I recently attended the NH House Judiciary Committee’s hearing on SB 214, the bill that would create a screening panel for medical malpractice cases in New Hampshire like the one that currently exists in Maine. I listened to numerous representatives, senators, lobbyists, physicians and insurance industry representatives speak in favor of the bill. But I heard no specific information that persuaded me that the Maine panel system is worth the extra cost and delay it creates.
The Committee asked a lot of good questions. The essence of the questions always seemed to come down to one basic issue: Why is the Maine screening system better than New Hampshire’s current system? None of the supporters of the bill seemed able to provide a clear answer to that question. In fact, they admitted:
- that there was no problem in New Hampshire with run-away-jury verdicts,
- that New Hampshire plaintiff’s lawyers already do an excellent job of screening medical malpractice cases, and
- that the panel system would make cases take longer and cost more for plaintiffs to pursue.
Supporters of SB 214 in essence said that the purpose of the bill
really is to try to slow the increase in medical malpractice insurance
premiums. One committee member recalled previous claims by supporters
that the panel system would reduce such premiums. She asked what
happened to that claim. Supporters of the bill admitted that the panel
system is not aimed at reducing medical malpractice premiums, just
slowing down the increase. In fact, when pressed, supporters of the
bill were unable to demonstrate that the panel system would even do
that. There was little evidence that the panel system would slow the
increase of premiums, except the repeated assertion that Maine’s
premiums were lower, and they increased more slowly. But that fact was
shown to be a result of many factors other than the existence of the
panel system, even by supporters of the bill.
Several people mentioned a problem with doctors practicing what they
called "defensive medicine." Apparently, doctors often order medically
unnecessary tests and evaluations of patients in order to protect
themselves against potential liability. Bill supporters stated that
this defensive medicine was just plain wrong and was caused by the
threat of medical malpractice claims. They also claimed that this
drove the cost of medical care up by huge proportions, but were unable
to site the source of that "fact" when asked by a committee member.
Another committee member rendered the whole issue moot with regard to
SB 214 by stating the obvious; that so long as there is a threat of any
legal claim at all, doctors are going to practice defensive medicine.
As a trial lawyer, I am biased in favor of an individual’s right to
seek redress when that individual has been wronged. It would have been
difficult for supporters of SB 214 to persuade me to support the panel
system. Interestingly, the testimony supporters of the bill actually
made me more convinced that the panel system would just cause
long delays in obtaining justice for people injured by negligent
medical providers and less accessibility to justice because of
increased costs and more bureaucracy.
In fact, it became clear during the course of the hearing that the
true purpose of the panel system was to benefit the insurance industry
and physicians by making the pursuit of meritorious medical malpractice
claims more difficult, time consuming and expensive for people hurt by
negligent medical providers.
Of course, everyone wants New Hampshire to attract good medical
providers and to keep them. And everyone, except maybe insurance
companies, would like to see medical malpractice premiums reduced.
However, what I heard at this hearing made if very clear to me that SB
214 would not accomplish these goals, but would merely further restrict
individual rights and access to justice.
Jim
Dave