Pullman & Comley’s annual review of significant case law affecting Connecticut health care providers summarizes a number of important decisions issued in 2023 by Connecticut state and federal courts. Among the highlights are Connecticut Supreme Court decisions addressing the extent of the immunity conferred on health care providers during the COVID-19 public health emergency, amendments to defective medical malpractice opinion letters, and intervenor requests in certificate of need contested actions. The Connecticut Supreme Court has also agreed to answer three questions regarding the state Surprise Billing Law that were certified to it by the Connecticut District Court.
The purpose of this Alert is to summarize key cases decided during the past year; please refer to the full decisions for complete information.
CT Supreme Court Rules on Immunity of Health Care Providers During COVID-19
During the second half of 2023, the Connecticut Supreme Court decided two cases addressing the scope of the immunity conferred on health care providers by Governor Lamont’s Executive Order No. 7V (EO 7V), which provides protection from civil liability for actions or omissions in support of the state’s COVID-19 response. The court found limited immunity protection in the first case, but no immunity in the second case.
In the first case, the Connecticut Supreme Court interpreted EO 7V to mean that immunity applies when a health care provider’s acts or omissions causing an injury were connected to the provision of services in support of the state’s COVID-19 response, even if the health care provider was not treating the injured party for COVID-19. The court found that the defendant hospital and several physicians had immunity under EO 7V from liability arising from the fatal heart attack of a patient following a delay in treating the patient’s heart condition while they awaited her COVID-19 test result because the defendants had a good faith belief that the patient’s symptoms were attributable to COVID-19 and were not indicative of a life-threatening heart condition. The court found that their actions were made in reliance on the hospital’s COVID-19 protocol and therefore occurred while providing health care services in support of the state’s COVID-19 response. However, after COVID-19 was ruled out as a cause of the patient’s heart condition, the treatment of the patient was not provided in support of the state’s COVID-19 response and, therefore, was not within the scope of the immunity conferred by EO 7V.
The court also found no immunity under the federal Public Readiness and Emergency Preparedness Act (42 U.S.C. §247d-6d) (PREP Act). The PREP Act provides immunity from suit and liability with respect to claims for loss caused by, arising out of, relating to or resulting from the administration to or the use by an individual of a covered countermeasure during a public health emergency. The court reasoned that the only countermeasure employed by the defendants with respect to the decedent was the COVID-19 test, and the court found that the plaintiff did not allege that the decedent’s death was caused by the defendants’ improper administration, prescription, dispensing or use of the COVID-19 test.
Mills v. Hartford Healthcare Corporation, 347 Conn. 524.
The second case involved a different provision of EO 7V, namely, the scope of the immunity as it relates to acts or omissions undertaken because of an alleged lack of resources attributable to the pandemic. In this case, a resident of a nursing home fell and eventually died of her injuries. The resident’s daughter brought a wrongful death action against the nursing home and its contractor for administrative functions for, among other things, failing to implement the resident’s plan of care prior to the fall and failing to obtain immediate medical treatment after the fall. The defendants argued that they were immune under EO 7V because their actions and omissions were due to a lack of resources attributable to the pandemic. The court found no immunity, finding that EO 7V requires evidence about how the lack of resources specifically related to the defendants’ alleged actions or omissions that caused the decedent’s injuries. For example, the court found that the defendants provided no evidence regarding how the lack of resources led to their failing to implement the decedent’s health program, which led to her fall.
Manginelli v. Regency House of Wallingford, Inc., 347 Conn. 581.
Providers should take note of these significant cases as they address the extent of the immunity offered by EO 7V and the PREP Act and explain how the immunity offered by EO 7V and the PREP Act is by no means absolute.
CT Supreme Court Finds Home Care Agency Tortiously Interfered with Competitor’s DSS Contract
In the growing area of home care, the Connecticut Supreme Court affirmed a decision of the Connecticut Superior Court (J.D. Hartford) in favor of a services agency that claimed a competitor tortiously interfered with its contractual and business relations and violated the Connecticut Unfair Trade Practices Act (CUTPA).
