New Hampshire enacted an anti-patient medical malpractice bill today, so horrendous that to pass it, lawmakers had to defy the following: the Governor (whose veto was overridden today; the Union-Leader, the state’s powerful, conservative newspaper; attorneys, patients and law professors; and, if you can believe this, medical malpractice insurers. Who's even ever heard of a coalition like this? With such a wide variety of opponents, can you possibly imagine how bad this bill is? Here’s how bad.
According to New Hampshire’s new law, a patient injured by medical malpractice, or their family, would be offered extremely limited compensation by the medical provider that caused the injuries or death. For many patients, this offer would come before the patient has any idea what their injuries are or their cause. Yet to agree to this “early offer,” the patient would be required to immediately sign away their legal rights. Once they’ve signed away their rights, the injured patients’ ability to collect what amounts to severely-capped compensation would be infected by conflicts of interest at every single step, beginning with allowing the medical provider to choose its own doctor to decide a patient’s damages.
And because the medical provider has so much discretion and cost-cutting motivation to reject portions of a patient’s claim, the patient may have no option but to reject the hospital’s “early offer” for compensation and go to court - but that’s in the unlikely event they can afford the bond they would have to put up. If they can manage that and lose, or even win with a verdict less than 125 percent of the offer, the patient will subject to the British rule (which, as we’ve noted before, our founding fathers had no interest in bringing to this country), which requires the injured patient to pay the hourly lawyers fees of the medical provider. Imagine the impact of such a provision on those who suffer brain injury, amputation, paralysis, quadriplegia, cancer and other devastating injuries. Imagine the impact on the families of injured children.
While its proponents argue that participation in this experiment is voluntary, the actual “consent” process violates even the most basic precepts of what constitutes a voluntary program. Patients who “opt in” to this program must sign a waiver of their rights, written in legalese and understandable only to lawyers, before the patient even knows what compensation and courtroom rights they are relinquishing. It is so dismissive of constitutional rights and potentially calamitous for injured patients that no other state in the country has considered it. It is highly unethical. It violates the legal rights of patients. It flouts basic notions of fairness. It would tilt the legal playing field so dramatically in favor of insurers as to essentially eviscerate patients’ rights to adequate compensation.
The bill tilts the playing field heavily in favor of hospitals and physicians. Patients who opt for the early offer and get lowballed by a medical provider could reject the offer and sue. But if they do, they would be required to post a bond sufficient to cover the provider’s expected legal fees. Who has that kind of money lying around? If a patient goes to court and loses — or wins, but the jury awards less than 125 percent of the early offer — the patient would have to pay the provider’s legal fees. There is no provision requiring providers to pay the legal fees of a patient who prevails in court.
The bill sets absurdly low caps on penalty payments for medical providers. For “a permanent injury involving grave harm, or an injury resulting in death,” the penalty is $140,000 on top of economic damages.
Hey, it’s not our place to criticize the way this state functions, but we would like to note that perhaps part of the problem may be that the House of Representatives of this small state has 400 members, which makes NH’s legislature “the largest state legislature in the United States and the fourth-largest English-speaking legislative body in the world, behind the Parliament of the United Kingdom, the Parliament of India, and the United States Congress.” Wow, seems like anyone can be elected there. Time for some new candidates? Can’t be that hard. Just sayin’.