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Bar News - August 23, 2013


Workers’ Compensation & Personal Injury: Plaintiff’s Verdict Follows Admission of Med-Mal Panel Findings

By:

A $1.5 million verdict handed down in June by a Hillsborough County jury marked the first plaintiff’s verdict in New Hampshire following admission of unanimous adverse findings of a medical malpractice screening panel at trial.

It was also the first case decided since In re Southern New Hampshire Medical Center, in which the Court held that portions of the screening panel statute that prohibited counsel from eliciting evidence and explanation of the panel hearing violated the state constitutional right to a jury trial.

The Case

In 2004, William Landry Jr. passed out multiple times. He went to the emergency room for evaluation. Electrocardiograms revealed left bundle branch block (LBBB), a cardiac condition that can be caused by coronary artery disease. Landry also had an exercise stress echocardiogram, which was interpreted as indeterminate by the defendant doctor. Landry followed up with the defendant doctor and was told that his problems were unrelated to any cardiac condition. The defendant never ordered a single test to evaluate whether Landry had coronary artery disease. Landry died of coronary artery disease the following year at the age of 36.

Pursuant to RSA 519-B, this case was heard by a medical malpractice screening panel. The panel system is intended to decrease the costs of medical malpractice insurance by encouraging settlement or dismissal through early identification of the merits of a claim. The panel in Landry unanimously found for the defendants. Pursuant to RSA 519-B:10, II, a plaintiff must either dismiss the claim or face admission of the findings at trial. There was no pretrial settlement offer.

In re Southern NH Medical Center

Tips for Admission of
Adverse Panel Findings
• Address the panel findings in voir dire – get the jury to agree that a jury trial is the best way to decide a case; have the jury pledge to be fair and decide the case based on the evidence and remind the jury of this pledge in your closing.
• Emphasize in the opening and closing that your client has a constitutional right to a jury trial.
• Jury instructions should state that the findings are mere evidence that the jury is free to accept or reject and that the evidence at the trial is different than the evidence heard at the panel hearing.
 
Just prior to trial, the New Hampshire Supreme Court decided In re Southern New Hampshire Medical Center, 164 NH 319 (2012), in which it held that the admission of the panel findings at trial did not violate the Separation of Powers Clause of the state constitution. 164 NH at 329-30.

However, the Court found that the statutory provisions prohibiting counsel from explaining the panel hearing to the jury violated the state constitutional right to a jury trial. Specifically, the Court found that “the jury is denied information that may be crucial to its assessment of the report. Under the statute, as currently configured, parties are unable to mount a meaningful challenge to the panel’s report at a subsequent trial.” Id. at 333.

The Court emphasized that “[t]he trial court maintains its broad discretion to decide, on a case-by-case basis, the type or amount of evidence that may be admitted at trial.” The Court also found that the trial court continued to retain its power to weigh “relevancy-versus-competing-interests issues” at trial regarding admission of the panel findings at trial.

Following In re Southern New Hampshire Medical Center, a party facing the admission of unanimous unfavorable panel findings may challenge those findings at trial.

In Landry, we addressed the panel findings in voir dire. We told potential jurors up front that the screening panel found against the plaintiff. We told potential jurors that the plaintiff has a constitutional jury trial right and asked them whether they agreed that a jury trial is the best way to decide a case. We then asked whether they would agree to decide the case on the merits. In closing argument, we reminded the jurors that a plaintiff has a constitutional jury trial right and they had promised to be fair and consider the evidence at trial even with the admission of the panel findings.

Mounting the “meaningful challenge” envisioned by the Court in In re Southern New Hampshire Medical Center was difficult, as there were several differences between the evidence at the panel hearing and the anticipated trial evidence. We narrowed the anticipated differences to two specific facts, and that several medical witnesses, including Chief Medical Examiner Dr. Thomas Andrew, did not testify at the panel hearing.

Defense counsel argued that they should be able to counter that there was no reason we could not have presented those facts or witnesses at the panel hearing. In response, we sought to explain that the panel hearing is an abbreviated hearing held early in the case before discovery had been completed. Judge David Garfunkel ruled that we could not admit evidence of specific fact and witness differences, because of the danger of a trial within a trial. However, the Court instructed the jury (in part) as follows:

“You may consider the fact that the panel hearing is an abbreviated proceeding. You may also consider that the evidence you heard at trial was different from the evidence presented at the panel hearing. Not all the evidence you heard at trial was heard by the panel. You are not bound by the findings of the panel. The panel findings are mere evidence that you are free to accept or reject. It is up to you, the jury, to consider what weight, if any, to give to the panel findings. It is your duty as jurors to reach your own conclusions based upon the evidence presented during this trial.”

Judge Garfunkel included the names and professions of the panel members in the instruction. In a different case tried shortly after Landry, the judge similarly instructed the jury that the evidence before the panel was different from the evidence at trial. However, the instruction in that case omitted the panel members’ professions from the instruction. That case settled during trial. The attorneys spoke with nine of the jurors, who unanimously agreed that the panel findings would not have affected their verdict.

Recent Insurance Department Statistics

The jury’s verdict proves that unanimous unfavorable panel findings against the plaintiff do not mean a case is without merit. The panel hearing here only served to delay the trial and add unnecessary costs. Landry is not an anomaly.

Recent statistics from the New Hampshire Insurance Department confirm that medical malpractice cases in which there were panel hearings took longer to resolve and were more costly. The department found that “For claims that used the screening panel, the proportion of claims settled prior to trial did not appear to increase as was hoped.” Additionally, the NH Insurance Department reported that defense costs “were more than double when the screening panel was used.”

Although the intent of the medical malpractice screening panel statute is to save time and money, experience has shown that just the opposite occurs. Our recent verdict demonstrates that unanimous unfavorable panel findings do not mean that a case is without merit and admission of the findings at trial does not affect the jury’s verdict. We found that explaining the findings to a jury is cumbersome and adds an unnecessary layer of complexity to medical malpractice cases.


Heather Menezes is an associate with McDowell and Osburn, PA, and focuses her practice on civil litigation, primarily personal injury, medical malpractice, and workers’ compensation. She can be reached at hmenezes@mcdowell-osburn.com or (603) 623-9300, ext. 209.

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