June 9, 2012

One of the many attacks by the medical profession, their medical malpractice insurance companies, and their lobbyists on the rights of medical malpractice victims is known as “early offer” laws.

“Early Offer” Laws

An “early offer” law typically provides a medical malpractice insurance company with an opportunity to offer an amount to settle the medical malpractice claim at an early stage, thereby providing the medical malpractice victim with the possibility of resolving the medical malpractice claim years before it would otherwise be resolved at trial and without incurring the high costs and risks associated with medical malpractice litigation.

The “Carrot” And The “Stick”

While the “carrot” of the law may seem reasonable and beneficial for medical malpractice victims at first blush, “early offer” laws usually come with a large and painful “stick”: the medical malpractice victim can recover for medical expenses and other limited economic losses such as lost wages as a result of the medical negligence but the victim gives up the right to be compensated for noneconomic damages such as pain and suffering, mental anguish, physical impairment, disfigurement, etc., which often are greater losses and much longer lasting and egregious losses than the economic losses. Early offer laws may also require that medical malpractice victims give up their right to sue other possible responsible parties such as the manufacturers of defective medical equipment.

The Even Bigger “Stick”

Early offer laws often penalize medical malpractice victims who reject the early offers from medical malpractice insurance companies, even if the offers were low-ball efforts by the medical malpractice insurance companies to just make the vulnerable medical malpractice victims “go away.”

If the early offer is declined, some early offer laws require that the medical malpractice victims jump through more legal hoops and may even require that the victims prove their medical malpractice cases using a higher, more restrictive standard of proof of medical negligence at trial.

Some early offer laws even make the innocent victims of medical malpractice responsible for a portion of the responsible medical malpractice defendants’ attorneys fees if the medical malpractice jury returns a verdict in an amount less than the early offer amount or in favor of the medical malpractice defendants — imagine the undue, unnecessary, improper, and crushing financial pressures placed on the innocent victims of medical malpractice, whose financial lives and the financial lives of their families were destroyed by the results of medical negligence, if they must choose between a woefully inadequate and unfair early settlement offer or the risk that if a medical malpractice jury finds against them, they might be responsible for tens of thousands of dollars for the medical malpractice defendants’ legal fees.

New Hampshire May Be The First State To Enact An Early Offer Law

A bill to enact an early offer law in New Hampshire is being considered by the New Hampshire Legislature. If enacted, New Hampshire will be the first state in the United States to enact an early offer law since early offer laws were first conceived in the 1990s.

The original early offer law proposed in New Hampshire would have made medical malpractice insurance companies responsible for medical malpractice victims’ lost wages, medical bills, and attorneys’ fees, but would have severely limited the responsibility of medical malpractice insurance companies to pay medical malpractice victims for their noneconomic damages. For example, the original proposed law provided as follows: those who suffered permanent injuries with minor harm would receive only $29,750, medical malpractice victims who suffered permanent injuries with major harm would receive $107,000, and for medical negligence that caused death, the medical malpractice insurance companies would be responsible to pay only $117,500.

The original proposed New Hampshire early offer law would punish medical malpractice victims who rejected an early offer of settlement by substituting the nearly impossible to prove “clear and convincing evidence” standard that would require proof of gross negligence, for the long-established, ensconced, and fair “preponderance of evidence” standard of proof of medical negligence.


While the concept of a fair and equitable early resolution of medical malpractice claims would benefit both medical malpractice victims and medical malpractice defendants alike, who would save on the enormous expenses of litigation, the emotional strain and stress of the litigation process, and the delays in resolution of medical malpractice claims, an unbiased and neutral manner in which early offer laws are drafted and applied to all parties is essential to preserve the equity and fairness of the medical malpractice claims process.

For instance, why should New Hampshire medical malpractice victims be penalized for rejecting an inadequate, low-ball early offer of settlement from a medical malpractice insurance company by having to prove gross negligence by clear and convincing evidence if they need to proceed to a trial, as originally proposed in the New Hampshire Legislature? Why is the medical malpractice insurance company not penalized if a low-ball early offer of settlement is rejected and then a medical malpractice jury trial results in a verdict in favor of the innocent victim of medical malpractice in excess of the low-ball offer? Where’s the fairness and equal protection in the proposed New Hampshire early offer law?

If you or a family member have been injured as a result of medical malpractice in New Hampshire or in any other U.S. state, the professional and timely advice of a medical malpractice attorney is essential to protect your legal rights.

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