The dispute arose from the Department of Social Services’ (DSS) requirement that Medicaid home care providers use an electronic visit verification timekeeping system (EVV) beginning January 1, 2017. Companions and Homemakers, Inc. (Companions) sought to enjoin DSS from implementing the EVV because it claimed that the system was unworkable. A&B Homecare Solutions, LLC (A&B), a competitor of Companions, agreed to be a party to Companions’ complaint and represented to Companions that it would not take clients or employees from Companions. While the case against DSS was pending, A&B began to implement the EVV without informing Companions. Further, immediately after DSS terminated its contract with Companions for failing to implement the EVV system in a timely manner, A&B began to take Companions’ clients and also worked to hire Companions’ employees.
The Connecticut Supreme Court affirmed the trial court’s decision that A&B tortiously interfered with Companions’ DSS contract and violated CUTPA but decided that it did not need to reach the claim that A&B tortiously interfered with Companions’ non-compete agreements since it upheld the trial court’s decision on the interference with contract claim. It found that any error by the trial court on this issue likely did not affect the finding of liability or the award of damages.
Companions and Homemakers, Inc. v. A&B Homecare Solutions, LLC, 348 Conn. 132.
In a footnote, the court stated that it did not address the question of whether an agreement among the parties not to implement the EVV while agreeing not to take one another’s clients violated the law because the trial court found that the issue had not been adequately briefed.
In Separate Actions, Two Courts Deny Hartford Healthcare’s Motions to Dismiss Antitrust Claims
Hartford Healthcare Corporation (Hartford Healthcare) is currently defending two lawsuits accusing it of antitrust violations and unfair trade practices, one brought by Saint Francis Hospital and Medical Center, and the other brought by a proposed class action of patients. The courts hearing these cases have largely denied Hartford Healthcare’s motions to dismiss these claims.
Saint Francis Hospital and Medical Center
In 2022, Saint Francis Hospital and Medical Center (SFHMC) filed a complaint alleging, among other things, that Hartford Healthcare and various subsidiaries suppressed competition in the Hartford County area in order to maintain market dominance, causing SFHMC to lose thousands of commercially insured patients. For example, SFHMC claims that Hartford Healthcare acquired physician practices, some of which had previously been affiliated with SFHMC, in part through a “campaign of intimidation,” and that Hartford Healthcare used threats and rewards to cause its physicians to refer virtually all of their patients to Hartford Healthcare and its specialists. SFHMC also claims that Hartford Healthcare’s large market power enabled it and its subsidiary, Integrated Care Partners (ICP), to negotiate an exclusive arrangement for a type of robotic medical technology used in orthopedic procedures, which in turn caused SFHMC to lose significant orthopedic surgery business. SFHMC further alleges that Hartford Healthcare and ICP refused to participate in tiered networks (whereby an insurer establishes a preferred tier of providers that require fewer, or no, co-pays or deductibles) and similar programs designed to increase competition and benefit patients.
The federal District Court in Connecticut (Nagala, J.) denied Hartford Healthcare’s motion to dismiss the claims, with the exception of the claim that Hartford Healthcare and ICP refused to participate in tiered networking and similar programs. On that count, the court found that SFHMC did not allege that it had suffered an antitrust injury arising from the alleged conduct of the defendants.
Saint Francis Hospital & Medical Center, Inc. v. Hartford Healthcare Corporation, Hartford Hospital, Hartford Healthcare Medical Group, Inc., and Integrated Care Partners, LLC, 655 F.Supp.3d 52.
The potential damages that could be assessed against Hartford Healthcare in this case would be significant. Health care providers should stay tuned for a decision on the merits.
Class Action Lawsuit by Patients
In a case that is drawing national attention from the antitrust bar, a putative class action of seven patients covered by commercial health plans or Medicaid have alleged that Hartford Healthcare’s business practices violated Connecticut’s antitrust law and the Connecticut Unfair Trade Practices Act, leading to inflated prices for health care services.
