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On June 8, 2005, the New Hampshire Legislature passed SB 214 creating a mandatory pretrial screening panel for medical negligence cases. The bill, codified as R.S.A. Chapter 519-B, is patterned after a similar law in Maine. In this article, we describe the basics of the new procedure and point out three areas in which it appears to run afoul of protections guaranteed by the New Hampshire Constitution.
R.S.A. 519-B requires all medical injury suits to be submitted to a screening panel comprised of a retired judge or a person with judicial experience, who serves as the chairperson of the panel, a health care provider, and an attorney.i If the suit involves more than one defendant, the chairperson may add another health care provider to the panel.ii
The screening panel holds a hearing and receives presentations from both sides. The only guidance provided by the statute is that the rules of evidence do not apply, depositions are admissible whether or not the witness is available to testify live, and the parties are to be given wide latitude in the conduct of their presentations.iii
The panel must make written findings within thirty days after the hearing. Specifically, the panel must decide, based upon a preponderance of the evidence:
If a majority of the panel finds in favor of the plaintiff, the statute requires the defendant to “promptly enter into negotiations to pay the claim or admit liability.”v If the defendant chooses to admit liability, and if both sides agree, the claim may be submitted to the panel for a determination of the plaintiff’s damages.vi
If the panel finds in favor of the defendant, the plaintiff is directed to release his or her claim without payment. If the plaintiff elects not to do so, the case can still go to trial and the only potential penalty is that the panel’s findings will be admissible if the panel decision was unanimous.vii The plaintiff is not penalized for proceeding to trial if the panel decision was not unanimous.
The panel’s findings are admissible at trial only if they are unanimous. If the plaintiff wishes to submit the findings, the panel must have unanimously found that the plaintiff established both a breach of the standard of care and causation.viii However, the defendant can submit the panel’s unanimous decision on any of the questions it is asked to decide (standard of care, causation, comparative fault).ix
R.S.A. 519-B implicates at least three rights guaranteed by the New Hampshire Constitution. First, the legislation impermissibly intrudes on the exclusive jurisdiction of the judiciary in violation of the constitutional separation of powers. Second, it violates the equal protection guarantees. And, third, to the extent that it allows the panel findings to be admitted at trial, the statute violates the constitutional right to a jury trial.
By enacting R.S.A. 519-B, the legislature appears to have violated Part I, Article 37 of the New Hampshire Constitution, which mandates the separation of powers among the three branches of government, and Part II, Article 73-a, which grants court rulemaking authority to the Chief Justice of the Supreme Court.
In 1996, the Legislature asked the Supreme Court whether it was constitutionally permissible, in light of Part I, Article 37 and Part II, Article 73-a, for it to enact a statute that would put in place a rebuttable presumption that evidence of prior sexual assaults is admissible against the defendant in a civil or criminal case. The court unanimously ruled that such legislation would violate the separation of powers doctrine set forth in Part I, Article 37, and, as a result, it declined to decide whether it would also violate Part II, Article 73-a.x
The court began its analysis of Part I, Article 37 as follows:
Beginning with volume one of the New Hampshire Reports, this court undertook its duty of defining the scope of the separation of powers clause as between the legislative and judicial branches of government. See Merrill v. Sherburne & al., 1 N.H. 199 (1818). In Merrill, we reviewed the pertinent articles of our State Constitution and concluded that nothing therein mandated a conclusion other than that the general court is excluded from the exercise of “judicial powers.” Id. at 206-08. The question before us today is whether the legislature’s promulgation of the proposed statute falls within the exercise of “judicial powers.”xi
