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Bar Journal - Spring 2007

SCREENING PANELS FOR MEDICAL INJURY CLAIMS UNDER RSA 519-B: Implementation, Effect, and Issues on the Horizon

By:

On June 30, 2005, after more than two years of study committees, draft legislation, hearings and testimony on issues regarding professional malpractice claims and medical liability insurance, the legislature enacted RSA 519-B, creating mandatory screening panels for all medical injury claims.1  This statute requires all medical malpractice cases filed in the Superior Court to be screened by a three-person panel consisting of a retired judge or person with judicial experience, a health care practitioner who practices in the area of alleged medical negligence, and an attorney, before the cases can proceed to trial.  This statute repealed RSA 519-A, which provided an avenue for voluntary screening panels for all types of professional negligence claims.2  Voluntary screening panels are no longer available for other cases of professional negligence, such as legal or financial malpractice.  The mandatory screening panel is applied only to claims for medical professional negligence.

 

The Legislature’s reasons for enacting this statute were: (1) to contain the costs of claims for medical injuries; (2) to make medical liability insurance more available and affordable; and (3) to resolve meritorious claims for medical injury “as early and inexpensively as possible.”3  The process developed by the statute is aimed at identifying meritorious claims of professional negligence and encouraging early resolution of them before lawsuits are filed, and identifying meritless claims of professional negligence to encourage early withdrawal or dismissal of those claims.4    

 

This statute went into effect on August 29, 2005.  As of the date of this writing in early 2007, 92 panels have been appointed, and only two cases have been heard by a panel appointed by the Superior Court.  This article addresses the development and implementation so far of the legislation; the practical effect it has had and will likely have on litigants and the courts; and the future issues that will have to be addressed by the legislature and the courts if the statute remains in effect.  

 

The experience in other states with similar screening panel procedures  has shown that the process only increases the costs and time required for litigation of claims for medical injuries.  Screening panel processes also have placed significant administrative burdens and costs on the court systems in those states.   New Hampshire’s own experience with the initial administrative burdens imposed on the Superior Court, including the fact that only two panel hearings have been held in the first 18 months since the statute took effect, raise questions about the viability of the panel statute. In addition to the implementation hurdles, the statute faces constitutional challenges. Its future outlook is grim, and the statute will needs significant modifications if it is to remain in effect.  

 

I.    Development of the Law of Medical Malpractice Screening Panels

 

Medical malpractice screening panels were developed in the 1970s in response to the first so-called medical malpractice insurance crisis, which was thought to have been caused by the growing number of medical malpractice claims being filed and the increasing amounts of juror damage awards.5  Reports indicated that these factors were causing dramatic increases in medical malpractice liability insurance premiums and decreasing access to medical liability insurance.6  The rising costs of insurance and the difficulties in obtaining coverage were allegedly driving providers to leave practice, thus affecting the availability of healthcare to citizens.7  Despite these arguments, to date, no one has been able to pinpoint the cause of the alleged insurance crisis, and more recently it has also been attributed to economic downturns, vagaries of the market, and increasing numbers of medical errors.8 

 

By 1980, 48 states, including New Hampshire, had enacted some sort of comprehensive legislative reform intended to stabilize the medical liability insurance market.9  Of the 48 states taking legislative action, 31 enacted some form of a medical malpractice screening panel system in an attempt to remediate the medical liability insurance crisis by weeding out frivolous claims and encouraging the expeditious resolution of meritorious claims.10   Of those 31 states, only eleven, other than New Hampshire, have retained the mandatory medical malpractice screening panel process.11  The reasons for repealing the screening panels in these 20 states are that the theoretical benefits of the panel through eliminating frivolous claims did not occur and, in fact, the procedural burdens on the civil litigation system were increased by exacerbating backlogs, delays and costs.12

 

There is a general consensus that screening panels, ideally implemented, can be an effective way to encourage early resolution of disputes and eliminate non-meritorious claims if they produce decisions acceptable to both parties.  Indeed, in theory, screening panels allow the parties to receive a preliminary assessment of the merits of their dispute and thereby facilitate the settlement process.13  The difficulty in practice, however, is that such panels are burdensome to implement and very rarely will the panel findings be unanimous or acceptable to both parties.  In such a case, the panel serves only as a condition precedent, or additional hurdle to leap before an inevitable trial, and it adds an extra layer to an already overburdened civil litigation system.14  A study of the effectiveness of screening panels in Florida, Maryland and Pennsylvania concluded that screening panels were “often counterproductive, resulting in tremendous backlogs which cause unnecessary delays and added expense.”15 

 

Despite these findings in many states, certain states have retained their screening panel systems either because they have not analyzed the effectiveness of the systems or because the panels may be successful in eliminating frivolous claims, encouraging resolution of disputes and reducing litigation costs.  Two such states with existing variants of screening panel procedures are our neighbors, Massachusetts and Maine. 

 

 

A.   The Massachusetts Tribunal

 

The Commonwealth of Massachusetts enacted its Medical Malpractice Tribunal System in 1975.  It is codified at M.G.L.  231 §60B (2000).  The tribunal is comprised of a superior court judge, an attorney and a physician, and it proceeds upon offers of proof by the parties.16  The tribunal only determines whether, based on the offers of proof, a plaintiff could survive a directed verdict at trial by presenting sufficient competent evidence to support each element of the medical malpractice claim.17  If the tribunal majority finds for the plaintiff, then the parties complete the discovery process and proceed to trial.  If the tribunal majority finds for the defendant, then, in most cases, the plaintiff must post a bond within 30 days that is sufficient to cover defense costs in the event of a defense verdict before they can proceed with the discovery process and trial.  If no bond is posted, and no exception is granted by a judge, the plaintiff’s claim is dismissed with prejudice.18  The Massachusetts tribunal hearing is supposed to occur within 15 days of a defendant’s answer to a complaint and its findings are sent to the Board of Registration in Medicine within 15 days of the ruling.19  A recent presentation to the Massachusetts Medical Society demonstrated that 78.5 percent of tribunal findings favored the plaintiff; 21.0 percent of tribunal findings favored the defendant; and in 0.5 percent of cases, the tribunal is waived by the parties. 

