Monday, July 16, 2012
Representative J. Brandon Giuda has an op-ed in the Union Leader that explains New Hampshire's early offer law. Rep. Giuda was one of the legislators heavily involved in its negotiation and drafting. The most significant point he makes is a confirmation of a suspicion I have had for some time. If the claimant requests an early offer, rejects that offer, and then fails to receive at least 125% of that offer from the tort system, the claimant will pay the health care provider's attorney's fee for the early offer process only. That will likely be quite cheap. This obviously ameliorates the fear of those who have been arguing that the scheme was too draconian. My hope is that it is a strong enough disincentive to prevent claimants from gaming the system. If claimants believe there is no downside to requesting an early offer, almost all of them will. If many claimants consistently refuse the offers, the health care provider will decide it is a waste of time and will stop making offers, meaning this needed alternative will no longer be available to claimants. There is reason to hope that those who request the offer have already decided they prefer the certainty of economic loss delivered quickly and the offers that are made will be accepted at a substantial rate, but only time will tell.