PRACTICE AND PROCEDURE, Vol

PRACTICE AND PROCEDURE, Vol. 11 No. 6 (1993)

By William F. Gallagher Editor

The abolition of joint and several liability does not pass constitutional muster. Even if it does, the abolition does not apply to medical malpractice cases.

Does the abolition of joint and several liability in negligence cases pass constitutional muster? If so, is the abolition of the doctrine in "negligence cases" applicable to medical malpractice cases? Does it apply in product cases where the claim is based on negligence? How does the court deal with the abolition of joint and several liability where negligence and non-negligence theories are asserted in the same case?

These questions vex trial practitioners and trial judges. Obviously, all of these issues cannot be addressed in one column. However, as a beginning, two of the issues are addressed in this column: the constitutionality of the abolition of joint and several liability; and whether there is any basis for distinguishing "negligence actions" from "medical malpractice actions."

1. The abolition of joint and several liability in § 52-572h

violates the plaintiff's right of access to the courts

guaranteed by Article I § 10 of the Connecticut Constitution.

Tort reform legislation altered the common law by abolishing joint and several liability in negligence actions. See, Public Act 86-338 § 3; Public Act 87-227 § 3 (codified at § 52-572h).

Article I § 10 of the Connecticut Constitution provides:

All courts shall be open, and every person, for an injury done

to him in his person, property or reputation, shall have remedy

by due course of law, and right and justice administered

without sale, denial or delay.

This right of redress provision protects from abolition or significant limitation those common law or statutory rights that were in existence when the Connecticut Constitution was ratified in 1818. The legislature may restrict or abolish these "constitutionally incorporated" rights only when it provides reasonable alternatives to the enforcement of such rights. Sharp v. Mitchell, 209 Conn. 59, 64 (1988); Daily v. New Britain Machine Co., 200 Conn. 562, 585 (1986); Gentile v. Altermatt, 169 Conn. 267, 286 (1975).

Under the common law in existence in 1818 an individual could bring a tort action to recover compensation for personal injuries. 2 Swift, A System of the Laws of the State of Connecticut, 18 (1796). As explained in Swift, supra, "[a]ctions are as various and as numerous as is necessary to redress all the wrongs that mankind can suffer. For every injury that comes within the description of the law, an action is framed by which he can obtain satisfaction. It is therefore a common maxim, that for every wrong there is a remedy." Id. at 19. At this time joint and several liability was an established legal principle. See, e.g., Church v. De Wolf, 2 Root 282 (1795); Wilford v. Grant, 1 Kirby 114 (1786); see also, 2 Swift, A System of the Laws at 30; 1 Digest of the Laws of the State of Connecticut at 660-661 (1822); see also, e.g., Carstesen v. Town of Stratford, 67 Conn. 428, 436 (1896).

The Connecticut legislature arbitrarily abolished joint and several liability yet failed to provide a reasonable alternative for the victims of multiple tortfeasors, one or more of whom maybe insolvent or unreachable for suit. By thus limiting and abrogating the common law right to recover compensation for injuries the abolition of joint and several liability violates Connecticut's constitutional guarantee of a remedy by due course of law.

2. The abolition of joint and several liability in § 52-572h

violates the plaintiff's right to equal protection under the

laws guaranteed by Article I §§ 1 and 20 of the Connecticut

Constitution and the Fourteenth Amendment of the United States

Constitution.

Section 1 of the Fourteenth Amendment of the United States Constitution states:

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Sections 1 and 20 of Article I of the Connecticut

constitution state:

Section 1. All men when they form a social compact, are equal

in rights; and no man or set of men are entitled to exclusive

public emoluments or privileges from the community.

Section 20. [As amended] No person shall be denied the equal

protection of the law nor be subjected to segregation or

discrimination in the exercise or enjoyment of his or her civil

or political rights because of religion, race, color, ancestry,

national origin, sex or physical or mental disability.

