New Hampshire Legislature Overrides Governor’s Medical Malpractice Reform Veto

Published July 24, 2012

New Hampshire’s House and Senate voted to overturn a veto from Democratic Gov. John Lynch of Senate Bill 406, a medical malpractice reform law.

The bill—one of six of the Democrat governor’s vetoes overridden by the Republican-controlled legislature on June 27—will supplement the existing tort process in New Hampshire with an “early offer” option.

Once implemented, the early offer process will allow plaintiffs in medical malpractice cases to request a settlement from their medical provider. If the provider responds with an offer before a 90 day deadline, the claimant has two options: accept and waive the right to further litigation, or refuse. If the offer is refused and the plaintiff then chooses to file a traditional tort claim, the plaintiff must post a bond for the defendant’s legal fees, for which the plaintiff is liable if the final award is not at least 125 percent of the early offer amount.

John McClaughry, vice president of the Ethan Allen Institute, said the approach could bear fruit.

“The unique New Hampshire tort reform bill is certainly worth a try. The ‘exit ramp’ approach to a medical malpractice tort case promises a rational settlement without the misery and expense of prolonged and uncertain litigation, and makes the claimant think rationally instead of entertaining expansive dreams of untold wealth,” McClaughry said.

Trial Lawyers Opposed Reform

The New Hampshire Association for Justice, a professional association of trial lawyers, campaigned to block Senate Bill 406. According to McClaughry, the trial lawyers lose out under reforms like this.

“Claimant’s lawyers typically command one third of any award as contingency fees. An early offer settlement should dramatically reduce the cost of representation for claimants,” McClaughry said. “One can even imagine claimants, guided by a ‘how to’ booklet, representing themselves at the request stage, eliminating legal costs altogether.”

Associate professor Christopher Robinette of the Widener University School of Law wrote on his TortsProf website that early offers can be an important reform.

“Some claimants have the resources to wait out a five-year malpractice struggle,” Robinette wrote. “But all do not, and early offers gives them a possible way around them, while providing for basic economic loss much more swiftly.”

Other States May Emulate

Kevin Holtsberry, president of The Buckeye Institute for Public Policy Solutions in Columbus, Ohio, says the New Hampshire bill’s combination of “early offer” and “loser pays” concepts is a good idea for other states to consider.

“Excessive litigation is driving up health care costs and leads to defensive medicine, so exploring continued tort reform is important and necessary,” Holtsberry said. “If Ohio can use this model to give citizens an expedited option to recover damages and avoid the drawn-out and expensive process of malpractice litigation, that would be a positive step forward.”

McClaughry agrees.

“Other states certainly ought to consider this type of approach, and probably will as New Hampshire experience accumulates,” McClaughry said.


Jason Hart ([email protected]) writes for Media Trackers Ohio.