Legislative Policy Issues:
2002-2003 Session

The recent Legislative season was a grueling challenge.  Nevertheless, despite the extended and contentious deliberations of the budget process and so many other issues, most of the legislation that demanded NHTLA participation garnered bipartisan support and we had another successful year.  Our gratitude is largely due to our lobbyist, Jim Demers, and the leadership of NHTLA’s Legislative Chair, Kevin Dugan of Abramson, Brown & Dugan.  Dugan was recognized at our annual meeting for his exceptional commitment of time and energy to the legislative goals of our organization.  Additionally, the support of our membership was impressive and enormously appreciated.

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.

Limiting Liability

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).

Medical Malpractice

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 30, 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 30^th 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.

NHTLA was also very involved in HB 776 which would have granted immunity to those providing emergency medical care to pregnant women.  That bill was eventually killed.

Workers’ Compensation

As always, Ed Stewart and his trustworthy back-up Nick Brown, both of Hall Stewart, P.A., 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.

Insurance

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.   Thanks to all who attended.  On June 21, Jennifer Farrell, NHTLA Executive Director, traveled to New York to testify before a National Association Insurance Commissioners taskforce on coordinated benefits plans to urge it not to endorse a coordinated benefit plan model where MedPay was considered the primary insurance

While in New Hampshire we were successful in explaining how important it is that Med-Pay remain separate from other insurance, this will most likely become a national issue.

Our Work Continues…

Throughout the summer, NHTLA will monitor several pieces of legislation referred to interim study and attend meetings of study committees established over the past year.

Given the federal landscape, we do not expect our task to get any easier and we are always preparing for the anticipated challenges of upcoming sessions.

We expect this year, in particular, that the coming months will be unlike any other.  The presidential primary will present a formidable challenge to all trial lawyers in New Hampshire as candidates debate medical malpractice insurance premiums, access to good medical care, and tort “reform”.  We urge you to get involved; the Public Education Committee will need your help this year, more than ever, as we become the focus of the entire country.

Every year your participation, your sustaining membership, your legislative contribution, become more and more important to us.  Your contribution makes a tremendous difference and is greatly appreciated.