The court then considered whether rule-making was a “judicial power”:
As a separate and coequal branch of government, the judiciary is constitutionally authorized to promulgate its own rules. The inherent rule-making authority of courts of general jurisdiction in this state to prescribe rules of practice and rules to regulate their proceedings “as justice may require” has an ancient lineage supported by consistent custom, recognized by statute and enforced by numerous judicial precedents.xii
Concluding that “[o]ur judicial power has always included the power to prescribe procedural rules for the conduct of litigation in this State’s courts,” the court also observed that, with the passage of Part II, Article 73-a, its inherent power to promulgate procedural rules was endorsed with constitutional authority.xiii
Nevertheless, the court conceded that, “[u]nder the separation of powers doctrine, the legislature has a limited appropriate role to act on court rules . . .”xiv Specifically, the legislature may enact rules that are substantive in nature, while those that are purely procedural are “under the exclusive jurisdiction of the courts . . .”xv
After describing the various tests used by other courts to determine whether a legislative enactment is “substantive” or “procedural,” the Court settled on the following definitions:
Substantive laws are those laws which have for their purpose to determine the rights and duties of the individual and to regulate his conduct and relation with the government and other individuals. Procedural laws are those laws which have for their purpose to prescribe machinery and methods to be employed in enforcing these positive provisions. There is a critical difference between the rights of an individual and the method by which an individual’s right will be presented in a court of law.xvi
In the case before it, the court determined that the legislation was procedural in nature and that it would have interfered with the operation of New Hampshire Rule of Evidence 404(b), a rule the court had enacted under its constitutional rule-making authority. Therefore, the court concluded that the Legislature had violated the Separation of Powers mandate in Part I, Article 37. In particular, the court emphasized that
Giving deference to the legislature would, in this instance, abolish [Rule 404(b)’s] purpose and interfere with the judiciary’s sound discretion in determining to what extent the rule serves its function in the circumstances of a particular case.xvii
The court did not hesitate to strike down the proposed legislation in the strongest of terms:
Because the proposed bill directly conflicts with Rule 404(b), a rule concerning a uniquely judicial function, the separation of powers doctrine is violated. The legislature has no more right to break down the rules prescribed by this court to assure fundamental due process in criminal and civil trials than the court has to prescribe the mode and manner in which the legislature shall perform its legislative duties.xviii
Under the definition set forth above, R.S.A. 519-B is clearly a procedural law. It does not regulate anyone’s conduct; it merely prescribes the machinery by which the substantive medical negligence law will be enforced in the courts. Furthermore, to the extent that it allows the introduction of the panel’s unanimous findings, it interferes with the operation of several of the court’s rules of evidence such as Rule 802 prohibiting the introduction of hearsay, and Rules 401, 402, and 403 prohibiting the introduction of irrelevant evidence or evidence whose probative value is substantially outweighed by its prejudicial effect.
It is clear, therefore, that by enacting R.S.A. 519-B the legislature encroached upon the exclusive jurisdiction of the judicial branch in violation of Part I, Article 37 and Part II, Article 73-a of the New Hampshire Constitution. This conclusion is not merely academic, but instead it goes to the heart of our system of checks and balances.
