As a previous article in Bar News pointed out (Sept. 9 issue, page one), a new law became effective August 29th requiring malpractice cases to pass through pretrial screening panels.  The story mentioned that the constitutionality of the new statute had been questioned in an article published in the Summer 2005 issue of the New Hampshire Trial Bar News.  Our office (Abramson Brown & Dugan) has requested expedited structuring conferences in medical negligence cases filed after August 29th in an effort to promptly challenge the constitutionality of RSA 519-B. 

It will take time for the constitutional issues to be resolved, so it seems appropriate to describe the new screening panel process for those practitioners who may encounter it.

When a writ of summons setting forth a medical injury action is filed in the Superior Court, the clerk must forward the writ to the Chief Justice of the Superior Court.  Within 14 days of the return date, the Chief Justice must select a retired judge or person with judicial experience to serve as the screening panel chair.

The Chief Justice notifies the Superior Court clerk of the identity of the chair and also provides the clerk with a list of health care practitioners and a list of attorneys with litigation experience, each of whom must have been provided by their respective professional organizations.  The clerk must then notify the chair and the parties and provide them with copies of the lists of health care practitioners and attorneys. 

If the Chief Justice appoints a chair who is not a retired judge or a person with judicial experience, each side is entitled to exercise one challenge.  However, if the appointed chair is a retired judge or someone with judicial experience, a party may only challenge the appointment for cause.  In that case, the Chief Justice must determine whether cause exists to strike the appointment. 

Once the chair has been finally determined, he or she shall choose two or three additional panel members from the lists provided by the Chief Justice.  A person who is not on the Chief Justice’s lists may be appointed to a panel but only if all parties agree. ­To serve on the panel, the chair must select an attorney and a health care practitioner, preferably a practitioner who practices in the same specialty or profession as the defendant.  If the suit involves more than one defendant, the chair may choose a fourth panel member who is a health care practitioner, and, if possible, he or she should practice in the same specialty or profession as another defendant.  Panel members other than the chair may be challenged for cause.  Such challenges are ruled upon by the chair.  (As an aside, we challenged the physician member appointed to the panel in the first case we filed subject to RSA 519-B because we had sued his radiology group several times).

The statute says that the Superior Court may hold a structuring conference and establish a trial date and any other interim deadlines.  However, it also says that, within 20 days of the return date, defense counsel must contact plaintiff’s counsel and by agreement designate a timetable for filing all relevant medical records necessary to the panel’s determination and for completion of discovery.  If the parties cannot reach an agreement within 60 days of the return date, plaintiff’s counsel must notify the panel chair and the chair will set a timetable.   The panel hearing shall be no later than six months from the return date unless the chair orders otherwise.

The Superior Court Rules govern discovery during the panel process.  The panel chair is authorized to rule on discovery disputes.  Any person aggrieved by the chair’s discovery ruling may appeal to the Superior Court.  The Superior Court will use a “clearly erroneous” standard of review.

The panel chair may require the parties to litigate dispositive affirmative defenses by way of motion in the Superior Court prior to the final hearing.  The panel has no jurisdiction to decide dispositive legal affirmative defenses except comparative negligence without the agreement of all parties.

The chair is authorized to extend any time limits for good cause.  However, the final hearing must be held within 11 months of the return date unless good cause is shown.  There must be one combined hearing for all claims arising from the same set of facts unless all parties agree to separate hearings or unless the chair orders separate hearings.  At the hearing, the claimant makes a presentation and the defendant makes a responding presentation. 

The parties are to be afforded wide latitude in the conduct of the hearing, including the right of examination and cross-examination by attorneys.  The Rules of Evidence do not apply.  Instead, evidence must be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of their serious affairs.  Depositions are admissible whether or not deponent is available. 

The chair is authorized to make all procedural rulings during the hearing, which are deemed final.  An audiotape recording is made of the hearing.  Both the record and the hearing itself are private and confidential unless all parties agree otherwise.

If the panel wishes to receive additional evidence, it may order a continued hearing or it may request written evidence.  If the hearing is continued, the same panel members must appear at the second hearing unless all parties agree otherwise.

Upon the completion of the hearing, the panel must make findings within 30 days with respect to 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.

The plaintiff has the burden of proof by a preponderance of the evidence with respect to the first two questions and the defendant has the burden of proof by a preponderance of the evidence with respect to the third question.

The panel must send its findings, including the vote on each question, to the parties by registered or certified mail within seven days of the date of the findings.  The findings and the record shall be preserved until 30 days after final judgment at which time they are destroyed.

If the panel’s findings are unanimous in favor of the plaintiff as to both negligence and causation, the defendant must promptly enter into negotiations to pay the claim or admit liability. If liability is admitted, the claim may be submitted to the panel for determination of damages upon the agreement of both sides.

If the panel’s findings are unanimous in favor of the defendant as to either negligence, causation, or comparative fault, the plaintiff must drop the claim or be subject to the admissibility of the findings at trial.

If the case goes to trial, the panel’s unanimous findings in favor of the plaintiff on both negligence and causation are admissible.  If the panel’s findings are unanimous in favor of the defendant on either negligence, causation, or comparative fault, those unanimous findings are also admissible at trial.

When unanimous findings are offered at trial, the judge is required to instruct the jury as follows:

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

b)  The panel in this case consisted of (name and identity of the members).

c)  The panel conducts 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).

These instructions must be given when the findings are admitted and again when the case is submitted to the jury. 

Aside from the foregoing, the findings and writings of the panel are inadmissible at trial.  However, any testimony or writings made under oath by a panel hearing witness may be used at trial for impeachment purposes only.  And a party who made a statement or presented evidence at the hearing may agree to the admission of such statement at trial.  An expert who testifies at the hearing cannot be compelled to testify at a later court proceeding except by the party that presented his testimony at the hearing.

Needless to say, RSA 519-B is unlike anything we have faced before in New Hampshire. The new law is complicated and, if it survives constitutional challenge, it will likely take years to get used to.

Kenneth C. Brown is an attorney with Abramson Brown & Dugan in Manchester.