OP/ED: Give Patients an Alternative to Lengthy Lawsuits

By Jim Roche

This session, the New Hampshire Legislature has a real opportunity to do something about the rising cost of health care – the number one concern of businesses large and small.

SB 406 would give patients what is called an “early offer” option for resolving medical injury claims, an alternative to protracted and costly lawsuits. Patients could choose an early offer as an alternative to the current legal system. Similar to workers’ compensation, they would receive compensation for lost wages (economic losses) and medical bills. They would not receive compensation for non-economic losses, what is often termed “pain and suffering.” Instead, they would receive an additional payment based on the severity of the injury to accompany the payment for economic loss. In addition, they would receive 100 percent compensation – separate from their medical injury settlement – to cover attorneys fees.

So who wins under an early offer option? Everyone!

• For some patients, an early offer alternative would be preferable to a lengthy lawsuit. Many patients would welcome a speedier resolution – possibly in just a few months – over the current average of nearly four years to settle a medical malpractice suit at trial. They would receive immediate payment for medical bills and lost wages and could get on with their lives.

The most important point to remember about this bill is that it is voluntary, unlike the workers’ compensation system, which is mandatory. Patients may choose the early offer option or the current legal system to resolve their disputes.

Opponents have attacked this bill for reasons that have nothing to do with helping patients or providers. For some patients, the early offer option would not be appropriate and they should pursue their claim through the current legal system. For other patients, early offer may be entirely appropriate and preferable because it is more important to them to receive compensation for medical bills and economic losses immediately and without the hassle and emotional exhaustion of lengthy depositions, hearings and testimony. What this bill would do is give patients that choice. And the benefits to everyone involved and the healthcare system as a whole could be great.

This bill does not prey on those who need money, are naïve or lack legal counsel, as opponents suggest. Patients know before entering the early offer process what they are entitled to receive. They know their medical bills and they know their lost earnings. They also know the additional payment to which they are entitled based on the severity index included in the bill. Providers would be mandated by statute to offer fair compensation based on these figures. And there are procedures in place – a dispute resolution process – to address so-called “lowball” offers from providers.

Healthcare providers also have a choice and may decide not to extend an early offer. If they feel the case is without merit, they may advise the patient to pursue the traditional legal system. If the latter happens, there is no higher burden of proof to win a case, as opponents have inappropriately argued. The higher burden of proof only applies if patients enter the early offer system, receive an offer from a provider and then decide to reject the offer in favor of a traditional malpractice trial, in effect “gaming” the system.

The worst that could happen in passing this bill is that no one will use the early offer system. Then we’ve lost nothing because medical malpractice cases will continue to proceed as they do now. However, this bill has the potential to improve significantly how certain cases are currently resolved and help all those involved – businesses paying for health insurance, attorneys, healthcare providers and – most of all – patients.

Jim Roche is president of the Business and Industry Association, New Hampshire’s statewide chamber of commerce.