A legislature may afford different treatment for classes of persons in its legislation but in order to avoid the constitutional prohibitions established by the equal protection provisions of the United States and Connecticut constitutions, such classifications must be reasonable, with a fair and substantial relationship to the purpose of the statute. Under what is commonly referred to as the rational basis test, the challenged legislation must rationally promote a legitimate government purpose. Zapata v. Burns, 207 Conn. 496, 507 (1988); see also, McGowan v. Maryland, 366 U.S. 420, 426 (1961).

Contrary to the minimum rationality standard, § 52-572h impermissibly creates discriminatory classifications in at least two significant respects. First, since § 52-572h(c) applies solely to negligence actions, individuals bringing civil actions based on intentional torts, nuisance or product liability, for example, do not suffer the effects of the abolition of joint and several liability as do individuals bringing negligence actions. Second, individuals injured by multiple tortfeasors, some of whom are insolvent or otherwise immune, are not afforded the same opportunity for full recovery as are those claimants injured by multiple solvent tortfeasors or a single solvent tortfeasor. Although § 52-572h(g) provides for a hearing a year after the resolution of an action in order to apportion and obtain amounts uncollected after a good faith effort by the plaintiff, that apportionment is based on a percentage basis, not on full recovery. Victims who are identically or similarly situated therefore receive different recoveries because in some cases an insolvent, immune or non-party tortfeasor also caused indivisible harm to the plaintiff. The statute discriminates on the basis of the type of tort, the number of tortfeasors and the financial status of the tortfeasors.

A major legislative objective in abolishing joint and several liability is premised on the theory that each party's liability should depend on his degree of fault in order to attain fair apportionment of liability in accordance with the doctrine of comparative negligence. However, this object is fatally flawed since § 52-572h(c) does not achieve fair apportionment because it places the burden of immune, absent or insolvent tortfeasors on the plaintiff. Such an apportionment of liability is irrational and unfair.

Any legislative objective based on justifying the co-existence of the doctrine of joint and several liability with the advent of comparative negligence is arbitrary and irrational. Reducing a plaintiff's compensation because he is at fault is much different than reducing a defendant's liability because another defendant also caused the plaintiff's injury. The public policy behind the doctrine of comparative negligence is the belief that a plaintiff should not benefit from his own wrongdoing. Under the traditional principles of tort law, a negligent defendant's conduct is viewed as a proximate, legally sufficient cause of the plaintiff's entire indivisible injuries. As such, a finding of 10% negligence is meaningful under general tort law only if it equates to a finding of 10% causal responsibility.

The fallacy of apportionment under § 52-572h is that a finding of a percentage of negligence is relative to another tortfeasor's fault. The negligence of each of several concurrent tortfeasors however may be sufficient in itself to cause plaintiff's entire injury. Often the harm caused by defendant's wrongful conduct is incapable of any logical, reasonable or practical division. See, Prosser and Keeton on the Law of Torts § 52 at 347 (5th ed. 1984) Under these circumstances, as explained in American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 146 Cal. Rptr. 182 (Cal. 1978) (pre-tort reform), "the mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent defendant as compared to the other does not in any way suggest that each defendant's negligence is not a proximate cause of the entire indivisible injury." 146 Cal. Rptr. at 188. The advent of comparative responsibility does not rationally compel the demise of joint and several liability.

As described by Justice Shea in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185 (1991), "[t]he Tort Reform Act was drafted in response in rapidly rising insurance rates, which, some believed, would be curtailed if tort liability could be limited and systematized. As finally enacted, the act represents a complex web of interdependent concessions and bargains struck by hostile interest groups and individuals of opposing philosophical positions."

The legislative purpose of reducing insurance rates and the frequency of lawsuits has no bearing on the abolition of joint and several liability: the existence of an insurance crisis has not been clearly established. Although many legislators no doubt believed that tort reform was a necessary method to alleviate a crisis in liability insurance, the skyrocketing premiums and the unavailability of insurance in the mid 1980's were caused by two factors: irresponsible cash flow underwriting during the preceding period of high interest rates and the manipulation of the supply of insurance by major elements in the industry itself. An insurance company is not only an underwriter of risk but also an investor. As observed by one publication:

For many years, insurance carriers slashed premium prices and

wrote as much insurance as they could get. Many companies

abandoned traditional underwriting standards and competed

fiercely for premium dollars they could invest in high yield

debt. This so called cash-flow underwriting is probably

responsible for most of the damage to company balance sheets

today. The party ended when interest rates declined just as

claims began to pour in.

