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Legislation touted as cure for malpractice suits

State House Bureau

March 15. 2012 11:16PM

CONCORD - Senate lawmakers on Thursday unveiled a bill aimed at reducing the time and expense of medical-malpractice lawsuits.

The bill is encountering resistance, however, from patient advocates and trial lawyers, who say it favors insurers and hospitals.

Senate Bill 406 would establish an 'early offer' program in which a medical provider would have to offer a settlement to an aggrieved patient within 90 days. The settlement would be based on medical costs and lost wages, while limiting pain-and-suffering damages, from $1,700 for minor harm to $117,500 for grave harm. Participation in the program would be voluntary for patients.

The bill has the support of the Senate president and the House leadership.

'This is a win, win, win and another win,' said the bill's main sponsor, Senate Majority Leader Jeb Bradley, R-Wolfeboro, refering to patients, doctors, lawyers and insurers. Patients with legitimate claims, he said, 'would get guaranteed payment for medical losses' and they will avoid 'lengthy litigation and all the stress that goes along with it, and the possibility of getting nothing.'

In introducing the bill, Bradley was joined at a press conference Thursday by hospital executives, business representatives and the law professor who proposed the plan, as well as a woman who has involved in a years-long malpractice case.

According to the state Insurance Department, malpractice cases in New Hampshire take an average of nearly four years to reach resolution.

Under the bill, if patients are dissatisfied with the proposed settlement, they could still pursue legal action, but they would have to prove their case based on the higher standard of 'clear and convincing' evidence.

It is this component of the legislation that has drawn the greatest opposition from trial attorneys.

'If the patients have access to competent lawyers, they're almost never going to be advised to participate in this system,' said Jared Green, an attorney and member of the New Hampshire Association for Justice, which represents trial lawyers. 'It's only the people who are in a desperate situation, who don't have competent legal representation, that are going to be pulled into this system.'

The lawyers group is backing an amendment to the bill that would eliminate the provision requiring a higher burden of proof for patients who pursue legal action after participating in the early offer process, which would be overseen by the state Insurance Department.

At a Senate Judiciary Committee hearing after the press conference, representatives of the lawyers group and patients lined up to speak against the bill. In roughly equal measure, representatives of hospitals, physicians and others spoke in support of the bill.

The bill has the backing of the NH Hospital Association, NH Medical Society, NH Dental Association and the Business and Industry Association.

Should New Hampshire adopt the early offer program, it would be the first in country to do so, according to Jeffrey O'Connell, the University of Virginia School of Law professor who proposed the system and who is also credited with providing the legal framework for the 'no-fault' system for resolving automobile-accident claims.

O'Connell was approached by Doug Dean, the president and CEO of Elliot Hospital, after hearing a talk the professor gave about the early offer system for medical-injury cases. Both men spoke at the press conference on Thursday.

Also speaking in support of the bill was Nan Stearns of Amherst. The elderly woman said she had to have her hip replaced due to a mistake in surgery in 1995. It took six years before there was a settlement in the case.

'If a program like early offer had been available to me back then, I would have used it without question,' she said. 'It would have sped up the process, given me resolution, and most importantly, would have enabled my husband and me to move on with our lives.'

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