Med Mal News

The State of New Hampshire wants to shift surplus funds from the New Hampshire Medical Malpractice Joint Underwriting Association to the general fund so that it can use the money to finance programs aimed at expanding health care access. Three named plaintiffs, representing the interests of more than 200 health care providers who hold medical malpractice policies, have filed an emergency petition for extraordinary writ of mandamus and writ of prohibition against the malpractice insurance fund, eight individual fund board members, the State's insurance department and the New Hampshire State Treasurer. In Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association by and through its Board of Directors, No. 09-E-0148 (Belknap Co., N.H., Super. Ct.), the petitioners ask that the malpractice fund be prohibited from transferring any of its $110 million surplus to any other state agencies, a move that would be permitted if pending legislation is passed. The petitioners claim they have contractual rights to the fund and that any excess should be disbursed to them, if to anyone. Scott O'Connell, a Boston partner at Nixon Peabody, the firm representing the care providers, contends that although legislation appropriately could change the rules for the malpractice fund going forward, it “can't undo the ground rules that govern how this surplus was amassed and undo all of these contractual expectancies.”