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Bar News - August 17, 2012

Opinion: Early Offer Law is Good for New Hampshire Citizens


Opinion: New Hampshire’s Early Offer Trap Bar News, August 17, 2012

We were disappointed to read the negative and false comments in the NH Bar News relating to the Early Offer Law that passed the legislature over the Governor’s veto. We write to explain how the Early Offer Law is beneficial to New Hampshire citizens who have been injured by medical malpractice and to correct the incorrect assertion that the Early Offer Law imposes a higher burden of proof on the injured patient.

Prior to its passage, the Early Offer law was extensively analyzed and redrafted to ensure it met the best interests of citizens injured by medical malpractice. Currently, there are very limited options available to patients who have been injured due to a medical provider’s malpractice.

Because medical malpractice litigation is extremely costly due to extensive expert witness fees, discovery and trial, it is no secret that injured patients with lower value injuries are frequently turned down by medical malpractice law firms. On top of the costly normal route of litigation, eight years ago the legislature instituted the Medical Malpractice Screening law. This law increased the cost of litigation greatly by requiring an additional hearing, at which expert testimony has become the norm. As a result, citizens with damages estimated at less than $200,000 to $250,000 are normally unable to secure competent representation, so the injured citizen is either not compensated or succumbs to the settlement offered by the insurance company.

If the injured patient’s total damages are large enough so a law firm will take the case, the injured patient then must endure an average 44 months of litigation waiting for an uncertain outcome and without desperately needed money. If the injured patient wins the lawsuit, almost half of the award is paid to attorneys and expert witnesses. For the medical provider that committed malpractice and must defend the lawsuit, the prolonged attack on the medical provider’s reputation is as bad as the significant legal expenses incurred defending the lawsuit.

We passed the Early Offer law to provide a third alternative to injured patients; an alternative that does not discriminate based on the size or complexity of the claim. Specifically, the Early Offer law provides a voluntary and cost-free option for a quick and fair settlement that does not currently exist. Under the Early Offer law, injured patients can settle their claims quickly for economic damages (past and future lost wages, medical bills, replacement services, etc.) and an additional payment, but will not receive less specific damages such as pain and suffering. Injured patients that choose this alterative and successfully settle their cases under Early Offer, will receive their money in several months, rather than four years of litigation with an uncertain outcome.

Access to the Early Offer program begins when an injured patient ("claimant") voluntarily submits a Notice of Injury via certified mail to the medical provider. The Notice of Injury was designed to be relatively comprehensive to ensure the claimant learned of the Early Offer system or retained an attorney prior to entering the system. The Notice of Injury must include, among other things: (1) all the details of the incident; (2) a severity description, including the claimant’s opinion of the injury ranking in the National Practitioner Data Bank severity scale; (3) medical records and bills associated with the injury; (4) evidence of lost wages or lost income from self-employment; and (5) a demand for economic loss.

If a claimant who submits a Notice of Injury is not represented, the medical provider will provide a neutral legal advisor to the claimant at the medical provider’s expense. The neutral legal advisor will assist the claimant through the Early Offer process and must encourage the claimant to retain an attorney and must explain the differences between the Early Offer system and litigation. Although unrepresented claimants will have put significant time into submitting a Notice of Injury and learning the system, they may still withdraw from the Early Offer system for five business days after the first meeting with the neutral legal advisor.

Claimants who continue in the system may be asked to undergo a medical evaluation, but unlike the Workers’ Compensation system, claimants have an equal say as to which doctor conducts the medical evaluation. Further, the doctor conducting the medical examination cannot be affiliated in any way with the medical provider. If the medical provider and a claimant cannot agree on a doctor, a neutral hearing officer will decide on the doctor.

A medical provider who receives a Notice of Injury has 90 days to extend an offer to the claimant or to decline to participate in the Early Offer program for that claim. If the medical provider makes an offer, the claimant has 60 days to accept or reject the offer. To ensure fairness, if the claimant does not think the offer is large enough, the claimant may request a hearing before a neutral hearing officer, who will determine if the offer is correct or needs adjustment. If the claimant accepts the offer, the Early Offer program has been successful and the medical provider will pay the claimant’s legal expenses, and economic damages payments to the claimant will begin within 15 days. Both parties will have resolved the case in just a few months and both parties may move on with their lives, rather than spending significant time and money over four years of litigation.

If the claimant does not agree with the hearing officer’s decision, the claimant may reject the offer and proceed to court. However, although all the safeguards in the Early Offer system to this point (legal advisor, neutral hearing officer, paid legal expenses) favor the claimant, one check was inserted at this point to protect a medical provider against an unreasonable claimant. Specifically, a claimant who proceeds to court must post a small bond with the court, estimated at $200 to $800, as the claimant will have to pay the medical provider’s reasonable attorney’s fees for the early offer program if the claimant receives a jury award that is significantly less than the early offer that the claimant rejected. For example, if the claimant rejects a $100,000 early offer and proceeds to court, the claimant will need a jury award of at least $150,000 to receive $100,000, due to the 33 1/3 percent contingency fee that will go to the claimant’s attorney. If the jury awards the claimant only 125 percent of the early offer ($125,000), then the claimant will only receive $83,000. In that case, the jury will have confirmed that the claimant unreasonably rejected the early offer, and the claimant will have to pay the medical provider’s legal expenses for the Early Offer program only. In cases where the claimant receives more than $83,000, the claimant’s behavior will not be considered unreasonable and the claimant may keep the entire jury award.

In summary, this first-in-the-nation program is an exciting option for all involved in an unfortunate case of medical malpractice. This totally voluntary program provides a new alternative that allows injured patients and medical providers to eliminate years of litigation and legal expenses, reach closure quickly and move on with their lives. 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.

Representative Robert H. Rowe is Chairman of the NH House Judiciary Committee and is a retired judge. J. Brandon Guida is a member of the NH House Judiciary Committee and practices law in his law office in Chichester.

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