For decades, the unchecked ability of insurance companies and their lawyers to force personal injury plaintiffs with average cases to present expensive testimony from busy, reluctant medical providers has unfairly limited access to justice. There is no similar burden on insurance companies.
The high cost and logistical inequality in going forward with trial in average cases has too often forced reduced settlements with insurance companies adept at playing the game. The playing field becomes a bit more level beginning January 1, 2020.
On July 19, 2019, Governor Sununu signed Senate Bill 296 into law. Under this reform legislation which becomes effective January 1, 2020, medical and dental records and reports that are attested to by the provider will be admissible in civil proceedings to prove:
• The nature of the injuries caused by an accident;
• The prognosis for the injuries cause by an accident;
• Total or partial disability from employment and non-work activities caused by an accident;
• Permanent impairment caused by an accident;
• The necessity of medical or dental services that were provided; and
• The fair and reasonable cost of the medical or dental services that were provided.
Under current law, medical or dental expert testimony is required to prove these important elements of damages in a personal injury case; and unless agreed to, medical and dental records, reports, and bills are not admissible without expert testimony. Securing and presenting expert testimony from medical or dental providers is time consuming and substantially adds to the cost of litigating a case. In fact, the cost of expert testimony by a licensed health care provider is prohibitive in many personal injury claims. The New Hampshire Legislature considered these concerns of litigants, and also focused on the negative impact on health care providers that requiring live medical testimony has.
Requiring health care professionals to be available to testify in court unnecessarily burdens these professionals and takes them away from their practices and their patients. The equally expensive but somewhat less inconvenient option of presenting expert witness testimony to a jury by video is notoriously boring, and jurors struggle to pay attention. Medical provider testimony is often redundant as the medical records may adequately address the issues being decided. In addition, the Legislature found that requiring live medical testimony can strain the provider-patient relationship. In fact, some licensed medical professionals refuse to give testimony and even refuse to provide care to patients injured in accidents to avoid the possibility of being asked to testify.
This new law will reduce the cost of resolving claims, and will reduce the burdens on medical practitioners and their patients. Trials will be shorter and more efficient. Juror’s lives and court dockets will be less disrupted. Individuals with less severe injuries seeking fair recoveries will be able to pursue their claims in court without the disproportionate burden and expense of presenting testimony from health care providers. This is all good news for plaintiffs, medical practitioners, and the New Hampshire court system.
At Borofsky, Amodeo-Vickery & Bandazian, PLLC, we understand the value of live medical provider testimony when it is appropriate. An engaging medical provider can be very informative to a jury. But presentation of expert testimony can also result in unnecessary costs and delays. Too often, the expert testimony requirement has been misused to prevent access to justice. With the ability to meet the burden of proof on damages through reliable records and reports, we will soon have a powerful new tool to help level the playing field.
Questions? Call the attorneys at Borofsky, Amodeo-Vickery & Bandazian, PLLC in Manchester, NH (603) 625-6441.
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