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My Turn: ‘Early offer’ should be ‘early repeal’

I have been following the progress of the “early offer” medical malpractice law that went into effect Jan. 1. In fact, I have been objecting to it since it was first proposed. I’d like
to respond to attorney J.
Brandon Giuda’s column
(“ ‘Early offer’ is a good deal for malpractice victims,” Monitor Forum, Feb. 26) and explain why “early offer” is still a terrible idea.

When the law was first proposed, the New Hampshire Association of Justice stood ready to work with then-Rep. Giuda to find solutions to the assault on injured people’s constitutional rights. The organization was not included in the discussions that led to the final version of the law and was later criticized for not coming forward with positive suggestions to amend it. There was no attempt by proponents to include the interests of the medically injured. It is no wonder the law took the shape it did.

This legislation was approved despite warnings from the two largest medical malpractice insurers doing business in New Hampshire saying that they would not insure doctors who participate in the “early offer” system. Those companies have their own processes to deal with early settlements in cases they want to resolve. They do not need the Legislature to tell them how to conduct business. This means two-thirds of the state’s doctors will not be insured for the “early offer” plan. It is incredible that the Legislature ignored this warning.

At a recent hearing of the Judiciary Committee on the proposed repeal of “early offer,” a representative from Maine Mutual Insurance Co. testified that it would not cover claims under the “early offer” law. Only when a doctor is faced with an “early offer” case and is insured by one of these companies will that doctor raise his or her voice to complain. They will not be covered! Then they will want action and will wonder why the New Hampshire Medical Society has pushed so hard for this law.

Medical panels didn’t work

Proponents say that under the “early offer” system, cases will not have to wait 44 months to go to trial. But there never was such a wait for a jury trial before the advent of medical screening panels in malpractice cases – another bad idea whose proponents said it would speed the process of resolving malpractice claims.

When I was in the state Senate in 2004, we were told that the screening panels would take six months to conclude, and that settlements would follow that schedule quickly if the panel found in favor of the injured party. Not true! These panels have to be concluded before a trial can take place unless they are waived. These panels I fought so hard against are now bogging down the entire medical malpractice court process.

At the recent meeting of a House Judiciary subcommittee, a representative from the state Insurance Department shared statistics confirming that claims settled through the use of medical screening panels are taking 42 percent longer that the traditional course a case takes to go to a jury trial. She testified that claims costs are 26 percent higher than previously and that the expenses involved in this system are more than double what they were previously.

Additionally, when given the opportunity, 80 percent of those involved in medical injury cases mutually agree to opt out of the screening panel process.

As a result of the medical screening panel system, New Hampshire is becoming one of the more expensive states in which to resolve medical malpractice cases. There is no evidence that doctors are leaving New Hampshire, nor was there credible evidence back when screening panels were first considered. A solution was provided where no problem existed, and this is the result. Delay! Expense! Waste of resources! That is why there should be no waiting to get rid of this ridiculous “early offer” law. It is just not worth it.

Pricey provision

“Early offer” is very complex. One of the more subtle provisions is the requirement for a person who wants to proceed to court after an unsatisfactory offer is made under “early offer” to file a “bond or other suitable security” for payment to cover the potential legal fees for the insurance company lawyers, charged to the claimant, if he or she is unable to obtain a verdict of more than 125 percent of the early offer.

This effectively causes medically injured parties to purchase their constitutional right to a jury trial. Additionally, the suggestion that such bonds would cost between $200 and $800 is based upon little or no information.

First, people who have no assets cannot normally post a bond to be issued by an insurance company. Second, if they had the assets, they would not need a bond but could post suitable security, like cash or real estate that was unencumbered by a mortgage. Third, the amount at risk for claimant’s attorneys’ fees to be paid to the insurance company’s lawyers is substantial, and it is not possible to know what that would be in advance of a person considering selecting the “early offer” option.

No one seems concerned that a medically injured person might not be able to proceed with a viable case because of the cost of a bond.

I find it hard to believe that this “first in the nation” assault on constitutional rights of the medically injured has become law in New Hampshire. There is a reason it is not law anywhere else. It is not good law. It is not needed. We do not need another law that will cost everyone more time and more money, depriving people of their constitutional right to a speedy trial and their basic human right to recover for medical injury. Let’s repeal this law now. Instead of “early offer,” it should be “early repeal.”


(Attorney David Gottesman of Nashua is a former state senator.)

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