By Robert A. Clifford
Clifford Law Offices
New Hampshire became the first stateto pass legislation that creates an early offer program for patients injured by medical malpractice.
The new law went into effect after the state legislature overrode a veto by New Hampshire Gov. John Lynch. This new legislation will surely hurt the uninformed and may even scare the informed into settling cases that should be litigated. The law is described by a New Hampshire legislator who redrafted it as "an exciting option" for injured patients. I disagree.
J. Brandon Giuda, R-Chichester, admitted in a July 11 opinion piece in The Union Leader that "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." He's missing the point.
His justification for having a jury not decide what compensation is appropriate for the injury is the court system taking 44 months for a patient to get a decision. He forsakes a victim's constitutional rights for what deems to be a speedier alternative that instead penalizes the person who has already been hurt. Maybe they need some of our Cook County Law Division's case management techniques to get the trial time down to 24 to 30 months.
In their early offer program, only economic damages, such as lost wages, medical bills, past and future lost wages, can be recovered. Noneconomic damages are disallowed. The injured person is, in essence, bribed into accepting a check that will come sooner, perhaps within months, if the claim is settled under this program. But the patient who does not settle is punished.
Upon entering the early offer program, the so-called claimant "voluntarily" submits a notice of injury via certified mail to the medical provider. Of course, that assumes the patient even knows who that is. In many medical settings, there can be any number of people who treated the person. Often, it is complex discovery that sorts all of this out.
The claimant's notice, though, must include details of the incident, including a description of the severity of the patient's injuries, including an "injury ranking" based upon the National Practitioner Data Bank severity scale. How is a person who is injured for the first time going to be able to make that kind of judgment as a layperson — and be held to that early judgment, particularly if it is not informed or if one's injuries worsen over time?
Medical records and bills associated with the injury are to be provided, but they often will be incomplete without the subpoena power of the court and an attorney being advised by medical experts to sort through all of it. The victim also must provide evidence of lost wages or lost income from self-employment and a demand for economic loss. By this time, most sick people would give up.
The patient who does not settle is punished. The law also includes a "loser pay" provision that requires the patient to post a bond if he or she rejects the offer and pursues litigation. How can an injured patient come up with what may be the significant cost of the bond prior to litigation? Perhaps he was the major wage-earner in the family. Perhaps there was inadequate insurance coverage. Now this?
If the patient loses in court or even receives less than what was offered, the claimant must pay the defendant's legal fees. I have always been in favor of "loser pays," but only if it works both ways. The law in New Hampshire is not written that way.
Medical-malpractice cases are not frivolous. They are extraordinarily expensive to bring, as even Giuda admits. There already are protections in many states for doctors who make mistakes. In Illinois, a certificate of merit must be signed by a physician verifying at the outset that it is a valid case. Giuda claims that almost half of the damages awards go to attorneys, but he ignores that attorney fees are limited in New Hampshire medical-malpractice cases.
Giuda concludes by saying, "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."
Who decides what's fair? If it's not fair, then what?
In a 4-3 en banc decision, the Missouri Supreme Court held that a law that imposed a $350,000 cap on noneconomic damages was unconstitutional. An infant was catastrophically brain-damaged due to negligent medical care, and a jury awarded $1.45 million in noneconomic damages, which the trial judge was required by law to reduce to $350,000.
In writing the opinion, Chief Justice Richard Teitelman acknowledged that it was the court's responsibility to overturn precedent when it was wrong. In striking down a state statute, the court found the law conflicted with the right to trial by jury provided by common law and the Missouri Constitution. Constitutional experts are closely watching the impact of this decision on similar cases pending in Mississippi and Kansas.
The situation is reminiscent of the Illinois Supreme Court overruling caps on damages, not once but twice. Let's hope the unfairness of the early offer program is taken up by the courts in New Hampshire and ultimately reason will prevail.