Merit Affidavits and the Poor

By Alex Stein

Two days ago, the Appellate Court of Connecticut affirmed the dismissal of an indigent plaintiff’s action to void a statute requiring plaintiffs to support malpractice suits against medical professionals by an opinion letter from a similar healthcare provider. The plaintiff claimed that this statute, Conn. General Statutes § 52–190a, is unconstitutional insofar as it applies to indigent plaintiffs who cannot afford paying medical experts’ fees. The plaintiff filed this action against the State of Connecticut, a number of state legislators and courts, and the Connecticut Medical Insurance Company. He asked the court to grant him declaratory judgment, injunctive relief, and compensation.

The court dismissed the action due to the presence of the sovereign and legislative immunities and the plaintiff’s failure to show a violation of his constitutional entitlement. The Appellate Court affirmed that decision. Traylor v. Gerratana, — A.3d —-, 2014 WL 839165 (Conn.App. 2014).

In most states, similar merit-affidavit requirements presented no constitutional problems. Arkansas, Oklahoma, and possibly Florida are exceptions. Expert testimony is a must in nearly every medical malpractice case: proof of malpractice and causation is virtually never possible without an expert. Asking plaintiffs to upfront their expenditure on that testimony doesn’t strike me as too onerous.

The merit-affidavit requirement does not worsen the dismal situation of indigent plaintiffs. There is no reason to believe that a plaintiff who cannot hire an expert ahead of trial would somehow become able to do so when his case goes to trial. At both points in time, he will depend on charity and litigation funding. The legal system should eliminate this dependency and the consequent denial of access to justice to the poor. Things are bad enough when the haves come out ahead most of the time. Allowing a malpractitioner to go scot free when the patient he injured is too poor to file a suit will make things much worse.

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