 

B.   The Maine Mandatory
Prelitigation Screening Panel

 

Maine adopted its mandatory screening panel process ten years later, in 1985.  It is codified at 24 M.R.S. §§2851-2859 (2005).  The screening panel process in Maine is more complicated than its counterpart in Massachusetts. It begins when a plaintiff files notice of a claim,20  which is then referred to the Chief Justice of the Superior Court who appoints a Screening Panel Chair, who in turn appoints the rest of the panel.21  Because the Maine screening panel procedure requires evidence and testimony to be presented and, unlike Massachusetts, does not proceed only upon offers of proof, the parties must engage in extensive discovery before the panel hearing can be held.  The parties or the panel chair must establish a complete discovery schedule prior to the panel hearing.22  The screening panel chair then refers all motions regarding discovery and affirmative defenses to the Superior Court for decision prior to holding a hearing.23 

 

The formal hearing is supposed to occur within six months of the claim being filed, but may be extended to 12 months if there is good cause.24  Although rules of evidence do not apply, each side must present testimony and evidence to the panel and each has the right of direct and cross-examination.25  The panel issues its findings within 30 days of the hearing, and the panel must decide: (1) whether the plaintiff proved medical negligence by a preponderance of the evidence; (2) whether the plaintiff proved causation by a preponderance of the evidence; and, if applicable, (3) whether the defendant proved comparative negligence by a preponderance of the evidence.26  If the panel’s finding is unanimous in favor of the plaintiff on all questions, then it admissible at trial.  If the panel findings are unanimous in favor of the defendant on any question, then they are admissible at trial.27  If the panel findings are unanimous in favor of the plaintiff, the defendant must immediately enter into settlement negotiations or admit liability.28 Unlike the Massachusetts Tribunal findings, if a Maine screening panel unanimously finds in favor of a defendant, the plaintiff does not have to post a bond to proceed with the case but the plaintiff does risk that the panel’s findings of no medical negligence will be presented to a jury.  

 

C.   New Hampshire Legislative
History of RSA 519-B

 

In 2003, the New Hampshire Legislature passed House Bill 287, establishing a Professional Malpractice Claims Study Commission to study the repeal of the existing voluntary professional malpractice screening panel law codified at RSA  519-A, and to study the enactment of RSA  519-B to enact mandatory medical malpractice screening panels based on the Maine system described above.29  During commission meetings, the pros and cons of adopting a mandatory medical malpractice screening panel system were hotly debated.  Issues raised in support of screening panels focused on the potential for narrowing issues for trial, encouraging settlement of valid claims, promoting faster payments to plaintiffs with valid claims, and eliminating frivolous claims from the system.  Opponents of a screening panel system cited the duplication of the discovery and trial preparation process resulting in increased costs, the administrative delays in appointing panels, processing cases and getting them to trial, and the reality that smaller but valid claims would get eliminated from the system because it would not be cost effective to bring them due to the increased litigation costs and lower expected recoveries. 

 

The majority of the Commission voted to propose legislation to repeal the voluntary panel statute and to create a mandatory screening panel process, similar to the one used in Maine, with findings that would be admissible at trial.30  The minority reported that, in addition to the constitutional concerns inherent in any pretrial delays to the litigation process, adoption of the Maine mandatory pre-litigation screening panel system would, in fact, increase delays in processing cases and increase the costs to injured plaintiffs and insurers and be unable to meet the stated objectives.31

 

Based on the results of the Commission study, HB 1413 was introduced in the 2004 legislative session, but the bill died in conference after legislative hearings.  An identical bill, SB 214 was introduced in the 2005 legislative session.  At the hearings on SB 214, the testimony presented was virtually identical to that presented in favor of and opposition to HB 1413 in 2004.  Proponents of a mandatory medical malpractice screening panel process cited lower litigation costs associated with bringing medical malpractice claims in Maine.32  It also demonstrated that Maine medical malpractice insurance premiums had risen at a slower rate than the rates in New Hampshire.33  Finally, evidence indicated that in Maine, a somewhat lower percentage of cases filed actually go to trial than in New Hampshire.34 

 

Upon questioning, however, no one could guarantee that adoption of the Maine system in New Hampshire would achieve the same result due to the differing economic markets and individual nature of claims.35  The testimony and evidence presented in opposition to the bill indicated that with the differing economic factors in New Hampshire, a reduction in insurance premiums and costs would not immediately occur.36  Vermont’s medical malpractice insurance premiums and costs per claim were shown to be lower than those in Maine, and Vermont does not have a pretrial screening panel.37  Likewise, self-insured physician networks such the Dartmouth-Hitchcock System, which do business in New Hampshire and Vermont only, and not in Maine, were shown to have even lower claim costs than the insurers in Maine due to their own claims management procedures.38  In Maine, the evidence showed that the mandatory prelitigation screening panel delays claims because it takes more than a year and a half to get to a panel hearing, a prerequisite to filing suit in Maine, despite the statute’s requirement of a hearing in under one year.39   Attorneys from Maine said that the costs and time of bringing claims have increased so substantially that smaller claims with lower expected recoveries are no longer brought because it is not cost-effective to the injured plaintiff to do so.40  The undisputed evidence showed that the biggest difficulties with implementing the prelitigation panels in Maine are finding unbiased panel members that are willing to serve.41 

 

Notably, no one involved with this bill contacted the New Hampshire Superior Court to determine whether there would be increased budget costs that must be addressed in order to effectively implement these panels.  Nor was a fiscal note ever attached to the bill to ensure that the mandatory medical malpractice panel system would be adequately funded.42  Finally, the unanimous testimony showed that there are no frivolous malpractice claims filed in New Hampshire, there are no punitive damages allowed in New Hampshire and jury verdicts in New Hampshire are not excessive.43  Based on this testimony alone, it would seem that no screening panel for malpractice claims should be necessary.

 

Following these hearings, the majority committee report recommended adoption of an amendment to create a Massachusetts tribunal-type system where only offers of proof are submitted to determine merit to proceed to trial.44 The minority committee report advocated adoption of the Maine-style panel as presented to the committee.  Despite the overwhelming evidence against adopting a mandatory screening panel process, the legislature agreed with the minority of the judiciary committee and enacted SB 214 into law as RSA  519-B on June 30, 2005.45       

 

II.   How Medical Malpractice Screening Panels Work in New Hampshire under RSA  519-B

 

The New Hampshire statute establishing medical malpractice screening panels is substantially similar to the Maine statute.46 

 

The statutory procedure for screening panels applies to all actions for medical injury as defined in RSA 507-E:1, I.  This means that the statute applies to “any action against a medical care provider, whether based in tort, contract or otherwise, to recover damages on account of medical injury.”47  Medical care providers include not only physicians, but also a “physician’s assistant, registered or licensed practical nurse, hospital, clinic or other health care agency licensed by the State or otherwise lawfully providing medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment.”48  Other health care providers that are potentially subject to this statute, although not specifically identified,  are chiropractors, dentists, hygienists, emergency care providers, midwives. naturopaths, licensed nursing assistants, pharmacists, pharmacy technicians, podiatrists, psychologists, clinical social workers, pastoral psychotherapists, mental health counselors, and marriage and family therapists.

