Legislative Policy Issues:
The 2006 legislative session is nearly upon us. Once again the past year was an active one for NHTLA; aggressive efforts were made by insurance companies and others to limit individual rights to redress in the areas of medical malpractice and worker's compensation. Cumulatively, NHTLA, led by its government relations experts, was involved with or tracked 133 pieces of legislation. The following is a recap of the Association’s major activities and we ask you to keep them in mind as we alert you to legislative activities in the coming year.
Bills that grant greater immunity and create “super-defendants” are perennial. Two bills which NHTLA opposed and defeated were HB 164, a bill that would have immunized physicians prescribing chelation drug therapy, and HB 225, a bill introduced to provide immunity to ski jump operators.
The ski industry also introduced HB 619, which expanded ski area operator immunity. NHTLA was successful in preventing sweeping immunity in this area, and this debate was a challenge, but RSA 225-A:1, 2, 23, and 24 has been amended to expand protection for ski areas from liability by adding snowboarding, snow tubing, and snowshoeing to the list of “inherently dangerous activities”. This bill took effect July 1, 2005; there will be additional study and review of the issue this fall.
Another industry which reached for greater protections this year was the homebuilders. HB 469, a bill which adds a new chapter to RSA 359, is designed to regulate procedures for homeowner actions against builders. Originally, the bill extended the process by months, perhaps years, before a homeowner would be able to proceed in court. In addition, the evidence that could be introduced in court would have been greatly restricted. NHTLA was able to protect consumers to the greatest extent possible by working with the Committee and by supporting significant amendments. Please be aware, however, that the process for bringing an action against a builder for negligence has been changed, requiring a homeowner to provide additional notice and an opportunity to repair before taking further legal action. This change will take effect on January 1, 2006.< /br>
NHTLA’s biggest struggle before the House Labor, Industrial and Rehabilitative Services Committee was to protect the Supreme Court decision in Knapp v. Tennessee Gas Pipeline which, by virtue of RSA 281-A:13, IV, allows “[the Superior Court to order] the division of expenses and costs of an action, including attorney’s fees, between the employer or the employer’s insurance carrier and the employee as justice may require.” Acadia Insurance Company led the charge again to reverse this important decision. We are pleased to report NHTLA was successful defeating this measure for a second year in a row.
Other bills that passed included the following.
SB 28 amends RSA 281-A by adding a new section which exempts “proceedings and records of the Department of Labor with respect to worker’s compensation claims under RSA 281-A from the “right to know” statute RSA 91-A.
SB 58 amends RSA 281-A:43 to clarify that a decision of the labor department or appeals board shall take effect and become final, in absence of an appeal, 30 days from the date of the decision and adds “carrier” as someone who can be assessed a penalty for noncompliance; A:42 to allow the commissioner to suspend an appeals board member who fails to render a decision within 30 days as required by statute; A:53 to require electronic filing; amends A:45 to allow Notice of Hearing by regular mail; A:23, V(a) to include “representatives” of an employer or insurer to those who can receive all employee medical records; and A:44, VI to change “employee” to “claimant” with regard to who shall be entitled to reimbursement of fees and costs also adding “The claimant shall be entitled to reasonable fees and costs pending appeal.” SB 58 took effect upon passage, June 7th.
SB 219 amended RSA 281-A:38 to require employees receiving medical benefits (not just weekly benefits) to submit to independent medical examinations if requested by the employer or commissioner of labor. SB 219 also suspends an employee’s right to a hearing until an examination has been submitted if medical bills are in dispute and an examination has been requested. This bill became effective August 6, 2005.
SB 222 added cumulative trauma to RSA 281-A:16 for determining the date of injury for occupational disease. SB 222 establishes that “[f]or an injury caused by cumulative trauma, the date of injury shall be the date of first medical treatment. For an injury or condition aggravated by cumulative trauma, the date of injury shall be the date of first medical treatment for the aggravation.” This bill became effective August 14, 2005.< /br>
Medical malpractice dominated the NHTLA Legislative activities in 2005. As most of you know by now, consumers suffered a serious defeat this session when our Legislature established a medical malpractice screening panel system, similar to the one in Maine.