[I]f the Legislature could overrule the courts in some of their essential operations, the judiciary instead of being one of the three coordinate branches of the state government, would be rendered subservient to the Legislature in a fashion never contemplated by any.xix
R.S.A. 519-B also runs afoul of our state’s equal protection provisions. Unlike many other states, it is settled in New Hampshire that classifications affecting the right to recover for personal injuries are “subjected to a more rigorous judicial scrutiny than allowed under the rational basis test.”xx Specifically, such classifications “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation in order to satisfy State equal protection guarantees.”xxi
The questions to ask in an equal protection challenge, therefore, are “whether the statute has a fair and substantial relation to [a] legitimate legislative objective and whether it imposes unreasonable restrictions on private rights.”xxii
In Carson v. Maurer, our Supreme Court invalidated a medical malpractice “reform” statute after finding that several provisions did not satisfy the equal protection guarantees of the New Hampshire Constitution. For example, the court struck down a provision that required service of a notice of claim upon a medical malpractice defendant at least sixty days before the filing of a lawsuit. According to the court, the purpose of the sixty day notice requirement was to “give the defendant an opportunity to evaluate the claim and consider the possibility of settlement before costly litigation is undertaken.”xxiii
However, the court determined that “[t]he malpractice defendant gets all the notice he needs when he is served with process, because he still has ample time to review the claim and initiate settlement negotiations before the trial begins.”xxiv Furthermore, “[a]ny expenses incurred in doing so would likewise be incurred if the investigatory and settlement process was commenced prior to suit.”xxv Accordingly, the court concluded that “the special treatment afforded medical care providers by the notice provision at issue bears no reasonable relationship to the stated purposes of [the statute].”xxvi
The court went on to add that the notice provision is “a procedural hurdle which has the potential to prolong the time and increase the cost of medical malpractice litigation.”xxvii And, since the provision “unfairly postpones the time at which a malpractice victim may expect to recover for his injuries,” the court concluded that “[a]ny conceivable public benefit conferred by [the provision] is outweighed by the restrictions it imposes on private rights. The statute is therefore unconstitutional and void.”xxviii
R.S.A. 519-B suffers from the same constitutional infirmities as the notice provision in Carson. The two statutes share a virtually identical purpose—to encourage settlement at the earliest possible stages of the litigation. As was true with the notice provision in Carson, even without a screening panel, the parties in a malpractice case already have ample opportunity and incentive to settle early if possible to avoid costly litigation. And, like the notice provision, the screening panel will do nothing to relieve litigants of investigation and settlement expenses. In fact, the addition of the screening panel will substantially add to the parties’ expenses since they must now try their case twice—once before the panel and once before the jury.
As was true with the notice provision, the foregoing demonstrates that the addition of a trial before a screening panel will prolong the time and increase the cost of medical malpractice litigation without providing any meaningful public benefit. Therefore, the statute violates the equal protection provisions of the New Hampshire Constitution and should be struck down in its entirety.
In addition, the portions of R.S.A. 519-B that permit a unanimous panel report to be admissible at trial are also unconstitutional since they do not bear a fair and substantial relation to the statute’s purpose. According to the legislature, the purpose of the statute is to facilitate the resolution of medical injury claims as early and inexpensively as possible to contain system costs.xxix Specifically, the legislature felt that “[t]he panel process will encourage the prompt resolution of claims, because both sides will be given an objective view of the merits. If the panel finds that a claim has merit, the defendant will be more likely to pay the claim or negotiate a compromise that is favorable to the claimant. If the panel finds that the claim lacks merit, the claimant is more likely to withdraw the claim or accept a nominal settlement.”xxx
The legislature’s stated purpose in enacting R.S.A. 519-B, to encourage the early resolution of medical injury claims by providing both sides with an objective view of the merits of their respective cases, bears no relationship to the portion of R.S.A. 519-B that permits the introduction of a unanimous panel’s findings at a subsequent jury trial. The admission of a unanimous panel’s findings at trial adds nothing to the objective view that the panel already communicated to the parties well in advance of the jury trial.