 

The procedure for all medical malpractice cases filed after August 29, 2005 is as follows. Once it is determined that a writ in a medical malpractice case is subject to the screening panel procedure, a second consecutively numbered civil file is opened for the screening panel case, which remains under seal because all proceedings and documents filed in a screening panel case must remain confidential. 

 

On the return date of the writ, the Clerk of Court forwards the writ of summons and all appearances in the case to the Chief Justice of the Superior Court who is to appoint the panel chair.49  Within 14 days, the Chief Justice is to appoint a panel chair from a list of retired judges or other qualified persons with judicial experience.50  Notably, due to changes to the judicial retirement system, judges who retired after 2004 do not have to accept, and can refuse, appointments to serve as screening panel chairs.  Judges who retired prior to 2004 are obligated under their retirement plan to serve as panel chairs (or perform other service for the judicial branch) to receive their pensions.  Due to this differing treatment of retired judges, the pool of available judges to serve as panel chairs is much smaller than the legislature likely expected and has already proven to be a small hurdle to appointment of screening panel chairs, with a disproportionate burden placed on justices who retired prior to 2004.

 

Once a panel chair has accepted an appointment, the Chief Justice notifies the Clerk of the appointment and the Clerk notifies the chair and the parties, providing lists of health care practitioners and attorneys from whom the remaining two or three members of the panel will be selected by the panel chair.51  The health care professional selected for the panel should practice in the same area as the defendant in the medical malpractice case.  If the suit involves more than one defendant, then the chair may select a fourth member of the panel from the list of health care practitioners, again, if possible, selecting a provider who practices in the same specialty as the defendant.52 The parties are then notified of the composition of the panel by the Clerk of Court.  The parties may challenge the panel appointments, but only for cause.53  If the chair finds that cause exists, the chair shall replace the panel member.  If the chair of the panel is challenged for cause, the Chief Justice of the Superior Court determines whether cause exists and replaces the panel chair. 54 

 

The panel chair is compensated by the Superior Court.  Other members of the panel do not receive compensation.55  Clerical support for the panel is provided by members of the Superior Court Clerk’s office in the county where the action was filed.56  One of the biggest difficulties in finding panel members that are willing to serve is the lack of compensation.  Panel hearings may last from one to two days, and in addition to not being paid for their service, panel members are losing compensation at their medical and legal practices for the time that they volunteer for service to the panel.    

 

Within 20 days of the return date, counsel for the defendant is to contact plaintiff’s counsel to establish a discovery schedule.  If an agreement on discovery dates cannot be reached within 60 days of the return date, plaintiff’s counsel must notify the panel chair who then set the discovery schedule for the parties.57  To ensure that cases do not fall through the cracks, the Superior Court has adopted a procedure that within 30 days of the panel appointment and panel notification being made, a panel structuring conference is held with the chair of the panel and the parties.  A structuring conference order for the panel hearing issues in the same manner that it does in a regular civil case.  The screening panel process is not supposed to delay or postpone the trial of any medical injury case.58  Thus, the Clerk of Court in which the case is filed will also order a structuring conference in the usual course to set discovery deadlines for the trial.  A structuring conference order for the court proceeding, which may conflict with the screening panel deadlines, is also issued in the usual course. 59

 

The screening panel hearing is supposed to occur within six months of the return date on the writ unless the panel chair has extended the time period.60  Even with good cause for extension, however, the panel hearing must occur within 11 months of the return date.61  As only two panel hearings have occurred in the first 18 months that the statute has been in effect, it is already clear that the statutory deadlines cannot be met.

 

Any issues regarding affirmative defenses must be decided by the Superior Court, not the panel chair.62  Discovery motions must be ruled on by the panel chair, and such rulings may be appealed to the Superior Court.63  Any discovery issues that the panel chair chooses not to decide must be submitted to the Superior Court for decision.64  The panel chair has the same power of subpoena as a Superior Court Judge.65  New Hampshire Superior Court Rules govern discovery for panel proceedings.66  If either the plaintiff or the defendant fails to appear or fails to comply with the orders of the panel chair, the panel chair may institute sanctions of dismissal of a plaintiff’s claim or default of a defendant, which shall be equivalent to a unanimous panel finding against that party on all issues.67 

 

There must be one combined hearing on all claims arising from the same set of facts, unless the parties agree or the panel chair orders otherwise.68  At the hearing, both parties make presentations of their respective cases and are afforded wide latitude while doing so with regard to examination and cross examination of witnesses.69  The plaintiff bears the burden of proving negligence and causation by a preponderance of the evidence.  The defendant bears the burden of proving comparative evidence by a preponderance of the evidence.70  The Rules of Evidence, however, do not apply to screening panel proceedings.71  Depositions are admissible whether or not the deponent is available to testify at the hearing.  Similarly, any evidence is admissible if it is the kind of information upon which reasonable persons would rely during the conduct of their serious affairs.72  If the panel wants additional facts, records or evidence before it renders its decision, it may either make a request for the information or hold a continued hearing at a later date.73 

 

The panel shall make its findings on all evidence, records, testimony and expert opinions received, and all panel proceedings must be recorded on tape. That record will remain confidential unless all of the parties involved consent to its release.74  The panel chair makes all procedural rulings and is to mediate any differences between the parties before the panel makes its findings.75  The panel has 30 days after the panel hearing to submit its written findings on the following questions:

 

(a)  Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the medical care provider charged with that care;

(b)  Whether the acts or omissions complained of proximately caused the injury complained of; and

(c)  If fault on the part of the medical care provider is found, whether any fault on the part of the patient was equal to or greater than the fault on the part of the provider.76

 

The panel’s written findings, with signatures of each panel member indicating their vote, then must be sent to the parties via registered or certified mail within seven days of their issue.77  The findings and record of the hearing and the screening panel file shall be preserved until 30 days after final judgment in the underlying case, at which time they will be destroyed.78

 

If the panel’s written findings are unanimous on all questions in favor of the plaintiff, then they are admissible at trial.79  In contrast, if the panel’s written findings are unanimous on any question on the side of the defendant, then they are admissible.80  If the findings are not unanimous then they are not admissible.81  Likewise, no evidence or testimony submitted to the panel is admissible at trial unless it is presented by the party who presented it to the panel or it is used for impeachment.82  No panel member or witness at the panel can be compelled to testify at trial, unless the witness is called by the party who presented the non-party testimony to the panel or there are allegations of fraud.83

 

If the panel findings are presented at trial, then the Superior Court will provide instructions to the jury to ensure that the panel findings are placed in the appropriate context. The following instructions will be made when the panel’s findings are presented, and again during jury instructions at the close of evidence:

 

(a) The panel process is a preliminary procedural step through which malpractice claims proceed.