With careful management, these mistakes can be corrected. But

instead, the industry has spent most of its time and energy

lately mobilizing attacks on the U.S. tort system.

Business Week, March 10, 1986. See also, Peck, Constitutional Challenges to the Partial Rejection and Modification of the Common Law Rule of Joint and Several Liability, 62 Wash. L. Rev. 681, 688 (1987); Phillips, Tort Reform and Insurance Crisis in the Second Half of 1986, 22 Gonzaga L. Rev. 277 (1986/1987). Moreover, depriving victims of tortfeasors of compensation for injuries from solvent tortfeasors simply because other tortfeasors also harmed plaintiff is not a rational legislative response to the perceived insurance crisis.

In Carman v. City of Stamford, 746 F. Supp. 248 (D. Conn. 1990), the federal district court, Eginton, J., upheld the constitutionality of § 52-572h in the context of a municipal liability case. The court applied the rational basis test and found specifically that there was a legitimate state objective of insuring continued access to municipal liability coverage for the benefit of future tort victims. The Carman decision, however, is limited to concerns of municipal liability.

Moreover, the United States Constitution establishes a minimum standard for the protection of individual rights and liberties. State courts are free to interpret Connecticut constitutional provisions to afford individuals broader and more significant substantive and procedural rights than those specified in the United States Constitution. Recent Connecticut appellate decisions have relied on the Connecticut Constitution to afford greater protections to individuals than those supplied by the United States Supreme Court in interpreting similar provisions of the federal constitution. See, e.g., State v. Geisler, 222 Conn. 672, 684 (1992), citing State v. Dukes, 209 Conn. 98 (1988); State v. Stoddard, 206 Conn. 157 (1988); see also, State v. Miller, 29 Conn. App. 207, 222 (1992); Horton v. Meskill, 172 Conn. 615 (1977); see generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 485, 501 (1977). The decisions of the United States Supreme Court defining federal rights under the equal protection clause of the United States constitution "are, at the least, persuasive authority, although we fully recognize the primary independent vitality of the provisions of our constitution." Horton, 172 Conn. at 641. The Connecticut Constitution provides separate and distinct protection under its equal protection clause and therefore affords Connecticut residents greater protection than its federal counterpart.

Section 52-572h discriminates between classes of tort victims by denying certain plaintiffs compensation that would have been awarded under the common law rule of joint and several liability. The disparate treatment afforded these classes does not have a fair and substantial relationship to the stated legislative objectives. The discriminatory classifications in § 52-572h therefore violate the plaintiff's right to equal protection under the laws guaranteed by Article I §§ 1 and 20 of the Connecticut Constitution and the Fourteenth Amendment of the United States Constitution.

Even assuming arguendo that § 52-572h is found constitutional under a minimum rationality level of scrutiny, it nevertheless would fail to pass constitutional scrutiny under an intermediate or strict standard of review. If a statute discriminates upon a suspect group or impinges upon a fundamental personal right, a strict scrutiny test must be applied by a court. Zapata v. Burns, 207 Conn. 496, 505 (1988). A right is fundamental for purposes of equal protection analysis if it is explicitly or implicitly guaranteed by the constitution. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33 (1973); Cf., Horton, 172 Conn. at 641, 645. Although Connecticut courts have not applied strict scrutiny analysis to the right to recover for personal injury, some state courts have characterized the right to recover damages as similar to a basic liberty interest. See, e.g. Hanson v. Williams County, 389 N.W.2d 319, 325 (N.D. 1986). A strict scrutiny analysis should be applied to tort reform measures since a tort victims' right to bodily integrity and his right to redress for this personal liberty amounts to a fundamental right. See, Conn. Const. Article I § 10.