Finally, the admission of the unanimous panel findings clearly impairs the constitutional right to a jury trial.xxxi The parties to a medical malpractice suit in New Hampshire have a constitutional right to a jury trial. The framers of our state constitution used the strongest terms when they wrote that “[t]his method of procedure shall be held sacred . . .”xxxii In this state, therefore, a civil litigant’s right to a jury trial is as sacred as a criminal defendant’s right to a jury trial and “Its sacredness is not a matter of degree: it is absolute.”xxxiii
In two cases decided in the late nineteenth century, the New Hampshire Supreme Court considered whether the constitutionality of legislation submitting civil suits for an initial trial before a referee and allowing the referee’s report to be admitted to the jury as prima facie evidence subject to impeachment. In the first case, Copp v. Henniker, the plaintiffs sued alleging they were injured as a result of highway defects. In accordance with the newly enacted statute, the trial judge referred the case to a referee, and, before anything more happened, the defendant challenged the constitutionality of the statute.xxxiv
The court began its analysis by explaining that the New Hampshire Constitution guarantees to civil litigants “a trial according to the course of the common law, and the same in substance as that which was in use when the constitution was framed.”xxxv To illustrate this, the court offered the following example:
A statute might be passed calling eleven men a jury, and declaring that a jury should consist of eleven men and no more, or that, if eleven out of twelve jurors could agree, they might return a verdict; but such a statute would be an infringement of the constitutional right of trial by jury, because such a trial must be “according to the course of the common law, and the same in substance as that which was in use when the constitution was framed;” and a trial by a jury of eleven men, or a trial with the verdict given by eleven men out of twelve, would not be a trial “according to the course of the common law,” and would not be “the same in substance as that which was in use when the constitution was framed;”xxxvi
The court then considered whether a constitutional violation had been established under the facts of that particular case. It described the procedure mandated by the statute as compulsory pre-trial arbitration and concluded that it is not unconstitutional as long as it has “no other effect than to force upon the parties an opportunity to try their case before some other tribunal than a jury.”xxxvii The court added that “such a proceeding is not an infringement of the constitutional right of jury trial, if a reasonably unfettered right of appeal is allowed to a court where the constitutional right [to a jury trial] in its entirety can be enjoyed.”xxxviii
In light of the procedural posture of the case before it, where the trial had not yet been held before the referee, the referee had not yet issued his report, and no party had attempted to offer the referee’s report in a subsequent jury trial, the court held that no constitutional violation had been established. However, the court felt compelled to comment on the constitutionality of the provision permitting the use of the referee’s report as prima facie evidence before the jury.
The court framed the constitutional question as follows:
Taking a case of the class in which there was, in 1792, a right of jury trial without the introduction of the decision of a different tribunal on the facts in controversy as evidence of all the facts stated in that decision subject to be impeached by either party as provided by [the statute at issue], the question is, Would such an introduction of such a decision be an infringement of the right of jury trial enjoyed in 1792? Would the influence and effect given to the decision of the auxiliary tribunal, by [the statute], tend to secure the right of the jury trial of 1792, or to facilitate the exercise of that right? or, would it tend to discourage, obstruct, and defeat it?xxxix
The court then further narrowed the issue to “whether a statute that establishes the conclusion drawn from evidence by a referee, as the verdict of the jury, unless it is shown to be wrong, leaves the substance of the jury trial of 1792 unimpaired.”xl Before answering that question, the court paused to observe that “[c]alling the auxiliary decision prima facie evidence does not make it anything less than a decision of all facts put in issue by the pleadings,—a verdict forced upon the jury, which they are bound formally to affirm unless it is shown to be erroneous.”xli
The court answered the decisive question with a rhetorical question of its own: “If the legislature can dictate what evidence the jury shall be permitted to hear, and what conclusions they shall draw from it,—if the legislative power, in this direction, is unlimited,—does it follow that the jury trial of 1792 is not practically a constitutional right?”xlii Or, more to the point,
Did the people of 1792, incorporating the jury trial of that day in the organic law, mean to secure for themselves and their posterity nothing more than a trial in which judgment should be rendered on such a verdict?xliii
The court summarized its concerns as follows:
to transfer to another tribunal (referee, presiding judge, or other official, who is not a constitutional jury) the constitutional province of the constitutional tribunal to decide the real points of contention; to exclude the constitutional tribunal from the exercise of its entire power, and the performance of its whole duty as constitutionally fixed in 1792 (by the mere continuance of the well-known and familiar practice of that day); to restrict the constitutional tribunal, not to the real points of contention, but to the extraneous, foreign, irrelevant, and impertinent inquiry whether the decision of those points by the other tribunal is shown to be erroneous--is such a proceeding all that the people of New Hampshire meant in 1792, when, by formal, solemn, and repeated constitutional guaranties, they perpetuated the jury trial then in common use? In what fair and reasonable constitutional sense can such a proceeding be said to facilitate the enjoyment of the right to have the real points of contention (by whatever preliminary steps of trial, pleading, or practice they may be ascertained) passed upon by a jury? How can it be shown that such a proceeding is not a transfer of a part (small or great, according to the degree of effect given to the auxiliary decision) of the duty of deciding the real points of contention, from a tribunal to which the constitution assigns that duty, to a tribunal to which the constitution does not assign it?xliv
One year later, in King v. Hopkinsxlv, the court squarely faced the issue that it had addressed in dicta in Copp. In King, the plaintiff sued the defendant for flooding the plaintiff’s land. The case was referred to a referee who held a trial and issued a report in favor of the defendant. The referee’s report was introduced as evidence at a subsequent jury trial and the jury returned a defense verdict. The plaintiff appealed arguing that the introduction of the referee’s report violated the constitutional right to a jury trial.xlvi The court agreed and set aside the verdict.
