The New Hampshire House Judiciary Committee recently voted 9 to 7 to support changing New Hampshire’s “early offer” law in medical malpractice claims that health care lobbyists pushed through the New Hampshire Legislature in 2012. Despite the New Hampshire Governor’s veto of the early offer legislation, the New Hampshire House of Representatives and Senate overrode the veto and the law was enacted, effective January 1, 2013.
The part of the early offer law that most concerns victims of medical malpractice in New Hampshire is the very real risk that the innocent victim of malpractice will be responsible for the medical malpractice defendant’s attorney’s fees and costs if the victim invokes the early-offer process but then rejects the offer received as inadequate.
The current New Hampshire early-offer law provides:
519-C:2 XII. A claimant who rejects an early offer and who does not prevail in an action for medical injury against the medical care provider by being awarded at least 125 percent of the early offer amount, shall be responsible for paying the medical care provider’s reasonable attorney’s fees and costs incurred in the proceedings under this chapter. The claimant shall certify to the court that bond or other suitable security for payment of the medical care provider’s reasonable attorney’s fees and costs has been posted before the court shall consider the case.
The proposed changes to New Hampshire’s early-offer law are contained in amended HB 582 that would remove the provision that medical malpractice victims would be responsible for the medical malpractice defendant’s attorney’s fees and costs, it would remove references to any waiver of the right to sue that is signed within 60 days of the medical malpractice incident, and it would provide medical malpractice victims with 45 days (instead of the current 5 business days) to decide whether to accept the early offer, reject the early offer, or request that a hearing officer examine the offer and determine whether it meets all of the legal requirements. (The original HB 582 would have repealed the early offer provisions in medical malpractice claims in their entirety, effective January 1, 2014.)
From the inception of the United States and throughout its storied history (until recently), it was a universally-held, basic premise of tort law that individuals who negligently caused injuries to others were held responsible for the resulting harms (that responsibility would be satisfied by paying monetary compensation in an amount that was agreed upon by the parties or, if the parties could not agree to an amount of fair and adequate compensation, the amount awarded by juries whose unbiased and disinterested members were selected from the communities in which the parties resided or where the wrong-doing occurred).
Then, within the last several decades, the vast and powerful health care industry with its substantial financial resources and the open-door political access enjoyed by its well-placed and highly-paid lobbyists, engaged in coordinated but deceptive efforts to convince the public and their state representatives that physicians, hospitals, and other health care providers required special and unique protection from the foreseeable results of their negligent acts and omissions that caused catastrophic and life-long debilitating injuries to their victims. They argued that they should not be fully responsible for the consequences of their incompetence or negligence that was solely in their power to avoid or prevent because fairly and adequately compensating their medical malpractice victims would cost them money (their arguments initially focused on their increasing cost of medical malpractice insurance that resulted, only in part, from the harms they caused).
The public did not question or object to the health care industry’s scorched-earth tactics (warning that “the sky is falling” because the public will not be able to obtain medical care “when” their doctors flee their practices because of increasing medical malpractice insurance premiums) and misrepresentations regarding “frivolous lawsuits” (medical malpractice plaintiff lawyers do not engage in frivolous medical malpractice representation because their attorneys’ fees are typically contingent on a recovery) and “defensive medicine” costing Americans unnecessary millions in health care costs (we doubt that many patients complain that medical tests ordered by their physicians come back as “negative”).
What is the result of the public’s inaction when their rights are being trampled? When they or their family members are severely and permanently injured as a result of the medical negligence of their medical providers, they must encounter more hurdles, higher hurdles, and a brick wall when seeking the compensation that they should be entitled to receive. So-called medical malpractice reforms include such draconian and harmful measures such as caps (limits) on the amount of damages that the most seriously injured medical malpractice victims may recover (some states limit noneconomic damages in medical malpractice claims to $250,000: is $250,000 sufficient to compensation a young, formerly healthy and active child who will be in a wheelchair for the rest of his life and needs assistance to get into and out of bed, to feed himself, to dress himself, to clean himself, and to go to the bathroom, solely because his doctor or other medical provider was careless?) and unnecessary and costly procedural hurdles that must be overcome before a jury can hear and decide their medical malpractice claims.
If you or loved one were injured or suffered other harms as a result of medical malpractice in New Hampshire or in another U.S. state, you should promptly contact a New Hampshire malpractice attorney or a malpractice attorney in your state who may investigate your malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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