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My Turn: Actually, ‘early offer’ is a good deal for malpractice victims

I would like to reply to a recent column about the new medical malpractice “early offer” law (“ ‘Early offer’ law is a bad deal for victims of medical malpractice,” William D. Woodbury, Monitor Forum, Feb. 19).

Not surprisingly, most such negative columns have come from attorneys who make a living by suing medical providers and who routinely take one-third of an injured patient’s recovery. As the legislator who took almost a month redrafting the law to ensure it provided a fair, beneficial opportunity to injured New Hampshire citizens, and as an attorney familiar with the medical malpractice field, I can say that the “early offer” law is the first citizen-based medical malpractice law in New Hampshire – a law that helps injured citizens without concern for the big-money malpractice attorneys who are afraid of losing control over their piece of the pie.

The “early offer” law is the nation’s first true medical malpractice tort reform program and is definitely needed in New Hampshire.

A third option for patients

Previously there were only two limited options available to patients injured due to a medical provider’s malpractice. If an injured patient’s damages were less than $200,000, litigation was generally not an option because malpractice lawsuits are expensive and most firms would not take the case. As a result, the injured patient either got nothing or had to take whatever small amount the medical provider offered in a confidential settlement.

If the injured patient’s total damages were large enough that a law firm would take the case, he or she had to endure an average 44 months of litigation waiting for an uncertain outcome and without desperately needed money. If the injured patient won, almost half of the award was paid to attorneys and expert witnesses. For the medical provider who committed malpractice, the prolonged attack on his or her reputation was as bad as the legal expenses.

The “early offer” law provides a third alternative to injured patients and does not discriminate based on the size or complexity of the claim. It provides a voluntary, cost-free option for a quick, transparent, fair settlement. Injured patients can settle claims quickly for economic damages (past and future lost wages, medical bills, replacement services, etc.) and an additional payment, but they won’t receive less specific damages such as pain and suffering. Those who choose this alterative and successfully settle their cases will receive their money in several months, rather than four years of litigation with an uncertain outcome.

Voluntary participation

Access to the “early offer” program begins when an injured patient voluntarily submits a Notice of Injury to the medical provider. The notice was designed to be relatively comprehensive to ensure the patient learned about the “early offer” system or retained an attorney prior to entering the system.

If a claimant who submits a Notice of Injury is not represented, the medical provider will provide a neutral legal adviser. The adviser will assist the claimant through the “early offer” process, must encourage the claimant to retain an attorney and must explain the differences between the “early offer” system and litigation. Although unrepresented claimants will have put significant time into submitting a Notice of Injury and learning the system, they may still withdraw from the system for five business days after the first meeting with the legal adviser.

Claimants who continue in the system may be asked to undergo a medical evaluation. But unlike the workers’ compensation system, claimants have an equal say as to which doctor conducts the evaluation. The doctor cannot be affiliated with the medical provider. If the medical provider and a claimant cannot agree on a doctor, a neutral hearing officer will decide.

A medical provider who receives a Notice of Injury has 90 days to extend an offer to the claimant or decline to participate in the “early offer” program. If the provider makes an offer, the claimant has 60 days to accept or reject it. If the claimant does not think the offer is large enough, he or she may request a hearing before a neutral officer, who will determine if the offer is correct or needs adjustment. If the claimant accepts the offer, the medical provider will pay the claimant’s legal expenses, and economic damages payments will begin within 15 days. Both parties will have resolved the case in just a few months, rather than spending significant time and money over four years of litigation.

Protection for doctors

If the claimant does not agree with the hearing officer’s decision, he or she may reject the offer and proceed to court. However, one check was inserted to protect a medical provider against an unreasonable claimant. A claimant who proceeds to court must post a small bond, estimated at $200 to $800, as the claimant will have to pay the medical provider’s reasonable attorney’s fees for the “early offer” program if the claimant receives a jury award that is significantly less than the offer the claimant rejected.

For example, if the claimant rejects a $100,000 offer and proceeds to court, the claimant will need a jury award of at least $150,000 to receive $100,000, due to the one-third contingency fee that will go to the claimant’s attorney. If the jury awards the claimant only 125 percent of the early offer ($125,000), then the claimant will receive only $83,000. In that case, the jury will have confirmed that the claimant unreasonably rejected the early offer, and the claimant will have to pay the medical provider’s legal expenses for the “early offer” program only. If the claimant receives more than $83,000, the claimant’s behavior will not be considered unreasonable, and the claimant may keep the entire jury award.

This first-in-the-nation program is a positive option for all involved. A totally voluntary program, it allows injured patients and medical providers to eliminate years of litigation and expenses, reach closure quickly and move on. Program statistics must be reported to the Legislature annually and will be analyzed to ensure the program is fairly administered and working as planned.

(J. Brandon Giuda is a former state legislator from Chichester.)

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