Writing for the majority, Justice Foster stated:
I am quite unable to contend or to discover that, by the true common law principle, a jury trial ever was, is, or can be a mere decision by a jury of the question, not presented by any pleadings in a cause, whether a different tribunal, auxiliary or other, have decided the issue between the parties rightly or wrongly. The substitution of that question in place of the real issue presented by the pleadings seems to me a most essential alteration of the substance of the jury trial of the common law;xlvii
Justice Foster continued by asking “what shadow of an argument is there to show that a common law jury trial is had when a jury, instead of passing upon the real issue presented by the pleadings, weighing the evidence pro and con, pass upon the question whether some other tribunal has correctly decided the issue between the parties, starting with the decision of the other tribunal as making a prima facie case in favor of its own correctness?xlviii He answered that question in the apparent style of the day with another question:
when we say the legislature can substitute an auxiliary decision of the issue instead of the issue, and, upon the question of the correctness of that decision, give that decision itself such arbitrary weight as they please, have we not . . . folded up that part of the constitution relating to jury trial, and laid it away as record evidence that the constitutional right is abolished?xlix
In the end, the King court squarely held that the statute at issue was unconstitutional and condemned the legislature’s actions in the strongest possible terms:
If the constitutional jury trial is no more than that, it is nothing at all; for the legal substance of jury trial (in whatever sense it is understood) may be abolished by a great variety of ingenious statutes. If a jury can be compelled to give their verdict, not upon the issue between the parties, but upon the question whether an auxiliary decision of that issue is right, giving to that auxiliary decision, as evidence of its own correctness, such weight as the legislature choose to prescribe, the constitutional guaranty of jury trial is a delusion; and if that guaranty can be repealed by legislative circumlocution, every other constitutional guaranty is a constitutional farce.l
One hundred and twenty-nine years have passed since King was decided but the constitutional provision at issue has not changed. And, as recently as 2003, our Supreme Court reiterated that the rights protected by Part I, Article 20 are those that were in place when the constitution was enacted.li It follows that Copp and King remain controlling precedent for the proposition that the legislature may not require the admission of the decision of an auxiliary panel in a matter for which there was a right to a jury trial in New Hampshire the late 1700s.