The plaintiffs in this case accuse Hartford Healthcare of using its dominant position in regions where there is little competition for acute inpatient services to grow its share in the market for outpatient services and to extract “supracompetitive” prices. The plaintiffs also claim that Hartford Healthcare refused to enter into agreements with insurers providing access in these low-competition markets unless the insurers also agreed to include in their networks, at inflated prices, Hartford Healthcare’s facilities and services in areas where there were increased levels of competition. In addition, the plaintiffs allege that Hartford Healthcare required that its contracts with health insurers include certain provisions, such as anti-steering and anti-tiering clauses, which were aimed at reducing competition, and that it employed gag clauses and non-compete clauses, as well as restrictions on the manner in which its physicians could make referrals, to maintain and grow its share of the relevant markets and enable it to charge inflated prices for its services.
Hartford Healthcare moved to dismiss the claims for lack of subject matter jurisdiction. It also moved to strike the claims for legal insufficiency. The Superior Court (J.D. Hartford) denied the motion to dismiss on the ground that the complaint sufficiently alleged that Hartford Healthcare’s use of its monopoly power to stifle competition and inflate its prices led directly to inflated insurance premiums and to other inflated out of pocket costs. The court also denied Hartford Healthcare’s motions to strike, in part on the basis that it found that the allegations were sufficient at the pleading stage to sustain the claims and to warrant development of the facts “before the court plays its gatekeeper role on the issues.”
Brown v. Hartford Healthcare Corp., 2023 WL 7150051.
In a significant legislative development, we note that Section 19 of Connecticut Public Act 23-171 prohibits health care providers and health carriers from offering, soliciting, requesting, amending, renewing or entering into a health care contract on and after July 1, 2024, that includes some of the practices that the plaintiffs in this case complained of, namely, all-or-nothing clauses, anti-steering clauses, anti-tiering clauses and gag clauses.
CT Supreme Court Agrees to Interpret State Surprise Billing Law
The various controversies that have followed Connecticut’s Surprise Billing Law will continue into 2024 as the Connecticut Supreme Court has agreed to decide three questions related to the law (CGS §38a-477aa) that were certified to it by the federal District Court in Connecticut (Nagala, J.). Among other things, the Surprise Billing Law prohibits health insurance carriers from charging a patient a coinsurance, copayment, deductible or other out-of-pocket expense for out-of-network emergency services that is greater than the expense that would be imposed if the services were rendered by an in-network health care provider.
In NEMS, PLLC v. Harvard Pilgrim Health Care of Connecticut, Inc., the plaintiff, an emergency medical provider, furnished out-of-network services to patients insured by the defendant insurer. The provider claimed that the insurer improperly reimbursed it for these out-of-network services by subtracting the patient’s in-network deductible (and/or other cost sharing expenses) from the amount it paid to the provider, leaving the provider to collect the patient’s share of the bill directly from the patient. The provider claimed that the state’s balance billing law (CGS §20-7f(b)) prevented it from collecting these amounts directly from the patient. The District Court posited, and the provider agreed, that the Surprise Billing Law also allows an out-of-network provider to bill the insurer for the full amount of what it is owed, and the insurer is then required to reimburse the provider for the greatest of three amounts specified in the statute (CGS §38a-477aa(b)(3)(A)). The insurer would then be responsible for seeking payment from the insured in an amount up to the in-network coinsurance, copayment or deductible.
In 2022, the District Court granted the insurer’s motion to dismiss the provider’s claim that it violated Connecticut’s Surprise Billing Law because the law does not provide for a private cause of action. However, the court denied the insurer’s motion to dismiss the claim that an alleged violation of the Surprise Billing Law was sufficient to state a claim under the Connecticut Unfair Trade Practices Act (CGS §42-110a et seq., CUTPA), regardless of whether the claim constituted a violation of the Connecticut Unfair Insurance Practices Act (CGS §38a-815, et seq., CUIPA). The court determined that a plaintiff can maintain a CUTPA action where there is an alleged violation of a law that regulates a specific type of insurance-related conduct, and found that the Surprise Billing Law was just such a law.
