'On malpractice bill, governor is right'

Last modified: 6/24/2012 12:00:00 AM
In exercising his veto power over the medical malpractice 'early offer' bill (Senate Bill 406), Gov. John Lynch explained his decision as a matter of fairness. He acknowledged the good intentions of those supporting the bill but called for more work to 'adequately protect the interests of injured patients.'

Injured patients surely need more protection. As the governor notes in his veto message, the early offer bill contains a 'loser pays' provision inappropriate for medical malpractice cases. It requires that a patient who opts in to the early offer system buy back their constitutional right to trial by jury by posting a bond, which could mean mortgaging your house or putting an attachment on your car. The bond is required to pay for defense attorney fees unless the injured patient can persuade a jury to award them 125 percent of the 'early offer.'

Consider a patient who, after having waived the right to go to court, finds out that the medical provider refuses to reimburse for $10,000 on a total medical bill of $175,000. The medical provider might argue that a portion of the treatment was experimental, unproven or was somehow unrelated to the injury, even though it helped the injured patient. If the injured asks for $175,000 to reimburse the full medical costs, and the provider offered only $165,000, the claimant would need to have a jury award $206,250 - more than actually owed - to avoid having to pay the provider's legal fees and costs! No rational person would take that risk for $10,000 regardless of the validity of the claims for the $175,000. This bill creates a system where injured patients could be maneuvered into taking less than the legitimate minimum losses they have incurred. That is simply unfair.

Not only is the bill unfair, it is unnecessary. The two largest medical malpractice insurers in the state have testified against the bill. They have shared their concerns that passage of the bill would lead to increased uncertainty and costs in the insurance market, costs that could well mean higher insurance premiums, and ultimately a higher price tag for health care. They have also shared their belief that the early offer system is not needed. Indeed, both insurers already offer voluntary programs for early claim resolution. Why create a government program to replace a free market procedure that works?

SB 406 is a solution in search of a problem that does not exist.

I applaud the 40 Republicans who voted against this bill. In the case of SB 406, we need to put politics aside and agree to sustain the governor's common sense veto of an unfair and unbalanced proposal.

(Michael McGrath is an attorney practicing in Concord.)

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