Trial lawyers rally against slew of bills

George Herbert Walker Bush made a political convert out of Manchester lawyer Kevin Dugan, but probably not the kind the former president would have hoped for.

“I was a registered Republican,” Dugan recalled, when he watched Bush debate challenger Bill Clinton, an Arkansas lawyer, former attorney general and governor in 1992. “Bush talked about ‘tassel-loafered trial lawyers’ ruining the medical profession. I don’t wear tasseled loafers, and I don’t know any trial lawyers who do,” said Dugan, who prefers to call his lace-tied, low-cut boots “New Hampshire frugal-fashion shoes.” On Dugan, at least, they are no longer Republican footwear. He is today a registered Democrat.

It wasn’t just the former president’s tasseled trash talk that inspired the move. Dugan is very much a part of the Manchester law firm of Abramson, Brown and Dugan, where the bulk of the work is on behalf of plaintiffs in medical malpractice cases. He has been and remains sensitive to charges that trial lawyers are responsible for the staggering cost of medical malpractice insurance that may be forcing some practitioners out of business. Today, Bush ‘41 is the least of his worries, though he does wonder at times if hostility to trial lawyers is a hereditary trait.

“After all these years of Republicans talking about states’ rights,” he observed, “President Bush is proposing a federalizing of tort law.”

Screening panel

There are, however, more immediate problems facing malpractice and other tort lawyers in New Hampshire, and they are closer to home. Bills now pending at the State House include a number of proposals to limit the alleged damage plaintiffs’ lawyers can do and how much they can profit from doing it.

“There’s a bill to put a cap on contingency fees,” said Dugan, referring to a measure whose primary sponsor is Rep. John Gallus, R-Berlin. “Talk about interfering with the right of contract.” He views it, furthermore, as a disturbingly one-sided interference. “No one is proposing putting a cap on the fees the insurance company lawyers collect.”

Dugan also is working to defeat legislation that would require all medical malpractice suits to go through a screening committee before going to court. That also stacks the deck against the plaintiffs, he contended, while making litigation proceedings more expensive for all parties.

House Bill 1413, sponsored by Rep. Sheila Francoeur, R-Hampton, calls for court-appointed screening panels, made up of physicians, lawyers and retired judges, which would hear medical malpractice suits before they could be introduced in court. The panel would render a judgment concerning the merits of each case. The plaintiff would still be able to bring the suit if the panel found the case lacked merit, but the panel’s findings would be entered into the court record as evidence.

While the goal is to discourage non-meritorious cases and thus lower the overall costs of litigation, Dugan argued that “some meritorious cases may be screened out simply because the process is too expensive.” That could effectively screen out people of limited means, trial lawyers say, even when lawyers are working on a contingency fee basis.

“The lawyer, as a good businessman, is going to have to think for himself, ‘To bring a case for X amount of money, I’m going to have to make this much,’” said Jennifer Farrell, executive director of the New Hampshire Trial Lawyers Association. Adding another round of hearings to the equation, with the plaintiff’s attorney doing battle in each round with the lawyers for an insurance company, could make it particularly difficult to get a comparatively small claim to court, Farrell said.

“You could be legitimately injured, but if your case is only worth $80,000 or $100,000, guess what? You’re pretty much out of luck.”

And that could be particularly unlucky for working class litigants, Dugan said.

“The loss of six months of wages for a low-income worker who is injured would not be as much money as it would be for a high-salaried person,” he said. “But it could be a more severe hardship.”

Good public policy?

The trial lawyers also argue that placing an additional time and money barrier between litigants and the courtroom violates guarantees of access to courts in the New Hampshire Constitution.

But lobbyist Rick Newman of Capitol Insights — and formerly a lobbyist for the Trial Lawyers Association — is not impressed with the lawyers’ arguments now.

“It seems to me every time you start talking about doing tort reform, the first thing the contingency lawyers do is start screaming ‘unconstitutional,’” said Newman whose current client roster includes The Property and Casualty Insurance Association of America. “The question before the Legislature isn’t whether it’s constitutional or not. Frankly, that’s a question for the court. The question is, is it good public policy?”

Concord attorney Martin Gross is happy to argue that it is, and also will point out that the system embodied in HB 1413 has been in practice in the state of Maine for more than 15 years and has been found constitutionally valid by that state’s Supreme Court. More to the point, he said, it has resulted in lower insurance costs.

He cited rates provided by Medical Mutual Insurance Company of Maine, which provides nearly all of the medical malpractice insurance in that state and is also an insurer in New Hampshire. In 29 different categories, MMIC numbers showed significantly lower medical malpractice insurance rates in Maine than in New Hampshire. Gross, who represents the New Hampshire Medical Society, Dartmouth-Hitchcock Medical Center and other health-care providers in the state, credits the screening panels for the difference.

“They can say what they want,” he said of the trial lawyers. “The facts belie them. The process works. The poor cases go away faster, the good cases get paid faster.” The reason, he said, is that more cases get settled before going to court, once the facts have been brought out and contested before the screening panel. “The key to this system is that it does wrap up medical claims, quicker, cheaper and more effectively.”

Gross also disputes Dugan’s contention that hearing a case before a screening panel effectively doubles the length and cost of a trial. For one thing, he said, damages are not contested before the panel, only injury and liability. “That’s another little factoid that sends a torpedo into their engine room,” Gross said.

But, without conceding the argument on costs, the trial lawyers will continue to make the claim that needless and unconstitutional barriers are being erected to effectively block the access of many to redress in court.

“It will deny people their constitutional rights,” said Farrell. “It will deny people the opportunity to bring their cases forward.