(b)  The panel in this case consisted of (insert the names of the panel members).

(c)        The panel conducted a summary hearing and is not bound by the rules of evidence.

(d)  The hearing is not a substitute for a full trial and may or may not have included all of the evidence that is presented at the trial.

(e)  The jury is not bound by the findings of the panel and it is the jurors’ duty to reach their own conclusions based on all of the evidence presented to them.

(f)   The panel proceedings are privileged and confidential.  Consequently, the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and they may not comment on the panel findings or proceedings except as provided in subparagraphs (a) through (e).84

 

If the panel findings were unanimous on behalf of either party, before they are admissible at trial, the parties must attempt resolution of the claim.   If the findings were unanimous on behalf of the plaintiff, the defendant must immediately enter into negotiations to pay the claim or admit to liability.  If liability is admitted, the claim can be submitted to the panel for a determination of damages or the claim may proceed to trial where the unanimous findings will be admissible.85  If the panel findings are unanimous on behalf of the defendant, the plaintiff must either release its claims based on the findings without payment or the findings will be admissible at trial.86

 

The Administrative Office of the Courts is charged with tracking medical injury claims and the screening panel procedure and submitting an annual report regarding the effectiveness of the procedure on September 30 of each year.87  The report must include the number of cases filed, pending and resolved; and the number of panel hearings held and panel days used during the fiscal year ending prior to the report date.  The report shall also include, for all cases resolved under this statute, the mean and median lengths of time from filing to final resolution, the number and average amount of the settlements of cases resolved prior to panel hearings, of cases resolved after panel hearings but prior to trial, and of cases resolved by jury verdict.88  The Insurance Commissioner also must file a report before November 1 each year on the effects of the panel on the medical malpractice market.89

 

While this statute went into effect on August 29, 2005, because no panel hearings were held prior to September 30, 2006 or November 1, 2006, no reports were reviewed for this article for the first year of the statute.  Since November 2006, the Chief Justice of the Superior Court reported at a recent CLE on the Screening Panel Process that 92 total panels have been appointed in medical malpractice cases.  Of these cases, two have reached panel hearings; nine have settled before a hearing was scheduled; four have been nonsuited; and the remaining 67 are awaiting hearings 18 months after the effective date of the statute.  In light of the many medical malpractice claims that have been filed statewide, it is clear that the statutory requirements of holding panel hearings no later than 11 months from the return date cannot be met. 

 

It is unclear, however,  if this failure is caused by the parties to the procedure or by the failures in the system itself.  Because no fiscal note was attached to fund the bill enacting this statute, our already underbudgeted superior courts are now being asked to create duplicate dockets and additional files, devote clerical resources to the procedure, hold duplicate structuring conferences issuing additional orders to additional parties and panel members, and devoting courtrooms for days at a time for panel hearings.  Similarly, the statute requires a retired judge or person with judicial experience to serve on these panels.  There are a finite number or retired judges in the court system available, especially after the changes to the judicial retirement system that occurred in 2004.  Finally, the compensation issue makes it economically prohibitive for the volunteer panel members to serve on panels that may last for one or more days.

 

III.  Practical effects of Medical Malpractice Screening Panels in
New Hampshire and the Experience of Other States

 

A.   New Hampshire effects

 

Because only two cases have been screened by a panel under this statute to date and the panel findings are confidential unless they are admitted at trial, it is difficult to tell what the practical effect of the statute will be on the future of medical malpractice litigation in New Hampshire.  In our office, however, the statute has had certain noticeable effects.  First, medical malpractice defendants are now requesting longer discovery schedules at the structuring conference of the trial court, asserting that more time for discovery is needed to prepare for two proceedings (panel and trial.)  In contrast, our office, which exclusively represents plaintiffs, now requests shorter discovery and trial periods because the screening panel statute requires all discovery and depositions to be completed before the panel hearing under the six- or eleven- month time frame.  The panel process also requires our clients to be prepared to testify at deposition, at a panel hearing, and at a trial.  Clients face the potential of higher trial expenses if expert witnesses are required to be paid to testify at three proceedings — the deposition, the panel, and the trial.  These increased expenses limit the cases that our office will accept to bring forward and file suit.  If the expected expenses of taking a case through a panel and trial are higher than an expected recovery on a potential client’s behalf, then it is not beneficial for the client or our office to spend years litigating a case in which no one will receive payment.  Indeed, we often tell potential clients that they should contact their legislators to fix the current system, because then their valid but smaller medical malpractice claims could justifiably proceed to trial.

 

Attorneys from Maine report that the mandatory panel proceeding, on average, takes more than a year and a half to occur, and it greatly increases the costs and expenses of litigating medical malpractice claims.  They also report that the panel can be used as a preview of the strengths and weaknesses of a case and of how potential witnesses will do at trial, thereby allowing a strategic change of witnesses or experts prior to the second proceeding, thus requiring additional discovery and depositions.  In states with smaller bars and medical associations such as Maine, it is often very difficult for the panel chair to find panelists who are completely unbiased and unaffiliated with the parties or counsel to the cases.  This is especially true for appointments of physician panelists since that panel member will often be insured by the same insurer defending the claim.

 

The practical effect of the mandatory screening panel procedure is opposite of its intended effect because the costs are duplicated and defense attorneys can bill the medical malpractice insurance companies for their compliance with the duplicate procedures, thereby increasing the costs of defending each individual claim.   While this is certainly beneficial to insurance defense attorneys and their practices, it is not beneficial to the courts, the insurers, and the injured plaintiffs who are entitled to compensation.

