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J. Brandon Giuda : What New Hampshire's 'early offer' law really does

July 11. 2012 11:03PM

As the legislator who took almost a month redrafting the state's new 'early offer' law to ensure that it provided a fair and beneficial opportunity to injured New Hampshire citizens, I believe some of the questions are due to the new law's complexity and to not understanding the policy decisions made when drafting the law.

The early offer law is the nation's first true medical malpractice tort reform program. There have been only two limited options available to patients who have been injured due to a medical provider's malpractice. If an injured patient's total damages are under $200,000, litigation is generally not an option because medical malpractice lawsuits are very expensive and most law firms will not take the case.

If the injured patient's total damages are large enough that a law firm will take the case, the injured patient then must endure an average of 44 months of litigation waiting for an uncertain outcome and without desperately needed money. If the injured patient wins the lawsuit, almost half of the award is paid to attorneys and expert witnesses. For the medical provider the prolonged attack on his or her reputation is as bad as the significant legal expenses incurred defending the lawsuit.

The early offer law provides a third alternative to injured patients. It does not discriminate based on the size or complexity of the claim. Specifically, the law provides a voluntary and cost-free option for a quick and fair settlement. Under the early offer law, injured patients can settle their claims quickly for economic damages (past and future lost wages, medical bills, replacement services, etc.) and an additional payment, but will not receive less-specific damages such as pain and suffering.

Injured patients who choose this alterative and successfully settle their cases under early offer will receive their money in several months.

Access to the early offer program begins when an injured patient ('claimant') voluntarily submits a notice of injury via certified mail to the medical provider. The notice of injury was designed to be relatively comprehensive to ensure the claimant learned the early offer system or retained an attorney prior to entering the system.

The notice must include, among other things: (1) all the details of the incident, (2) a severity description, including the claimant's opinion of the injury ranking in the National Practitioner Data Bank severity scale, (3) medical records and bills associated with the injury, (4) evidence of lost wages or lost income from self-employment, and (5) a demand for economic loss.

If a claimant who submits a notice of injury is not represented, the medical provider will pay for a neutral legal adviser for the claimant. The neutral legal adviser will assist the claimant through the early offer process and must encourage the claimant to retain an attorney and must explain the differences between the early offer system and litigation.

Although unrepresented claimants will have put significant time into submitting a notice of injury and learning the system, they may still withdraw from the early offer system within five business days after the first meeting with the neutral legal adviser.

Claimants who continue in the system may be asked to undergo a medical evaluation, but unlike the workers' compensation system, claimants have an equal say as to which doctor conducts the medical evaluation. Further, the doctor conducting the medical examination cannot be affiliated in any way with the medical provider. If the medical provider and a claimant cannot agree on a doctor, a neutral hearing officer will decide on the doctor.

A medical provider who receives a notice of injury has 90 days to extend an offer to the claimant or to decline to participate in the early offer program for that claim. If the medical provider makes an offer, the claimant has 60 days to accept or reject the offer. To ensure fairness, if the claimant does not think the offer is large enough, the claimant may request a hearing before a neutral hearing officer, who will determine if the offer is correct or needs adjustment.

If the claimant accepts the offer, the program has been successful and the medical provider will pay the claimant's legal expenses, and economic damages payments to the claimant will begin within 15 days. Both parties will have resolved the case in just a few months and both parties may move on with their lives, rather than spending significant time and money over four years of litigation.

If the claimant does not agree with the hearing officer's decision, the claimant may reject the offer and proceed to court. However, although all the safeguards in the early offer system to this point (legal adviser, neutral hearing officer, paid legal expenses) favor the claimant, one check was inserted at this point to protect a medical provider against an unreasonable claimant. Specifically, a claimant who proceeds to court must post a small bond with the court, estimated at $200 to $800, as the claimant will have to pay the medical provider's reasonable attorney's fees for the early offer program if the claimant receives a jury award that is significantly less than the early offer that the claimant rejected.

For example, if the claimant rejects a $100,000 early offer and proceeds to court, the claimant will need a jury award of at least $150,000 to receive $100,000, due to the 33 1/3 percent contingency fee that will go to the claimant's attorney. If the jury awards the claimant only 125 percent of the early offer ($125,000), then the claimant will only receive $83,000. In that case, the jury will have confirmed that the claimant unreasonably rejected the early offer, and the claimant will have to pay the medical provider's legal expenses for the early offer program only.

In summary, this first-in-the-nation program is an exciting option for all involved in an unfortunate case of medical malpractice. This totally voluntary program provides a new alternative that allows injured patients and medical providers to eliminate years of litigation and legal expenses, reach closure quickly and move on with their lives. The program statistics must be reported to the Legislature annually and these statistics will be carefully analyzed to ensure the program is fairly administered and is working as planned.

Rep. J. Brandon Giuda is a Republican from Chichester.

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