Recently the New Hampshire legislature voted to override the veto of Gov. John Lynch and enact an “early offer” system for medical malpractice cases. As Walter Olson describes, the law incentivizes “defendants to make offers early in the litigation …

It’s not a question of encouraging litigation. It’s of ensuring compensation for seriously injured victims and of discouraging frivolous litigation. The NH bill does the opposite; there’s no circumstance under which a seriously injured person should use it and yet, if one does, they’re effectively precluded from suit; and, the system strongly favors throwing meritless cases at the early offer system. If they had this in PA, I would dump 75% of my medmal intake into it, because the claims are arguably meritorious but not really worth the risk of real litigation. What good does that do anybody?

This argument is what happens when there’s a weekend heat wave in the northeast. Short story is: all you’ve going to get out of NH’s system is cheating a couple good cases bamboozled into the system and then a huge burden for everybody with hundreds of claims with minimal injuries or unprovable negligence. I don’t think that advances the ball for anybody except negligent doctors and troll plaintiff’s lawyers, the two groups none of us want to support.

Doesn’t sound nearly as inviting that way, does it? Not one person advocating for this bill mentioned that “economic loss” in it means something completely different from “economic loss” in the law and in the English language.

What it leaves is “lost wages” that can be sought over and over again — on a weekly basis, talk about being “overlawyered” — until, at the hearing examiner’s discretion, they’re reduced or discontinued. What are the lost wages of a woman on maternity leave? Of a college senior? Of a law student on graduate day? Of a 17 year old? Of someone who just retired? Of a self-employed business person who just founded a new business that’s not yet profitable? Zero, zero, zero, zero, zero, zero.

Sure, plaintiff’s lawyers will fight like hell to cram everything they can into “lost wages as they accrue,” but wait until you see the first appellate court decisions come down pointing to the specific exclusion of “earning capacity.”

Here’s a bigger question: if, as you say, “earning capacity” will be incorporated in lost wages as they accrue, why specifically exclude “earning capacity” at all? Why do you personally think this is a good idea? Why not include loss in “earning capacity” among the economic damages, as all rational people do?

Nonetheless, anyone interested in chasing down the rabbit hole of torts law should read Robinette’s post (and, naturally, my comments there).

http://lawprofessors.typepad.com/tortsprof/2012/06/early-offers.html

For the malpractice victims, they’re just out of luck. When you think about the 100,000 preventable malpractice deaths every year, and the $20 billion in economic damage alone caused by malpractice, well, it just isn’t nearly as funny.

By the way, do you think the rest of your working life is worth something? Because under NH’s early offer law, injury to your earning capacity isn’t factored into “economic loss.” If you’re blinded by malpractice and so can’t work, the loss in income to you is valued at $0. I know, funny, right?