 

 

B.   Effects in Other States

 

In states that have tracked the practical effect of mandatory screening panels on the medical malpractice litigation system, the consensus is that the mandatory panels create demands and impose burdens on already overworked court systems.  In New York, trying to assemble the required panels created a significant backlog in the court docket because more cases were filed each year than those in which panels could be appointed or heard.90  Thus, cases became delayed by years on the docket because they could not proceed to trial without going through the mandatory screening panel process.91  Specifically, one New York court explained that:

Rather than facilitating the disposition of cases, it is the view of the court, supported by the findings of the Committee, that the functioning of the panel has had the direct opposite effect [of its intended purpose].  A unanimous finding of liability only serves to inflate the plaintiff’s settlement demand.  A no-liability determination merely solidifies the defendant’s resolve to proceed to trial.  In those cases in which the panel is unable to reach a unanimous conclusion, the parties are left where they were before the panel met . . . thereby substantially increasing the cost of litigation (and, presumably, the premiums doctors are required to pay).  These costs are in addition to the court costs discussed in the Committee’s report.92

These findings have been confirmed in several other states such as Pennsylvania, Florida and Maryland, all which have since repealed their requirements for mandatory medical malpractice screening panels.93 

 

In Arizona, another state that has abandoned the mandatory screening panel process, a National Center for State Courts (NCSC) study concluded that: (1) the frequency of medical malpractice case filings had declined, but the percentage of settlements had increased; (2) review panels had little impact on the frequency or amount of recovery by plaintiffs; (3) since creation of the panel system, medical malpractice cases took longer to reach disposition either by settlement or trial; (4) the only discernible changes were in attitudes of attorneys who were spending more time assessing costs imposed by the medical review panel system; and (5) the panel system did not operate as intended because panels were not being appointed or convened within the established time limits, the hearings were being conducted as mini-trials, and the administrative burdens placed on the trial courts were substantial.94  A second study was then conducted by the Insurance Claims Commission in Arizona, but did not take into account any court or qualitative data other than the increased costs to insurance companies.  This study:

found little evidence that the review panel system works as intended.  The panel system does not alter the frequency or amount of recovery by the plaintiff over the longer time span.  In fact, in the short run the plaintiff’s recovery is actually enhanced by the panel system. . . . Extra costs are incurred in a significantly greater percentage of cases . . . In sum, the panel system . . . seems to lead to more formal disputes which take longer to resolve at greater cost.95 

 

A 1992 NCSC study on the frequency of medical malpractice claims filed in 21 states found that the states with mandatory panels had a significantly higher rate of litigation.96  In jurisdictions where panel findings are admissible at trial, it is more likely that the parties will need to engage in extensive discovery and a comprehensive presentation to the panel, which will “entail the costs and delays that panels are intended to prevent.”97  Other studies have found that mandatory panels actually delay settlement talks between the parties because the parties will not be inclined to engage in settlement negotiations before hearing the panel’s assessment of the case.98

 

Many states have repealed their panel systems on constitutional grounds including separation of powers, equal protection, due process, denial of access to the courts, and denial of the right to trial by jury.99  In Pennsylvania and Florida, the undue burden and delay of panels were found to be an impermissible burden on due process and the right to a jury trial.100    Additionally, New York courts have had cases where the panel were required to resolve factual disputes, a function exclusively reserved to a jury.101  In Massachusetts, while the constitutionality of the tribunal system has been upheld under the Massachusetts Constitution, the admissibility of tribunal findings was not because it was found to violate the right to trial by jury.102  Most recently in Maine, the Supreme Court recently found that the asymmetrical admission of panel findings in favor of defendants under the Maine statute – the law upon which our statute is based —unconstitutionally infringes on a plaintiff’s right to trial by jury.103

 

IV. Constitutional concerns
and Considerations

 

Similar to the challenges brought in other states, several constitutional challenges to RSA  519-B have already been filed in the New Hampshire superior courts.  Unfortunately, many of these important constitutional issues have not been not addressed because no panel findings have yet been made in any case, or have been submitted to a jury.104 

 

 

A.   Existing Constitutional Challenges

 

In one of the first constitutional challenges to this statute, Wilson v. Valley Regional Hospital, Judge Houran stayed panel proceedings to address the constitutionality of the statute on numerous grounds.105  The Wilson Court divided its constitutional analysis of the statute into two parts.  First, it analyzed the constitutionality of RSA 519-B: 1-7, the sections of the statute that establish the procedures for the screening panel from appointments of panel members to the nature of the findings the panel is to make.106  Wilson declined to analyze the constitutionality of RSA 519-B:8-10, the sections that address the admissibility and effect of the panel findings, because the panel process had been stayed and no panel findings existed to be challenged, and thus were not ripe for review.107

 

With respect to the procedural provisions of the statute, RSA 519-B:1-7, the Wilson court found “some overlap between the panel and court processes” but not enough “to rise to the level of interference with core judicial functions.”108   Because no interference with the procedural aspects of in-court proceedings or core judicial functions was found, the court ruled there was no violation of the separation of powers doctrine under Part I, Article 37 of the New Hampshire Constitution.109 

 

Similarly, none of the provisions of RSA 519-B:1-7 were found to have violated the right to a jury trial under Part I, Article 20 of the New Hampshire Constitution because those parts of the screening panel law do not prevent litigants from having their case fully and finally determined by a jury.110  The court made similar findings regarding due process and the right to a free, prompt and complete remedy under Part I, Article 14 of the New Hampshire Constitution, ruling that nothing in the provisions of RSA 519-B:1-7 imposed any condition precedent before filing a medical injury action, deprived any plaintiff from obtaining a jury trial, or deprived any plaintiff of a meaningful opportunity to be heard.111  The Court did note, however, that if the statute ultimately caused an undue delay by causing a plaintiff to lose witnesses or if it unreasonably increased litigation costs by creating duplicative proceedings, then it may unconstitutionally deprive a plaintiff access to the courts.112

 

B.   Equal Protection and
Intermediate Scrutiny

 

When addressing the plaintiffs’ equal protection challenge, the Wilson Court found that, under the intermediate scrutiny analysis articulated in Carson v. Maurer, 120 N.H. 925 (1980), the statutory requirements and differential treatment of medical injury claimants from other tort claimants under RSA 519-B:1-7 were reasonable and had a fair and substantial relation to the object of the legislation.113  The Carson test for intermediate scrutiny analysis of equal protection violations under the New Hampshire Constitution was recently overruled, however, by the New Hampshire Supreme Court in Community Resources for Justice, Inc. v. City of Manchester, 154 N.H. ___ (decided January 24, 2007) as being too deferential to the legislature.  Indeed, the New Hampshire Supreme Court found that the Carson test had to be abandoned “because related principles of law ha[d] so far developed as to have left th[e] test no more than a remnant of an abandoned doctrine.”114   The Supreme Court found that the intermediate scrutiny test and the rational basis test for equal protection both had remained substantially similar over the years, by requiring only a legitimate governmental interest, by presuming that the challenged legislation was valid, and by failing to examine the factual basis relied upon by the legislature for justifying the statute.115 

 

