HB648 (2006) Detail

Relative to reducing frivolous medical injury actions.


HB 648-FN – AS INTRODUCED

2005 SESSION

05-0629

06/04

HOUSE BILL 648-FN

AN ACT relative to reducing frivolous medical injury actions.

SPONSORS: Rep. Lasky, Hills 26; Rep. Franklin, Sull 2; Rep. Wall, Straf 7; Rep. Mooney, HillsĀ 19; Rep. Pratt, Ches 2

COMMITTEE: Judiciary

ANALYSIS

This bill requires the plaintiff’s attorney in a medical injury action to investigate and certify that there are good faith grounds for the action, and requires mediation in medical injury actions.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05-0629

06/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT relative to reducing frivolous medical injury actions.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Sections; Entry of Action. Amend RSA 507-E by inserting after section 3 the following new sections:

507-E:4 Entry of Action.

I. No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the plaintiff. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the plaintiff or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert that there appears to be evidence of medical negligence. If the court determines that such certificate of counsel was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court shall award attorney’s fees and taxable costs against plaintiff’s counsel, and shall submit the matter to the New Hampshire Bar Association for disciplinary review of the attorney.

II. For purposes of conducting the investigation required by this section, and notwithstanding any other provision of law to the contrary, subsequent to the death of a person, copies of all medical reports and records, including bills, films, and other records relating to the care and treatment of such person that are in the possession of a health care practitioner shall be made available, upon request, to the spouse, parent, child who has reached majority, guardian, or attorney in fact of the deceased. A health care practitioner complying in good faith with the provisions of this section shall not be held liable for civil damages attributable to the disclosure of such records or be subject to any disciplinary action based on such disclosure.

III. Within 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person, mandatory mediation in accordance with court rules and procedures.

507-E:5 Limitation of Actions Extended for Investigation. Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $37.50, an automatic 90-day extension of the statute of limitations specified in RSA 507-C:4 shall be granted to allow the reasonable investigation required by RSA 507-E:4. No court order is required for the extension to be effective. The provisions of this section shall not be deemed to revive a cause of action on which the statute of limitations has run.

2 Effective Date. This act shall take effect January 1, 2006.

LBAO

05-0629

Revised 2/28/05

HB 648 FISCAL NOTE

AN ACT relative to reducing frivolous medical injury actions.

FISCAL IMPACT:

      The Judicial Branch indicates state expenditures may increase by an indeterminable amount in FY 2006 and each year thereafter. There will be no fiscal impact on state, county and local revenue or county and local expenditures.

METHODOLOGY:

    The Judicial Branch states this bill requires certification from a plaintiff’s attorney in a medical injury action that there are good faith grounds for the case, allows for an extension of the statute of limitations to allow for an investigation, and requires mediation in accordance with court rules and procedures. The universe of cases to which this bill would apply is rather small. In calendar year 2003, there were eighty-eight medical injury cases filed, and in 2004, only eight. Of these, only approximately five are resolved by jury trial. Nevertheless, there is the potential of some fiscal impact in this bill. From the start of the case a new question will be present as to whether there are grounds for a good faith belief that there has been negligence. Even before that, superior court clerks may get petitions for an automatic 90-day extension of the statute of limitations to allow for investigation. Finally, mandatory mediation would have some administrative costs attached to it, and with very few medical injury cases now going to verdict, it is doubtful that mediation would reduce the already small number of trials further. The Judicial Branch cannot estimate how extensive these potential fiscal impacts will be or whether they would exceed $10,000. Any fiscal impact to the Judicial Branch will result in increased delays in the processing of other cases.

    The Department of Justice states this bill will not have a fiscal impact on their Department. This legislation amends laws regarding lawsuits involving medical negligence. These lawsuits primarily occur between plaintiffs and private health care providers.

    The Judicial Council states that there is no direct impact on any funds paid by the Council.