Get Your “Fact Checker” Straight

SB 406 as Amended by the Committee of Conference!!

The proponents of the “Early Offer” law posted a “Fact Checker” on their website purporting to dispel “rumors” about the “Early Offer” system with “facts”. Join us now as we illustrate via detailed analysis, using the actual language of the law (RSA 519-C), the extent to which their spin is meant to misdirect and deceive you:”

 

Here’s their first “Rumor” and the “Facts” they want you to believe:

 

 

They Claim…

Early Offer defines the amount of the offer in the law. All present and future medical bills. All present and future lost wages. All other out of pocket expenses. A severity payment. All attorney fees.

Patients can certainly tell what their medical bills have been and how much work they’ve missed. Patients can also estimate with reasonable accuracy where they fall on the injury severity scale. The system is specifically designed so the patient can calculate what the early offer will be and then decide how to proceed.”

 

We say…

 

 

 

Truth I:

 

You will NOT know the amount of the offer before you opt in.

 

What the Bill Says:

 

“…………….., the claimant shall serve a notice of injury to the medical care provider alleged to be responsible for the injury and an executed notification and waiver of rights in the form set forth in RSA 519-C:13, ………………”

 

(Committee of Conference Report on Senate Bill 406, Section 519-C:2, III)

 

Implications:

 

You must first include a signed waiver of your constitutional rights wih any request for a settlement under early offer

 

Truth II:

 

You might know what your current medical bills and lost wages are but that does NOT mean the medical provider will accept them all. The bill allows the medical provider to send you to a doctor of their choosing who will then make their own recommendations as to what are, or are not, proper medical treatments. They will also make judgments as to whether you are able to perform not only your profession, but any other work.

 

What the Bill Says:

 

“VII. The medical care provider may request in writing that the individual alleging a medical injury submit to an independent medical examination by a qualified and board certified physician chosen by the medical care provider and agreed to by the claimant at a time and place reasonably convenient for the claimant. If the parties cannot agree on a physician to conduct the examination within 30 days of the request, the hearing officer shall select the physician. The physician conducting the examination shall not be affiliated directly or indirectly in any way, with the medical care provider alleged to have caused the injury. The cost of the examination, including reasonable travel expenses for the claimant, shall be paid by the medical care provider’s professional liability insurance company. Within 5 days of receipt, the medical provider or its insurer shall, at no cost to the claimant, provide the claimant with all reports and documents originating from the examination. The claimant shall also be entitled to obtain a transcript and/or audio-video recording of the examination at the claimant’s expense. Any physician conducting medical examinations under this section shall be certified by the appropriate specialty board as recognized by the American Board of Medical Specialties and in good standing with the New Hampshire board of medicine.VIII. If the medical care provider requests that the claimant submit to a physical examination as set forth in paragraph VII, the time allowed for a medical care provider to respond to the claimant’s notice of injury shall be extended by 30 days.”

(Committee of Conference Report on Senate Bill 406, Section 519-C:2, VII and VIII)Implications:

 

By stating that the “patient can calculate what the offer will be”, the proponents misrepresent the language of their own bill. Under this system, the medical provider may reject any portion of damages claimed by the injured patient as unrelated to the medical injury or unnecessary for the treatment of the injury. If the medical provider rejects portions of your claim, you may well be left with an offer that is too low for you to accept. If you reject the offer, you can still file a lawsuit in Court, but now you will be forced to post a bond to cover the medical provider’s attorney’s fees and costs if the jury fails to award you 125% of the early offer. You can ask for a hearing before the new Department of Insurance’s court, but the hearing officer will be paid for by the insurance company and, if you lose, there’s no appeal.

 

Here’s their second “Rumor” and the “Facts” they want you to believe:

 

They Claim…

Early Offer does include future damages, and does so in a way that is much more fair than the current system.

It’s impossible to see into the future and estimate what medical bills will come up and what potential wages may be lost. Under the current court-only system, a patient has to hire an expert and pay them thousands of dollars to estimate their future losses. If the expert is wrong, the patient may have no recourse. Under the Early Offer system, every settlement involving an ongoing injury includes future losses, regardless of value. No guessing, and no possibility that the injured person will be left without access to care or forced to rely upon Medicaid.”

