New Hampshire Law Blog

Eminent Domain in New Hampshire

The recent United States Supreme Court decision allowing municipalities to take private property for economic development is very controversial.  In response, the New Hampshire Senate is forming a committee to study eminent domain law in New Hampshire and to recommend legislation to rein in the power of town and city government in taking private property.

Some of the most emotional cases that we lawyers work on involve real estate disputes.  Often, these cases are even more volatile than divorce cases or criminal cases.  People in New Hampshire take their land ownership very seriously, and any threat to that ownership can cause apprehension and anger.  The New Hampshire Senate did the right thing in acting quickly to study this issue carefully to better understand any ramifications the Supreme Court's decision may or may not have. 

More workers available for unemployment benefits

Governor Lynch signed a new law which will allow some part-time workers in New Hampshire to obtain unemployment benefits.

Starting in January, some part-time workers will qualify for unemployment benefits under a new law signed Thursday by Gov. John Lynch. ...

Benefits will be extended to parents who can't seek full-time work because they're the only adults available to care for children. They could refuse to work a certain shift, such as overnight.

Source:  The Laconia Citizen

Governor Lynch Signs SB 125

Sticking with his pledge to change SB 110, Governor Lynch signed SB 125.  SB 110 had originally allowed health insurance companies to take into consideration medical conditions and set rates accordingly.  The result was a massive increase in health insurance rates across the state.

SB 125 should change that by limiting what the companies can use in setting rates.

[T]he bill, sponsored by state Sens. Maggie Hassan (D) and Ted Gatsas (R), revises a law (SB 110) enacted last year by eliminating geography and health status as rating factors. The new law includes age as a rating factor, but "restor[es] the age factor to the same ratio it was before SB 110" was enacted. The new law, which takes effect Jan. 1, 2006, also limits premium increases at 20%. In addition, the new law establishes a reinsurance pool for high-risk policies. Lynch said, "For the past two years, New Hampshire's small businesses have struggled under the effects of a law known as SB 110. Although passed with good intentions, this law sent health insurance premiums for our small businesses skyrocketing" (Manning, Foster's Daily Democrat, 7/6)

Read more here at Medical News Today

New Hampshire to Have New Medical Malpractice Case Processing

The New Hampshire House has passed SB 214 which creates an additional process which victims of medical malpractice must go through before having their day in court.  Unless Governor Lynch vetos this legislation, New Hampshire residents with medical malpractice claims will have to submit their claims to screening panels before they can ask for a trial in court.  The new system is almost identical to Maine's current system.

To view the text of this bill, click here.

I opposed SB 214 because I believe that the current system is more efficient, less expensive and requires the use of less court resources.  I also believe that the panel system may very well be determined to be unconstitutional. 

Doctors and Insurance companies supported the bill because the increased delay and expense in pursuing medical malpractice claims will discourage people from bringing them.  They also hope that, since a jury will be permitted to see the panel's determination, the jury will be biased if the panel rules in the doctor's favor.  Understandably, the overarching goal for doctors is to reduce their potential liability for negligence and to reduce their medical malpractice insurance premium rates. 

However, the insurance industry made it very clear during hearings on SB 214 that the panel system will not reduce medical malpractice insurance premiums, but that it is hoped that it will "stabilize" the rate increases.

The New Hampshire Medical Society placed a full page ad in New Hampshire newspapers touting the benefits of SB 214, and stating that trial lawyers were opposing the bill to protect their fees.  Interestingly, the bill does not address attorney's fees.  As for the benefits of SB 214, only time will tell whether the cost to injured patients will be worth it for negligent physicians and their insurers. 

New child bicycle helmet law

The NH Senate passed a bike helmet bill today.  The bill requires children under the age of 16 to wear a bike helmet while riding.  The bill had already passed the House and Governor John Lynch has said he will sign this bill.

Why is this a good idea?  New Hampshire needs this bill.  It is estimated that the cost of a severe brain injury to a child is $4.5 million dollars.

Source:  www.bikebiz.co.uk,  Nahsua Telegraph

Legislature approves new medical malpractice bill

The New Hampshire Legislature has approved a bill that will allow a doctor to apologize to a patient and NOT have that apology held against him or her in court.  This is a good thing.  Currently if a doctor admits a mistake and says "I'm Sorry" that statement can be used in court because it is an admission by a party to the lawsuit (the doctor).  An evidence rule allows statements like this into court.

That rule has kept doctors from apologizing and that is bad.  Doctors should be allowed to apologize without it being held against them.  Many people just want to hear that apology and it helps with the doctor patient relationship.  By passing this law you will likely reduce, by a little, the number of small malpractice lawsuits that are filed by people without lawyers who just want an apology.  It won't have an effect on most malpractice lawsuits, because in most cases the damages are so large that the injured person has to file in order to reconstruct their life in some way.

See article at the Nashua Telegraph
The bill is HB 584.

Ski Area Immunity, HB 619-FN

The New Hampshire Senate Banks and Insurance Committee held a hearing on Tuesday on HB 619-FN.  The bill would add snowboarding and snow-tubing to the list of activities for which ski areas are immune from civil liability when someone is injured.  It would also protect ski areas from all liability for injuries to trespassers, even if the ski area's agents acted willfully or recklessly.   

I attended and testified because I wanted to make sure that the committee knew the difference between these activities and normal skiing on a ski trail.  Most importantly,  tubers have no control over their speed, direction or stopping, and the activity happens on trails contained by walls and a big snow ramp at the end.  Tubers are, therefore, completely dependent on the ski areas to design, construct and maintain those areas in a safe way. 

