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Bar News - November 14, 2008

Morning Mail

Specialty Court — A Contrary View

In my practice, I have the privilege of representing victims of medical malpractice. The malpractice may involve a physician, a pharmacist, a nurse, a hospital, a nursing home, or some other provider within the delivery system. For good reasons, I screen out cases where the liability does not exist, or causation cannot be established, or damages do not justify the undertaking. Therefore, I feel confident saying that in the cases I have accepted and prosecuted, there is a credible case for malpractice with serious and permanent damages. Three years ago, the legislature enacted legislation that required a medical malpractice plaintiff, as compared to any other plaintiff, to first submit to a "screening panel" before or contemporaneous with the filing of a lawsuit. This law does three things:

· It obstructs access, to our judicial system by medical malpractice victims and their families.
· It causes delay in achieving justice for medical malpractice victims and their families.
· It adds expense for the medical malpractice victim and/or their family in pursuing justice.

Contrast the treatment of a medical malpractice victim with the newly created "specialty business court." The justification for this newly created business court is to "make justice more accessible to business and accommodate the speed at which they move today." (Justice Broderick, NH Bar News, Volume 19, No. 5). While I respect Justice Broderick, I disagree with the decision to create this court in light of what we have done to medical malpractice victims.

The insurance industry (comprised of businesses) was successful in passing the medical malpractice screening panel legislation. In the context of a business dispute, the parties are really only talking about money. A business may have lost $50,000 or $150,000 or $1,000,000. It certainly is entitled to access our courts in a reasonably timely fashion. However, the victim of medical malpractice may have suffered a stroke, the loss of a limb, or the death of a spouse, provider or parent. This loss is about more than money. These individuals and families are laboring under life altering circumstances with a permanent disability or the loss of a loved one. Why should they be subjected to the type of obstruction and delay and expense associated with the medical malpractice screening panel when the very industry that created this injustice is given preferential expedited access to "justice"?

This is particularly true in light of the fact that business disputes are far more suitable to resolution through mediation or arbitration than the highly polarized disputes involving serious personal injury or death caused by malpractice. The reason businesses find the court system no longer relevant is because the court system is not the best venue to resolve business disputes. The business community has found a better solution and the legal system should accept this fact.

In my view, we have done a disservice to the general public by creating a business court at the expense of other more deserving plaintiffs. To the extent that the argument is made that creating a business court will hasten the court’s reaching other meritorious cases, I suggest that we instead create a medical malpractice specialty court first. I can certainly say that my clients would prefer to receive the preferential treatment in their case!

Richard E. Fradette
Beliveau, Fradette, Doyle & Gallant, PA

Compulsory Charity?

Bravo for the 11 percent of law firms not enrolled in IOLTA. They truly have their clients’ interests at heart. Earnings on funds held in trust by attorneys belong to clients. If providing free legal services to the poor is desirable, the legislature should so determine and find or raise the necessary funds. Compulsory charity by judicial fiat is an affront to the democratic process. Perhaps some of the 89 percent will rethink their position and disenroll.

Neal M. Kurk

A Response from the NH Bar Foundation

Dear Representative Kurk:

When the U.S. Supreme Court upheld the constitutionality of IOLTA under the Just Compensation Clause of the Fifth Amendment in 2003, the Court identified that the transaction costs to establish individual trust accounts for the nominal amounts held in those accounts would be detrimental to the clients and their financial interests. After all, why pay administrative costs of $200 to collect $25 in interest and add a federal tax obligation for the client as well? The other alternative was to place the funds in a non-interest bearing account and permit the banks to keep the interest - as they did prior to 1982 in New Hampshire and across the country.

The IOLTA Grants Program enables thousands of our most vulnerable residents to access legal assistance that would otherwise be entirely out of reach. Legislative support is very important and I hope that the state will be able to increase its support to a level in the future that fully funds critical civil legal services for low-income and elderly people. We believe IOLTA is a fair and excellent means to help bridge the justice gap we currently face.

David G. Snyder
Executive Director
NH Bar Foundation

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