Look northeast, docs: Late last month, over a veto from Democratic Gov. John Lynch, New Hampshire lawmakers enacted an “early offer” system for medical-malpractice claims that could become a national model — much to the chagrin of trial lawyers everywhere.
Based loosely on the idea of freedom of contract, and adding a dollop of the “loser-pays” legal fee principle long practiced in other nations, the reform promises to put a big dent in the costs of the Granite State’s malpractice system — while leaving genuine victims more satisfied.
Nothing like it has been tried anywhere — but if it works, imitators are sure to follow.
Floating around academic circles for years, early-offer tort reforms have been championed by U. of Virginia law professor Jeffrey O’Connell and others, including New York’s own Lester Brickman of Cardozo Law School. They’re based on the insight that many patients who sue would be happy if someone would just pick up the out-of-pocket costs an injury has dealt them, from lost income to the bill for rehab nursing. Oh, and pick them up quickly.
Much of the lottery angle in litigation comes from guesswork over intangibles like pain and suffering — which lawyers prize because they can provide a hammer for settlement as well as a margin to cover hefty attorneys’ fees.
Yet plaintiffs suffer badly from delay: The average New Hampshire claimant waits more than 3 1/2 years to get paid, and that’s fast compared with many states. Defendants beat many claims at trial, even strong ones. Overhead — lawyers, pricey expert witnesses, appeals — costs a fortune. Most plaintiffs, reformers believe, would be better off if they could resolve their claims quickly for a fast, formula-like payout.
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