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Bar News - September 9, 2005 Screening Panels Now Required in Med-Mal Cases; Law Faces Possible Challenge By: Deborah A. Fauver
Meanwhile, all new medical injury cases must be assigned to a three-person screening panel, consisting of a chair with judicial experience, an attorney, and a health care professional. (See page 32 for information on how attorneys with litigation experience may volunteer to serve on such panels.) If the parties agree, they may waive the screening panel process, or they may agree to accept the panel’s ruling as binding. In the absence of agreement, the parties must proceed to a panel hearing – the length and depth of which is not specifically defined by the statute. The rules of evidence do not apply, but the process involves more than offers of proof, as testimony and cross-examination are allowed. Maine enacted a similar law in 1987; panel hearings there are typically one day or less, according to New Hampshire Superior Court Chief Justice Robert J. Lynn, who is charged with supervising the creation of the individual panels under the new law, to be codified as RSA 519-B. Over the summer, Lynn met with representatives of the New Hampshire Medical Society and the Bar Association to begin compiling lists of individuals willing to serve on the panels, and to try to come up with specific guidelines for the hearing process. The Superior Court is charged with providing administrative support to the panels, and may need to seek additional funding if a significant number of panels are created, Lynn said. Panel findings center on three questions: 1) was there a deviation from the applicable standard of care; 2) did the acts or omissions amount to proximate cause; and 3) was there comparative negligence. The statute is silent as to whether the panel findings are yes/no answers to those questions, or more explicitly detailed opinions. If the panel’s findings are unanimous as to any of the three questions, that finding may be introduced at a later trial on the merits, along with detailed cautionary instructions noting that the panel proceeding was “summary,” that the rules of evidence did not apply, and that the jury is not bound by the panel’s findings. A detailed article in the summer issue of the NH Trial Bar News argues that the whole process is flawed, resulting in violations of three clauses of the New Hampshire Constitution: 1) Separation of Powers – because the new law creates procedural rules the court ought to make; 2) Equal Protection – because the new law subjects medical injury plaintiffs to a cumbersome and expensive two-tiered trial process, not required of other types of plaintiffs; and 3) the Right to a Jury Trial – because admission of the panel findings will be inherently persuasive and prejudicial to the work of the jury. Proponents of the new law argue that the Legislature was well within its authority in setting up the new procedure, and that the admission of unanimous panel findings is essential to the process – and constitutional - because the law also specifically requires that trial judges give cautionary instructions pointing out that juries are not bound by panel decisions. Origin of the Screening Panel Law Increasing access to medical providers drove the enactment of the new law, according to Concord attorney Martin Honigberg, who worked with the NH Medical Society to draft and support the original bill. “In some parts of the state, particularly rural areas, there are doctors who are leaving the practice because they just can’t pay the malpractice insurance premiums,” Honigberg said. “Those premiums are going up for a number of reasons, but a major element is defense costs.” Maine’s screening panels went into effect in 1987, and defense costs there now average $23,000 per claim, while here in New Hampshire, the average is $37,000, Honigberg said, adding that Maine’s medical malpractice premiums are 40 percent lower than New Hampshire’s. There are certainly differences between the two states, but none, other than the panels, that explain the difference in defense costs and premiums, Honigberg said. The New Hampshire statute is based almost entirely on the Maine law. Future Monitoring Also created by the new law is a Medical Malpractice Panel and Insurance Oversight Committee, designed to collect and analyze data on the effectiveness of the panels. Specifically, the Committee is charged with determining “whether medical malpractice insurance premiums have been affected and whether there has been any limitation of access to the courts by injured persons.” An interim report is due to the legislature in December 2008 and a final report in 2010, at which point the Administrative Office of the Courts will become responsible for continuing to collect and analyze panel data. Constitutional Challenge The Summer 2005 issue of NH Trial Bar News contains an extensive article by Kevin F. Dugan and Mark A. Abramson arguing the three constitutional infirmities noted above, and asserting that the new law should be struck down in its entirety. Acknowledging that the Maine Supreme Judicial Court has upheld a very similar statute, Dugan and Abramson assert that constitutional rights traditionally have been more broadly construed here in the Granite State. For Dugan and Abramson, the most troubling aspect of the new law is that unanimous panel findings may be presented to lay juries. “Although the jury may not be told that the panel’s report constitutes prima facie evidence, the report carries at least that much weight because it comes from a panel whose members include a judge and a doctor, the panel itself is stamped with the imprimatur of the court, and the panel’s opinions are bolstered by an appearance of impartiality since they do not come from a witness paid [by] or aligned with a party,” they wrote. “It is unrealistic to believe that a jury is going to consider the panel’s report to be nothing more than a piece of evidence that it is free to accept or reject.” At Bar News presstime, Abramson said “The law is clearly unconstitutional, and we certainly expect that there will be a legal challenge to it over the next couple of months.” NH Trial Lawyers Association Secretary Kevin Leach said “We don’t want to create any fireworks over this new law, but we would like the courts to have a chance to weigh in on the constitutional issues. |
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