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My Turn: ‘Early offer’ law is a bad deal for victims of medical malpractice

Earlier this month the House Judiciary Committee held a hearing on HB 582, which would repeal the dangerous and ill-conceived “early offer” law. This law was rammed through the Legislature last session and took effect Jan. 1. As legislative committee chairman for the New Hampshire Association for Justice, I have testified several times against this unfair, one-sided law and did so again this month. Why? Because this law was carefully, elegantly designed to garner every possible financial advantage for negligent medical providers and self-insured hospitals and leave injured patients woefully under-compensated for life-altering medical injuries.

If victims of medical malpractice pursue their case traditionally, through the courts, they can recover not only what they paid in medical bills and lost in wages but also the value of their pain, suffering, loss of enjoyment of life and lost earning capacity. Under the “early offer” system, a victim can recover nothing for pain, suffering, emotional damages, lost earning capacity, loss of consortium or loss of enjoyment of life. Nothing.

Following the hearing, to our amazement, Sen. Jeb Bradley, sponsor of the “early offer” law, submitted a chart confirming the true motive behind the law. The chart shows why he believes an “early offer” is always the best choice for a victim of medical error. It presents five scenarios, all of which assume the victim of medical malpractice has incurred economic losses (medical bills and lost wages) of $175,000, and four of which conveniently argue that traditional litigation will yield unfavorable results. In the allegedly “best” scenario, the injured person accepts an “early offer” of $140,000, guaranteeing payment within four months of injury. Thus, by Bradley’s own illustration, the “early offer” has left an injured person with $175,000 in actual losses with a deficit of $35,000 which that victim, or New Hampshire taxpayers, must absorb.

The proponents of “early offer” say it is meant to help people with “small” cases, specifically those with actual damages under $250,000. If so, why did they not specify this in the language of the law itself? Obviously, because the “early offer” system was not created solely for small cases. They want it to apply to all cases, including those where a child is blinded or a 20-year-old woman is left unable to have children. They want it to apply to cases where the wrong leg is amputated or the wrong kidney is removed. They want it to apply to cases where the pain, suffering, emotional damages, lost earning capacity, loss of consortium or loss of enjoyment of life are enormous.

Fans of “early offer” believe a quick and low settlement is always better. They say: “Look, we’ll give you a portion of your medical bills and lost wages within four months, and you won’t have to wait an average of 44 months to get to trial.” But most claims reach an end result in less than two years, and a good portion of the remainder are resolved in three years from the time they are filed. A medical injury may take years to heal, if it will heal at all. If you settle quickly, you do so at your own peril, as you will likely have no idea how many surgeries, treatments, months in rehab, medications, etc. you will require in the future to get better.

This law will prey on vulnerable people who cannot work and are facing financial ruin. The prospect of a quick payment to cover medical bills and wages lost during recovery will likely be more than a person rendered financially destitute by medical injury can resist, even if that payment is completely inadequate.

Bradley and the lobbyists for “early offer” take every opportunity to suggest that trial lawyers oppose this bill only because it limits attorney’s fees. When they turn to this old chestnut, I find renewed confidence in the integrity of our position. It means they have no substantive arguments. They know the law is unfair, but rather than address its one-sided and greed-based provisions, they attack those who seek to protect the public.

Trial lawyers represent the victims of medical error and routinely witness the devastating effects on their lives and livelihoods. Trial lawyers get to know the families of the victims and listen to countless stories of how the pain and suffering of a loved one takes a crippling emotional toll on everyone involved. For centuries, our judicial system has sought to make victims whole again. The “early offer” system seeks only to avoid fully compensating victims of medical mistakes and, as a result, will ensure that shattered lives remain shattered and taxpayers will be called upon to pay the uncompensated losses of those injured by medical error.

(William D. Woodbury is an attorney with Normandin, Cheney & O’Neil in Laconia.)

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