A class is suspect if it has been disabled as a result of a history of unequal treatment or has been placed in a position of political powerlessness such as to "command extraordinary protection from the majoritarian political process." Rodriguez, 411 U.S. at 28. Victims of tortfeasors who are denied the common law right to recover full compensation for their injuries should be viewed as a discreet, insular and politically powerless class and as such form a suspect class that requires strict scrutiny analysis. Under this analysis, a statute will be upheld only if it uses the least restrictive means available in advancing a compelling state interest. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Ryskiewicz v. City of New Britain, 193 Conn. 589 (1984).

Even if the rights of victims of tortfeasors are not deemed fundamental nor the victims themselves deemed a suspect class, their right to fully recover for personal injuries is an important substantive right in the "hierarchy of social values." Moreover, the victims, as a class, are a sensitive, quasi-suspect group. As such, they are entitled to a more rigorous standard of review than the minimum rationality test.

If a sensitive or quasi-suspect group is the subject of a statutory classification or important interests are at stake, the statute will be upheld only if it is substantially related to an important governmental interest. Dydyn v. Department of Liquor Control, 12 Conn. App. 455, 464, cert. denied, 205 Conn. 812 (1987) certiorari denied, 485 U.S. 977, 108 S.Ct. 1272 (1988); L,. Tribe, American Constitutional Law § 16-33 (2d ed. 1988). Although Connecticut courts have not yet applied the intermediate level of scrutiny to legislation affecting personal injury claims, the Connecticut Supreme Court has applied this standard to other equal protection issues. In Carofano v. Bridgeport, 196 Conn. 623 (1985) the challenged residency provisions for police officers were held to be constitutional under both the minimum rational basis test and the stricter intermediate standard.

Courts have tended to depart from the minimal standard where

the interest affected by the governmental restriction are

sufficiently elevated in the hierarchy of social values and to

devise various formulae less rigid than the compelling state

interest criterion that essentially necessitate balancing

private against governmental concerns with varying degrees of

deference to legislative judgment.

Carofano, 196 Conn. at 641. Some state courts have applied the intermediate standard of review to tort reform equal protection issues, recognizing the right to recover for personal injuries is an important substantive right. See, e.g., Carson v. Mauer, 424 A.2d 825 (N.H. 1980) (striking down a $250,000 damage cap by applying intermediate scrutiny test), citing Brisco Co. v. Rodgers, 130 N.J. Super. 493, 500, 327 A.2d 687, 690 (1974) and Hunter v. North Mason School District, 85 Wash.2d 810, 814, 539 P.2d 845, 848 (1975).

Under an intermediate level of scrutiny the abolition of joint and several liability in § 52-572h may stand only if its classifications of injured victims of tortfeasors substantially furthers an important state interest. Craig v. Boren, 429 U.S. at 197; Dydyn, 12 Conn. App. at 464. The selective denial of full compensation to victims of multiple tortfeasors resulting from the abolition of joint and several liability does not advance any of the purported legislative objectives such as advancing the principle of liability in proportion to fault or lowering insurance costs. Such "reform" measures, as discussed, do not reasonably further legitimate state interests, let alone important ones under an intermediate level of scrutiny.

3. The abolition of joint and several liability in Tort Reform

I violates the plaintiffs right to due process of law

guaranteed by Article I § 10 of the Connecticut Constitution

and the Fifth and Fourteenth Amendments of the United States

Constitution.

Section 3 of Public Act 86-338 (Tort Reform I) provides in part:

recover damages for personal injury or wrongful death accruing

on or after October 1, 1986, if the damages are determined to

be proximately caused by the negligence of more than one

person, each person against whom recovery is allowed shall

be liable to the claimant only for his proportional share of

the recoverable economic damages and the recoverable

noneconomic damages except as provided in subsection (g) of

this section. (emphasis added)

The due process causes of the state and federal constitutions protect life, liberty and property interests. A claim for personal injury entitles the victim of a tortfeasor to procedural due process protection. See generally, Peck, Constitutional Challenges, supra, 62 Wash. L. Rev. at 690-691. As discussed, § 52-572h arbitrarily and irrationally deprives the victims of tortfeasors of their right to full compensation for personal injuries. The legislative ends do not support the abolition of joint and several liability, and the corresponding detriment imposed on plaintiff, under any standard of review, is a significant deprivation of a liberty or property interest.

