Lawmakers face battle over malpractice law

By Nancy West
Sunday, Jan. 11, 2009
New Hampshire Sunday News

Lawmakers working to repeal a 2005 medical malpractice reform law they deem a failure face stiff opposition from the law's supporters, including doctors, hospitals and members of the insurance industry.

Rep.Robert Rowe, R-Amherst, has filed legislation to repeal the law mandating three-member panels screen all medical malpractice lawsuits before they go to trial.

Intended to reduce medical malpractice insurance rates, the law stirs as much passion on both sides today as it did when doctors wearing white coats lined up to testify in support of the legislation.

"(The panels) are an abomination of the system. They are a real drain on resources and don't accomplish much," said Mark Abramson, a Manchester malpractice and personal injury attorney.

Critics say the panels' unanimous decisions favor doctors and hospitals about 75 percent of the time, add a huge expense to the process, and block people with legitimate malpractice injuries from having recourse in the courts.

"All this has accomplished is eliminating the rights of certain people to bring claims. That's not fair in my mind," Abramson said.

Concord attorney Martin Honigberg, who represents the New Hampshire Medical Society, disagreed, insisting it is too early to pass judgment on the law's effectiveness.

"If it works, it reduces the cost of the medical injury compensation system, not because of payment to claimants, but because it reduces payments to experts and lawyers," Honigberg said.

More time is needed to study how the law is working, with the Superior Court system and Insurance Department currently collecting data, Honigberg said. But according to David Withers, an actuary with the state Insurance Department, it will be October 2010 by the time there is enough insurance data to reach any conclusions.

Financial burden

The malpractice review panels comprise a paid retired judge, a volunteer doctor and a volunteer lawyer. Their decisions are non-binding. Hearings have turned into mini-trials that cost plaintiffs as much as $30,000 before trial, according to Abramson.

"What victims of medical malpractice can afford that? Doctors have insurance companies that pay. It doesn't cost them a nickel," Abramson said.

The stakes are high because unanimous panel decisions are presented to juries in lawsuits that do go to trial.

Nina Ray Reed, 64, of Manchester, said she is totally disabled as a result of medical malpractice but has so far been unable to find a lawyer to take her case.

Reed said people like her have been forgotten, but she plans to testify when hearings are held before the Legislature on proposed new legislation.

"What about those of us who are still living, the ones who go on and on with no reprieve from the damage?" Reed said.

A former bar owner, Reed said she was misdiagnosed with a rare type of lymphoma in December of 2003. She said she underwent 36 rounds of skin radiation that left her disabled, with no sweat glands, no salivary glands, eyesight problems, headaches, and dental damage.

When her doctor told her the lymphoma had returned, she said, she got a second opinion from an expert in Boston who told her she'd never had the rare condition. Three lawyers refused to take her malpractice case, she said.

"They all said it wasn't lucrative enough," Reed said.

Defendants fare better

Rep. David Nixon, D-Manchester, is an attorney who has filed bills to make the screening panels voluntary and keep juries from hearing panel decisions. He says the panels slow down the system, add huge costs, and heavily favor doctors.

In a letter to the House Judiciary Committee, Nixon wrote: "It is time for the New Hampshire Legislature to realize that instead of bowing to the threats, influence, and intimidation of the insurance industry and the New Hampshire Medical Society, they should look first to the interest of New Hampshire citizens (including themselves) who may become patients injured by medical errors. At present, they are without effective opportunities to seek reasonable compensation for the wrongs done them."

Since 2005, there have been 218 malpractice claims filed and 44 panel hearings held, according to data compiled by the Superior Court system through Dec. 11, 2008.

The 44 hearings, some with multiple defendants, resulted in 72 unanimous decisions; 54 in favor of the defendant doctor or hospital, and 18 in favor of the plaintiff who filed the malpractice lawsuit.

There were 73 filings resolved prior to going to panel. Of those, 48 were settled, 15 were voluntarily withdrawn, seven were dismissed, and three were resolved for other reasons, according to court statistics.

Asking for patience

Palmer Jones is executive vice president of the New Hampshire Medical Society. Like Honigberg, his organization's attorney, Jones argues in favor of giving the law more time to prove it works. He plans to testify against repeal or limiting the law in any way.

Dr. Oglesby Young, medical society president, said the malpractice review panels are expected to reduce costs and offer a sense of fairness to all parties.

"Most people don't know that 60 percent of malpractice premiums end up in the pocket of lawyers and expert witnesses. Less than 40 percent goes to injured patients," Young said.

Some malpractice rates appear to be going down, he said, but it is too early to say if that is because of the panel process.

For doctors, the emotional turmoil of malpractice lawsuits is even more troublesome than the money, Young said.

"Most malpractice is not about bad care or medical negligence; it's about bad outcomes," he said. "Physicians feel as badly as patients about those bad outcomes."

Judge Robert Lynn, chief justice of the Superior Court system, declined to take a position on the law, but said it is impossible to comply with the requirement that panel hearings be held within six months of a claim's filing.

Lynn said he worries, too, that in a small state where many doctors and lawyers know each other, there are too many conflicts to keep volunteer positions on the panels filled.

No one is keeping track of how much it costs the state to hold the hearings, Lynn said, but those costs could be offset if they are encouraging early settlement of claims.

New information

Rep. Rowe, a retired lawyer, said information lawmakers obtained after the law passed supports arguments for repealing it now.

First, Rowe said, New Hampshire malpractice insurance rates aren't out of line with the rest of the country. Second, he said, most experts acknowledge the state wasn't teeming with frivolous malpractice lawsuits to begin with.

And Maine's 20-year-old medical malpractice review law -- held up during debate over the legislation as an example for New Hampshire to follow -- isn't working as well as lawmakers were led to believe, Rowe said.

In fact, Maine's Supreme Court chief justice panned that state's law in a 2007 opinion.

"The (Maine panel system) has, unfortunately, become a cumbersome process with unpredictable results that costs both plaintiffs and defendants money and time in a way that was not intended by the legislature," Supreme Court Chief Justice Leigh Saufley wrote.

Rowe also said lawmakers were told the panels wouldn't cost anything, but the Legislature has had to approve $20,000 a year to pay retired judges to hear cases.

Repealing is the right thing to do to protect New Hampshire residents, he said.

"This panel has delayed a substantial opportunity for injured citizens to have recourse through the courts, " Rowe said.