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Bill would repeal new “early offer” law

A new law intended to fast-track medical malpractice cases is only 30 days old and already overdue for repeal, lawyers and a lawmaker told a House committee yesterday.

They described the “early offer” law, passed last year over a veto from former governor John Lynch, as unfair to patients, possibly unconstitutional and insufficiently debated by last year’s Legislature.

Under the law, patients with a medical malpractice claim can choose to seek an early settlement from a doctor instead of going to trial. But if the patient rejects the offer and goes to trial, he must pay the other side’s attorney expenses if the jury doesn’t award him at least 125 percent of the settlement offer.

In addition, opponents told the committee yesterday, the patient must commit to the early offer path before he or she hears how much money the other side is offering to settle the case. And, an early offer settlement can cover past, current and future medical expenses but not compensation for pain and suffering or the loss of future wages.

Rep. Lucy Weber, a Walpole Democrat who opposed the law when it was proposed last year, is sponsoring the bill to repeal it.

“I continue to have grave concerns about very vulnerable injured persons being further injured by the workings of the (new law),” Weber told the House Judiciary Committee yesterday.

The committee’s hourlong public hearing on Weber’s bill was largely a repeat of last year’s debate.

Those who support the new law and oppose a repeal, which yesterday included the New Hampshire Hospital Association, the House Republican leadership and the New Hampshire Medical Society, stressed that the early offer route is voluntary.

And the law allows both sides to resolve a case much faster than if they went to trial, they said.

“I’m one of the fortunate few doctors who have never been sued,” said Dr. David Strang of Laconia. “But several of my colleagues have been sued, and I have seen firsthand the debilitating effects of a lawsuit that can hang over a physician for years. This (law) is a step in the right direction. It provides a quick resolution for the parties, but only if the injured party wants it.”

Rep. Robert Rowe, an Amherst Republican who supported the law last year, said only one person has begun to use the new law in the month it’s been in effect.

He said the law is intended to help patients seeking less than $250,000 in compensation. Lawyers, Rowe said, often won’t take those cases because they don’t bring in enough money to cover the expensive case preparation and litigation. Pursuing the early offer route is less costly, he said.

But it may not take legislative action to derail the law. Mary Elizabeth Knox, vice president of claims for Medical Mutual Insurance Company of Maine, said her company is one of two that has decided it will not insure its doctors and hospitals in an early offer case.

“So, about two-thirds of the regular insurance market in New Hampshire is already opting out of this law,” Knox said.

The law, she said, interferes with her ability to resolve claims because it allows patients to settle with only one provider when many providers may have been involved in a procedure. Litigation would continue against those other providers, she said.

William Woodbury testified for the bill on behalf of the New Hampshire Association of Justice, which represents trial lawyers. “The goal,” he said of the early offer law, “is to settle quick and low.”

The law contains contradictions, requiring patients to win more than 125 percent of the settlement offer in one section and requiring them to win at least 125 percent in another, Woodbury said. And, there is dispute over whether the patient who fails to meet either threshold at trial would be required to pay all of the other side’s attorney costs or just those accrued during the early settlement talks.

“No lawyer can advise their client to sign this,” he said. “No claimant can make an informed decision about what payment might be.”

Sen. Jeb Bradley, a Wolfeboro Republican who sponsored the early offer legislation last year, urged the committee yesterday to amend the law to fix any problems rather than repeal it.

“If you send something other than outright repeal to the Senate, I pledge to work with you,” he told the committee.

(Annmarie Timmins can be reached at 369-3323,
atimmins@cmonitor.com or on Twitter @annmarietimmins.)

Legacy Comments5

Tort reform is way overdue. We have become a nation who sues at the drop of a hat. Nobody believes they are responsible. The other deal is that there are folks who sue on a regular basis. They sue for the 40 grand settlement out of court. The system does not keep their records well it seems. So many times judges have no clue that the person sued before. With the medical industry it is even more dire. Doctors have to practice defensive medicine, which means they have to use every test available to make sure they do not get sued. That is a huge reason why medical costs are so high. They are using MRI and CAT scans frequently. They cost a lot to use. In England if you sue and lose you pay all costs for both sides. We should have that here, that would cut down on a lot of these suits that should never have even gone to court.

"We have become a nation who sues at the drop of a hat." Tell that to Donald Trump.

And for those who find themselves in a situation, they have to pay a bond or assurity to gain their constitutional right to go to court under this system. I understand wanting to put a stop to "frivolous" law suits but this is not the way. No one should have to pay a fee to be allowed a day in court, unless of course the idea is to keep the poor out of the court rooms and only allow the rich to sue if they have been hurt.

Here are 2 cases from the 'Stella Awards': Kara Walton, of Claymont , Delaware sued the owner of a night club in a nearby city because she fell from the bathroom window to the floor, knocking out her two front teeth. Even though Ms. Walton was trying to sneak through the ladies room window to avoid paying the $3.50 cover charge, the jury said the night club had to pay her $12,000 plus dental expenses……. Mrs. Merv Grazinski, of Oklahoma City , Oklahoma , purchased new 32-foot Winnebago motor home. On her first trip home, from an OU football game, having driven on to the freeway, she set the cruise control at 70 mph and calmly left the driver's seat to go to the back of the Winnebago to make herself a sandwich. Not surprisingly, the motor home left the freeway, crashed and overturned. Also not surprisingly, Mrs. Grazinski sued Winnebago for not putting in the owner's manual that she couldn't actually leave the driver's seat while the cruise control was set. The Oklahoma jury awarded her $1,750,000 PLUS a new motor home. Winnebago actually changed their manuals as a result of this suit, just in case Mrs. Grazinski has any relatives who might also buy a motor home……..…. Let’s not forget to put a chuck of the blame for out of control court settlements where it should fall – the public jurors.

These two urban legends of which Jim speaks are just that: legends. See, e.g., http://www.snopes.com/legal/lawsuits.asp and http://www.snopes.com/autos/techno/cruise.asp. Not only are these stories false, they have nothing to do with the ill-conceived “early offer” law that is the subject of this article. That law deals only with medical malpractice claims and, I submit, will do nothing to bring about meaningful reform of that system.

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