Due process requires that a procedure must be fundamentally fair in resolving factual and legal grounds upon which an individual may be deprived of life, liberty or property. Tedesco v. City of Stamford, 222 Conn. 233, 242 (1992). In determining whether a procedure has met general due process requirements, courts often rely on the balancing factors set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976). Under this balancing test courts must consider, first, the private interest that is infringed upon by the state action; second, the risk of an erroneous deprivation of such interest through the procedures used; third, the value of additional or substituted procedural safeguards and the administrative burdens they would entail; and finally, the state's interests. Tedesco, 222 Conn at 242-243.

An individual's interest in receiving compensation for a personal injury is a substantial if not a fundamental right. Under Tort Reform I the plaintiff is placed in the position of defending the conduct of the non-party tortfeasor against the charges by the party defendant without the benefit of discovery, confrontation of witnesses and other procedural safeguards designed to ensure the reliability of the process. The state has an important interest in the use of fair procedures in the litigation of personal injury lawsuits. Section 3 of Tort Reform I places the burden of immune, absent or insolvent tortfeasors completely on the plaintiff without any procedure as to when or how they are to be identified or how discovery directed at non-parties is to be conducted. Nor does the statute state which party has the burden of proof on the issue of the fault of non-party tortfeasors or what effect the apportionment of fault against said non-party would have in any subsequent lawsuit brought against him by the plaintiff. Without such minimal provisions and safeguards, § 3(c) of Tort Reform I erroneously deprives plaintiff of the ability to adequately prosecute her cause of action. The procedure is fundamentally unfair. Such additional provisions to correct the problem would not impose an undue burden on the court system. As evidenced by the change from the word "person" to "party" in Public Act 87-227 § 3(c) (Tort Reform II), the state has little or no interest in maintaining a system of apportioning fault against non-parties in negligence actions.

Upon weighing the state's interest and the suggested, minimal additional or substituted procedures for § 3 of Tort Reform I against the substantial interest of the plaintiff that has been infringed by the statute, it is clear that under the balancing test of Mathews v. Eldridge, supra, the basic requirements of due process have not been met. Accordingly, the abolition of joint and several liability in § 3 of Tort Reform I violates the due process of law guaranteed by Article I § 10 of the Connecticut Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.

4. If the abolition of joint and several liability in § 52-572h

is constitutional, it does not apply to medical malpractice

causes of action.

Section 52-572h provides as follows:

personal injury, wrongful death or damage to property occurring

on or after October 1, 1987, if the damages are determined to

be proximately caused by the negligence of more than one party,

each party against whom recovery is allowed shall be liable to

the claimant only for his proportionate share of the

recoverable economic damages and the recoverable noneconomic

damages except as provided in subsection (g) of this section.

Statutes which presume to alter the common law must be strictly construed. See, e.g., State v. Nugent, 199 Conn. 537, 548 (1986). Since subsection (c) of § 52-572h presumes to alter the common law principle of joint and several liability, its terms must be strictly construed.

By its terms, § 52-572h(c) applies solely to negligence actions.

Malpractice was recognized as a legal wrong prior to the emergence of negligence as a separate tort. "In fact, prior to the development of modern contract principles, it was well recognized that a physician or surgeon was answerable for want of professional skill and care. Historically, this liability was grounded in the notion that his was a `public' or `common' calling, somewhat like that of carrier or innkeeper. Thus, the physician held himself out as providing a service to all comers and when malpractice occurred, the physician had violated a duty owed not to the individual, but to the public." 1 D. Louisell and H. Williams, Medical Malpractice, at § 8.01 (1991); see also, 2 Swift, A System of the Laws of the State of Connecticut at 36-37 (1796).