 

We say…

 

Truth:

 

If you accept an early offer, you have two options:

1. You can accept an early offer that requires you to continually prove you are entitled to compensation for future losses as they accrue via an undefined standard of “reasonable proof”, losses which can be denied at any time by the medical provider’s insurance company based on their belief that the same are unrelated to the original injury; or

2. You can accept a lump sum payment for projected future losses and NEVER be allowed to request additional lost wages or medical bills, no matter how your health may unexpectedly deteriorate in the future due the medical injury.

 

What the Bill Says:

 

Regarding ongoing benefits:

“II. …….. future economic losses incurred by the claimant shall be payable by the medical care provider to the claimant as such losses accrue. If any requested payment is denied, the medical provider shall notify the claimant in writing of the denial and the basis for denial, and inform the claimant that any request for a hearing under RSA 519-C:10 regarding the denial must be made within 30 days of the date of denial.”

This allows for disagreements over proper medical treatments leaving decisions concerning your future and recovery in the hands of insurance adjusters.

 

Regarding one time lump sum payment:

“IV. In lieu of periodic payments, the claimant and medical care provider may agree upon a lump sum payment for any and all potential future economic losses suffered by the claimant.”

(Committee of Conference Report on Senate Bill 406, 519-C:5, IV)

 

Implications:

 

If you choose an early offer involving ongoing future payments, you must prove you are entitled to ongoing payments by “reasonable proof”. Nowhere does the bill define “reasonable proof”. Thus, it will be the defense team of the party creating the medical error that decides whether your proof is “reasonable” by whatever criteria they deem fit. And again, you can ask for a hearing, but the hearing officer will be paid for by the insurance company and, if you lose, there’s no appeal.

 

But what if you choose the lump sum option?

The implications here are vast and extremely dangerous. The proponents of SB 406 say the average time to settle a case under the early offer will be seven months. If you settle your case very quickly, the full extent of your medical injuries may not be known. What if your injury causes you to need a hip replacement or a new kidney years in the future and these facts were unknown at the time you chose to take a one-time lump sum payout? You will be on your own. These scenarios are not mere speculation; they are all too real. Click here to read the stories of Nan and Carolyn.

 

Here’s their third “Rumor” and the “Facts” they want you to believe:

 

They Claim…

Early Offer always pays medical costs, a severity payment, and legal fees. Period. Lost wages are determined in a number of ways, depending on the patient’s situation.

We say… Truth I:

 

In the “pants on fire” department,

Early offer will pay the medical costs the insurance company deems worthy under its undefined “reasonable proof” standard and any “severity payment” will be the same for everyone, regardless of age, occupation or lost earning capacity.

As you can see, the idea is to get you into the system then control costs by doing what actuaries do, look to see which is the most profitable for shareholders, pay for expensive treatments that will give you the best quality of life or pay for multiple pain medications which will simply keep you comfortable.

 

What the Bill Says:

 

Regarding “Reasonable Proof”:

“II. If an early offer is accepted, the medical care provider shall pay future economic losses incurred by the claimant to the claimant as such losses accrue. If any requested payment is denied, the medical provider shall notify the claimant in writing of the denial and the basis for denial, and inform the claimant that any request for a hearing under RSA 519-C:10 regarding the denial must be made within 30 days of the date of denial.

(a) Payments for medical bills arising after the early offer settlement is reached shall be made within 15 days after the medical care provider receives reasonable proof of the fact and the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof shall be paid within 15 days after such proof is received. Any part or all of the remainder of the claim that is later supported by reasonable proof shall be paid within 15 days after such proof is received by the medical care provider. The medical care provider shall pay any and all fees and charges incurred by the claimant resulting from failure to make timely payment of medical bills.”

(Committee of Conference Report on Senate Bill 406, 519-C:5(II))

 

And:

 

Regarding “severity” payments:

“I. In addition to the lost wages, medical expenses, and replacement services, economic loss included in any early offer under this chapter shall include an additional payment to the claimant.

II. The additional payment, as adjusted under paragraph V, that must be included in an early offer shall be:

(a) For a temporary injury involving only emotional harm, without physical injury: $6,600.

