2007 Spring, Pg. 36. SCREENING PANELS FOR MEDICAL INJURY CLAIMS UNDER RSA 519-B: Implementation, Effect, and Issues on the Horizon.

AuthorBy Attorneys Kevin F. Dugan and Holly B. Haines

New Hampshire Bar Journal


2007 Spring, Pg. 36.

SCREENING PANELS FOR MEDICAL INJURY CLAIMS UNDER RSA 519-B: Implementation, Effect, and Issues on the Horizon

New Hampshire Bar JournalSpring 2007, Volume 48, No. 1Health Care & the LawSCREENING PANELS FOR MEDICAL INJURY CLAIMS UNDER RSA 519-B: Implementation, Effect, and Issues on the HorizonBy Attorneys Kevin F. Dugan and Holly B. HainesOn June 30, 2005, after more than two years of study committees, draft legislation, hearings and testimony on issues regarding professional malpractice claims and medical liability insurance, the legislature enacted RSA 519-B, creating mandatory screening panels for all medical injury claims.(fn1) This statute requires all medical malpractice cases filed in the Superior Court to be screened by a three-person panel consisting of a retired judge or person with judicial experience, a health care practitioner who practices in the area of alleged medical negligence, and an attorney, before the cases can proceed to trial. This statute repealed RSA 519-A, which provided an avenue for voluntary screening panels for all types of professional negligence claims.(fn2) Voluntary screening panels are no longer available for other cases of professional negligence, such as legal or financial malpractice. The mandatory screening panel is applied only to claims for medical professional negligence.

The Legislature's reasons for enacting this statute were: (1) to contain the costs of claims for medical injuries; (2) to make medical liability insurance more available and affordable; and (3) to resolve meritorious claims for medical injury "as early and inexpensively as possible."(fn3) The process developed by the statute is aimed at identifying meritorious claims of professional negligence and encouraging early resolution of them before lawsuits are filed, and identifying meritless claims of professional negligence to encourage early withdrawal or dismissal of those claims.(fn4)

This statute went into effect on August 29, 2005. As of the date of this writing in early 2007, 92 panels have been appointed, and only two cases have been heard by a panel appointed by the Superior Court. This article addresses the development and implementation so far of the legislation; the practical effect it has had and will likely have on litigants and the courts; and the future issues that will have to be addressed by the legislature and the courts if the statute remains in effect.

The experience in other states with similar screening panel procedures has shown that the process only increases the costs and time required for litigation of claims for medical injuries. Screening panel processes also have placed significant administrative burdens and costs on the court systems in those states. New Hampshire's own experience with the initial administrative burdens imposed on the Superior Court, including the fact that only two panel hearings have been held in the first 18 months since the statute took effect, raise questions about the viability of the panel statute. In addition to the implementation hurdles, the statute faces constitutional challenges. Its future outlook is grim, and the statute will needs significant modifications if it is to remain in effect.

  1. Development of the Law of Medical Malpractice Screening Panels

    Medical malpractice screening panels were developed in the 1970s in response to the first so-called medical malpractice insurance crisis, which was thought to have been caused by the growing number of medical malpractice claims being filed and the increasing amounts of juror damage awards.(fn5) Reports indicated that these factors were causing dramatic increases in medical malpractice liability insurance premiums and decreasing access to medical liability insurance.(fn6) The rising costs of insurance and the difficulties in obtaining coverage were allegedly driving providers to leave practice, thus affecting the availability of healthcare to citizens.(fn7) Despite these arguments, to date, no one has been able to pinpoint the cause of the alleged insurance crisis, and more recently it has also been attributed to economic downturns, vagaries of the market, and increasing numbers of medical errors.(fn8)

