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Another View -- Chuck Douglas: 'Early offer' malpractice bill would trample on patients’ rights

CHUCK DOUGLAS
June 26. 2012 11:24PM

Last week Gov. John Lynch vetoed the so-called 'early offer' bill (Senate Bill 406), calling it unfair and unbalanced. Since that time, a great deal of misinformation has been spread to New Hampshire House members as supporters of the bill scramble to revive their unfair and unbalanced proposal. In the name of fairness, and balance, I want people to know the truth.

The governor says SB 406 would be the first statutory early offer program in the nation. He is correct. The early offer idea has been shopped around nationally for more than a decade without any buyers. The bill seeks to take a voluntary system that is offered by many insurers, including some here in New Hampshire, and create a new statutory scheme, replacing what the 'free market' has already fine tuned. Few know these voluntary systems exist because there have been no complaints, thus no reason for a news story. The bill is a solution in search of a problem.

The governor says the bill does not sufficiently and fairly balance the interests of the general public with the interests of medical providers. He is correct.

Under the proposal, if an injured patient received an inadequate early offer, he or she would be required to post a bond (to cover the provider's legal fees and costs) before filing in court and asking a jury to hear the case. Even if the patient only wanted reimbursement for his or her medical costs and lost wages, he or she would still be required to post that bond. And even after posting the bond, the injured person would still have to take his or her case to a 'medical screening panel' before being able to proceed to court. What, you might ask, are the parallel burdens on the medical provider responsible for the injury? None.

The governor says the bill lacks certain fundamental safeguards necessary to protect injured patients. He is correct. Let's start with the fundamental safeguard of informed consent. Before an injured patient may participate in this system, he or she must first sign a waiver stating that participation 'may' affect his or her rights. 'May' is an incorrect word; the waiver will affect the right to take a dispute to court before a jury of one's peers as guaranteed under the New Hampshire Constitution, Part I, Articles 14 and 20. The bill requires an injured patient to buy back constitutional rights.

The waiver also fails to explain that, in entering the early offer system, the injured patient may not seek compensation for lost earning capacity, loss of mobility, loss of sight or other such devastating losses directly caused by the injury. Instead, the early offer system sets a uniform price tag on the loss of enjoyment of life.

It sets a price tag on life as well, valuing a family's loss for the death of a victim at only $140,000 (519-C:1, IV). Attempts to make the extent of the loss of rights clear in the waiver were rejected by proponents of the bill.

The governor says the bill does not give enough time for an unrepresented patient to consider whether to opt in to early offer, contrasting the five days a victim has to decide whether to sign a waiver with the 90 days given to the medical provider to make an offer after the injured has already given up the right to a court and jury trial. He is correct.

Even worse, the bill calls for the unrepresented patient to make a decision after meeting with a 'neutral advisor' who would be hired and paid for by the medical care provider or the provider's insurer (519-C:3). Not only does this create a mockery of the word 'neutral,' it also creates the possibility of new litigation as a patient could well challenge the role of the neutral based on conflict of interest and related bias.

The governor says he is vetoing the bill 'in order to adequately protect the interests of injured patients.' I agree with him. So do the two largest medical malpractice providers in the state, both of whom oppose the bill, both of whom already have a system for quick resolution with no complaints and thus no need for government intervention. So do victim advocates from all over the state. So do law professors from the University of New Hampshire School of Law and New York Law School.

It is not easy to stand up against powerful special interests and veto this bill. But it is fair. Thank you, governor.

Chuck Douglas is an attorney in Concord. He is a former justice of the New Hampshire Superior and Supreme Courts and a former Republican member of Congress.


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