SCREENING PANELS FOR MEDICAL INJURY CLAIMS UNDER RSA 519-B: IMPLEMENTATION, EFFECT, AND ISSUES ON THE HORIZON

Kevin F. Dugan and Holly B. Haines

On 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 ch. 519-B, creating mandatory screening panels for all medical injury claims.i 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 This statute repealed RSA ch. 519-A, which provided an avenue for voluntary screening panels for all types of professional negligence claims.ii Voluntary screening panels are no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 legislative reasons for enacting this statute were: (1) to contain the costs of claims for medical injuries; (2) to increase the availability and affordability of medical liability insurance; and (3) to resolve meritorious claims for medical injury "as early and inexpensively as possible."iii The underlying purposes of the statute are: (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.iv

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 have achieved a panel hearing in the Superior Court. This article addresses the historical development and current implementation of the legislation; the practical effect it has had and will likely have on litigants and the Court system; and the future issues that will have to be addressed by the legislature and the Courts if the statute remains in effect.

The experience with similar screening panel procedures in other states has shown that the process only increases the costs and time required for litigation of claims for medical injuries. The screening panel also has 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 and being able to achieve only two completed panel hearings in the first eighteen months that the statute has been in effect, as well as the preliminary and imminent future constitutional challenges to the statute, make the future viability of the screening panel statute grim at best, and in need of significant modifications, at worst, if it is to remain in effect.

I. 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 increasing frequency of medical malpractice claims being filed and the increasing amounts of juror damage awards.v Reports indicated that these factors resulted in dramatic increases in medical malpractice liability insurance premiums and decreases in available medical liability insurance providers.vi Because of the increasing costs of insurance and its decreasing availability to medical practitioners, physicians were allegedly driven out of the market and the availability of healthcare to citizens was at risk.vii Despite these arguments, to date, no one has been able to precisely 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.viii

By 1980, 48 states, including New Hampshire, had enacted some sort of comprehensive legislative reform intended to stabilize the medical liability insurance market.ix 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.x Of those 31 states, only eleven, other than New Hampshire, have retained the mandatory medical malpractice screening panel process.xi 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.xii

There is a general consensus that screening panels, if implemented perfectly, 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.xiii 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.xiv 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."xv

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 achieving their stated objectives of eliminating frivolous claims, encouraging resolution of disputes and reducing the costs associated with trial. Two such states with existing variants of screening panel procedures are our neighbors in Massachusetts and Maine.

A. THE MASSACHUSETTS TRIBUNAL

The Commonwealth of Massachusetts enacted its Medical Malpractice Tribunal System in 1975. It is codified at M.G.L. ch. 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.xvi 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.xvii 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.xviii The Massachusetts tribunal hearing is supposed to occur within fifteen days of a defendant’s answer to a complaint and its findings are sent to the Board of Registration in Medicine within fifteen days of the ruling.xix A recent presentation to the Massachusetts Medical Society demonstrated that 78.5% of tribunal findings are in favor of a plaintiff; 21.0% of tribunal findings are in favor of a defendant; and in .5% of cases the tribunal is waived by the parties

B. THE MAINE MANDATORY PRELITIGATION SCREENING PANEL

In contrast to Massachusetts, Maine did not adopt its mandatory screening panel process until 1985. It is codified at 24 M.R.S. §§2851-2859 (2005). The screening panel process in Maine is much more complicated than its counterpart in Massachusetts and begins when a plaintiff files notice of a claim.xx The claim 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.xxi 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.xxii The Screening Panel Chair then refers all motions regarding discovery and affirmative defenses to the Superior Court for decision prior to holding a hearing.xxiii

