New Legal Claim Adds Wrinkle to Malpractice Debate

The “loss of opportunity” doctrine has become a big issue in this year’s debate over health care and health costs.
The debate is so heated that the House Judiciary Committee has moved the hearing to Representatives’ Hall to handle the crowd.

Most of the witnesses will be opponents, including doctors and the state Insurance Department.

Doctor Peter Forssell of Peterborough is the president of the New Hampshire Medical Society:
Forssell/track2/2:26:
The loss of opportunity doctrine is relatively new to the state of New Hampshire. And it has lowered the bar to create higher liability monetary awards which we believe will only drive the cost of medical malpractice insurance up.

The bill being heard in Representatives Hall was introduced by James Craig, a Manchester Democrat, and a lawyer.
It would permit a victim of malpractice to prove that a different medical treatment might have been better for a particular patient. It’s a doctrine used in many other states and the NH supreme court recognized it two years ago.
Supporters of the bill are expected to be outnumbered at the hearing. Paul Maggiotto is president of the New Hampshire Trial Lawyers’ Association.
He says the doctrine is a way to protect patients and consumers.
Maggiotto/track5/1:55
Essentially that doctor’s failure to diagnose you or treat you properly was essentially a loss of opportunity for you to have a substantially better result.

Here’s an example, from a real case last fall in Coos County.
A Lancaster logger went to a Lebanon hospital for stomach-bypass surgery.
The procedure went well, and the patient went home.
But within 24 hours, the logger had a fatal heart attack. He was 55 years old.
The logger’s family argued that if the hospital had given more attention to the heart condition the patient might have had different care – and might have lived.
The jury awarded the heirs 300-thousand dollars for wrongful death – and 600-thousand dollars for loss of opportunity.

The larger award for loss of opportunity is one reason Governor Benson opposes the bill. In fact, he is pushing for a measure that would ban the use of “loss of opportunity” in law suits.
He believes the principle drives up medical costs and creates the wrong incentives for doctors.
Benson/Track 2/3:46

I would love to see them benefit financially from better medical malpractice laws in the state of New Hampshire. But the biggest, biggest thing I would like to see happening, is I would like to see risk-taking come back into medicine, because what fear of retribution does for people is that it makes them adverse to trying to do things that may save peoples’ lives, and I think if we continue down this path we’re going to end up with a system that does not cure people any more.

The governor is sure that banning loss of opportunity will lead to lower medical insurance costs – so sure that he expects the savings will replace the cuts in Medicaid payments to doctors in the state’s new budget.
Doctors and hospitals aren’t so sure there will be immediate savings, although they point out that liability issues are a factor in a 45 per cent hike in one insurer’s malpractice premiums approved this year.
And doctors say that New Hampshire has now become part of a national effort, led by President Bush, to limit medical liability costs.
On that point, trial lawyers Maggiotto agrees.
Maggiotto/Track 5/0:12:

This essentially is a national effort by insurance companies who have lobbied the president and Congress extensively to try and put a limit on medical malpractice cases. It has a trickle-down effect to the state, i.e., these national efforts reach out to local states to try and accomplish in local state legislatures what they can’t accomplish maybe on the national scene.

The reverse of this bill – a ban on loss of opportunity – is expected to come before the Senate next month.
For N-H-P-R, this is John Milne at the State House