Both parties moved for summary judgment. The District Court found that no Connecticut court had examined the issues presented by this case and certified the following three questions to the Connecticut Supreme Court, namely: (1) does Connecticut's Surprise Billing Law, which provides that, “[i]f emergency services were rendered to an insured by an out-of-network health care provider, such health care provider may bill the health carrier directly and the health carrier shall reimburse such health care provider the greatest” of three amounts, require a health carrier to fully reimburse an out-of-network health care provider at the greatest of the three amounts for emergency services rendered to its insureds, and then later recover any applicable deductible, copayment, or coinsurance directly from the insured?; (2) if not, is Defendant's practice of paying Plaintiff only that amount that exceeds the insured's in-network deductible, copayment, or coinsurance, and leaving Plaintiff to recover the remaining amount directly from the insured, regardless of whether such remaining amount is greater than the amount the insured would have been personally responsible to pay had they visited an in-network provider, a violation of the Surprise Billing Law?; and (3) under any interpretation of the Surprise Billing Law, can a plaintiff successfully maintain an action under CUTPA, for actions that do not violate CUIPA, but purport to violate the Surprise Billing Law, because the Surprise Billing Law regulates a specific type of insurance related conduct?
NEMS, PLLC v. Harvard Pilgrim Health Care of Connecticut, Inc., --- F.3d. --- (2023), 2023 WL 4273748; Connecticut Supreme Court Docket, FEDNCV210001169S.
The provider community continues to wrestle with the implementation of both the federal No Surprises Act as well as the state law. This is especially true of the federal independent Dispute Resolution Process that has been challenged in the courts. The questions certified to the Connecticut Supreme Court are significant for the provider community under the state law and the answers could impact the payment of claims for emergency medical services in a big way. Oral argument is currently scheduled for February, 2024.
CT Supreme Court Overrules Precedent, Permits Amendments of Defective Opinion Letters
Connecticut law requires that a plaintiff in a medical malpractice action demonstrate the existence of his or her good faith by obtaining a written opinion of a “similar health care provider” that there appears to be evidence of a breach of the applicable standard of care (CGS §52-190a(a)). The law sets forth one definition of “similar health care provider” if the defendant is not certified as being a specialist (or is not trained and experienced in a medical specialty or does not hold himself out as a specialist) (CGS §52-184c(b)) and another definition of “similar health care provider” if the defendant is certified as being a specialist (or is trained and experienced in a medical specialty or holds himself out as a specialist) (CGS §52-184c(c)).
In Carpenter v. Daar, the plaintiff brought a medical malpractice action against a dentist and his practice claiming that during a root canal procedure, the dentist failed to diagnose and treat an infection in the plaintiff’s tooth and as a result the plaintiff required surgery and other follow-up care. The plaintiff obtained an opinion letter from a professor of endodontics, but the defendants filed a motion to dismiss, arguing that the opinion was written by an endodontic specialist and the defendants claimed that the provider was a general dentist. In response to the motion to dismiss, the plaintiff submitted a supplemental affidavit executed by the same endodontist which included support for the opinion writer’s work in the area of general dentistry.
In 2020, the Appellate Court affirmed the trial court’s grant of the defendants’ motion to dismiss, finding that the statutory requirements for service of process (that is, the process by which a plaintiff gives formal notice of a claim to the defendant for the purpose of obtaining personal jurisdiction) in a medical malpractice action include the attachment of a proper opinion letter to the plaintiff’s complaint. The plaintiff’s defective opinion letter, therefore, amounted to a defect in process that could not be ameliorated by the filing of a supplemental affidavit.
The Connecticut Supreme Court reversed. Overruling more than ten years of precedent, it held that the opinion letter requirement does not implicate the trial court’s personal jurisdiction and that the sufficiency of the opinion letter is to be determined solely on the basis of the allegations in the complaint and on the face of the opinion letter. The court also held that if the opinion letter is legally insufficient or defective, trial courts have the authority to permit amendments or supplementation of a challenged letter in response to a motion to dismiss. In this case, the court determined that the opinion letter established that the expert was a similar health care provider to the defendant under the “broadly and realistically read allegations in the complaint.”
For a more detailed analysis of this case, please see our prior blog.
Carpenter v. Daar, 346 Conn. 80.
