information
15-1 DISCLOSURE OF PATIENT INFORMATION GENERALLY
15-1:1 Duty to Maintain Patient Confidentiality
15-1:2 Two Types of Claims
15-1:3 Statutory Sources
15-1:4 Common Law Sources
15-2 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)
15-2:1 Basic Definitions
15-2:2 Business Associate Agreements
15-2:3 Authorizations for Collecting Medical Records
15-2:4 Safeguarding Protected Health Information
15-2:5 Disclosing Information to Agents or Subcontractors
15-2:6 Patient’s Rights
15-2:7 Impact on Litigation Process
15-2:8 No Private Cause of Action
15-2:9 Business Associate Liability

Chapter 16: Duty of Mental Health Provider to Third Parties
16-1 INTRODUCTION
16-2 DUTY TO IDENTIFIABLE VICTIM (TARASOF CASES)
16-3 NO INDEPENDENT DUTY TO SPOUSE
16-4 NO DUTY TO PERSON ACCUSED OF SEXUAL MISCONDUCT
16-5 PUBLIC DUTY

Chapter 17: Actions Relating to the Creation or Sustaining of Life
17-1 INTRODUCTION
17-2 WRONGFUL BIRTH
17-3 WRONGFUL LIFE
17-4 WRONGFUL LIVING
17-5 WRONGFUL DEATH OF UNBORN
17-6 ASSISTED SUICIDE
17-7 THE RIGHT TO REFUSE LIFE-SAVING MEDICAL TREATMENT
17-7:1 The Right of a Minor to Accept or Reject Treatment

Chapter 18: Actions Against the Government
18-1 INTRODUCTION
18-2 FEDERAL GOVERNMENT
18-3 STATE GOVERNMENT
18-4 MUNICIPAL GOVERNMENT

Chapter 19: Insurance Issues
19-1 THE ROLE OF MEDICAL PROFESSIONAL LIABILITY INSURANCE
19-2 POLICY TERMS AND ENDORSEMENTS
19-2:1 Limits of Liability
19-2:2 Per-Claim Aggregate Limit
19-2:3 Defense Costs Inside/Outside the Limits
19-3 CONSENT TO SETTLE CLAUSE
19-3:1 Consent to Settle: Insurer
19-3:2 Consent to Settle: Physician
19-3:3 Hammer Clause
19-4 ADMISSIBILITY OF EVIDENCE OF INSURANCE
19-5 INSURANCE COVERAGE ISSUES
19-5:1 Duty to Defend
19-5:2 Covered Claim
19-5:3 Bad Faith Claims
19-6 PROBLEMS ARISING WHEN THE JUDGMENT EXCEEDS THE AMOUNT OF INSURANCE

Chapter 20: Administrative Regulation of Health Care Providers
20-1 REGULATION OF THE HEALTH CARE PROFESSIONS
20-2 THE DEPARTMENT OF PUBLIC HEALTH
20-3 CONNECTICUT MEDICAL EXAMINING BOARD
20-4 REQUIREMENTS TO OBTAIN LICENSE
20-5 RESTRICTION, SUSPENSION OR REVOCATION OF LICENSE
20-5:1 Grounds
20-5:2 Administrative Procedure for Discipline
20-5:3 Commencement of Disciplinary Action

Table of Cases
Table of Statutes
Index