The panel will include a judge, a lawyer, and a New Hampshire doctor; the process requires that each case be presented as a “mini-trial”. A unanimous panel finding on liability is admissible at a later jury trial.
The House Judiciary Committee worked on numerous medical malpractice screening panel bills and was successful in passing HB 702, which imposed timelines and did not allow the admissibility of the panel decision. Although the Senate Judiciary Committee agreed with these concepts and recommended them in an amendment to SB 214, the insurance and medical lobby defeated the amendment, and the unamended bill (SB 214, establishing the Maine-style screening panel) was passed by the entire House a few weeks later.
This was a hard-fought battle. Many NHTLA members wrote personalized letters to each of our 424 House Representatives. Members participated in phone banks, spending long hours calling long lists of Representatives. Realizing that this is simply one piece of a nationally-orchestrated attack on our civil justice system to limit individual rights and pass elitist legislation, many of the most actively participating members were not even medical malpractice attorneys. It was the most aggressive grassroots effort ever conducted by NHTLA members.
Nonetheless, the House voted to pass the Senate version of SB 214, which Governor Lynch signed into law. Jim Demers, the Association’s legislative representative, reported that our efforts were successful until the final four days before the House vote. At that point, the Medical Society implemented a strategy that included phone calls to members of the House from their personal and family doctors; those calls, which took advantage of the personal relationship many doctors have with Legislators, had a major impact on the vote.
The screening panel process took effect on Monday, August 29. We believe that this legislation has serious constitutional infirmities and we encourage you to call our office if you have occasion to proceed before a panel. Additionally, the House Judiciary Committee retained several bills relating to the screening process for action in 2006 and we will keep you informed of developments.
NHTLA had better success with another significant battle which involved the concept of "I'm sorry" legislation. “I’m sorry” legislation has been introduced across the county in various forms. In New Hampshire, two competing bills were introduced: HB 429, supported by the Medical Society, and HB 584, supported by the NHTLA. HB 429 would have rendered all apologies and admissions of fault inadmissible at trial. After another intense effort, we succeeded in getting HB 584 passed and signed into law instead. HB 584 (RSA 507-E:4) states that expressions of “sympathy, compassion, commiseration, or a general sense of benevolence” relating to an injury are inadmissible as evidence. This law is effective January 1, 2006.
We were also successful in keeping the NH Medical Society from adding broad quality assurance and immunity language to proposed legislation, specifically relative to emergency medical and trauma service protocols and quality management (HB 257).
The Medical Society has already promised to bring more so-called "tort reform" measures this year. We will continue to update you.
At the request of the Attorney General, SB 37 was enacted, making the current law RSA 516:29-b regarding disclosure of expert testimony applicable only to civil cases.
SB 75 relative to civil actions based upon a sexual assault case, amended the current law to extend the statute of limitations if the victim was under the age of 18 when the sexual assault occurred. A victim may commence an action within seven (7) years of the person’s eighteenth birthday or three (3) years of the time of discovery, whichever is later. RSA 508:4-g took effect July 22, 2005.
Summer activities included a hearing conducted on July 18th by the NH Insurance Department to determine if the state is experiencing a "non-competitive" market (aka, a monopoly) in this area and if the lack of competition is a contributing factor causing high medical malpractice premiums. The Department's actuary testified that this is the case and he urged the Commissioner to rule against the insurance companies so further action to control the market can be implemented. The 2005 Legislative session was one of our most difficult years yet. While NHTLA achieved mixed success, our participation in the larger policy debate on many issues made a difference in terms of legislators’ perception of NHTLA members’ honest and professional approach to lobbying. Continuing to grow an effective grassroots lobbying campaign, which proved such an effective tool for our opponents, should be a goal for next year’s legislative session.
Finally, we understand how financially tapped out many of you feel; we appreciate those of you who really stepped up to the plate this session with signed checks, as well as your time and support. Please continue to support NHTLA through your legislative contributions and consider becoming a monthly contributor. In the words of one Legislative Committee member, “You can’t afford not to do it.”