The formal hearing is supposed to occur within six months of the claim being filed, but may be extended to twelve months if there is good cause.xiv Although rules of evidence do not apply, each side must present testimony and evidence to the panel and has the right of direct and cross-examination.xxv The panel issues its findings within thirty days of the hearing, and the findings determine: (1) whether the plaintiff proved medical negligence by a preponderance of the evidence; (2) whether the plaintiff proved causation by a preponderance of the evidence; and, if applicable, (3) whether the defendant proved comparative negligence by a preponderance of the evidence.xxvi If the panel findings are unanimous in favor of the plaintiff on all questions, then they are admissible at trial.xxvii If the panel findings are unanimous in favor of the defendant on any question, then they are admissible at trial. If the panel findings are unanimous in favor of the plaintiff, the defendant must immediately enter into settlement negotiations or admit liability.xxviii Unlike the Massachusetts Tribunal findings, if a Maine screening panel unanimously finds in favor of a defendant, the plaintiff does not have to post a bond to proceed with the case but the plaintiff does risk the panel findings of no medical negligence being presented to the jury.

C. NEW HAMPSHIRE LEGISLATIVE HISTORY OF RSA 519-B

In 2003, through House Bill 287, the New Hampshire Legislature established a Professional Malpractice Claims Study Commission to study the repeal of the existing voluntary professional malpractice screening panel law codified at RSA ch. 519-A and to study the enactment of RSA ch. 519-B to enact mandatory medical malpractice screening panels based on the Maine system described above.xxix During commission meetings, the pros and cons of adopting a mandatory medical malpractice screening panel system were hotly debated. Issues raised in support of the study involved the potential for narrowing the issues for trial, encouraging settlement of valid claims, promoting faster payments to plaintiffs with valid claims, and eliminating frivolous claims from the system. Issues raised in opposition to the study included the duplication of the discovery and trial preparation process resulting in increased costs, the administrative delays in appointing panels, processing cases and getting them to trial, and the reality that smaller but valid claims would get eliminated from the system because it would not be cost effective to bring them due to the increased litigation costs and lower expected recoveries. The majority of the Commission voted to propose legislation to repeal the voluntary panel statute and to create a mandatory screening panel process, similar to the one used in Maine, with findings that would be admissible at trial.xxx The minority reported that, in addition to the constitutional concerns inherent in any pretrial delays to the litigation process, adoption of the Maine mandatory prelitigation screening panel system would, in fact, increase delays in processing cases and increase the costs to injured plaintiffs and insurers and be unable to meet the stated objectives.xxxi

Based on the results of he Commission study, HB 1413 was introduced in the 2004 legislative session, but the bill died in conference after legislative hearings. An identical bill, SB 214 was introduced in the 2005 legislative session. At the hearings on SB 214, the testimony presented was virtually identical to that presented in favor of and opposition to HB 1413 in 2004. The testimony in favor of adoption of the mandatory medical malpractice screening panel process focused on the lower litigation costs associated with bringing claims in Maine.xxxii It also demonstrated that Maine medical malpractice insurance premiums have risen at a slower rate exponentially than the rates in New Hampshire. xxxiii Finally, the evidence and testimony indicated that in Maine, a somewhat lower percentage of cases filed actually go to trial than in New Hampshire.xxxiv

Upon questioning, however, no one could guarantee that adoption of the Maine system in New Hampshire would achieve the same result due to the differing economic markets and individual nature of claims.xxxv The testimony and evidence presented in opposition to the bill disclosed that with the differing economic factors in New Hampshire, a reduction in insurance premiums and costs would not immediately occur.xxxvi Vermont’s medical malpractice insurance premiums and costs per claim were shown to be lower than those in Maine, and Vermont does not have a pretrial screening panel.xxxvii Likewise, self-insured physician networks such the Dartmouth-Hitchcock System, which do business in New Hampshire and Vermont only, and not in Maine, were shown to have even lower claim costs than the insurers in Maine due to their own claims management procedures.xxxviii In Maine, the evidence showed that the mandatory prelitigation screening panel delays claims because it takes more than a year and a half to get to a panel hearing, which is a condition precedent to filing suit in Maine, despite the statute’s requirement of a hearing in under one year.xxxix Attorneys from Maine demonstrated that the costs and time of bringing claims have increased so substantially that smaller claims with lower expected recoveries are no longer brought because it is not cost-effective to the injured plaintiff to do so.xl The undisputed evidence showed that the biggest difficulty with implementing the prelitigation panels in Maine are finding unbiased panel members that are willing to serve.xli

