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New Senate Bill May Make Medical Malpractice Suits More Difficult to Prove

Hospital representatives and trial lawyers clashed Tuesday before the House Judiciary Committee over a bill that would give patients an alternative method for resolving medical malpractice claims. Senate Bill 406 was passed by a wide margin in the Senate last month. Now, both House and Senate leaders are eager to get the committee’s endorsement and have the measure approved by the full House.

According to Union Leader.com, the bill would establish an “early offer” program in which a patient could voluntarily seek a settlement with a medical provider. The settlement would be based on medical costs and lost wages, plus a severity of injury payment ranging from $1,700 for minor harm to $117,500 for grave harm or death. Should both parties agree to participate in the process, the settlement would be reached in a matter of months.

If patients are dissatisfied with the medical provider’s offer, they still could pursue a traditional lawsuit. Although allowing injured patients more than one way to seek justice and recovery may seem positive, it is not in this case. If a patient was dissatisfied with the offer, they indeed could proceed with a traditional lawsuit, but the case would be judged under the standards for gross negligence, which is much more difficult to prove than malpractice. Bill supporters say it would significantly reduce the expense and time of malpractice cases, which take, on average, nearly four years to reach resolution in New Hampshire. More broadly, they say the bill would help reduce medical costs.

As reported by the Union Leader.com, trial lawyers are staunchly against the bill, which they say favors insurers and hospitals. “The people who will end up using this system will be the poor, the uneducated and the uninformed,” said Maureen Raiche Manning, the president of the New Hampshire Association for Justice, which represents trial lawyers.

While some backers of the bill have likened it the state’s workers compensation system, Manning noted that it was created through a careful, deliberative process, in contrast to the current bill. “For this type of thing you need to have the stakeholders sitting around. We have to have more than a late amendment and an executive session that did not allow us to have any input,” said Manning, referring to the deliberations on SB 406.

James Bianco, a lobbyist representing Elliot Hospital, stressed that the bill contains safeguards to protect patients, such as a settlement review board that could assess claims of “low-ball” offers. “This is new and unique and it’s diametrically opposed to what we learned in law school,” he said. “It allows people to make a choice, but not so they can be taken advantage of.”

While the early offer would likely be lower than the average malpractice reward, which can include large payments for pain and suffering, Bianco noted that under the proposed system the medical provider would cover all legal costs, in addition to the settlement. Bianco said there still would be people who would decide to pursue a malpractice lawsuit. “But for some people, this will be a good option,” he said. “It will allow them to move on, and physicians, who make mistakes, will be able to move on as well.”

As an medical malpractice attorney who regularly handles cases on behalf of individual and families who have suffered through medical malpractice, and the medical malpractice lawsuits that follow, I believe that patients who have suffered personal injuries at the hands of negligent medical professional should be able to receive expeditious justice. However, they should not have to sacrifice their rights, or the recovery available in so doing.