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Medical malpractice bill wins panel support; groups see trouble

State House Bureau

May 31. 2012 9:26PM

CONCORD - Senate and House negotiators signed off on a bill Thursday meant to provide a simpler and speedier alternative to the medical malpractice process.

The House and Senate members of the panel were united in praising the final version of SB 406, known as the 'early offer' bill. It would allow aggrieved patients who agree to participate in the process to receive a capped settlement in a matter of months.

'I thought the House took a good bill and made it better,' said Senate Majority Leader Jeb Bradley, R-Wolfeboro, who was the original sponsor of the bill. 'I think we've brought fairness and equity to the bill. This is going to be an innovative program that will help us expedite settlements that are fair, prompt and just for providers, insurers and patients.'

The program would be voluntary, with the settlement based on medical costs and lost wages, plus a severity-of-injury payment ranging from $1,700 for minor harm to $117,500 for grave harm or death.

The bill has drawn criticism, however, from groups representing hospitals, insurers and, most intensely, lawyers.

'It retains a number of the problems of the original bill and in ways makes it worse,' said Bill Woodbury, the legislative committee chairman for the New Hampshire Association for Justice, which represents trial attorneys. 'It would have a chilling effect on plaintiffs from beginning a case and on their ability to seek justice.'

Among the group's concerns is a 'loser pays' provision that would require patients who turn down a medical provider's early offer and bring a traditional lawsuit to pay the provider's legal costs, unless they are awarded more than 125 percent of the early offer.

The group also believes that the proposed hearing process for resolving disputes about the size of the early offer is stacked against patients, providing too narrow a window of time to dispute medical provider's claims.

Insurance industry and hospital groups also have reservations about the bill. Two major medical malpractice insurers in New Hampshire submitted letters to lawmakers stating that SB 406 could lead to more frivolous claims and higher malpractice premiums, which in turn would drive up health care costs.

The chief author of the final bill, Rep. Brandon Giuda, R-Chichester, said the main beneficiary of the program would be 'the little guy,' who is not served by the conventional malpractice system.

'Both sides agree that for claims under $250,000, a law firm just is not going to take those cases,' he said. 'This is a segment of the population that's already getting low-ball offers. With early offer, at least they're going to have people on their side.'

Giuda said the bill he authored was far more equitable than the original bill, which would have required patients who pursue a lawsuit, after rejecting the early offer, to meet a far higher standard of proof than a malpractice case would otherwise require.

The bill contains another priority of Giuda's, a non-germane amendment that would require the disclosure of a police officer's personnel file to a defendant in legal trials, if the file contains exculpatory evidence.

The conference committee altered another non-germane portion of the bill, which barred doctors from making 'self-referrals' for medical devices made by companies in which they or a family member have a financial interest. Instead, the bill establishes a committee to study the issue.

The House and Senate are expected to pass SB 406 next week, and it will then head to the governor's desk.

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