Lynch vetoes 'early offer' proposal

Last modified: 6/21/2012 12:00:00 AM
Gov. John Lynch tried to block four bills from becoming law yesterday, including one that would establish a pioneering 'early offer' system to avoid lengthy litigation in medical malpractice cases.

That brings this year's veto tally to 11, according to the general court website. Last year, the Democratic governor vetoed 13 bills passed by the Republican Legislature - six of those vetoes were successful and seven were overridden by the necessary two-thirds majority in the House and Senate.

One of Lynch's vetoes this year has been overridden - the House's redistricting plan - and his objection to removing an interest rate cap on payday loans was upheld by the Senate. The other nine vetoes have yet to be acted on by the Legislature. The House has scheduled Wednesday to reconvene and vote on the vetoes. The Senate has yet to schedule its veto day.

In his veto message yesterday, Lynch said the medical malpractice reform bill is 'well intentioned,' but 'I do not believe that it sufficiently and fairly balances the interests of the general public with the interests of medical providers in expeditiously resolving medical injury claims.'

'SB 406, as presented to me, lacks certain fundamental safeguards that are necessary to protect injured patients,' he said.

The proposed 'early offer' system would be the first in the country. Supported by hospitals and opposed by trial attorneys, it would allow a person injured by medical malpractice to request an early money offer from the medical provider and avoid a protracted and costly lawsuit. If the patient feels the offer is too low, they can still take the medical provider to court but must pay the medical provider's attorneys fees if the court settlement amounts to 125 percent or less of the early offer.

Lynch raised concerns about this 'so-called 'loser pays' provision,' describing a situation in which the patient submits a claim for $175,000 but the medical provider disagrees and offers only $140,000.

'If a jury eventually agrees with the patient but awards only $172,000 because there was a double billing error, the patient has won the case, but will still have to pay the medical provider's legal fees because the award was less than 125 percent of the early offer,' Lynch said. 'That is not the right result.'

Lynch also highlighted the bill's requirement that patients post bond before going to court after rejecting an early offer to ensure they can pay 125 percent of the medical provider's legal costs.

'This requirement for the posting of a bond or other security could have a chilling effect on a patient's ability to challenge an early offer he or she considered unfair,' Lynch said.

Additionally, if the patient chooses to explore an early offer, an unrepresented patient has five days after meeting with a neutral legal adviser provided by the medical provider to decide whether to proceed with the early offer process, he said.

'That is too short a period of time for an unrepresented patient to adequately consult with the adviser concerning his or her rights and merits of their case,' Lynch said. 'It is particularly insufficient for patients who then choose to identify, hire and consult with a different private attorney.'

Supporters of the bill point out that the early offer system is only voluntary and patients can still go the traditional route through the courts. But trial attorneys argue uninformed patients seeking quick cash will incorrectly choose the early offer and lose out on a larger settlement.

'If you get an offer back from a provider, you've got certainty. And you don't have to wait four years in court' before potentially losing the case, Senate Majority Leader Jeb Bradley, a Wolfeboro Republican and the bill's primary sponsor, said yesterday.

Bradley said he hadn't had time to review Lynch's veto message, which was sent to reporters at 6:12 p.m. After House and Senate negotiators agreed to compromise on the bill last month, the Senate supported it by a veto-proof margin but the House was well short of a two-thirds majority.

'I respect the fact that because it's new, people are cautious,' said Bradley, who added if Lynch's veto is sustained he suspects the bill will be back next year. 'I told the supporters of this bill early on it was going to be a stretch to score a touchdown.'

Three other vetoes

Lynch vetoed three other bills yesterday, but all have been passed by the Legislature with no indication that Republicans will have trouble overriding the governor to send them into law. Those bills include a measure that initially dealt strictly with reimbursing towns and cities for property valuation lost on land subject to flood control. Lynch had no objection to the original bill, but has concerns about a non-germane amendment added in committee that revises the state's trust laws.

'The proposed tax policy changes lack clarity, have not been fully examined and may be unfair to some taxpayers,' Lynch said.

Another bill requires the Legislature's fiscal committee to approve all of the state's collective bargaining agreements. Presently, the Legislature only votes to approve the cost of the contracts during the budget process. Lynch notes that the state currently negotiates with three unions to reach eight master collective bargaining agreements and 27 sub-unit agreements, 'many of which contain dozens or hundreds of provisions, all of which are negotiated item by item over a period of many months and which are concluded at different times.'

'HB 1666 creates a redundant and cumbersome process where each item, in each collective bargaining agreement, will now be subject to fiscal committee approval. The potential exists for reopening debate on hundreds of items, all of which inter-relate and comprise the entire agreement,' Lynch said. 'Such a process creates a practical impediment to contract resolution, intrudes on the traditional role of the executive to negotiate contracts and risks putting the state at odds with the obligation to bargain in good faith.'

Lynch also vetoed a bill that amends the state's voter registration form to include this sentence: 'In declaring New Hampshire as my domicile, I am subject to the laws of the state of New Hampshire, including the laws requiring a driver to register a motor vehicle and apply for a New Hampshire driver's license within 60 days of becoming a resident.'

'In one short sentence, the Legislature has used the terms 'domicile' and 'resident' in a manner that suggests that they are interchangeable, even though these terms have different, distinct meanings and legal implications,' Lynch said.

When a person is signing up to vote, mentioning the state requirements to register a car and apply for a driver's license 'could be read to apply to a person regardless of whether the person had a car in New Hampshire or even drove in New Hampshire,' Lynch said.

'For example, seniors who are residents of New Hampshire but maintain cars and second homes in other states could be confused as to whether they must now register their out-of-state cars here in order to continue to vote in New Hampshire,' Lynch said. 'Persons who are 18 and older who attend college in New Hampshire should be able to vote regardless of where they drive or have a license.'

The New Hampshire City and Town Clerks Association strongly opposes the bill, Lynch said, because it provides that a supervisor of the checklist will be available to address the registering voter's questions about motor vehicle registration and licensing requirements.

'While the supervisors of the checklist are dedicated and hard-working persons who work a few days each year to ensure the smooth operation of our election process, they neither are full-time employees nor are they trained in our motor vehicle laws,' Lynch said.

Sen. Sharon Carson, a Londonderry Republican and the bill's primary sponsor, said 'the purpose of SB 318 is simple and straightforward: We want to make sure those individuals who want to participate in an election are properly registered to vote.'

'As the home of the first-in-the-nation presidential primary, New Hampshire should have clear standards like the ones SB 318 provides concerning who is and who is not qualified to vote in our state,' Carson said. 'It's disappointing Gov. Lynch has decided against supporting clean elections here in New Hampshire.'

(Matthew Spolar can be reached at 369-3309 or or on Twitter @mattspolar.)

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