In Community Justice, the Court ruled that the similarity of the tests created too much confusion and was inconsistent with the federal standard for intermediate scrutiny.116  As such, the Court adopted the following test: (1) the challenged legislation must be substantially related to an important government objective; (2) the burden of justifying the classification made by the legislation rests upon the government; and  (3) to meet the burden, the government cannot rely upon justifications that are hypothesized, created in response to litigation, or based on overbroad generalizations.117  In short, the test “requires that such classifications serve important governmental objectives and be substantially related to achieving those objectives,” and “the defender of the classification has the burden of demonstrating that its proffered justification is exceedingly persuasive.”118

 

Under this standard, it is highly unlikely that the Wilson ruling on the plaintiffs’ equal protection challenge to RSA 519-B can be upheld.  The Wilson Court gave complete deference to the legislative record.119  Indeed, the Wilson Court recognized that there was significant conflicting evidence in the legislative record in support of and in opposition to the statute.  The Wilson Court did “not, however, second guess the legislature’s judgment in the face of conflicting evidence, even when that evidence could reasonably have supported conclusions different than those reached by the legislature.”120 

 

While it is likely that the New Hampshire Supreme Court would agree that providing affordable healthcare to New Hampshire citizens and encouraging prompt resolution of litigation are important government objectives, there is reason to believe that the Court would not find that RSA 519-B is substantially related to achieving those objectives.  Testimony at the legislative hearings indicated that there is no guarantee that medical liability premiums will be reduced by implementing screening panels, and that the experience of other states, including Maine, shows that mandatory screening panels delay resolution of disputes and increase delays and administrative burdens on the court system.  Finally, it is clear that the government could not prove that its proffered justification for enacting RSA 519-B is exceedingly persuasive and not based on hypothesis, generalization or created in response to litigation.121  Indeed, the Wilson Court expressly found that “there was evidence before the legislature which could reasonably be viewed as supporting the legislature’s conclusion that the increasing number and size of medical malpractice claims worked to increase liability insurance costs and concomitantly posed a threat to the continued effective delivery of reasonably priced healthcare in New Hampshire.”122  This evidence alone demonstrates that this statute was created only in response to medical malpractice litigation.   Under the new intermediate scrutiny test for equal protection under the New Hampshire Constitution, this legislation fails and is inherently unconstitutional.

 

 

C.   Admissibility of Panel Findings

 

While the Wilson Court did not have the benefit of the newly articulated guidance from the Supreme Court for deciding that this statute violates equal protection, it did allude to several potential constitutional violations created by RSA 519-B:8-10.  These provisions are the sections of the statute that address the admissibility of the panel findings at trial.  When enacting RSA 519-B, the legislature stated that it is “essential to the effectiveness of the panel process that a panel’s unanimous findings be presented to the jury in any matter that is not resolved prior to trial.”123 The Wilson Court found that the plaintiffs’ challenges to these statutory sections were not ripe for review because no panel findings had been issued due to the stay of proceedings and lack of submission of the panel findings to a jury.124  The Court noted, however, that the submission of the panel findings to a jury do affect the right to a jury trial and may be unconstitutional.125  The Court also noted that if the actual panel process proves to cause undue delay or expense to litigants, it may deny them of due process or their right of access to the courts.126  If, as the legislature states in its findings, purpose, and intent of the statute, the admission of the panel findings are essential for the process to be effective, then the unconstitutional nature of these provisions would render the entire statutory chapter ineffective and invalid. 

 

 

D.   The Right to Trial By Jury

 

Our sister states in Maine and Massachusetts have each found that submitting panel or tribunal findings to a jury violate constitutional provisions of those states’ respective constitutions.  In Maine, the Supreme Court found that the “asymmetrical admission requirements” for panel findings to a jury, of requiring the plaintiff to receive a unanimous decision on all findings for the findings to be submitted to a jury but the defendant only needed to receive a unanimous decision on any finding to get it submitted to a jury, violated the right to a jury trial.127  In Massachusetts, the Supreme Judicial Court found that admission to a jury of any tribunal findings violated the right to a trial by jury.  Because the New Hampshire Constitution is based on the Massachusetts Constitution, it is likely that the New Hampshire Courts would agree with those in Massachusetts and find that any submission of panel findings to a jury is unconstitutional.128  At a minimum, however, the New Hampshire Supreme Court should agree with the Maine Supreme Court that the identical “asymmetrical admission” requirement contained in RSA 519-B:8 violates a plaintiff’s right to a jury trial.

 

Admission of the panel findings effectively substitutes another tribunal’s conclusions for the factfinding that New Hampshire’s Constitution reserves to the jury.  Thus, RSA 519-B:8-10  violate the state constitutional guarantee of trial by jury in civil suits.129  The impermissible substitution of non-jury fact finders happens because the screening panel procedure is mandatory, the panel’s findings are placed before the jury, and the findings are admitted in an asymmetrical manner disproportionately favorable to defendants.  Finally, the panel members making the findings that are presented to the jury are not witnesses, expert or otherwise.  They do not appear at trial, and their thought process and methods of decision are never provided to the jury.  Nor is their reasoning or their reliance on particular evidence made known to the jury so it can be tested more thoroughly at trial than it was at the panel stage.  Indeed, attorneys in Maine report that one of the biggest difficulties with admission of the panel findings is that often a plaintiff will present more than one theory of its case to a jury and those theories may or may not be the same as the evidence presented to the panel.  The jury will never hear what evidence resulted in the panel’s findings and may apply the findings to all evidence presented at trial.   

 

Even if the screening panel is viewed as nothing more than a group of experts, whose conclusions about the case are mere expert opinions to be placed before the true fact finder, however, RSA 519-B gives these particular “experts” an elevated status because they may not be deposed or cross-examined like other witnesses, they need make no expert reports other than their conclusory findings, and yet they speak directly to the ultimate issues in the litigation.130  Thus, under the existing evidentiary rules governing expert testimony, the screening  panel’s conclusory findings would not qualify for admission, and a trial judge who admitted them, were it not for RSA 519-B, would have exceeded his or her discretion in executing the gatekeeper function required under N.H. Rule of Evidence 702.

 

Under RSA 519-B, the Court cannot question the qualifications or reliability of the panel “experts” under Rule 702 before presenting their findings to the jury; and the jury cannot hear questions as to the panel’s findings or make meaningful judgments as to what weight to give those findings.  To the extent that RSA 519-B forces panel findings on a jury, it elevates those findings in importance beyond any other evidence, and replaces the jury’s fact-finding with that of the panel.  To the extent that the statute prevents a jury from making informed judgments as to the weight of the evidence, the legislature has essentially bypassed the jury and deprived it of its constitutional role. 