(b) For a temporary injury involving insignificant harm: $2,100.

(c) For a temporary injury involving minor harm: $7,800.

(d) For a temporary injury involving major harm: $31,500.

(e) For a permanent injury involving minor harm: $35,500.

(f) For a permanent injury involving significant harm: $81,500.

(g) For a permanent injury involving major harm: $127,500.

(h) For a permanent injury involving grave harm, or an injury resulting in death: $140,000.

III. Classification of injuries under paragraph II shall be determined using the National Practitioner Data Bank severity scale.”

 

(Committee of Conference Report on Senate Bill 406, Section 519-C:7, I – III)

 

Regarding specific exclusion of compensation for lost earning capacity:

“IV. “Economic loss” means monetary expenses incurred by or on behalf of a claimant reasonably related to a medical injury, including actual out-of-pocket medical expenses, replacement services, additional payment to the claimant pursuant to RSA 519-C:7, and 100 percent of the claimant’s wages or income from self-employment or contract work lost as a result of the medical injury. Economic loss does not include: pain and suffering, punitive damages, enhanced compensatory damages, exemplary damages, hedonic damages, inconvenience, physical impairment, mental anguish, emotional pain and suffering, and loss of the following: earning capacity, consortium, society, companionship, comfort, protection, marital care, parental care, attention, advice, counsel, training, guidance or education, and all other non-economic damages of any kind.”

(Committee of Conference Report on Senate Bill 406, Section 519-C:1, IV)

 

Regarding replacement services:

“X. “Replacement services” means expenses reasonably incurred in obtaining ordinary and necessary services from others, who are not members of the injured person’s household, in lieu of those the injured person would have performed for the benefit of the household, but could not because of the injury.”

(Committee of Conference Report on Senate Bill 406, Section 519-C:1, X)

 

Implications:

 

Let’s suppose you’re a young professional, such as a doctor, who temporarily leaves work to care for a child. If a medical error leaves you unable to ever return to your profession, you would not be able to recover the true value of your future lost wages. Why? Because you were not a wage earner at time of injury and losses will be based on the prior year’s tax return only, a time when you were likely earning significantly less as a medical resident or first year practitioner. As the language “quote” above clearly shows, SB 406 specifically excludes compensation for lost earning capacity (your ability to earn).

What if you’re an active retiree at age 68 and a medical error leaves you unable to enjoy the things you had waited all your life to do, whether it’s sailing around the world or just playing catch with a grandchild. Under Senate Bill 406, you cannot recover for your lost enjoyment of life as you could in a New Hampshire Court of law. And, if you have no income from work, your only compensation under this system will be for your out of pocket medical expenses and for services not provided by a spouse or family member. So, if your spouse wants to stay home and take care of you, their work has no value and reimbursement for it is unavailable.

And think for a moment about the “severity” payments outlined above. Do these numbers reflect the value of your health, your lost enjoyment of life, or the lives of your loved ones? Under SB 406, one size fits all and you won’t get to decide which “severity” payment best conforms to your injury, the insurance company will.

 

Here’s their fourth “Rumor” and the “Facts” they want you to believe:

 

They Claim…

Any injured person who wants to resolve their claim under the current system is free to do so. No one is ever required to choose the Early Offer system, and no one can be brought into the system against their will. If they so choose, patients and providers can ignore the Early Offer process as if it never existed. Senate Bill 406 explicitly states that the decision not to participate is not subject to review or appeal.”

 

We say…

 

Truth:

 

In the absence of INFORMED CONSENT, the “voluntary” aspect of Senate Bill 406′s early offer system is summarily gutted. SB 406 is drafted specifically to take advantage of the injured by offering instant gratification while hiding the many traps into which a trusting and unsuspecting victims of medical negligence will fall such as loss of choice of medical decisions one would make in seeking correction of the error and the panic that is sure to follow when medical complications caused by the error are not covered 2 years down the road.

Above, we have posted multiple examples of how the bill hides details from patients and benefits the insurers. But there are many more examples of the one-sided and dangerous nature of this bill. Please take a few moments to read the materials available on this site and watch the videos. Once you do, we hope you will understand how truly misguided this legislation really is.


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