This case promises to make it more difficult for practitioners to defend malpractice claims, at least on jurisdictional grounds in the initial stages of litigation. Notably, the court found that the prior prohibition on amending defective opinion letters “created roadblocks for otherwise meritorious claims.”
CT Supreme Court Finds that Corporation Properly Requested Intervenor Status in CON Contested Case
Birch Hill Recovery Center, LLC (Birch Hill) filed an application with the Office of Health Care Access (OHCA, now the Office of Health Strategy) for a certificate of need (CON) to establish a substance abuse treatment facility in Kent in 2017. As part of its review, OHCA scheduled public hearings pursuant to its discretionary authority under CGS §19a-639a(f)(2). High Watch Recovery Center, Inc., a substance abuse treatment facility also in Kent (High Watch), requested that OHCA designate it as an intervenor. Following the public hearings, the CON application was approved, subject to certain conditions. High Watch brought an administrative appeal against the Department of Public Health (DPH), OHCA and Birch Hill, arguing that DPH had abused its discretion in approving the application. The Superior Court (J.D. New Britain) granted the defendants’ motions to dismiss. The Appellate Court affirmed, finding that the state Uniform Administrative Procedures Act permits an appeal only if there has been a final decision in a “contested case” (generally, a proceeding required by statute). As the hearings were held pursuant to OHCA’s discretionary authority, the Appellate Court found that the public hearings did not constitute a contested case.
The Connecticut Supreme Court reversed, finding that High Watch’s petition to intervene was sufficient to confer contested-case status on the proceedings such that DPH’s decision was a final appealable order. The CON statutes require a public hearing to be held if three or more individuals or an individual representing an entity with five or more people submits a written request for a hearing (CGS §19a-639a(e)). While High Watch did not expressly state that it was an entity with five or more people, the court found that OHCA was “fully aware” that High Watch employed at least five people, as it was a licensed substance abuse treatment facility with 78 beds. The court also noted that if OHCA was not sure of the status of High Watch, it should have held an evidentiary hearing to determine its status prior to granting the motions to dismiss, which it did not do.
The court also disagreed with the Appellate Court’s finding that High Watch did not expressly request a public hearing, but only requested intervenor status in a public hearing that had already been scheduled. The court reasoned that the CON statutes do not require specific language mandating that a request for a hearing take a particular form. Since a public hearing had already been scheduled, the court reasoned that it was “only logical” that a party wanting to oppose the application would request intervenor status in that hearing, and not request another or different hearing. Further, the public notice of the hearing explicitly instructed would-be intervenors to request intervenor status, which is what High Watch did.
The Connecticut Supreme Court remanded the case to the Appellate Court with direction to reverse the judgment of the trial court and to remand the case to the trial court.
High Watch Recovery Center, Inc. v. Department of Public Health, 347 Conn. 317.
The Connecticut Supreme Court noted that because the trial court concluded that there was no final decision in a contested case from which High Watch could appeal, it did not consider the defendants’ additional ground for dismissal, namely, that High Watch was not aggrieved by DPH’s decision, and stated that on remand, the trial court will have to consider this alternative ground for dismissal.
CT Appellate Court Rules on Evidentiary Link between Patient’s Post-Surgical Actions and Injury
The plaintiff in this case suffered serious complications following nasal surgery. The plaintiff’s medical expert testified, to a reasonable degree of medical probability (the standard required to establish the necessary causal relationship), that the plaintiff did not cause the injuries to himself. The defendant physician claimed that the injuries arose from the plaintiff’s manipulation of the surgical site following the surgery, and he testified at trial that he had been “more than concerned” that the patient’s post-surgical conduct could cause problems with the outcome of the surgery. The trial court instructed the jury to consider whether patient’s post-surgical conduct was the sole proximate cause of his injury.
The plaintiff appealed and argued that the jury should have been instructed that it could not consider patient’s alleged post-surgical actions as a cause of his injuries. The Appellate Court of Connecticut (Bright, J.) agreed. The court found that, at trial, the jury was presented with conflicting theories as to how the plaintiff suffered his injuries. The plaintiff’s medical expert testified, to a reasonable degree of medical probability, that the plaintiff did not cause the injuries to himself. However, the defendant physician did not offer expert testimony that the patient’s conduct caused the plaintiff’s injuries and the court found that the physician’s testimony that he was “more than concerned” about the plaintiff’s conduct was too speculative to meet the reasonable degree of medical probability standard. The court ordered a new trial and the Connecticut Supreme Court has denied certiorari.