 

 

D.   Separation of Powers and Due Process

 

There are many other constitutional issues that arise by operation of this statute and its panel finding admission requirements.  The screening panel requirements of RSA 519-B invade the very core of the judiciary’s sole power to regulate procedure and evidence in its tribunals.  While the challenged procedure does not regulate anyone’s conduct, it does prescribe the machinery by which the substantive medical negligence law is applied.  The statute establishes a procedural requirement for medical malpractice cases that is not part of the New Hampshire Superior Court Rules and thereby invades the exclusive authority of the New Hampshire Supreme Court.  The statute also conflicts with the New Hampshire Rules of Evidence, and invades the judicial prerogative to set those rules, to the extent it requires Courts to admit panel findings that would be excluded under other evidentiary rules.131

 

Although our Supreme Court has adopted almost all of the Federal Rules of Evidence, it has chosen not to adopt Rule 706, which provides for court-appointed experts and governs the manner of their appointment and testimony.  The RSA 519-B screening panel functions very much as a group of “court-appointed experts,” however, whose opinions on the ultimate issues in the case are presented to the jury.  To this extent, the screening panel procedure also conflicts with the Supreme Court’s decision not to recognize court-appointed experts under Rule 706 — and the constraints of the unadopted rule, principally the parties’ right to cross-examine a court-appointed expert — do not apply here, making the panel immune from any questioning by the parties or the fact finders.  The character of the screening panels, and of the legislative imposition of their findings on juries, is manifestly extrajudicial. 

 

Furthermore, the screening panel procedure also has significant departures from the process that otherwise occurs in court.   It suspends normal evidence rules in a required first phase of litigation.  It gives a panel of non-judges the power to alter the balance of evidence that would otherwise be presented directly to the jury by allowing asymmetrical admission of panel findings.  Finally, because no cross-examination or inquiry into the panel findings is permitted at trial, the procedure makes those findings essentially uncontestable as an expert evaluation of whatever evidence was presented in the panel hearing, which remains confidential and unknown to the jury. By imposing on medical malpractice claimants a legislatively mandated additional proceeding before a new, legislatively created non-judicial tribunal, and by exacting procedural and substantive penalties in the trial court for a claimant’s failure to persuade this new tribunal to agree unanimously with his or her position on all issues, the legislature in enacting RSA 519-B has violated the firm constitutional boundary between legislative and judicial powers.

 

Finally, two basic realities underlie any measure that adds procedural steps to litigation in an effort to supplant jury trials or weed out cases that the legislature thinks should not go to a jury.   First, savings of time or cost are realized only if the earlier proceeding indeed supplants or obviates the later one, and then only if its costs are lower than those of the procedure it replaced.  Simply put, two proceedings inevitably cost more and take longer to complete than one.    Furthermore, the expectation of all parties that panel findings might become evidence forces both sides to prepare for the panel hearing as extensively as they would for a full trial, thus obviating any cost savings that the panel process might otherwise provide. 

 

VI. Conclusion

 

The ultimate effect of the medical injury screening panels under RSA 519-B remains unknown. To date, not enough panels have held hearings, nor have any panel findings yet been admitted at trial to determine their true practical effect.  Only time will tell whether or not mandatory screening panels for medical injury claims will encourage resolution of disputes or decrease medical insurance liability insurance premiums.  Likewise, only time will tell whether or not administrative burdens and delays will be placed on the New Hampshire courts. Finally, only time will tell whether litigants will suffer increased costs and delays due to duplicative procedures or a two-tiered litigation system. 

 

What is clear, however, is that the statute already has proved impossible to comply with. Only two panels have been implemented in the first 18 months of the statute’s existence, demonstrating that the statutory timetable is unfeasible. There are significant constitutional concerns inherent in the statutory procedure.  Finally, the experience of other states has shown that these types of panels do not achieve their theoretical objectives.  For all of these reasons, we hope that the statute is either significantly amended to allow it to comply with New Hampshire constitutional requirements and to enable our courts to implement it in a manner that will not interfere with other important administrative and procedural functions of the judiciary.     

 

Endnotes

1.   2005 N.H. Laws  197 (S.B. 214).

2.   2005 N.H. Law 197:2.

3.   RSA 519-B:1, I (2007).

4.   RSA 519-B:1, II (2007).

5.   Boyle, Medical Malpractice Screening Panels: A Judicial Evaluation of Their Practical Effect, 42 U. Pitt. L. Rev. 939, 941 (1981).

6.   Gouldin & Gouldin, The Medical Malpractice Insurance Crisis, 3 Ohio N.U.L. Rev. 510 (1975).

7.   See Carson v. Maurer, 120 N.H. 925, 930 (1980), overruled on other grounds by statute and by Community Resources for Justice, Inc. v. City of Manchester, 154 N.H. ___ (Decided January 24, 2007).

8.   Miller, Putting the Caps on Caps: Reconciling the Goal of Medical Malpractice Reform with the Twin Objectives of Tort Law, 59 Vand. L. Rev. 1457, 1470 (2006).

9.   See Boyle, Supra., at 941.

10. Struve, Expertise in Medical Malpractice Litigation: Special Courts, Screening Panels and Other Options, Pew Project on Medical Liability in Pennsylvania, 58 (2003).

11. Struve, Supra., at 57; see also National Conference of State Legislators, State Medical Malpractice Tort Laws, January 13, 2005.

12. See Patient -Doctor Disputes, Generally; Screening Panels, 4 Am. Jur. 2d Alternative Dispute Resolution §53 (2006); see also King v. Retz, 454 N.Y.S.2d 594 (1982); Aldana v. Holub, 381 So.2d 231 (Fla. 1980); Mattos v. Thompson, 421 A.2d. 190 (Pa. 1980).

13. Boyle, Supra., at 946.

14. Id. at 945.

15.  Id. at 958.

16. M.G.L. 231 §60B (2000).

17. See, e.g., St. Germaine v. Pfeifer, 637 N.E.2d 848 (Mass. 1994).

18. M.G.L. 231 §60B (2000).

19. Id.

20. M.R.S. §2853(1) (2005).

21. M.R.S. §2852(2)&(3) (2005).

22.        M.R.S. §2853(4) (2005).

23.        M.R.S. §2853(5) (2005).

24.        M.R.S. §2853(4) & (7) (2005).

25.        M.R.S. §2854 (1) (2005).

26.        M.R.S. §2855 (2005).

27.        M.R.S. §2857 (1) (2005).

28.        M.R.S. §2858 (1) (2005).

29. 2003 N.H. Laws  255:1 (HB 287).

