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Bar News - May 23, 2008


Maine’s 20-Year-old Med-Mal Panel Law Criticized for Delays, Costs

By:

Hon. Leigh Saufley

New Hampshire’s medical-malpractice screening panel law is modeled on a similar law in Maine. However, that process, implemented 20 years ago, has become "cumbersome" and costly for litigants, wrote Maine Chief Justice Leigh Saufley in a recent opinion. Writing a concurring opinion for the latest ruling in a nine-year-old case with a convoluted history, Saufley urged lawmakers to take another look at Maine’s handling of medical malpractice suits.

"[The Maine panel system] has, unfortunately, become a cumbersome process with unpredictable results that costs both plaintiffs and defendants money and time in a way that was not intended by the legislature," she wrote in an opinion for Smith v. Hawthorne, 924 A.2d 1051 (Me. 2007), a case that has gone through three separate trials, each with a different result.

Donald Briggs, president of the Maine Trial Lawyers’ Association, said he has seen court statistics (not yet finalized) that show that the Maine med-mal screening process is backlogged with a number of cases waiting for a panel hearing for two years or more.

Meanwhile, the Granite State’s new (less than two years in operation) med-mal process is the subject of similar complaints about delays and unnecessary costs, but the law’s defenders have said that any new law needs time to work itself out. (See the March 21 Bar News article.)

Defense attorneys who support the screening panel mechanism as a means of weeding out spurious claims say that New Hampshire can learn from Maine to improve its own law.

"The biggest difference in Maine is that the case is held off the trial docket until the panel process is completed," said Peter Mosseau of Manchester firm Nelson, Kinder, Mosseau & Saturley. Mosseau has worked on cases before screening panels in both New Hampshire and Maine. "It’s tremendously helpful when you don’t have to move directly from the panel process immediately into the trial stage."

Mosseau also said that the panel hearings are normally completed in one day, whereas New Hampshire panels may last from two to four days. This drastically reduces the amount of preparation needed for a panel hearing.

Background

Maine’s screening panel law, enacted in 1986, was in reaction to a national "malpractice crisis" in the late-1970s and early-1980s when liability insurance premiums for doctors spiked, due, medical providers said, to numerous malpractice claims. At that time 31 states developed some version of a screening panel process, of which 11 were later repealed or invalidated by their state courts.

At the time, plaintiff’s attorneys questioned whether screening panels were constitutional, asking why the medical industry was entitled to its own judicial "safeguard." Proponents said the panels would eliminate non-meritorious lawsuits.

Briggs, an attorney in Rockport, Me., echoes the criticism of some NH attorneys who contend that the proceedings before screening panels inevitably become "mini-trials" rather than a simpler screening process.

"I think they should call it what it really is: it’s trying a case twice, once at the panel hearing and once at the trial," said Briggs, who has spoken out against the Maine system and lobbied to prevent the passage of New Hampshire’s screening panel legislation in 2004. "A screening panel is a quick look for a meritorious claim. This double-trial process imposes an enormous cost on both sides."

While the original concerns over the constitutionality of the process persist, 20 years’ experience of the screening panel process in Maine has led to concerns strikingly similar to those across the border regarding New Hampshire’s fledgling screening panel system.

The most common criticism of Maine’s system, from both plaintiff and defense attorneys, is the length of time the process adds to the entire life of a case. The Maine statute says that the panel hearing is to be conducted within 180 days of the filing of a case, but attorneys say that this time-frame is completely unrealistic.

"The Chief Justice’s critique was pretty accurate. I think that it’s a process that unfortunately is not functioning," said Portland, ME, attorney Mark L. Randall. "It just creates delay for the patient. The panel process is normally nine to 18 months and that’s followed by another nine- to 18-month discovery process. It excludes people who’ve suffered."

The Maine Administrative Office of the Courts said that an average of 100 new cases requiring panel hearings is filed each year. While recent statistics on the screening panel caseload were not ready for public release, Briggs said the figures back up his concerns about a bogged-down process. Randall said some administrative improvements might help. "I think if we just get a couple of panel chairpersons to crack the whip, we might get the process to move along more quickly," he said.

As in New Hampshire, Maine attorneys say the size of their state’s population can create multiple conflicts of interest which lead to difficulty in finding healthcare practitioners to sit on panels. They also say that there have been difficulties in recruiting both physicians and attorneys for the voluntary panel positions.

Administrative issues aside, there are key evidentiary issues regarding the admissibility of panel findings. The Maine statute says that unanimous findings of the panel, whether for the plaintiff or the defendant, are admissible at trial. However, split-decisions are not addressed in the statute. It was this unresolved issue that has kept Smith v. Hawthorne circling in legal limbo, and brought it to the Maine Supreme Court.

Attorney Randall believes that the screening process is unnecessary since a lawyer automatically screens out non-meritorious cases by refusing to take them. "I don’t think you’d get that deeply involved in something that’s not going to work out. I think for patients, this [panel system] is terrible for patients."

Catherine Struve, a University of Pennsylvania Law School professor, has written extensively on medical malpractice litigation for healthcare trade journals, newsletters and magazines.

Struve, in a comparison of states’ varying procedures for handling medical malpractice litigation, suggests that a more suitable alternative to the screening panel process may be the creation of a certification requirement from an expert that would determine whether the case is legitimate or not while at the same time keeping time and financial costs to a minimum for both parties.

"To screen claims well and provide expertise at trial, panels must reach accurate assessments," wrote Struve, "but the cost of accuracy is that the panel proceeding will become longer and more costly."

More Information:

Struve’s Report

Hawthorne v. Smith (Requires free sign-up) Public Library of Law

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