Bar News - March 21, 2008
Med-Mal Screening Process: Growing Pains or Fatally Flawed?
By: Dan Wise
The pre-trial screening process for medical malpractice cases, which took effect at the end of August 2005, is still in its early stages, but its implementation to date has been difficult.
|Med-Mal Screening Panel Scorecard|
Charlene Desrochers, of the Superior Court Center, provided the following numbers showing the progress in the implementation of RSA 519-B since its inception on Aug. 29, 2005. The Sept. 30, 2007 numbers were compiled for a report to the legislature, and the March 11, 2008, numbers were provided to the Bar News.
A number of attorneys and judges on both sides lauded the work of Desrochers in coordinating the process. Said Judge Lynn: "To the extent that the system is working, a lot of credit is due to Charlene." 9/30/07 3/11/2008
Total cases filed 136 170
Total cases pending: 97 85
Total cases resolved 39 52
settled, voluntary non-suit,
Panels waived 0 13
Number of hearings held: 3 20*
Unanimous Plaintiff 1 6
Majority Plaintiff 1 5
Unanimous Defendant 1 27
Majority for Defendant 0 2
2 panels were unanimous for plaintiff on negligence, but unanimous for defendant on causation.
1 panel finding not filed as of yet.
*The total number of findings as of March 11 is greater than the number of hearings because, depending on the number of parties, many cases have more than one panel finding.
|At a Midyear Meeting CLE, Superior Court Chief Justice Robert Lynn said RSA 519-B has an unrealistic timeline for conducting medical malpractice screening panel hearings.|
To be sure, some of its most vociferous critics, chiefly plaintiffs’ personal injury lawyers, were opposed to the law from the beginning. But their critique has expanded from not only the constitutional argument that panels’ judgments being admitted as evidence diminishes the role of juries, but also to questioning whether the law can accomplish its aim of reducing the costs of litigation by eliminating cases with little merit earlier in the trial process.
Even Superior Court Chief Justice Robert Lynn has doubts about the way the process is now structured.
"It is clear to me that [a deadline of] six months from filing to a panel hearing as called for in the law is unrealistic," said Justice Lynn at the Midyear Meeting CLE, "The Superior Court Today," which featured an extensive discussion of the med-mal screening process. He said that although lawmakers envisioned the three-member panels (consisting of a retired judge as chair, and a lawyer and physician) reviewing the merits of a medical malpractice claim were intended to provide a streamlined review of key evidence, the reality is that the possible admission of the panel’s findings raises the stakes. Lynn said lawyers on both sides are putting almost the same amount of preparation into the hearing as they would into a trial, thus requiring more time and expense.
At the CLE, several lawyers said that preparing for a med-mal case now has the potential to cost twice as much as a trial before the law was passed, since the work done for the panel hearing must be repeated for the trial. Lynn said the length of time it takes both sides to prepare for the panel hearings means that the hearings are occurring very close to when the trial is scheduled, diminishing the potential for the sides to reach a settlement before having conducted extensive discovery and trial preparation.
Recruiting panelists in a small state is inherently difficult, Lynn said. Due to the size of the state’s medical and legal communities, and the number of retired judges available, it can be a challenge to find someone to serve on a panel who has not had significant contact, relationship or conflict with a particular defendant or witness in a case, particularly in certain medical sub-specialties. At the CLE, this issue was extensively discussed, with lawyers complaining that in several instances, scheduled hearings were postponed when a physician panelist belatedly discovered a conflict with either a witness or a defendant that required him/her to step down from the panel. Lynn said he would look into an attorney’s suggestion that an orientation packet sent to panel members upon appointment contain a more extensive explanation of potential conflicts of interest.
The law calls for retired judges to serve as chairs of the hearing panels. Judge Lynn said it will soon be necessary to use an exception in the law allowing him to appoint "other qualified persons" who are not former judges to serve as panel chairs, since the retired judges are being committed to as many as 10 or 12 or 15 cases. Many of these judges also are filling in on the superior court bench and Lynn said the retired judges will soon start saying "No" to panel appointments.
Charlene Desrochers, of the Superior Court Center staff, who has been coordinating the implementation of the law, said that finding panelists and scheduling hearings has become smoother in recent months, but remains a constant challenge. Several months ago, the NH Medical Society expanded its list of physicians to draw panelists from, and Desrochers said she has not had difficulty – yet – lining up attorneys to serve on the panels. However, if the caseload grows, more attorneys would be needed. Desrochers said that attorneys do not need to be medical-malpractice experts to serve on the panels.
In an interim annual report submitted last September to the legislature on the implementation of the law, Judge Lynn questioned the long-run viability of the panel process due to its reliance on volunteers. "If the pool of lawyers and doctors available to serve as panel members remain roughly at current levels, and if case filings begin to increase," Judge Lynn wrote, "it may be necessary at some point to consider authorizing payments to panel members in order to attract a sufficient number of willing participants."
Attorney Martin Honigberg, who has represented the NH Medical Society in support of the medical malpractice screening process, said the early difficulties and delays were not unexpected and that it is too early to judge the impact of the law. "Until the system is fully mature, we won’t really know if it is working or not," he says. "In Maine, it took six to seven years for that system to have an impact on costs of handling these cases."
The constitutionality of the law in New Hampshire has not yet been tested. Plaintiffs’ attorneys have argued its constitutionality, saying the law undermines the jury’s role as fact-finder by allowing the admission of a panel’s findings. The law says the findings are admissible if they are unanimous on both questions that the panel must review in each case: whether the alleged acts of malpractice deviated from the applicable standard of care; and, whether those acts caused the injury affecting the plaintiff.
In a recent case, a dispute over the admission of a panel’s split, but unanimous verdicts (for the plaintiff on standard care, but not on causation) was appealed to the NH Supreme Court on an interlocutory appeal, but the appeals court declined to hear it.
Read the law at: http://www.gencourt.state.nh.us/rsa/html/LIII/519-B/519-B-mrg.htm
In an upcoming issue, Bar News will report on the impact of Maine’s med-mal screening process, upon which the NH law is modeled.
The "Superior Court Today" CLE, along with the other CLEs offered at the Midyear Meeting, will be available for online viewing or purchase on DVD in the NHBA CLE area at www.nhbar.org.