Notably, no one involved with this bill contacted the New Hampshire Superior Court to determine whether there would be increased budget costs that must be addressed in order to effectively implement these panels. Nor was a fiscal note ever attached to the bill to ensure that the mandatory medical malpractice panel system would be adequately funded. xlii Finally, the unanimous testimony showed that there are no frivolous malpractice claims filed in New Hampshire, there are no punitive damages allowed in New Hampshire and jury verdicts in New Hampshire are not excessive.xliii Based on this testimony alone, it would seem that no screening panel for malpractice claims should be necessary.

Following these hearings, the majority committee report recommended adoption of an amendment to create a Massachusetts tribunal-type system where only offers of proof are submitted to determine merit to proceed to trial.xliv The minority committee report advocated adoption of the Maine-style panel as presented to the committee. Despite the overwhelming evidence against adopting a mandatory screening panel process, the legislature agreed with the minority of the judiciary committee and enacted SB 214 into law as RSA ch. 519-B on June 30, 2005.xlv

II. HOW MEDICAL MALPRACTICE SCREENING PANELS WORK IN NEW HAMPSHIRE UNDER RSA CH. 519-B

The New Hampshire statute establishing medical malpractice screening panels is substantially similar to the Maine statute upon which it is based. xlvi The statutory procedure for screening panels applies to all actions for medical injury as defined in RSA 507-E:1, I. This means that the statute applies to "any action against a medical care provider, whether based in tort, contract or otherwise, to recover damages on account of medical injury."xlvii Medical care providers include not only physicians, but also a "physician’s assistant, registered or licensed practical nurse, hospital, clinic or other health care agency licensed by the State or otherwise lawfully providing medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment."xlviii Other health care providers that are potentially subject to this statute, although not specifically identified, are chiropractors, dentists, hygienists, emergency care providers, midwives. naturopaths, licensed nursing assistants, pharmacists, pharmacy technicians, podiatrists, psychologists, clinical social workers, pastoral psychotherapists, mental health counselors, and marriage and family therapists.

The procedure for all medical malpractice cases filed after August 29, 2005 is as follows. When a writ of summons in a medical malpractice case is filed in the Superior Court, the Clerk enters the writ into the docket and submits the case to a judge to determine whether the case is subject to the new screening panel procedure. Upon a finding that the case is one for medical negligence to which the screening panel statute applies, the Clerk opens a second consecutively numbered civil file as the screening panel case, which remains under seal because all proceedings and documents filed in a screening panel case must remain confidential.

On the return date of the writ, the Clerk of Court forwards the writ of summons and all appearances in the case to the Chief Justice of the Superior Court for appointment of a panel chair.xlix Within fourteen days, the Chief Justice appoints a panel chair from a list of retired judges or other qualified persons with judicial experience. Notably, due to changes to the judicial retirement system, judges who retired after 2004 do not have to accept, and can refuse, appointments to serve as screening panel chairs. Judges who retired prior to 2004 are obligated under their retirement plan to serve as a panel chair to serve at the pleasure of the Chief Justice in order to receive their pensions. Due to this differing treatment, the pool of available judges to serve as panel chairs is much smaller than the legislature likely expected and has already proven to be a small hurdle to appointment of screening panel chairs by disproportionately placing the burden on long retired justices to serve as chairs of these panels.

