Bar News - March 9, 2007
Medical Malpractice Law: Developments of the 2005 Medical Malpractice Screening Statute
By: Peter W. Mosseau
The “Screening Panel for Medical Injury Claims” statute became law in August 2005. The principal purpose of RSA 519-B was economic: “...to curtail the cost of medical injury reparations system...” and to promote the availability and affordability of medical malpractice insurance.
It was anticipated that the prompt resolution of medical malpractice claims by recognizing meritorious and non-meritorious claims at a pretrial screening proceeding would save costs. Many provisions of RSA 519-B, identified below, were meant to facilitate that goal before a trial occurred.
Prompt Resolution of Claims
The panel process, which proceeds co-terminously with a case’s civil trial schedule, envisions a resolution of the panel procedure before the scheduled trial date and within 11 months of the return date of the civil writ. Pursuant to the statute, panel hearings are to commence within six months of the return date unless the panel chairperson has extended the hearing date. Nevertheless, hearings are not to be held beyond 11 months after the return date except for “good cause.” As a result of this shortened adjudication period, other deadlines require counsel’s prompt attention, such as the production of medical records and disclosure of experts.
The extent of screening panel discovery is not specified in the statute, as the parties are directed to rely on Superior Court discovery rules and resolve disputes in good faith (RSA 519-8:3 IIX). Obviously, there is a premium placed on the prompt production of medical records for the parties, their experts and for the panel’s review. The statute prompts counsel to obtain medical records by providing that within 20 days after the return date the parties are to designate a timetable for filing medical records with the panel. If an agreement cannot be reached, within 60 days of the return date the claimant’s counsel must contact the panel chairperson who will establish a timetable. Medical records are to be filed with the panel at least 30 days before any hearing date (RSA 519-B:4).
Claims which were brought pursuant to RSA 519-A, “Professional Malpractice,” which was established in 1971 and repealed by the enactment of 519-B, could be initiated before the institution of a civil suit (RSA 519-A:2). RSA 519-B proceedings, however, do not stay civil litigation relating to the same claim. In fact, the statute envisions the civil suit proceeding contemporaneously with the 519-B proceeding. The statute expressly provides that the Superior Court is to set discovery deadlines and a trial date for the civil suit (RSA 519-B:3).
In three cases brought after RSA 519-B’s effective date, plaintiffs brought constitutional challenges alleging violations of the separation of powers doctrine, equal protection guarantee and the right to a jury trial. Hormat Mohseni v. Rahman et al, Hillsborough County-South, Docket No.05-C-0343 ; Wilson v. Valley Regional Hospital, Sullivan County Superior Court, Docket No. 05-C-005 1 ; and Lavoie v. Hoepp et al, Hillsborough County Superior Court-North, Docket No. 05-C-0735. All of the challenges were rejected. In Wilson an interlocutory appeal was authorized by Judge Horan on Oct. 26, 2006. On Nov. 30, this appeal was denied by the Supreme Court, but at the time of this article’s publication, a reconsideration motion was pending.
Current Status of the Statute
The statute established a legislative oversight committee comprised of four senators and four representatives to analyze the effectiveness of the mandatory screening panels by determining whether premiums have been affected and whether court access to injured parties has been limited (RSA 519-B:11). By Dec. 1, 2010 the committee is obligated to report its findings and recommendations, including whether 519-B should be terminated, continued, or amended. As part of its oversight obligation, the committee receives annual reports from the insurance commissioner about the frequency and severity of medical claims; the length of time to resolve the claim; and the average rates for liability insurance (RSA 519-B:12 11(a)). In its annual review the administrative office of the courts is required to identify the number of malpractice cases filed, pending and resolved; the number of panel hearings conducted; and information about the timing and terms of resolved cases.
The Superior Court report was filed in October 2005 and noted that 54 suits were brought between July 1, 2005 and June 30, 2006. Five cases were resolved and in three of these panel hearings were waived. There were no panel hearings conducted during this period and in the remaining cases continuances had been granted, generally because discovery had not been completed. There was a panel hearing scheduled for late October, but the case settled.
The annual report from the insurance commissioner was submitted on Nov. 1, 2006. It included information identifying the insurance companies providing primary and excess insurance to physicians and hospitals and a comparison of their premiums and financial performance, including loss ratios. Three insurance carriers provided most of the primary insurance coverage. Loss-ratio comparison demonstrated insurers collectively achieved an underwriting profit. After conducting a hearing in October about marketplace competitiveness, state Insurance Commissioner Roger Sevigny renewed, for a second year, his previous finding that the New Hampshire market had the attributes of non-competition. As a result, insurer rate filings would be reviewed and processed on a prior approval basis.
The department also enacted a new insurance regulation (INS3800) requiring insurers to report more detailed claim information about medical professional liability insurance to assist the legislature in studying the impact of screening panels.
Peter W. Mosseau is a director with Nelson, Kinder, Mosseau & Saturley, based in Manchester. His practice area includes medical malpractice defense.