Legal Labyrinth




It's not easy to get compensated for medical malpractice.There he is again: you're watching daytime TV and on comes that lawyer - or that "paid non-attorney spokesperson" - and he seems to be talking directly to you. You've had a bad medical outcome, haven't you? It must be somebody's fault. Maybe that lawyer can get you some money.After all, New Hampshire law entitles you to compensation for life-care expenses, loss of potential earnings, pain and suffering and even enhanced compensatory damages in cases of egregious conduct by a doctor. And just one phone call puts you on your way to collecting, right?Well, maybe not so much in this state. "To bring a claim in New Hampshire, you have to be able to prove three things," explains attorney Holly Haines of Abramson, Brown and Dugan in Manchester, which bills itself as "New Hampshire's premier medical malpractice law firm." It's even the firm that TV lawyer James Sokolov refers New Hampshire callers to when they respond to his commercials.Haines says, "You must prove that the patient received care below accepted standards, meaning either that the provider did something wrong or failed to do something he or she should have done; you must prove that the patient was harmed by the care received; and you must prove that the harm would not have occurred with the appropriate care."Granite state law also requires that your claims of medical errors must be supplemented by medical experts. That typically means going out of state to one of the major academic medical centers - think Harvard, Yale or Brown - to find doctors who will testify against a fellow physician.The requirement for expert testimony - which doesn't come for free - is one way that the New Hampshire malpractice system encourages plaintiffs to have a strong case before they file a suit. Another is the fact that even the most solid case is likely to be tried at least twice: the first "trial" takes place before a "screening panel" made up of a retired judge, a doctor and a lawyer. Only after that step is complete can a case proceed to court."On average, it takes one and a half years after a suit is filed just to get to the screening panel hearing, and they cost tens of thousands of dollars," says attorney Kevin Dugan, also of Abramson, Brown and Dugan, and the go-to guy for most of New Hampshire's other lawyers whom you ask about malpractice law. Rather than accelerating the process through a preliminary hearing based on written reports and less-formal procedures, these screening panels have turned out to be full-blown trials in miniature, even requiring live witnesses - including those expensive out-of-state medical experts.With all civil torts, Superior Court rules also require an attempt at alternative dispute resolution (ADR) - usually, out-of-court mediation - prior to trial. That's also supposed to bring a faster, cheaper resolution to disputes, and once cases reach that stage, the process generally works. "The majority of cases are resolved at mediation," Haines says, through a settlement worked out with the help of a well-versed private arbiter.You might think that the success of the ADR process would make it the logical starting point for all malpractice cases, and plaintiff's lawyers mostly agree - so naturally, the other side doesn't. "Mediation used to come before we went to the screening panel, usually after depositions were taken," Haines says. "Now most physicians and insurance companies will not agree to engage in mediation until they hear what the screening panel has to say about the merits of the case."So that means, before you get to the point where most cases get settled, you've probably racked up thousands of dollars in expenses, and at least 18 months of your life, all while you're presumably still recovering from, or coping with, the effects of a life-changing injury. "The screening panel has made the process longer and more expensive, and that's totally at odds with the intent of the law," says Dugan.The idea has gone so far off the rails, you can be sure that the New Hampshire Legislature is all over fixing it, right?"Every year since the screening panels were adopted, somebody has put in a bill to eliminate them," Dugan says. This year's effort, which required the screening process to be completed within six months rather than three times that, roared through the House Judiciary Committee and came out with a vote of 16-1 in favor of passing it."Then the House leadership put out the word, and the bill was retained by the committee for further study," says Dugan. That move effectively killed the reform. As of March, he says, the only bill still pending was one that extended the deadline for assessing whether the screenings held any value for plaintiffs or defendants by another five years. The question has already been under study since 2005 but the bill's sponsor says that there's not enough evidence to answer the question yet.The Legislature is also declining to do much for access to the courts. This year's body seems quite content to extend the judicial budget reductions of the past few years, meaning furlough days and fewer jury trials."Things are getting to a point where people with problems can't get their cases heard," Dugan says. "Article 14 of the New Hampshire Constitution requires 'free, complete and prompt' access to the courts, but by all accounts that's not happening now."All of these factors - the great expense, the long delays and the high hurdles of proof - contribute to two important facts, say the lawyers. First, that there is no crisis of frivolous malpractice lawsuits in New Hampshire."A lot of the problems we hear about nationally have been shown not to exist in New Hampshire," Dugan says. "I've advocated that the Legislature look at insurance reform rather than limiting lawsuits, but that has never been done. The Legislature should also be trying to get at the root of malpractice in the first place, because malpractice costs are high because malpractice is common, but zero legislative effort has gone into that."And second, they say - and this may contribute to the first - it's really, really hard to get a lawyer to take a weak case. Most lawyers handle these suits on a contingency basis, where their compensation is a percentage of the settlement, so they're not likely to take on a case that doesn't offer a strong likelihood of success. The alternative is for plaintiffs to pay out of pocket, but most can't afford to do so.Less obvious, but just as true, is the fact that the system also works against people who truly were injured by medical malpractice, but not quite enough to win an award that's bigger than the cost to get it. "Many people have valid cases but you can't afford to bring actions on their behalf due to the costs of bringing these claims," Haines says. "If they were victims of medical malpractice and we have to tell them that it's cost prohibitive to proceed, we encourage them to contact their legislators or the governor about pending or existing legislation." NH

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