Despite this administrative difficulty, once a panel chair has accepted an appointment, the Chief Justice notifies the Clerk of the appointment and the Clerk notifies the chair and the parties, including lists of health care practitioners and attorneys from whom the remaining two or three members of the panel will be selected.li The health care professional selected for the panel should practice in the same area as the defendant in the medical malpractice case. If the suit involves more than one defendant, then the chair may select a fourth member of the panel from the list of health care practitioners, again, if possible, selecting a provider who practices in the same specialty as the defendant.lii The panel chair then selects the remaining members of the panel and informs the Clerk of Court, who notifies the parties of the composition of the panel. The parties may challenge the panel appointments, but only for cause.liii If the chair finds that cause exists, the chair shall replace the panel member. If the chair of the panel is challenged for cause, the Chief Justice of the Superior Court determines whether cause exists and replaces the panel chair.liv

The panel chair is compensated by the Superior Court. Other members of the panel do not receive compensation.lv Clerical support for the panel is provided by members of the Superior Court Clerk’s office in the county where the action was filed. lvi One of the biggest difficulties in finding panel members that are willing to serve is the lack of compensation. Panel hearings may last from one to two days, and in addition to not being paid for their service, panel members are losing compensation at their medical and legal practices for the time that they volunteer for service to the panel.

Within 20 days of the return date, counsel for the defendant is to contact plaintiff’s counsel to establish a discovery schedule. If an agreement on discovery dates cannot be reached within 60 days of the return date, plaintiff’s counsel must notify the panel chair who then set the discovery schedule for the parties.lvii To ensure that cases do not fall through the cracks, the Superior Court has adopted a procedure that within 30 days of the panel appointment and panel notification being made, a panel structuring conference is held with the chair of the panel and the parties. A structuring conference order for the panel hearing issues in the same manner that it does in a regular civil case. The screening panel process is not supposed to delay or postpone the trial of any medical injury case.lviii Thus, the Clerk of Court in which the case is filed will also order a structuring conference in the usual course to set discovery deadlines for the trial. A structuring conference order for the court proceeding, which may conflict with the screening panel deadlines, is also issued in the usual course.lix

The screening panel hearing is supposed to occur within six months of the return date on the writ unless the panel chair has extended the time period.lx Even with good cause for extension, however, the panel hearing must occur within eleven months of the return date.lxi As only two panel hearings have occurred in the first eighteen months that the statute has been in effect, it is already clear that the statutory deadlines cannot be met.

Any issues regarding affirmative defenses must be decided by the Superior Court, not the panel chair.lxii Discovery motions must be ruled on by the panel chair, and such rulings may be appealed to the Superior Court.lxiii Any discovery issues that the panel chair chooses not to decide must be submitted to the Superior Court for decision.lxiv The panel chair has the same power of subpoena as a Superior Court Judge.lxv New Hampshire Superior Court Rules govern discovery for panel proceedings. lxvi If either the plaintiff or the defendant fails to appear or fails to comply with the orders of the panel chair, the panel chair may institute sanctions of dismissal of a plaintiff’s claim or default of a defendant, which shall be equivalent to a unanimous panel finding against that party on all issues.lxvii

There must be one combined hearing on all claims arising from the same set of facts, unless the parties agree or the panel chair orders otherwise.lxvii At the hearing, both parties make presentations of their respective cases and are afforded wide latitude while doing so with regard to examination and cross examination of witnesses.lxix The plaintiff bears the burden of proving negligence and causation by a preponderance of the evidence. The defendant bears the burden of proving comparative evidence by a preponderance of the evidence.lxx The Rules of Evidence, however, do not apply to screening panel proceedings.lxxi Depositions are admissible whether or not the deponent is available to testify at the hearing. Similarly, any evidence is admissible if it is the kind of information upon which reasonable persons would rely during the conduct of their serious affairs.lxxii If the panel wants additional facts, records or evidence before it renders its decision, it may either make a request for the information or hold a continued hearing at a later date.lxxiii

