Connecticut court upholds doctors' right to pay only part of jury award

Physicians say a Connecticut Supreme Court ruling reinforces tort reforms intended to hold defendant doctors financially responsible for only their share of fault in a medical liability lawsuit.

For the internist at the center of the case, Robert S. Goldsmith, MD, the court's decision means that he won't be responsible for a $16 million judgment against him. Instead, he will get a new trial and be able to tell a jury that another doctor named in the lawsuit, internist O. Joseph Bizzozero, MD, settled before trial and shared responsibility in treating a patient who died after surgery.

Consequently, Dr. Goldsmith also will be able to argue that he should not be responsible for the full amount the plaintiff is asking for in the lawsuit. He was not allowed to do that in the first trial.

The high court's ruling reaffirms Connecticut's 1986 and 1995 joint and several liability reforms that were intended to ensure that defendants are held responsible for only their share of the blame in medical liability lawsuits, said Cameron C. Staples, counsel to the Connecticut State Medical Society. Connecticut is one of nearly 40 states that allow such apportionment claims.

The fact that the high court ordered a new trial "is a pretty strong statement about the importance of an apportionment claim on the outcome of a case," Staples said. The doctors group did not take a position in the lawsuit.

Vita Carlson sued Drs. Goldsmith and Bizzozero and Waterbury Hospital in Connecticut in 1995 after her husband, Gary Carlson, had a heart attack and died two days after hip replacement surgery.

Carlson claimed that about two months before the operation, Dr. Goldsmith, Gary's primary care physician, failed to diagnose her husband's coronary artery disease when he complained of chest pains. The lawsuit also accused Dr. Bizzozero of not catching her husband's condition, and neglecting to check his medical history before clearing him for surgery. Dr. Goldsmith denies any wrongdoing, and Dr. Bizzozero and Waterbury Hospital denied any wrongdoing in their settlement.

In July 2003, three months before trial, Dr. Goldsmith learned that Dr. Bizzozero and Waterbury Hospital had settled their portion of the suit. Dr. Goldsmith filed an apportionment claim, which lets him ask the jury to assign a percentage of fault to other defendants and limit damages accordingly, should jurors find any negligence. But the trial judge said Dr. Goldsmith had not filed the paperwork in time, so the doctor couldn't ask the jury to apportion the award.

That left Dr. Goldsmith in a precarious situation, said his lawyer, Kevin M. Tepas.

"If he was in for 1%, he was in for 100%, and that's not consistent with Connecticut law," Tepas said.

The state Supreme Court agreed in its September decision, and ruled that Dr. Goldsmith filed his court papers in plenty of time.

"Indeed, the defendants effectively were foreclosed from raising the alternative argument that even if they had been liable for the decedent's death, [Dr.] Bizzozero's liability was far greater than their own," Judge Richard N. Palmer wrote. "Rather, the defendants were forced to insist that they were not liable at all -- a strategy that played into the hands of the plaintiff, who argued to the jury that the defendants simply were trying to 'pass the buck' to [Dr.] Bizzozero and others who were no longer parties to the action."

The Carlson case was one among many trickling through the court system to clarify reforms that outlined procedures on how doctors should be held financially responsible in these cases, attorneys say.

"The [Supreme] Court is taking an expansive view of apportionment and not a restrictive one, and it should guide trial courts to do the same," Tepas said.

Rules still unclear, some say

Plaintiff attorneys say the ruling still points to some inherent problems with the law, namely whether defendant doctors can assume proportionate liability if another defendant settles without giving some kind of notice or expert witness testimony from the start.

"Once a defendant has settled, the co-defendants can try to blame [him or her] without really specifying exactly what it is the co-defendant thinks [he or she] did wrong," said David N. Rosen, who filed a friend-of-the-court brief in the case on behalf of the Connecticut Trial Lawyers Assn.

That makes it difficult for plaintiffs to know what they have to prove and against whom, said Joshua D. Koskoff, Carlson's attorney.

"We want to know what the implications are of settling with one of the defendants, and if it's too much of an unknown, it would be to the disadvantage of everybody," he said.

Plaintiff attorneys also dispute that the jury was prejudiced because Dr. Goldsmith could not raise the issue of shared liability, and they disagree with the high court's decision to retry the case altogether.

Because the jury already established Dr. Goldsmith's negligence, "the court could have chosen to retry the issue of whether anyone else should share in that responsibility instead of having [Carlson] prove her case all over again," Koskoff said.