Legislative Update 2002-2003
The NHTLA Legislative Committee reviewed over a hundred bills last fall. As most of you know, SB 119 which would limit recovery in certain types of medical malpractice cases, was one of the most contentious bills this past session. However, attempts to limit liability and access to the courts surfaced everywhere. NHTLA opposes all legislation of this type as a matter of policy.
Defeated legislation included mandating that the losing party pay the prevailing party’s attorneys’ fees and court costs in tort actions (loser pays all); limiting landowner’s liability for personal injury or property damage on sidewalks; limiting the liability of vendors and property owners during the operation of farmers’ markets; and limiting municipal liability for hazardous waste, to name only some.
SB 135 was intended to relieve hotelkeepers and innkeepers of all liability when furnishing the name of a person to a guest for personal child care services. NHTLA was able to amend the bill so that a hotel/innkeepers will have limited liability only if they 1) had no adverse information relating to the person; 2) if they provide written notice to the guest that they have not evaluated the person and 3) so long as they receive no compensation from the guest for the service. SB 135 amends RSA 353:2 and will take effect January 1, 2004 (Chapter Law 162).
In most of the country, however, rising medical malpractice liability premiums created the real hotbed of legislative activity and New Hampshire was no different. NHTLA became actively involved in almost a dozen critical, time-consuming medical malpractice bills.
SB 119 relative to medical and hospital liability insurance (the so called “loss of opportunity” bill) was signed by the governor and became law on June 30, 2003 (Chapter Law 208). This bill, as originally drafted, was the source of great distress to many legislators, victims of medical malpractice, and the membership of NHTLA, as the original intent was to completely overrule Lord v. Lovett and reach even beyond that. Through a long and arduous process of negotiations and education, SB 119 was amended so that the bill currently amends RSA 507-E:2 by inserting a new paragraph (paragraph III) which reads: “The requirements of this section are not satisfied by evidence of loss of opportunity for a substantially better outcome. However, this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition.” The new law will apply to all actions for medical injury arising on or after June 30th, 2003. Many, many thanks to so many of you who wrote to your legislators and became so actively involved in this issue.
Other medical malpractice legislation and the issue of costly premiums gave rise to HB 287 which creates a commission to study professional malpractice claims under RSA 519-A; SB 220 which repeals the professional malpractice claims panel under RSA 519; and also HB 293 which sought to establish a commission to identify medical errors and their causes but which unfortunately, will not become law this year.
HB 296 relative to settlement agreements in medical malpractice suits was signed by the governor on June 30th as well (Chapter Law 195). This bill amends RSA 507-E:3 and states, “Any portion of a settlement agreement in an action for medical injury which as the purpose or effect of prohibiting disclosure of relevant information to the appropriate state medical licensing board is void, contrary to public policy, and shall not be enforced.” NHTLA supported this change in the law and is pleased to announce that it will become effective on January 1, 2004.
As always, Ed Stewart and his trustworthy back-up Nick Brown, both of Hall, Stewart, Murphy, Brown & Hutchins are due great thanks for their tireless efforts on the prolific Workers’ Compensation legislation that shows up every year.
Of note is SB 82 which shall become law August 5, 2003 (Chapter 99). SB 82 amends RSA 281-A:42, V to clarify that an insurance carrier shall pay interest on late payments to employees at the same rate as for judgments under RSA 336:1, II. It also amends RSA 281-A:44 to clarify this point, the standard for an award of attorney’s fees and the date from which interest shall be calculated.
SB 174 amends RSA 281-A:32,XI to clarify that disability rates, as they apply to permanent impairment awards, shall be determined by the average weekly wage earned by the employee at the time of injury. We expect this to pass in the near future and it shall take effect 60 days after its passage.
SB 53 amends RSA 281-A to establish an advisory board to the labor commissioner relative to the nomination and evaluation of candidates for the compensation appeals board, established in RSA 281-A:42-a. NHTLA will appoint an attorney representing plaintiffs. Four other members will be appointed to the board, one from organized labor by the commissioner, one by the BIA and the Chamber of Commerce, an attorney by the NHBA representing defendants, and one by the NH Adjusters Association. It will become effective January 1, 2004.
NHTLA makes it a policy to monitor all insurance bills and we get involved when appropriate. This year, most notable was the participation of our membership at the Insurance Commission with regard to the issue of MedPay and whether it should be included in a coordinated benefits plan and considered primary. We were well-represented at the insurance department hearing last fall.