In a bold move, the New Hampshire legislature has overridden a veto by Gov. John Lynch and enacted a new, first-of-a-kind “early offer” program for dealing with medical malpractice claims.

The new law provide incentives to defendants in medical malpractice cases to make settlement offers early in the litigation process. Settlement offers would cover the plaintiff’s economic losses, such as medical bills and lost employment, as well as modest compensation for pain and suffering. If the early offer is accepted, then the plaintiff can get the settlement money within a few months without the time and expense (and uncertainty) of a trial.

However, if the plaintiff chooses not to accept the offer and instead wishes to proceed to trial, the bill makes the loser liable for the attorney and court fees. Specifically, the bill states that a claimant who rejects an early offer and who does not prevail in an action for medical injury against the medical care provider by being awarded at least 125% of the early offer amount, shall be responsible for paying the medical care provider’s reasonable attorney’s fees and costs.


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Proponents of the bill believe that the early offer system will lower the cost of malpractice insurance, speed up the slow tort system, and offer injured patients a way to get settlements quickly and more easily. Opponents, including Lynch, believe that it puts injured patients at a disadvantage.

The governor also took issue with another provision of the bill requiring the injured patient to post a bond before entering the court system. In his veto message, Lynch stated that he felt that the bill “lacks certain fundamental safeguards that are necessary to protect injured patients.” Despite his veto, the bill was passed by the state legislature, making New Hampshire the first state in the country to enact an early offer system.