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Insurer, lawyers looking at new way to settle medical malpractice suits

New Hampshire Union Leader

February 07. 2013 10:28PM

CONCORD - Supporters of state's "early offer" option for settling malpractice claims say it's much too soon to throw it out, but admit some tinkering may be needed.

The House Judiciary Committee listened to arguments for and against the new system at a hearing Thursday. Under the early offer legislation, someone who claims to have been injured by the malpractice of a medical provider can send notice of this claim, along with medical documentation to the provider.

The provider hands it off to a malpractice insurer, which then has 90 days to make a settlement offer.

A patient who rejects the offer and sues would be responsible for some of the provider's medical bills if the court case results in an award of less than 125 percent of the early settlement offer.

The law took effect Jan. 1, but one of the biggest medical malpractice insurance companies in the state hasn't used it yet, and has no intention of using it in its current form.

"We will opt out of every case submitted under this law," said Mary Elizabeth Knox, vice president for claims at Medical Mutual Insurance of Maine, which insures many of the state's doctors and other medical providers.

Knox said the biggest problems with the law lies in what it doesn't do.

It has no provision for paying off insurance companies that want to recoup disability payments made to victims of malpractice. And an insurance company that settles a malpractice claim can't go after other health care providers whose conduct may have contributed to the patient's injury.

"It is very unlikely that only one provider will be involved in a claim because of how care is managed," Knox told the hearing Thursday. "We may have an obligation to pay (for contribution suits) long after the claim is resolved - it provides no resolution to the physician."

The law was defended by a doctors, representatives of hospitals and others, but supporters of the law said the concept is sound, claiming it lets people recover for malpractice injuries who might otherwise be left out.

"It serves an absolute need that must be met," said Rep. Robert Rowe, R-Amherst. "Malpractice lawsuits are unbelievably expensive."

Supporters of the law say malpractice attorneys often won't touch a case unless they believe it is worth at least $250,000, because of the thousands of dollars it costs to get expert testimony that courts require to prove a malpractice claim.

Supporters also said the law means doctors face closure, rather than the uncertainty that comes with being sued.

Dr. David Stang, an emergency room physician in the Lakes Region, said he has never been sued for malpractice. But Stang said he sees the impact, both on doctors who are sued and on doctors who worry about being sued.

"I have several colleagues who have been sued and I have seen the debilitating effects of being sued that can hang over a physician for years," Stang said. "Many providers leave the practice of medicine because of a brutal system, many suffer from depression because of suits."

Other supporters of early decision echoed the theme that getting sued by people who claim to have been injured by malpractice makes doctors sad.

"The number one area of concern for physicians is tort reform for the emotional toll and the lengthy time it takes to resolve claims under the traditional system," said Scott Colby, representing the New Hampshire Medical Society.

Lawyers who represent injured people are continuing to battle against the bill after failing to stop it from being enacted last year.

Attorney William Woodbury of Laconia, speaking on behalf of the New Hampshire Association for Justice, formerly called the state trial lawyers association, said early offer provides little to injured patients.

"It is not only exceedingly complex, but also exceedingly one-sided in favor of providers," Woodbury said. "A person suffering an emotional toll can never be compensated under this, but that is the underlying goal of the early offer system."

Manchester attorney Kevin Dugan said it is unfair to make an injured person responsible for part of the other side's legal bills if they don't both win the case and get an award 25 percent higher than the early offer.

"There is no reciprocal duty if the patient goes through trial and gets in excess of that," Dugan said.

The original sponsor of the legislation, Sen. Jeb Bradley, R-Wolfeboro, said it is too soon to repeal the bill, but admitted some parts may need to be revised.

"To take a look at some provisions, that is a very acceptable way of proceeding," Bradley said. "As opposed to outright repeal of a bill that has yet to be proven."

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