The Story of Nan from Amherst

What the Sponsors of SB 406 Didn’t Tell Her

The supporters of Senate Bill 406, on their website and during testimony before New Hampshire’s Senate Judiciary Committee, have presented the case of “Nan” from Amherst, New Hampshire, a clearly good and intelligent person who has endured great pain and suffering as the result of a severe medical error.

Their purpose in presenting Nan’s story is to suggest that she would have been much better off if the early offer system had been in place at the time of her injury.  But based on the facts presented, it is clear that Nan’s case illustrates exactly why the early offer system is more likely to hurt New Hampshire Citizens than help them.

The facts of her case, as presented, are as follows:  During surgery to repair a broken femur, one of her doctors misguided an epidural needle that hit her spinal cord.  The error caused permanent numbness in her uninjured leg, a drop foot and later, a serious medical condition called avascular necrosis in her hip, which required her to have hip-replacement surgery.

Because Nan’s symptoms began immediately after her medical injury, had the early offer system been in place, it is reasonable to assume the insurance company for the doctor who hurt her would have approached her and presented the early offer option.  But let’s consider the possible outcomes had early offer been available to Nan:

Option One:  An offer is accepted

What if Nan accepted an early offer; one not involving a lump sum payout: She would have been compensated for her lost wages and out-of-pocket medical bills incurred up to the time of settlement, however she would not have been compensated for loss of enjoyment of life.

Then 3 years later, when the avascular necrosis took her hip, she would have had to present “reasonable proof” to the insurance company that her need for hip replacement surgery was due to the medical error and not some intervening cause.  The insurance company would then have had the opportunity to deny Nan’s claim.

Then what?  Then Nan would have gotten a hearing.  But the hearing officer would have been paid by the insurance company and, if she lost, she would not have been able to appeal.

Option Two:  Rejection

Nan could also have rejected the early offer. Following a rejection, Nan could still have sued in Court, but she would have incurred the penalty of having to be awarded 125% of the early offer. Further, before the doors to the Court even opened, she would have had to post a bond sufficient to cover the medical provider’s attorney’s fees and costs incurred during the early offer process; potentially tens of thousands of dollars. One wonders: If her case took years to settle without the higher burden, what would the outcome have been with the higher burden in place?

Option Three:  Lump Sum Payout

Another option would have been for her to accept a Lump Sum: Under SB 406’s early offer system, the proponents say the average time to resolve a claim will be 7 months.  What if Nan had settled her claim within 7 months of the error?  At that early point in the process, her need for a hip replacement would not have been known for certain.  If she had settled for a lump sum, it is unlikely the insurance company would have compensated her for the mere possibility she would have needed a hip replacement in the future.

This provides just a glance at some of the many reasons why citizens of New Hampshire like Nan will be hurt by SB 406’s early offer system.  It will rush people injured by medical negligence into settlements long before the full extent of their injuries are known, resulting in their being inadequately compensated for their losses.

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