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Lawmakers Act To Appeal Law On Malpractice

Opponents Argue Statute Unfair  To N.H. Patients; Doctors Disagree

Concord — A new law intended to fast-track medical malpractice cases is only 30 days old and already overdue for repeal, lawyers and a lawmaker told a House committee yesterday.

They described the “early offer” law, passed last year over a veto from former governor John Lynch, as unfair to patients, possibly unconstitutional and insufficiently debated by last year’s Legislature.

Under the law, patients with a medical malpractice claim can choose to seek an early settlement from a doctor instead of going to trial. But if the patient rejects the offer and goes to trial, he must pay the other side’s attorney expenses if the jury doesn’t award him at least 125 percent of the settlement offer.

In addition, opponents told the committee yesterday, the patient must commit to the early offer path before he or she hears how much money the other side is offering to settle the case. And, an early offer settlement can cover past, current and future medical expenses but not compensation for pain and suffering or the loss of future wages.

Rep. Lucy Weber, a Walpole Democrat who opposed the law when it was proposed last year, is sponsoring the bill to repeal it.

“I continue to have grave concerns about very vulnerable injured persons being further injured by the workings of the (new law),” Weber told the House Judiciary Committee yesterday.

The committee’s hourlong public hearing on Weber’s bill was largely a repeat of last year’s debate.

Those who support the new law and oppose a repeal, which yesterday included the New Hampshire Hospital Association, the House Republican leadership and the New Hampshire Medical Society, stressed that the early offer route is voluntary.

And the law allows both sides to resolve a case much faster than if they went to trial, they said.

“I’m one of the fortunate few doctors who have never been sued,” said Dr. David Strang of Laconia. “But several of my colleagues have been sued, and I have seen firsthand the debilitating effects of a lawsuit that can hang over a physician for years. This (law) is a step in the right direction. It provides a quick resolution for the parties, but only if the injured party wants it.”

Rep. Robert Rowe, an Amherst Republican who supported the law last year, said only one person has begun to use the new law in the month it’s been in effect.

He said the law is intended to help patients seeking less than $250,000 in compensation. Lawyers, Rowe said, often won’t take those cases because they don’t bring in enough money to cover the expensive case preparation and litigation. Pursuing the early offer route is less costly, he said.

But it may not take legislative action to derail the law. Mary Elizabeth Knox, vice president of claims for Medical Mutual Insurance Company of Maine, said her company is one of two that has decided it will not insure its doctors and hospitals in an early offer case.

“So, about two-thirds of the regular insurance market in New Hampshire is already opting out of this law,” Knox said.

The law, she said, interferes with her ability to resolve claims because it allows patients to settle with only one provider when many providers may have been involved in a procedure. Litigation would continue against those other providers, she said.

William Woodbury testified for the bill on behalf of the New Hampshire Association of Justice, which represents trial lawyers. “The goal,” he said of the early offer law, “is to settle quick and low.”

The law contains contradictions, requiring patients to win more than 125 percent of the settlement offer in one section and requiring them to win at least 125 percent in another, Woodbury said. And, there is dispute over whether the patient who fails to meet either threshold at trial would be required to pay all of the other side’s attorney costs or just those accrued during the early settlement talks.

“No lawyer can advise their client to sign this,” he said. “No claimant can make an informed decision about what payment might be.”

Sen. Jeb Bradley, a Wolfeboro Republican who sponsored the early offer legislation last year, urged the committee yesterday to amend the law to fix any problems rather than repeal it.

“If you send something other than outright repeal to the Senate, I pledge to work with you,” he told the committee.