Legislative Update 
February 21, 2003

Medical and Hospital Liability Insurance

Hospital representatives and physicians testified this week in opposition to HB 290, “relative to the burden of proof in medical injury cases,” which would insert the Loss of Opportunity doctrine into New Hampshire statute. Harry Dorman, CEO of Alice Peck Day Hospital, Peter Davis, CEO of St. Joseph Hospital, Henry Lipman, Executive VP & CFO of LRGHealthcare, and Martin Gross, on behalf of the Fair Medical Liability Task Force, testified to the many problems created by this proposed change, including as much as a potential 34% increase in their liability insurance premiums.

The Loss of Opportunity doctrine, if not specifically removed from the law (as proposed by Senate Bill 119), allows patients to recover compensation for a new type of "injury" -- the loss of opportunity for a better outcome. Under traditional legal principles, a plaintiff could recover damages only if the plaintiff could prove through expert testimony that the plaintiff's medical provider was negligent and proximately caused a tangible injury, such as premature death, disfigurement, loss of some bodily function or some other identifiable physical injury. The loss of opportunity doctrine expands the definition of "injury," allowing for recovery of damages if the plaintiff can prove merely that the patient would have "done better" if the patient had received proper care. Thus, in a loss of opportunity case, the injury is the difference between the chance the patient would have had if there were no negligence, as compared to the reduced chance the patient had because of the negligence.

Health Information Council

NHHA testified this week in opposition to SB 78, “establishing the New Hampshire Health Care Information Council.” We applaud efforts to highlight the need for more comprehensive health information to be made available. However, we oppose the concept of a quasi-governmental non-profit company, supported by taxes on healthcare providers, being formed to manage healthcare data in New Hampshire. NHHA suggested that the Legislature engage its HHS oversight committee to oversee the Dept of HHS’ policies and guidelines for managing the health information it currently collects or has authority to collect. Moreover, hospitals would be taxed half the cost of supporting this entity. Healthcare providers already pay $500,000 to the Office of Health Services Planning and Review. This assessment mostly covers the cost of having DHHS collect and process hospital discharge data. Thus, SB 78 requires hospitals to pay twice for the same data.

COMING UP…

The Legislature will be taking a break the week of February 24th. When they return, NHHA will weigh in:

Against HB 788, “repealing the Certificate of Need law”

For HB 760, “establishing the NH healthy families trust fund, increasing the tobacco tax, and making an appropriation therefore”

Also, we’ll be attending the Dept of Health & Human Services budget presentation before the House and Senate Finance Committees on Monday, March 3rd.