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Bar News - July 16, 2010

Repairs Underway for Med-Mal Screening Panels

RSA 519-B Panel Scorecard

The following are selected statistics from figures from the Superior Court Center. These are not the final statistics to be reported to the Legislature. As of June 29, 2010:

Medical malpractice filings since law took effect: 359
Number of cases resolved prior to panel: 134
Number resolved after panel hearing: 39
Number of panel hearings held: 73
2007 (fiscal year): 4
2008: 26
2009: 22
2010 (to date June 29): 21

To date, none of the panel hearings has been held within the six-month timeframe called for in the legislation. Fourteen were held between six to 12 months from the filing of the cases, and 59 took more than a year to convene.

Outcomes: 115 unanimous decisions (83 for defendant, 32 for plaintiff);
26 majority decisions (14 for defense, 12 plaintiff).

Outcomes after panel hearings:
31 of the cases where the panel ruled unanimously for the defendant were settled, and seven resulted in jury verdicts for the defense. Ten cases were withdrawn voluntarily and another was dismissed.

In cases where the panel ruled unanimously for the plaintiff, 18 were settled and two resulted in jury verdicts for the plaintiff, and one was voluntarily withdrawn.

Pending cases:
80 cases are pending, and 44 have a panel hearing scheduled.

On the eve of its fifth birthday, the Medical Malpractice Screening Panel process created by RSA 519-B is undergoing repairs to improve its operation.

The NH Supreme Court Advisory Committee on Rules last month held a public hearing on a set of new procedural rules to address several recurring speed-bumps in the process. With the Rules Committee’s expected endorsement of the new procedures coming as early as September, the next step for these proposed rules would be for the Supreme Court to either adopt them or set a public hearing prior to adoption.

The law calls for all medical malpractice cases filed in the superior court to undergo a non-binding but (in most instances) admissible evaluative process by three-member panels, chaired by a retired judge, with a lawyer and physician. Plaintiffs’ attorneys opposed the legislation, saying it imposes an unnecessary, expensive and time-consuming obstacle to trial. Initially, even defense lawyers expressed concerns about the expense and time involved.

These rules and the screening process more generally, are the subject of a half-day NHBA CLE program on Sept. 24. Moderated by CLE Committee member Peter Hutchins, this seminar features a presentation by Superior Court Chief Judge Robert Lynn and the committee of judges and attorneys that developed guidelines, procedures and rules to govern medical malpractice screening panels. The mission of the committee chaired by Judge Harold Perkins was to establish consistent procedures for the panel process. In addition to Judge Perkins, the committee consisted of Judge Philip Hollman and attorneys: Mark Abramson, David Gottesman, David Slawsky, Mark Attorri, Ron Lajoie, Greg Peters and Pete Mosseau.

According to Slawsky, a partner with the Nixon, Raiche, Vogelman, Barry & Slawsky firm in Manchester who helped draft the proposed rules, two major areas addressed are delays caused by last-minute cancellations of screening panel hearings.

Sometimes, the panel hearings are cancelled or delayed because a panel member, usually a physician, discovers that he or she has a conflict of interest with an expert witness. The proposed rules address this by requiring defendants to disclose details about its witnesses on a standard form that will contain details about current and previous affiliations or employment, to be submitted within 10 days of the disclosure deadline.

A second area of concern is the last-minute cancellation of panel hearings, either due to a settlement or the sudden unavailability of a witness. Due to the efforts and expense in arranging for a panel hearing, the rules-drafters sought to impose a consequence if the circumstances warrant. The rule reads:

Rule 13 – Waiver of Panel Hearing

"Any agreement to waive the panel hearing shall be received by the Superior Court Center no later than 10 days prior to the hearing except for good cause shown. Any notification of a waiver less than 10 days may, in the discretion of the Panel Chair, on recommendation to the Chief Justice of the Superior Court, subject the party or parties responsible for the late notification to fines and/or expenses."

The rules also address the timing and length of the hearings, the limited use of offers of proof, submissions required 30 days before the hearing, submissions required 10 days before the hearing, and recusal issues for panel doctors and panel lawyers.

The statute is also up for review by a study committee of the legislature included in the statute. By Dec. 1, 2010, the committee is required to recommend the continuation, amendment or elimination of the screening panel process. The statute calls for annual reporting of statistics on hearing panel outcomes including the outcomes of those cases that go to trial after the panel hearings. The Insurance Department is also required to report on trends in medical malpractice insurance rates, as the goal of the med-mal screening process was to weed out meritless claims sooner, reduce litigation costs and, ultimately, slow the increase in med-mal premium costs.

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