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Dr. Kevin Pho
Sunday, April 8, 2012

NH patients deserve ‘early offer’ in malpractice cases

Guest Commentary

Medical malpractice historically has been a contentious issue. Doctors have argued that the system is broken, promotes multimillion dollar awards disproportionate to the injuries suffered, and encourages the ordering of unnecessary tests to avoid being sued, a practice known as defensive medicine.

Trial attorneys, on the other hand, have claimed that suing doctors is the only way for injured patients to receive compensation and have dismissed the idea that medical malpractice has contributed much to medical spending.

Lost in this debate are the patients.

If you were a patient harmed by a medical mistake, the current malpractice system did not serve you well. According to a New England Journal of Medicine study, nearly one in six cases that involved legitimate medical error received no payment. And for those that did, 54 cents out of every dollar went to pay administrative and attorney fees.

Worse, patients had to wait a long time before receiving any compensation, prolonging the stress and emotional trauma typically associated with a malpractice suit. In New Hampshire, the average case took almost four years to resolve.

The adversarial nature of a malpractice lawsuit also does little to improve patient safety. Ideally, doctors and hospitals should openly discuss and learn from these mistakes so they won’t be repeated.

But the current system revolves around an intimidating legal environment that promotes a culture of fear and secrecy. Many malpractice insurers, for instance, tell doctors not to talk to injured patients.

On March 28, the New Hampshire Senate passed SB 406, which would establish an “early offer” program that expediently compensates injured patients. The bill’s status is now pending in the House.

Under SB 406, instead of having to wait years without guarantee of any payment, patients could choose to enter a settlement with their medical provider. Medical costs and lost wages would be covered, along with damages for pain and suffering, ranging from $1,700 for minor injuries to $117,000 for grave harm.

If there is agreement among the parties, payment is made and the process is over within months, sparing patients from the uncertainty and stress of malpractice ordeals that formally could take years to resolve.

It should be emphasized that participation in this program would be purely voluntary. The option to pursue a malpractice case through a traditional lawsuit would still remain.

Consider the voice of Nan Stearns, of Amherst, an elderly patient who had to have her hip replaced in 1995 because of a medical mistake. Her malpractice case lasted six years before a settlement was reached. 

“If a program like early offer had been available to me back then, I would have used it without question,” Stearns said while testifying at the Legislature in favor of the bill. “It would have sped up the process, given me resolution, and most importantly, would have enabled my husband and me to move on with our lives.”

A quick and more predictable resolution to malpractice cases also helps doctors move and find resolution. Studies show that physicians who are sued not only suffer from depression, burnout and suicide, they also tend to make more medical mistakes in the future.

That affects their patient population, since most doctors that endure a lawsuit will continue to practice medicine. Making the malpractice experience less acrimonious, perhaps, can also be a step toward a more open process that can improve patient safety. 

SB 406 has the support of the New Hampshire Hospital Association, New Hampshire Medical Society, New Hampshire Dental Association and the Business and Industry Association.

All patients should support granting those injured by medical mistakes the option to pursue fair compensation in a matter of months, while preserving their right to go to court as well.

Kevin Pho is a primary care physician in Nashua. He is the founder and editor of KevinMD.com.