Are High Low Agreements Admissible in Medical Malpractice Cases: Connecticut’s View

I read over the weekend an interesting decision from the Connecticut Supreme Court that came out last week. The case, Monti v. Wenkert, is an absolutely awful medical malpractice case involving a seventeen year-old girl who presented with significant but subjective symptomology that was dismissed as psychological by her GP, his physician’s assistant, and the emergency room at the hospital.

This diagnosis continued even after she collapsed at her doctor’s office with “blueish, purple” lips. The young girl died of acute respiratory distress syndrome caused by a viral infection. Like I said: awful. I don’t suspect this case will show up on the cover of Tort Reform Monthly anytime soon. It is anyone’s guess how this case made it to verdict.

At trial, after the close of Plaintiffs’ case, Plaintiff and one of the Defendants agreed to a high-low agreement that was not disclosed to the other Defendant. After an adverse verdict the Defendant who was kept in the dark appealed his case.

The court explained the perils associated with Mary Carter and undisclosed high-low agreements and found that all verdict contingent settlement agreements must promptly be disclosed to the court and to the lawyers for any non-settling defendants. Such agreements cannot be used to prove liability or damages but can be admitted – within the trial court’s discretion, to show bias or prejudice of a witness.

In this case, however, the Connecticut Supreme Court gives the Plaintiffs’ a pass on their failure to disclose the agreement because it came after the Plaintiffs’ had rested their case and because the agreement did not change the adversarial alignment of the parties.

If the Connecticut rule is that the agreement should have come into evidence, I think the non-settling defendant could have used this agreement effectively on cross-examination. I think the court may have cut the Plaintiffs’ a break in this case probably because upsetting the verdict in this case – given the facts – would seem unjust.

You can find the full opinion of the Connecticut Supreme Court in Monti v. Wenkert here.

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