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Bar News - March 19, 2010

Opinion: Legislation Pending to Reform Screening Panel Process


Kevin F. Dugan
It has been almost five years since the New Hampshire legislature enacted RSA 519-B, creating mandatory screening panels for all medical injury claims. According to the most recent report from the Superior Court Center, dated September 24, 2009, during the first four fiscal years that the statute was in effect (FY 2006, 2007, 2008, 2009), 269 medical malpractice cases were filed in the Superior Court and only 56 panel hearings were held. Meanwhile, the mean time from filing suit to disposition of medical malpractice cases increased from 324 days to 542 days, and the mean time from filing suit to occurrence of a panel hearing increased from 513 days to 575 days. Of the 269 medical malpractice cases that were filed, 127 cases resolved without a panel hearing occurring and only 32 resolved after a panel hearing. Eight of the 32 cases that resolved after a panel hearing, required full jury trials for resolution in 2008 and 2009. In 2006 and 2007, no jury trials were required for resolution of medical malpractice cases.

The two stated purposes of the screening panel legislation were: (1) to identify meritorious claims of professional negligence and to encourage early resolution of those claims prior to suit being filed; and (2) to identify non-meritorious claims of professional negligence to encourage early withdrawal or dismissal of those claims. Neither of these purposes has been achieved through the panel process. Meritorious claims now take longer to resolve and cost more to do so. The number of jury trials in medical malpractice cases has also increased. Finally, neither the parties nor the courts can complete the panel process in the time frame established in the statute because the panels have become multi-day mini-trials, for which the parties cannot compromise preparation or discovery because the panel findings, if unanimous, are admissible to the jury. In short, the medical malpractice screening panel system has been a resounding failure in its current form.

Recognizing the systemic failures in the system, in the 2010 legislative session, a bill (HB 50) was introduced in the NH House of Representatives to repeal the medical malpractice screening panel statute, RSA 519-B. In the House Record, Representative Philip Preston said: "Medical malpractice screening panels have been criticized because they subject the litigants to an additional proceeding with the accompanying costs usually associated with court proceedings. This makes it virtually impossible to pursue minor malpractice claims because of the high costs associated with first bringing such a case before a screening panel." After study by the House Judiciary Committee, the bill was amended to retain the panel process but limit the panel proceedings to offers of proof by the parties.

The major changes to the legislation are that the panel hearing must occur within six months of the return date and no live testimony is allowed. "The evidence presented is limited to offers of proof and submission of documentary evidence, including, but not limited to, medical records, expert reports, and interrogatory answers." These changes are expected to eliminate the time, testimony and cost issues that the system currently has, while retaining a screening process to achieve the original purposes of the legislation by resolving meritorious cases expeditiously and eliminating any non-meritorious claims. This amendment passed the House Judiciary Committee by a vote of 18-1 and the amended version of HB 50 was passed in the New Hampshire House of Representatives with a vote of 330-19. If this bill passes in the New Hampshire Senate, its effective date will be January 1, 2011.

The amended version of HB 50 is an adoption of the language of HB 572 from the 2009 legislative session, which also passed in the House of Representatives on a division vote of 299-69, but was defeated in the Senate on March 25, 2009. Hopefully this year the Senate will pass this legislation because reform of our screening panel system is long overdue.

In his 2007 report on the progress of the screening panels, Judge Lynn cautioned the legislature as follows:

In short, insofar as one of the purposes of this legislation was to provide a "quick and easy" method for resolving medical injury cases, I have reservations about whether the legislation will accomplish this goal.

Judge Lynnís primary reported concerns at that time, which all have borne out, were the unrealistic six-month time-frame for preparation of a case for the panel hearing, since the panel decision may be admitted at a subsequent trial; the difficulty of finding panel members in specific medical specialties or without conflicts, due to the small size of our state and the collegiality of the medical profession; and overtaxing the volunteer panel members who attend multi-day panel hearings without compensation. These concerns are all well-founded and have not changed with time. They only add more reasons why screening panel reformation or repeal is required.

Kevin F. Dugan is with Abramson, Brown & Dugan in Manchester. He has been a member of the NH Bar since 1991.

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