Snowboard terrain includes ramps, boxes, rails, half-pipes and other attractions which are designed, constructed and maintained by the ski areas.  Again, riders have no control over how well they are designed, built or repaired.  Like tubers, snowboarders are dependent on the ski area for their safety. 

For some reason, the ski industry in New Hampshire did not want the committee to favor an amendment brought by the trial lawyers which stated that the ski areas were responsible for design, construction and maintenance of tubing areas and snowboarding terrain parks.  However, ski industry supporters claimed that they already had such responsibility under the common law, and denied that the bill relieved them of such responsibility.  This made no sense to me, so I pointed that out to the committee.

Simply put, there is no legitimate reason for the ski industry to oppose the language proposed by the trial lawyers.  The trial lawyers' amendment was intended merely to make snowboarding and tubing safer, and to make sure that ski areas took responsibility for design, construction and maintenance of the parts of the areas they solely control.  It provided a clear standard for the ski industry to know its legal responsibilities, and for courts to decide whether cases should go forward.  It also corrected an error in the bill which would have allowed the ski area and its agents to have no civil liability to trespassers, even if the ski area acted intentionally or recklessly to injure them.

The committee appeared concerned about the issues raised by this amendment, and it seemed as though that they would take the issues into consideration when acting on the bill.

More Ski Area liability news

More testimony yesterday in front of a Senate Committee over this bill.  Rob was there and testified.  He'll post more on that soon.

Here's my big objection to this bill.  This quote from the Union Leader article sums it up.

Sen. Joseph Foster, D-Nashua, questioned whether those in snowtubes can control the speed or direction of their ride. He worried about removing liability risks from ski areas. While most are diligent in maintaining safe operations, he said, the bill would protect those that are not.

By giving them immunity, he said, "I'm taking out the incentive that people have to making it safe. You have a duty now. In this bill, we're taking it away." (Emphasis added by me)

Ski injury rates in New Hampshire have remained constant over the years.  All this bill will do is keep ski operators from getting sued when they are negligent.  It is a gift to the ski industry.

NH Senate Bill 214 (SB 214) and Tort Reform

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.

New Hampshire Medical Malpractice "Tort Reform"

An article by the Nashua Telegraph on the NH Senate Judiciary Committee's hearing on their proposed medical malpractice bill that would drastically limit the people's ability to obtain medical negligence justice in New Hampshire.

Article:  Nashua Telegraph: House eyes bill to screen, trim medical malpractice suits

NH Senate passes Medical Malpractice bill

I mentioned a couple of days ago that the NH House passed a bill created a review system for Medical negligence cases that were filed in NH.  I also mentioned that the Senate was considering a bill as well.  The Senate has passed a bill that is essentially what came out of committee and calls for a review panel.  This is the key difference between the two bills.  The House version calls for a judge to review any NH medical malpractice lawsuit that is filed to determine if it has merit.

The Senate version has the panel review it.  The panel is made up of a judge, lawyer and doctor.  This system mirrors Maine's system, which many people think is unfair to people with malpractice claims because it forces them to present the malpractice claim twice.  Once to the panel and once to the court (jury).

Sources:  The Nashua Telegraph

              Portsmouth Herald

NH Senate Medical Malpractice bill

A couple of days ago I wrote briefly about the House Bill that was to set up a review system for medical malpractice lawsuits in New Hampshire.  See my post here.

Yesterday the New Hampshire Senate Judiciary Committee passed a different version of this bill.  The Senate's version would require that all New Hampshire Medical Negligence cases appear before a panel with three members, A judge, a lawyer and a doctor.  If the panel found unanimously that the malpractice case had no merit then that finding would be admissible in court.  This is Senate Bill 214.  Why not allow a unanimous finding of malpractice to be admissible as well?

The committee eliminated the requirement of a "mini-trial"  I think that is a good move for all involved.  Trying a case twice (Once to the panel and then once to the jury) just makes this more expensive for all.

Source:  The Union Leader

House is on a roll here (Ski Liability)

The House also voted to send a bill to the Senate that will expand the immunity for ski areas for injuries that occur that relate to Snow tubing, Snowboarding and activities in terrain parks.

The bill previously really only dealt with skiing injuries.  This has not become law yet  it still must pass through the Senate.

This strikes me as a bit of a gift to the ski industry.  There is not a glut of lawsuits facing them involving these activities.    It is not like asbestos or other massive tort claims where entire industries are facing bankruptcy.  This is a position that will enable the ski industry to avoid responsibility for mistakes they make.  So much for personal responsibility.  I guess that only applies to individuals and corporations get a pass.

Medical Malpractice Bill Passes the house

The New Hampshire House passed a bill yesterday that established a review process for medical malpractice cases in New Hampshire.  Once a case is filed in court then a judge must review the case and determine if it is frivolous or not.  If the cases is justified then the bill requires that the parties sit down and attempt mediation within 45 days.

Source:  The Union Leader

                Nashua Telegraph

This is a compromise measure (to some degree)  In neighboring Maine there is a review panel that has to look at every medical malpractice case that is filed.  That system requires that a panel of three people review the case.  This system has been criticized by some as requiring that the case be tried twice.  Once to the panel and once to the court.  At least this system in NH as proposed by the House has a review by a judge, which should not overly burden either party.  The senate is reviewing a bill that is more similar to the Maine system.

The requirement of a mediation within 45 days may not be workable.  Often cases are not fully developed and understood for several months.  My point.  The defense and the plaintiffs in these medical malpractice claims may not know enough to be able to intelligently settle.

Overall my response is that this is a decent compromise.  Why?  It is trying to address the purported problem of "frivolous lawsuits" by having the med mal lawsuits looked at before they get too far into the court system.   A measure that caps damages does not address this problem.  It only serves to harm the people who actually have malpractice cases.