Birth Injury Lawyers: “Early Offer” Legislation is Unfair and Dangerous

Each Chicago birth injury lawyer at Levin & Perconti understands the inherent adverse relationship in all medical malpractice lawsuits, including those related to childbirth. Obviously, one party is claiming that mistakes were made requiring legal remedy. Usually the other side contests that the error was made at all-though in many cases the disagreement is based on the quantity of the necessary redress instead of the underlying negligence.

No matter how contentious the disagreement, however, the ethical rules of the legal professional dictate how each side treats the other and rules by which the disagreement is resolved. While popular culture may suggest otherwise, legal suits are not no-holds-barred battles. There are principles of fairness underlying it all. Each side collects evidence, makes their case, and negotiates on a level playing field. It is obviously crucial that each side has proper legal professionals helping them at these times so that neither side is at a disadvantage.

This should be supported by all community-whatever they think about plaintiff’s attorneys or defense lawyers. That is what makes “early offer” legislation being considered in certain states particularly troubling. As we have previously discussed, these legislative proposals seek to enroll patients who have been harmed by medical malpractice into an “early offer” system. While innocuous in name, the details of this system are nothing more than unfair to the patients.

For example, Joanne Doroshow, the Executive Director of the Center for Justice and Democracy, explained in recent testimony to a New Hampshire legislative committee how the measure is incredibly unfair to patients. She noted that once the unsuspecting individual has joined the system-usually without even knowing the full extent of their injury or having legal advice-“the injured patients’ ability to collect economic compensation, like medical costs and lost wages, would be infected by conflicts of interest at every single step, beginning with allowing the medical provider to chose its own doctor to decide a patient’s damages.”

Obviously, it doesn’t take an Illinois birth injury lawyer to understand that allowing one side in a dispute to select the medical professionals to identify the extent of the injury is inherently unfair.

But the unfairness continues. Not only does the medical provider select the doctor to evaluate damages in this early offer system, but all non-economic damages are essentially tossed away. By joining the system the patient is giving up the ability to receive redress for these losses.

Proponents of the bill claim that this doesn’t matter because patient can reject the “early offer” that is made after entering the system. However, what proponents fail to mention is that by rejecting the early offer the only way that those hurt by this negligence can recover anything at all is meeting a burden of proof far higher than required in the regular civil justice system-or that would have been required had they rejected the early offer from the beginning. This burden is almost impossible to meet.

What all of this means is this: Patients may very well be tricked into entering this early offer system. Once in it, the hospital picks a doctor to evaluate the damages to the patients. The hospital then makes an “early offer” based on that assessment. The patient can reject the offer, but if they do, they may recover nothing. Their only recourse is to file a regular civil lawsuit using a far higher burden than usually possible to meet.

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