by Nicole D. Spaur, Esq.
Across the nation, medical liability reform is the source of intense
debate. In New Hampshire, it is no different. In response to
concerns over the rising costs of health care liability and access to medical
and hospital care, several legislators have introduced bills relating to medical
malpractice insurance and medical injury lawsuits.
Some legislators have sought to address these issues by establishing
screening panels to review medical malpractice claims. House Bill 473
would allow any party to a medical injury claim to request a 3-member screening
panel to review the claim. If the panel finds that the evidence is not
legally sufficient for the plaintiff to prevail and the plaintiff nonetheless
chooses to pursue a lawsuit against the defendant, this bill, if enacted, would
require the plaintiff to post a $10,000 bond to cover certain potential expenses
of the defendant, including witness, expert, and attorney fees, in the event the
plaintiff does not prevail.
Similarly, House Bill 702-FN also seeks to create a panel to review medical
malpractice claims. Unlike House Bill 473, this bill requires every
medical injury claim against a health care provider to be heard by a 3-member
tribunal. If the tribunal finds in favor of the defendant and the
plaintiff chooses to pursue the lawsuit, the plaintiff must file a bond in the
amount of $6,000 or more if the judge sitting on the tribunal deems an increase
in the amount of the bond to be appropriate.
Senate Bill 214, however, takes an even more comprehensive approach.
Not only does Senate Bill 214 create a pretrial screening panel process for
medical injury claims that must be utilized except when all parties agree to
bypass the pretrial screening and resolve the claim by a trial, but this bill
also seeks to (1) establish a committee to study medical malpractice insurance
rates and the effectiveness of the mandatory panel process; (2) require the
administrative office of the courts to collect data on medical injury claims and
submit a report on the screening panel process to the committee; and (3) require
the insurance commissioner to report to the committee on the medical malpractice
market and the effects of the screening panel process.
Rather than implement screening panels to preclude frivolous medical injury
lawsuits, House Bill 648-FN seeks to require the plaintiff’s attorney in a
personal injury or wrongful death case arising out of medical negligence to make
a reasonable investigation prior to filing suit. The plaintiff’s attorney
must then certify in the initial pleading that the investigation produced
grounds for a good faith belief that the defendant was negligent in the care or
treatment of the plaintiff. This bill further requires the parties to
these medical negligence lawsuits to submit to mediation within 120 days after
the suit is filed unless the parties mutually agree to extend the time
period.
Another approach to medical liability reform is legislation that places a cap
on the non-economic damages that plaintiffs can recover in medical injury
actions. House Bill 496, if enacted, would limit the amount of
non-economic damages a plaintiff could recover for pain, suffering,
inconvenience, physical impairment, disfigurement, or other nonpecuniary damage
to $250,000.
In addition to the above, there are various other bills this year that relate
to medical malpractice liability. For instance, House Bill 423 precludes
insurers from basing medical malpractice premium rates for medical malpractice
liability insurance on national statistics and mandates premiums rates be based
on New Hampshire statistics. House Bill 463 makes certain statements,
affirmations, gestures, or conduct expressing apology, fault, sympathy or the
like by a medical care provider during an arbitration proceeding in a medical
injury action inadmissible as evidence of an admission of liability or as
evidence of an admission against interest. Senate Bill 196 seeks to
establish a joint legislative committee, consisting of the Senate Banks and
Insurance Committee and the House Commerce Committee, to study medical
malpractice insurance rates in New Hampshire, and Senate Bill 57 seeks to
establish a commission to study ways to alleviate medical malpractice premiums
for high-risk specialties, such as neurosurgeons and obstetricians, without
examining the civil justice system as it relates to medical malpractice
claims.