30. See Final Report on HB 287 pursuant to 2003 N.H. Laws  255:1 (December 3, 2003).

31. See Minority Report on HB 287 pursuant to 2003 N.H. Laws  255:1 (January 5, 2004)

32.        See Testimony of Mr. Trahan, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at pp. 59-65.

33.        See id.

34.        See id.

35.        See Testimony of Messrs. Dugan and Vaccarino, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at pp. 58 and 78.

36.        See Testimony of Messrs. Vaccarino and Demers, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at pp. 76 and 97.

37.        See Testimony of Mr. Dugan, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at p. 58.

38.        See Testimony of Mr. Vaccarino, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at pp. 75-81.

39.        See Testimony of Mr. Dugan, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at pp. 51.

40.        See id. at pp. 51-55.

41.        See Testimony of Mr. Monzione, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at p. 73 and Letter from Gail Ogilvie, Maine Panel Chair at Transcript Attachment 10.

42.        See Testimony of Messrs. Foster, Gallus and Gottesman, Transcript of Senate Judiciary Committee Hearing on March 29, 2005 at pp. 11-13.

43. See SB 214 Majority Committee Report, Senate Committee on Judiciary (May 26, 2005).

44.        See id.

45. See SB 214 Minority Committee Report, Senate Committee on Judiciary (May 26, 2005).

46. 24 M.R.S. §§2851-2859 (2005).

47. RSA 507-E:1, I (2006).

48. RSA 507-E:1, II (2006).

49. RSA 519-B:3, II(a).

50. RSA 519-B:3, II(b).

51. RSA 519-B:3, II(c).

52. Id.

53. RSA 519-B:3, VI.

54. Id.

55. RSA 519-B:3, IV.

56. RSA 519-B:3, V.

57. RSA 519-B:4, II.

58. RSA 519-B:3, III.

59. Id.

60. RSA 519-B:4, II.

61. RSA 519-B:4, VI.

62. RSA 519-B:4, IV.

63. RSA 519-B:3, VIII.

64. RSA 519-B:4, IV.

65. RSA 519-B:3, VII. 

66. RSA 519-B:3, VIII.

67. RSA 519-B:4, VII.

68. RSA 519-B:4, V.

69. RSA 519-B:5, I(a).

70. RSA 519-B:6, II.

71. RSA 519-B:5, I(a).

72. Id.

73. RSA 519-B:5, I(b).

74. RSA 519-B:5, II.

75. RSA 519-B:5, I(a).

76. RSA 519-B:6, I.

77. RSA 519-B:7.

81. Id.

79. RSA 519-B:8, I(b).

80. RSA 519-B:8, I(c).

81. RSA 519-B:8, I(a).

82. Id.

83. RSA 519-B:8, III.

84. RSA 519-B:9.

85. RSA 519-B:10, I.

86. RSA 519-B:10, II.

87. RSA 519-B:12, I.

88. Id.

89. RSA 519-B:12, II.

90. See, e.g., Rosa v. Kulkarni, 452 N.Y.S.2d 441 (1982).

91. See, e.g., Rosa v. Mohan Kulkarni Unibell Anesthesia, 448 N.Y.S.2d 400 (1982), overruled on other grounds by Rosa v. Kulkarni, 452 N.Y.S.2d 441 (1982).

92. Id.

93. See Boyle, Supra., at 958.

94. Goldschmidt, Where Have All The Panels Gone?  A History of the Arizona Medical Liability Review Panel, 23 Ariz. St. L. J. 1013,1053 (1991).

95. Id.

96. Struver, Supra., at p.60.

97. Danzon, The Frequency and Severity of Medical Malpractice Claims, Rand Institute for Civil Justice at 199 (1982).

98. Goldschmidt, Supra., at 1119.

99. See, e.g., Hoem v. State, 756 P.2d 780 (Wyo. 1988); Jiron v. Mahlab, 659 P.2d. 311 (N.M. 1983); Boucher v. Sayeed, 459 A.2d 8 (RI 1983); Aldana v. Holub, 381 So.2d 231 (Fla. 1980); Mattos v. Thompson, 421 A.2d. 190 (Pa. 1980); State v. Gaertner, 583 S.W.2d 107 (Mont. 1979); Wright v. Central DuPage Hosp., 347 N.E.2d 736 (Ill. 1976).

100.      Mattos v. Thompson, 421 A.2d 190, 196 (Pa. 1980); Aldana v. Holub, 381 So.2d 231 (Fla. 1980). 

101.      Rosa v. Mohan Kulkarni Unibell Anesthesia, 448 N.Y.S.2d 400 (1982), overruled on other grounds by Rosa v. Kulkarni, 452 N.Y.S.2d 441 (1982).

102.      Beeler v. Downey, 442 N.E.2d 19 (Mass. 1982).

103.      Smith v. Hawthorne, 892 A.2d 433 (Me. 2006).

104.      See, e.g., Wilson v. Valley Regional Hospital, Sullivan Co. Super. Ct. Docket No. 05-C-0052 (Houran, J.) (Decided June 20, 2006).

105.      Id., slip. op. at pp. 2-3.

106.      Id. at pp. 5-28.

107.      Id. at pp. 28-31.

108.      Id. at p. 10.

109.      Id. at pp. 10-12.

110.      Id.. at 23-24.

111.      Id. at 25-27.

112.      Id. at 26-27.

113.      Id. at 18-19.

114.      Community Resources for Justice, Inc. v. City of Manchester, 154 N.H. ___ (decided January 27, 2007) (slip. op. at 12).

115.      Id., slip. op. at pp. 12-13.

116.      Id., slip. op. at p. 14.

117.      Id.

118.      Id.

119.      Wilson, slip. op. at pp. 17-19.

120.      Id. at 17-18.

121.      Community Resources for Justice, 154 N.H. at ___.

122.      Wilson, slip. op. at pp. 18.

123.      RSA 519-B:1, I.

124.      Wilson, slip. op. at pp. 28-31.

125.      Id. at 23.

126.      Id. at 26-27.

127.      See Smith v. Hawthorne, 892 A.2d 433 (Me. 2006).

128.      St. Germaine v. Pfeifer, 637 N.E.2d 848 (Mass. 1994).

129.      N.H. Const., Pt. I, Art. 20.

130.      See N.H. R. Evid. 704.

131.      See N.H. R. Evid. 100 (state supreme court adopts evidence rules under its Article 73-a power).

 

 

 

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