    By 1980, 48 states, including New Hampshire, had enacted some sort of comprehensive legislative reform intended to stabilize the medical liability insurance market.(fn9) Of the 48 states taking legislative action, 31 enacted some form of a medical malpractice screening panel system in an attempt to remediate the medical liability insurance crisis by weeding out frivolous claims and encouraging the expeditious resolution of meritorious claims.(fn10) Of those 31 states, only eleven, other than New Hampshire, have retained the mandatory medical malpractice screening panel process.(fn11) The reasons for repealing the screening panels in these 20 states are that the theoretical benefits of the panel through eliminating frivolous claims did not occur and, in fact, the procedural burdens on the civil litigation system were increased by exacerbating backlogs, delays and costs.(fn12)

    There is a general consensus that screening panels, ideally implemented, can be an effective way to encourage early resolution of disputes and eliminate non-meritorious claims if they produce decisions acceptable to both parties. Indeed, in theory, screening panels allow the parties to receive a preliminary assessment of the merits of their dispute and thereby facilitate the settlement process.(fn13) The difficulty in practice, however, is that such panels are burdensome to implement and very rarely will the panel findings be unanimous or acceptable to both parties. In such a case, the panel serves only as a condition precedent, or additional hurdle to leap before an inevitable trial, and it adds an extra layer to an already overburdened civil litigation system.(fn14) A study of the effectiveness of screening panels in Florida, Maryland and Pennsylvania concluded that screening panels were "often counterproductive, resulting in tremendous backlogs which cause unnecessary delays and added expense."(fn15)

    Despite these findings in many states, certain states have retained their screening panel systems either because they have not analyzed the effectiveness of the systems or because the panels may be successful in eliminating frivolous claims, encouraging resolution of disputes and reducing litigation costs. Two such states with existing variants of screening panel procedures are our neighbors, Massachusetts and Maine.

    1. The Massachusetts Tribunal

      The Commonwealth of Massachusetts enacted its Medical Malpractice Tribunal System in 1975. It is codified at M.G.L. 231 60B (2000). The tribunal is comprised of a superior court judge, an attorney and a physician, and it proceeds upon offers of proof by the parties.(fn16) The tribunal only determines whether, based on the offers of proof, a plaintiff could survive a directed verdict at trial by presenting sufficient competent evidence to support each element of the medical malpractice claim.(fn17) If the tribunal majority finds for the plaintiff, then the parties complete the discovery process and proceed to trial. If the tribunal majority finds for the defendant, then, in most cases, the plaintiff must post a bond within 30 days that is sufficient to cover defense costs in the event of a defense verdict before they can proceed with the discovery process and trial. If no bond is posted, and no exception is granted by a judge, the plaintiff's claim is dismissed with prejudice.(fn18) The Massachusetts tribunal hearing is supposed to occur within 15 days of a defendant's answer to a complaint and its findings are sent to the Board of Registration in Medicine within 15 days of the ruling.(fn19) A recent presentation to the Massachusetts Medical Society demonstrated that 78.5 percent of tribunal findings favored the plaintiff; 21.0 percent of tribunal findings favored the defendant; and in 0.5 percent of cases, the tribunal is waived by the parties.

    2. The Maine Mandatory Prelitigation Screening Panel

      Maine adopted its mandatory screening panel process ten years later, in 1985. It is codified at 24 M.R.S. 2851-2859 (2005). The screening panel process in Maine is more complicated than its counterpart in Massachusetts. It begins when a plaintiff files notice of a claim,(fn20) which is then referred to the Chief Justice of the Superior Court who appoints a Screening Panel Chair, who in turn appoints the rest of the panel.(fn21) Because the Maine screening panel procedure requires evidence and testimony to be presented and, unlike Massachusetts, does not proceed only upon offers of proof, the parties must engage in extensive discovery before the panel hearing can be held. The parties or the panel chair must establish a complete discovery schedule prior to the panel hearing.(fn22) The screening panel chair then refers all motions regarding discovery and affirmative defenses to the Superior Court for decision prior to holding a hearing.(fn23)

      The formal hearing is supposed to occur within six months of the claim being filed, but may be extended to 12 months if there is good cause.(fn24) Although rules of evidence do not apply, each side must present testimony and evidence to the panel and each has the right of direct and cross-examination.(fn25) The panel issues its findings within 30 days of the hearing, and the panel must decide: (1) whether the plaintiff proved medical...

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