New Hampshire Law Blog

Consumer Protection Act Protects Individuals and Small Businesses

In New Hampshire, individuals and small businesses are fortunate to have an important law protecting them from unfair and deceptive trade practices by unscrupulous people and businesses.  The NH Consumer Protection Act prohibits unfair and deceptive actions and provides consumers with remedies which are more substantial than might otherwise be available. 

For example, RSA 358-A:10 allows consumers the right to seek damages awards for each violation of the law, and to have their attorney's fees paid by the other party if they prevail.  If the other party is determined by a court to have violated the law wilfully or knowingly, then the court must award "as much as 3 times, but not less than 2 times" the damages.

Because this law tends to balance the playing field between corporations and individuals, many larger business entities and powerful individuals do not like the law, and they have sought to weaken or eliminate the law through the legislature on several occasions.  This is because the law makes it easier for individuals to find an attorney willling to take on their cases, and makes it less risky to bring a case because they may recover attorney's fees from the other party if they prevail.

Larger corporations know that the Consumer Protection Act gives individuals and small businesses more power.  Therefore, it is likely they will continue to attempt to chip away at this law.  Individuals and small businesses in NH would be wise to stay informed of such legislative initiatives and oppose them.

Trail Groomers Seek Immunity For Their Negligence

HB 1402, being introduced during the 2006 New Hampshire legislative session, is intended to relieve trail groomers from any duty to use reasonable care when constructing, maintaining or improving any trails for public use.   (Click here to view HB 1402.) (Click here to view the law it will change.)

If the bill is enacted, it will expand immunity from liability far beyond the current law which protects landowers, lessees and occupants from liability when they allow others to use their premises for free.  If the occupant charges a fee for use of the premises, they do not get the immunity. 

Under the new law, trail groomers will be not be required to give anything in return for their immunity, and they will not be accountable for any negligence on their part that results in injuries to people using the trails.  This will be true whether they are grooming trails voluntarily, or making money.  This new law is being proposed due to a case against a trail groomer brought by the estate of a deceased snowmobiler who crashed into a grooming machine.  (Click here to read that case.)

If you're a snowmobiler, and you cross a faulty bridge, or are hurt by a poorly placed wire you don't see, you will have no legal recourse, and you will be responsible for your own medical bills, lost wages and all other losses.  The person who negligently built the bridge or placed the wire in your path will not be accountable.   

Trial Lawyers Give Thousands to Medicaid

Medicaid is a state program which pays medical bills and related expenses for certain qualified, low-income families.  When a person is injured in an accident in New Hampshire, and is represented by an attorney, that attorney is required by law to reimburse the State of New Hampshire for the amount Medicaid paid on behalf of any client who received the benefit of those payments. 

New Hampshire lawyers who represent people receiving Medicaid benefits have paid hundreds of thousands of dollars to the State of New Hampshire, and continue to do so every year.  If these cases did not proceed or successfully get resolved, the State of New Hampshire would never get that money back. 

New Hampshire law specifically prohibits lawyers from receiving any kind of fee from the amount that must be paid to the State of New Hampshire for Medicaid reimbursement.  New Hampshire lawyers, therefore, regularly pay large sums of money to the State of New Hampshire at no charge to taxpayers. 

State looks at Medical Malpractice Insurance Rates

The State Department of Insurance had a public hearing to help determine if the medical malpractice insurance environment in the state was competitive.  It seems that a few people agree that it is not.  If the state rules that it is not competitive , then the Department of Insurance will review rates before they are set.

The top four firms share 68 percent of the market, and the top eight share 82 percent...

The hearing could be a preliminary step to Insurance Commissioner Roger Sevigny's determining that the market is uncompetitive, under RSA 412:13, which would allow him to review rates before they are put in place and disapprove rates he finds unreasonable.

The New Hampshire Medical Society Agrees that rates are not competitive.

New Hampshire Medical Society Executive Director Palmer Jones testified that his organization agrees the market in New Hampshire is non-competitive. "There are only a few major companies that are providing insurance at this time," he said. "Options are limited."

Source:  The Union Leader;  The Nashua 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

NPR Report on Medical Malpractice Panels

NPR had a report on Medical Malpractice panels.  The report focuses more on why the medical community thinks that these are a good idea and focuses on the NH Senate Version of the plan.  It raises a good point when it asks why a panel is needed at all if the doctors are right and there is no frivolous lawsuit problem in NH.

The panel is just a way to increase the cost to medical malpractice claims in New Hampshire.  This will make them more expensive and more difficult to pursue and that is what malpractice insurance companies want.  Make it more difficult so that there are fewer claims that have to be paid.

Link to NPR Article and Audio report