There is no question that a right to a jury trial existed in New Hampshire in the late 1700s with respect to medical negligence suits.lii Therefore, the question is whether the new legislation has impermissibly burdened that right. Or, as the court put it in Copp, “if, with the burden, the trial remains, in substance, the same as the jury trial of 1792, the burden is constitutional; otherwise, not.liii
Clearly, as both Copp and King point out, the jury trial of the late 1700s did not include the admission of a decision by an auxiliary panel and legislation calling for the admission of such a report is unconstitutional regardless of the weight the jury is told to give to the report. For instance, it is immaterial that the statute at issue in Copp and King required the jury to uphold the referee’s findings unless they were proven erroneous whereas the statute in this case calls for the submission of the panel’s unanimous findings as “evidence.” Both are equally improper because the very admission of the report transfers to some extent “the duty of deciding the real points of contention, from a tribunal to which the constitution assigns that duty, to a tribunal to which the constitution does not assign it . . .”liv
Even though R.S.A. 519-B does not give the screening panel’s report the status of prima facie evidence, in some ways it is even worse than the statute struck down in King. That is so because the panel’s report is admissible under R.S.A. 519-B without any opportunity for the opposing party to impeach it. Instead, the twelve laypersons hearing the case are handed the panel’s report and simply instructed by the judge that:
Despite these instructions, the practical effect of R.S.A. 519-B is identical to the effect of the statute struck down in King. Although the jury may not be told that the panel’s report constitutes prima facie evidence, the report carries at least that much weight because it comes from a panel whose members include a judge and a doctor, the panel itself is stamped with the imprimatur of the court, and the panel’s opinions are bolstered by an appearance of impartiality since they do not come from a witness paid for or aligned with a party. It is unrealistic to believe that a jury is going to consider the panel’s report to be nothing more than a piece of evidence that it is free to accept or reject.
The right to a jury trial is further harmed by the fact that, unlike the statute in Copp and King, R.S.A. 519-B prohibits the opposing party from attempting to impeach the panel’s report in any way. A jury handed such a report, and given only those instructions set forth in the statute, will have no choice but to return a verdict in accordance with the report in all but the most unique cases.
In any event, regardless of which is worse, the statute at issue in Copp and King or the statute at issue here, it cannot be disputed that R.S.A. 519-B significantly alters the substance of the jury trial that was available to medical negligence litigants when the New Hampshire Constitution was enacted. For that reason alone, it is unconstitutional.
It is worthwhile to note that R.S.A. 519-B is patterned after Maine’s medical review panel statute, which the Maine Supreme Judicial Court upheld against a similar constitutional challenge. In Irish v. Gimbellvi, the Maine Law Court was asked to decide whether a statute admitting unanimous panel findings without any comment from the court or the parties violated that state’s constitutional right to a jury trial. After considering United States Supreme Court precedent construing the Seventh Amendment of the United States Constitution and decisions from Nevada and New York, the Maine court held that it was impermissible to allow the panel’s unanimous findings to go to the jury without explanation:
The court instructed the jurors that they were not bound by the findings and should give the findings whatever weight they thought appropriate. This admonition rings hollow when the jurors are deprived of any and all information of the context in which the panel operates. To deepen the mystery, the court barred the parties from informing the jury they were restricted from commenting on the findings. The total absence of information and the unexplained silence of plaintiffs' counsel in the face of the highly prejudicial findings invited unprincipled evaluation and can only result in juror confusion.lvii
Rather than striking down the statute, however, the court took the extraordinary step of drafting instructions for the trial court to give which it determined were sufficient to permit the jury to perform its constitutional function.lviii The instructions adopted by the court in Irish have been included verbatim in the New Hampshire statute.lix
Although the panel procedure upheld by the Maine Supreme Judicial Court is virtually identical to R.S.A. 519-B, it is apparent that Maine’s constitutional right to a jury trial is treated differently than New Hampshire’s. This is illustrated by the fact that, in 1876, the Maine court upheld a statute similar to the one that the New Hampshire Supreme Court struck down in Kinglx and the Irish court cited that decision twice in the course of its opinion upholding the screening panel.lxi
Although some mandatory malpractice screening panels have survived constitutional challenges in other states, it is readily apparent from the foregoing that the New Hampshire Constitution offers this state’s citizens greater protection than most other states. When our constitution is examined along with our Supreme Court’s precedent, it becomes clear that R.S.A. 519-B suffers from several fatal infirmities and must be struck down.