About a month ago we discussed the basic elements required for a claim in Connecticut to be considered medical malpractice rather than a traditional negligence or other tort claim. You may remember that we identified three prongs that arise from the state’s case law that, if present, require a suit to be handled under the Connecticut medical malpractice law. These are: that the defendant is sued in his or her capacity as a medical professional, that the negligence is of a medical nature and is part of the doctor-patient relationship and that the harm alleged involved medical judgment and was substantially related to medical treatment or diagnosis.
This week we will look briefly at one part of the second prong of the test: the doctor-patient relationship. While this may seem like an obvious point, there is some Connecticut case law that shows that the idea may not be as cut-and-dried as it seems. Interestingly, many times it is the plaintiffs, or the ones bringing the suit, that argue that a case should not be considered medical malpractice, because such cases are subject to certain pleading requirements and standards of evidence that regular negligence cases are not.
The basic rule as expounded by Connecticut courts as to physician-patient relationship is that it generally exists when a person seeks medical treatment or advice from a medical professional. The main point is that the act of seeking the treatment or advice be consensual. As such, there are two general categories of medical relationships that do not meet this prong of the test according to the state courts. One is when a person undergoes a medical examination at the behest of his or her employer, because the employee is being compelled to submit to the medical treatment. The second is when the doctor is examining a patient as part of law suit, and the physician has been retained by the opposing party. Interestingly, at least one case has found that an examination for the purpose of naturalization to become a U.S. Citizen meets the second prong of the test as the choice of doctor, to an extent, and payment are consented to by the individual.
As can be seen, even subjects that may seem, at first blush, to be simple matters, can become complicated when we begin to look at medical malpractice. To navigate these sometimes treacherous waters, individuals who believe they have been harmed by medical negligence may wish to consider consulting an experienced attorney for aid in recovering medical expenses and other possible monetary damages.
