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Bar News - November 14, 2008

Malpractice Screening Panel Data Confirms Opponents’ Fears


Kevin F. Dugan

When New Hampshire’s medical malpractice screening panel law became effective just over three years ago, it was billed as a means of lowering "system costs" in medical malpractice cases. Specifically, the law was intended to give parties an early, objective view of the merits of their cases, thus encouraging the prompt resolution of meritorious claims and dismissal of non-meritorious claims.

Opponents, however, were concerned that the panels would increase the time it took to resolve medical negligence cases and that they would increase the costs necessary to litigate such cases.

Unfortunately, data recently released by the Superior Court shows that the benefits promised by the proponents of the law have not materialized and the fears of opponents have proven true.

In mid-September, the Superior Court issued a report on screening panel cases. The report states that 190 new cases subject to the screening-panel law were filed in fiscal years 2006, 2007 and 2008. As of the date of the report, 33 cases had been heard by a screening panel, involving 76 different defendants. Of those 76 separate claims heard by a screening panel, 51 (approximately 67 percent) resulted in a unanimous finding in favor of the defendant and only twelve (approximately 16 percent) resulted in a unanimous finding in favor of the plaintiff.

In four other cases, the panel found unanimously in favor of the plaintiff on negligence, but found in favor of the defendant on causation. The panels in the nine remaining claims were unable to reach a unanimous decision; six were resolved by a 2-1 vote in favor of the plaintiff and three were resolved by a 2-1 vote in favor of the defendant.

Perhaps the most important information in the Superior Court’s report is that the mean time between the filing of the writ and the beginning of a panel hearing was 560 days. Of the 190 new cases covered by the report, 101 remain pending and 69 of those have not yet reached a panel hearing. In the three years that the panel statute has been in effect, 28 of the 33 panels were held in 2008. This means only five panels occurred in the first two full years that the statute was in effect, while 136 of the 190 new cases covered by the report were filed in those two years.

In light of the 560 day average time period to get to a panel and the 33 panels that have occurred when 190 cases have been filed, there appears to be no way that the statutory 11-month time frame for holding panel hearings can be met. While the panel process is not supposed to delay the regular trial track, it clearly is doing so based solely on the reported mean and median times from filing to disposition. Based on these statistics, the panels are not achieving any of their stated legislative goals.

They are certainly not providing an early view of the merits in medical malpractice cases. Nor are they encouraging prompt resolution of claims. In fact, it appears that the panels are resulting in more jury trials and fewer cases are resolving prior to the panel, or after the panel and prior to trial. Indeed, to date, the statistics show that only 14 cases have been resolved after panel hearings were held.

This confirms what medical malpractice practitioners on both sides have known for some time: Cases are not being heard by screening panels early in the process and, in fact, they can’t be. Since the statute permits unanimous findings to be submitted to the jury, it is necessary to litigate these panels in virtually the same way as a trial. Experts on both sides must be disclosed and deposed before the panel hearing can be held. The parties routinely adopt the trial discovery schedule as the discovery schedule for the panel, because the discovery required is the same for each proceeding and it makes no sense to have two competing or conflicting discovery schedules in the same case.

The panel hearings have become mini trials held in the months immediately before the actual trial. The statistics show that the average length of a panel is 1.5 days of court time. In cases with multiple defendants, the panels require two or three days of testimony. This process is much more than a screening of the merits of a case, which could likely be done on the medical records alone.

Finally, the data in the report calls into question whether the panels are performing the type of independent screening function that the statute seems to envision. More than three-quarters of the panel hearings held to date resulted in a finding in favor of the defendant and 88 percent of those were unanimous. It’s safe to say that, in light of these statistics, plaintiffs may not view negative panel findings as a truly objective view of the merits of their case, although a jury is likely to do so and view unanimous findings by a judge, a doctor and a lawyer as a decision on the merits.

The bottom line, based on our personal experience and confirmed by the statistics reported by the Superior Court, is that RSA Ch. 519-B is not doing what it was supposed to do. It is not helping resolve medical negligence cases more quickly or inexpensively. It is actually slowing down the process and increasing the expense, primarily because both parties must pay to have their experts testify twice. As opponents of the statute feared, the increased time and expense associated with RSA 519-B is preventing meritorious medical negligence cases from being pursued. We have rejected hundreds of potential cases in the three years since RSA 519-B passed that we would have at least carefully considered before the law was enacted.

As the Chief Justice of the Maine Supreme Judicial Court acknowledged recently when construing Maine’s screening-panel law, which is the model for our own, the screening-panel process is "costly and cumbersome" and the Legislature should take another close look at the current law. Smith v. Hawthorne, 924 A.2d 1051, 1057 (Me. 2007) (Saufley, C.J. concurring).

Kevin F. Dugan is an attorney with Abramson, Brown & Dugan in Manchester.

Chief Justice Lynn Seeks New Prescription for Med Mal Screening Panels

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