Malpractice has been commonly defined as "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services' . . ." Barnes v. Schlein, 192 Conn. 732, 735 (1984). Medical malpractice actions against physicians, hospitals or other health care personnel may be based on various theories such as negligence, assault and battery, or contract principles 1 D. Louisell and H. Williams, supra, at §§ 8.06 and 8.08.

Although a malpractice action fits neatly into traditional negligence principles it is different from the ordinary negligence action. Id. at § 8.01; Badrigan v. Elmcrest Psychiatric Institute. Inc., Conn. App 383, 386 (1986) (trial court correctly decided case was not a medical malpractice action but an action in ordinary negligence); see also, e.g., Smith v. Thomaston Board of Education, 3 Conn. L. Rptr. 400 (Super. Ct. Conn. 1991) (allegations in complaint that patient sustained fall sounded in ordinary negligence and not medical malpractice therefore it was not necessary to provide expert medical testimony to provide expert medical testimony to establish the applicable standard of care); see also, generally, Wright & Fitzgerald, Connecticut Law of Torts, § 88 (3d ed. 1991). In those civil actions, "whether in tort or in contract," alleging the negligence of a health care provider the complaint must contain a good faith certificate. See, C.G.S. § 52-190a. Proof of the existence of a patient-physician relationship is necessary for a plaintiff to prevail in a medical malpractice cause of action. Levett v. Etkind, 158 Conn. 567, 573 (1969). This relationship "springs from a consensual transaction, a contract, express or implied, general or special." Lyons v. Grether, 281 Va. 630, 239 S.E.2d 103, 105 (1977). Although a physician does not have a legal duty to accept every patient, once he enters into the relationship he has a duty to continue the care and treatment until his services are no longer needed by the patient. Baird v. National Health Foundation, 235 Mo. App. 594, 144 S.W.2d 850 (1940). Moreover, proof of medical malpractice requires plaintiffs to establish by expert testimony the relevant standard of care, the breach of that standard and that the breach proximately caused the plaintiff's injuries. Cross v. Huttenlocher, 185 Conn. 390, 393 (1981); Perez v. Mt. Sinai Hospital, 7 Conn. App. 514, 520 (1986).

The Connecticut legislature further distinguishes medical malpractice actions from ordinary negligence actions by specifically incorporating actions caused by the malpractice of a physician or surgeon in the limitation of actions governing negligence actions.

Section 52-584 provides that:

No action to recover damages for injury to the person, or to

real or personal property caused by negligence, or by reckless

or wanton misconduct, or by malpractice of a physician,

surgeon, dentist, podiatrist, chiropractor, hospital or

sanitorium, shall be brought but within two years from the date

when the injury is first sustained or discovered or in the

exercise of reasonable care should have been discovered, and

except that no such action may be brought more than three years

from the date of the act or omission complained of, except that

a counter claim may be interposed in any such action any time

before the pleadings in such action are finally closed.

This section by its terms governs the statute of limitations for three separate causes of action: negligence, reckless or wanton misconduct, and malpractice of a physician, surgeon, etc.

Although legal malpractice actions are similar to medical malpractice actions and both require expert testimony to establish the relevant standards of care, Davis v. Margolis, 215 Conn. 408, (1990), legal malpractice claims are generally governed by the tort statute of limitations which provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Connecticut General Statutes § 52-577. See, Mac's Car City, Inc. v. DeNigris, 18 Conn. App. 525, 529-530 (1989), cert. den. 212 Conn. 807 (1989); Shuster v. Buckley, 5 Conn. App. 473 (1985); Nickerson v. Martin, 34 Conn. Sup. 22 (1976). But for the inclusion of medical malpractice actions in Section 52-584, such actions would as well be governed by Section 52-577.

Section 52-572h(c) applies solely to negligence actions. Medical malpractice actions are different from negligence actions. Section 52-572h(c) does not purport to govern all causes of action based on negligence, nor does it specifically incorporate malpractice actions alleging the negligence of a health care provider. Accordingly, the abolition of joint and several liability does not apply to a medical malpractice action.