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September 2021

CT Dept. of Administrative Services - Medical Liens Subrogation Statute

Authored By: Zachary J. Broughton
Connecticut’s legislature has recently revised General Statutes § 17b-265 to permit direct claims by the Department of Administrative Services against insurers and responsible third parties for Medicaid payments made by the state.  This change took effect July 1, 2021 and is retroactive. The revision incorporates two new subsections, (g) and (h). Subsection (g) requires an insurer or other legally liable third party within 90 days upon receipt of notice of a claim to (1) pay the claim, (2) request information necessary to determine the legal obligation to pay the claim, or (3) issue a written reason for the denial.  If the insurer or legally liable third party does not pay the claim, request additional information, or deny the claim within 120 days of notice of the claim, the statute creates an uncontestable obligation to then pay the claim. Subsection (h) requires an insurer or other legally liable third party who reimbursed the department for a health care item or service paid for and covered under a state medical assistance program administered by the department, upon determining it is not liable and at risk for costs of the health item or service, to request any refund from the department not later than 12 months from the date of its reimbursement to the department.  

Professional Liability - Habeas Corpus Claims  

Authored By: Gabriel G. D'Antonio
Cooke v. Williams 206 Conn. App. 151 (2021). The pro se plaintiff hired the defendants to represent him in two separate proceedings; one was a habeas proceeding wherein the plaintiff claimed ineffective assistance of trial counsel and the other was a federal civil action arising from the conditions of his pretrial incarceration, following the plaintiff’s conviction on two counts of murder and sentence to life imprisonment. The habeas court denied the plaintiff’s petition, and the federal action settled.  Thereafter, the plaintiff filed suit against the defendants, asserting several claims arising from allegations of negligent prosecution of the plaintiff’s actions and fraudulent billing. The defendants moved to dismiss on the grounds that the trial court lacked subject matter jurisdiction over the plaintiff’s claims for legal malpractice and fraud, because the underlying criminal conviction was not invalidated subsequent to the defendants’ representation of the plaintiff.  On this point, the Appellate Court noted that it had previously upheld the habeas court’s denial of the plaintiff’s petition.  Further, the Appellate Court articulated that in order to recover for unconstitutional convictions or imprisonment, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus. The Appellate Court concluded that the plaintiff’s legal malpractice claim was a collateral attack on the underlying conviction, and that the underlying conviction had been affirmed.  Therefore, the legal malpractice claim was not ripe.  However, the plaintiff’s allegations related to fraudulent billing practices did not involve the validity of the underlying conviction. The Appellate Court reversed the trial court’s dismissal of the fraud claims to the extent that they related solely to the fee dispute and remanded for further proceedings. 

Connecticut Workers' Compensation Act - Causation   

Authored By: Katherine M. DuBaldo
Malinowski v. Sikorsky Aircraft Corporation, 207 Conn. App. 266 (2021).  The Connecticut Appellate Court adopted the opinions of the Workers’ Compensation Review Board (CRB) affirming the trial commissioner’s finding that the claimant’s repetitive work activities at Sikorsky Aircraft (respondent) substantially and permanently aggravated a pre-existing condition in his knee.  The claimant suffered a workplace injury with a prior employer in 1972 resulting in a left knee meniscectomy in 1973.  The claimant began working for the respondent in1984.  Eventually, the claimant required a total knee replacement in 2015.  The respondent argued that the CRB improperly affirmed the commissioner’s award because the treating physician’s opinions were not expressed with reasonable medical probability; that the commissioner relied on incompetent medical evidence from which he found a causal relationship between the claimant’s work activities and the need for surgery; and the commissioner improperly referred to claimant’s activities beyond those identified in the treater’s records.  The Appellate Court found that the CRB properly affirmed the commissioner’s finding that the treater’s opinion of there being a causal relationship between the claimant’s employment and his need for surgery was expressed with a reasonable degree of medical probability and that the treater opined in clear language that the claimant’s injury in 1972 was aggravated by his work at the respondent.  The Appellate Court further found that the CRB properly affirmed the commissioners finding that the treater’s records constituted competent medical evidence because the commissioner had before him the records of the treating physician in which he reported the claimant’s condition, symptoms and course of treatment as well as other evidence in the record such as the claimant’s testimony as to his workplace activities.  Finally, the Appellate Court found that the commissioner did not improperly refer to the claimant’s work activities beyond those expressed in the treater’s records because he was entitled to consider the claimant’s own testimony in addition to the treater’s opinions.  The Court stated that the treater was not required to record every work activity that formed the factual basis for his opinion in his medical reports and the commissioner was not limited to only the activities expressly identified in the treater’s reports but was also entitled to consider the claimant’s own testimony in making his finding.  

Governmental Immunity - Identifiable Person Imminent Harm Exception  

Authored By: Connor B. Herdic
Buehler v. Newtown, 206 Conn. App. 472 (2021). The plaintiff, a high school volleyball referee, brought a premises liability action against the Town of Newtown, the school district and board of education, and the athletic director, after he sustained injuries resulting from a fall from a referee stand during a volleyball match. The trial court granted summary judgment for the defendants on governmental immunity grounds. On appeal, the plaintiff contended that genuine issues of fact exist as to whether he was an identifiable victim under the identifiable person imminent harm exception.  In affirming the trial court’s judgment for the defendants, the Appellate Court opted not to broaden the scope of the identifiable victim exception at public schools beyond children who are required to be at school during educational hours. The Court found the plaintiff’s presence at the school distinguishable from the requirement imposed on children to attend school because the plaintiff was not required by law to be at the school.  Rather, he accepted an assignment to officiate a match after school hours, and therefore, his attendance was voluntary.  Moreover, the Court explained that the plaintiff could not fall within the exception, whereas had a student-athlete been injured in the volleyball match, she too, would not qualify for the narrow identifiable victim exception. 

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