Perdikis v. Klarsfeld, 219 Conn.App. 343.
In light of this case, physicians involved in medical malpractice actions should be prepared to present expert medical testimony regarding the cause of the patient’s injury if they believe the patient’s conduct was a contributing factor.
CT Appellate Court Finds No Malpractice due to Wrongful Conduct of Plaintiff
The Appellate Court of Connecticut has upheld a grant of summary judgment in a malpractice action in favor of two practitioners based on public policy considerations.
The plaintiff’s son regularly used recreational marijuana and was also on medication to treat bipolar disorder. Concerned that an employment drug test might reveal his use of marijuana, he falsely represented to the defendant psychologist that he had symptoms of post-traumatic stress disorder (PTSD) and based on that diagnosis, obtained a certificate for medical marijuana from the defendant physician. The son used medical marijuana daily and eventually stopped taking his bipolar medication, after which he was hospitalized for a manic episode and discharged to a marijuana dependent rehabilitation program. The plaintiff claimed, among other things, that the psychologist improperly diagnosed his son with PTSD and that the physician improperly relied on the psychologist’s diagnosis and prescribed marijuana knowing that his son suffered from bipolar disorder and in the past had experienced negative consequences from the use of marijuana.
Both defendants filed motions for summary judgment, arguing that the plaintiff’s claims were barred by the “wrongful conduct” rule, which provides that a plaintiff should not recover for injuries that are sustained as the direct result of his or her knowing and intentional participation in a criminal act.
The Appellate Court agreed with the trial court that there was a direct causal connection between the son’s conduct and the injuries he suffered. The court also rejected the plaintiff’s contention that prior case law requires that the wrongful conduct doctrine apply only in the case of “serious felonies” and that there was a genuine issue of material fact as to whether the son’s criminal conduct constituted “serious criminality.” The court determined that prior case law was not so restrictive and that the son’s felonious conduct was sufficient to apply the wrongful conduct rule.
Lastrina v. Bettauer, 217 Conn.App. 592.
The Appellate Court made it clear that the criminal conduct did not end with the acquisition of the medical marijuana certificate; rather, to the extent that the plaintiff’s son suffered injuries from his use of medical marijuana, those injuries occurred because he engaged in further volitional criminal conduct by going to a medical dispensary and fraudulently obtaining marijuana after his encounters with the defendants.
Superior Court Finds that Insurer Had Duty to Defend Despite “Professional Services” Exclusion
A Superior Court (J.D. Waterbury) found that an exclusion for “professional services” in a medical practice’s business liability insurance policy did not preclude coverage for the defense of a lawsuit filed by a patient against the medical practice and certain of its employees.
The patient, who was obese, claimed that employees of the medical practice directed him to lie on an imaging table despite his concerns that the table might not support his weight. The patient got on the table and shortly thereafter the table broke and he was injured as a result.
The insurance company sought a declaratory judgment that the professional services exclusion in the policy did not trigger a duty to defend the underlying suit. The court disagreed and also denied the insurer’s motion for summary judgment, finding that the allegations in the patient’s complaint might contain claims of ordinary negligence as opposed to professional negligence or malpractice. The court noted, for example, that the failure of the medical practice’s employees to ensure that the patient’s weight did not exceed the weight capacity of the table did not necessarily involve the exercise of professional negligence or malpractice. Therefore, genuine issues of material fact existed as to whether all of the alleged conduct constituted the rendering or failure to render “professional services.”
Citizens Insurance Company of America v. Advanced Cardiovascular Specialists, P.C., et al., 2023 WL 6435007.
The scope of coverage offered by the various types of insurance held by medical providers is an ongoing concern for risk managers. In response to this case, it would be prudent for medical providers to review their existing general liability policies to ensure that they are up to date and broadly cover ordinary, as opposed to professional, negligence claims.
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