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Are Victims Losing Access to Courts in Medical Malpractice Cases?

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There are few things more life-shattering than going in for a medical procedure and coming out seriously or permanently injured. When the harm was caused because a physician, nurse or other medical provider did not uphold their duties, the patient’s physical and financial suffering is often compounded by an unshakable sense of injustice.

It is for this reason that the right to pursue a medical malpractice lawsuit exists. The American justice system operates on a principle that those who negligently cause harm to another person should take responsibility for their actions. A court of law is the appropriate place to sort out the facts and law in a particular claim to determine what, if any, obligation the medical provider has to make the patient whole.

Of course, this only works if another basic premise of our justice system is upheld: the idea that everyone – regardless of his or her station in life – has equal access to the courts.

New Hampshire “First Offer” Law

Unfortunately, there has been a strong push to limit victims’ rights in medical malpractice cases. Most recently, New Hampshire adopted an “early offer” law that may prevent victims from taking their claims to court.

The law is branded as an “alternative” to full litigation. Basically, it allows a malpractice victim to request a settlement from a defendant before filing a lawsuit. The settlement amount is meant to cover the victim’s past economic losses and provide a small amount compensation for pain and suffering. The settlement amount does not cover lost future earning capacity. In exchange, the victim gets to avoid the risk and burden of going to trial.

A problem arises, though, when a defendant presents a victim with an unfair offer. In those cases, the victim is penalized for refusing to accept less than his or her case is worth.

Under the law, victims who refuse a defendant’s first offer and instead choose to go to court must put up a financial bond equal to the defendant’s projected legal fees and court costs. Victims who do not secure a verdict that was more than 125 percent of the defendant’s first offer lose their bond. They must pay the defendant’s litigation costs, even though they won their case.

Essentially the law asks malpractice victims to make a very unfair choice: either accept a settlement that will not provide full compensation, or risk everything in order to preserve the right to go to trial.

Pursuing New York Medical Malpractice Cases

Although New Hampshire is the first state to pass an “early offer” law, activists throughout the country have been pushing for other states to adopt similar rules. New York lawmakers would be wise to avoid jumping on this bandwagon.

New York medical malpractice law still preserves access to the courts. Both parties are responsible for their own attorney fees, though the prevailing party can generally request to be reimbursed for some costs once the claim is resolved. In addition, most plaintiffs’ attorneys operate on a contingency fee basis, meaning that victims are not required to pay attorney fees unless and until they win their case.

No medical malpractice victim should allow financial fears to dissuade them from protecting their rights. If you or a loved one has been harmed by a medical provider’s errors, talk to a New York medical malpractice attorney who can help you understand your options.

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