The panel shall make its findings on all evidence, records, testimony and expert opinions received. There shall be a tape recorded record of all panel proceedings, which shall remain confidential absent consent of all of the parties involved.lxxiv The panel chair shall be authorized to make all procedural rulings at the panel hearing and shall attempt to mediate any differences between the parties before the panel makes its final findings.lxxv Within thirty days of the panel hearing, the panel shall submit findings in writing on the following questions:

(a) Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the medical care provider charged with that care; (b) Whether the acts or omissions complained of proximately caused the injury complained of; and (c) If fault on the part of the medical care provider is found, whether any fault on the part of the patient was equal to or greater than the fault on the part of the provider. lxxvi

The panel’s written findings, with signatures of each panel member indicating their vote, then must be sent to the parties via registered or certified mail within seven days of their issue.lxvii The findings and record of the hearing and the screening panel file shall be preserved until 30 days after final judgment in the underlying case, at which time they will be destroyed.lxviii

If the panel’s written findings are unanimous on all questions on behalf of the plaintiff, then they are admissible at trial.lxxix In contrast, if the panel’s written findings are unanimous on any question on behalf of the defendant, then they are admissible at trial.lxxx If the findings are not unanimous then they are not admissible.lxxxi Likewise, no evidence or testimony submitted to the panel is admissible at trial unless it is presented by the party who presented it to the panel or it is used for impeachment.lxxxii No panel member or witness at the panel can be compelled to testify at trial, unless the witness is called by the party who presented the non-party testimony to the panel or there are allegations of fraud.lxxxiii

If the panel findings are presented at trial, then the Superior Court shall instruct the jury both at the time of presentation of the findings and during jury instructions at the close of evidence of the following to ensure that the panel findings are placed in the appropriate context for the jury:

(a) The panel process is a preliminary procedural step through which malpractice claims proceed. (b) The panel in this case consisted of (insert the names of the panel members). (c) The panel conducted a summary hearing and is not bound by the rules of evidence. (d) The hearing is not a substitute for a full trial and may or may not have included all of the evidence that is presented at the trial. (e) The jury is not bound by the findings of the panel and it is the jurors’ duty to reach their own conclusions based on all of the evidence presented to them. (f) The panel proceedings are privileged and confidential. Consequently, the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and they may not comment on the panel findings or proceedings except as provided in subparagraphs (a) through (e).lxxxiv

If the panel findings were unanimous on behalf of either party, before they are admissible at trial, the parties must attempt resolution of the claim. If the findings were unanimous on behalf of the plaintiff, the defendant must immediately enter into negotiations to pay the claim or admit to liability. If liability is admitted, the claim can be submitted to the panel for a determination of damages or the claim may proceed to trial where the unanimous findings will be admissible.lxxxv If the panel findings are unanimous on behalf of the defendant, the plaintiff must either release its claims based on the findings without payment or the findings will be admissible at trial.lxxxvi

The Administrative Office of the Courts is charged with tracking medical injury claims and the screening panel procedure and submitting an annual report regarding the effectiveness of the procedure on September 30 of each year.lxxxvii The report must include the number of cases filed, pending and resolved; and the number of panel hearings held and panel days used during the fiscal year ending prior to the report date. The report shall also include, for all cases resolved under this statute, the mean and median lengths of time from filing to final resolution, the number and average amount of the settlements of cases resolved prior to panel hearings, of cases resolved after panel hearings but prior to trial, and of cases resolved by jury verdict.lxxxviii The Insurance Commissioner also must file a report before November 1 each year on the effects of the panel on the medical malpractice market.lxxxix

While this statute went into effect on August 29, 2005, because no panel hearings were held prior to September 30, 2006 or November 1, 2006, no reports were reviewed for this article for the first year of the statute. Since November 2006, the Chief Justice of the Superior Court reported at a recent CLE on the Screening Panel Process that 92 total panels have been appointed in medical malpractice cases. Of these cases, two have reached panel hearings; nine have settled before a hearing was scheduled; four have been nonsuited; and the remaining 67 are awaiting hearings eighteen months after the effective date of the statute. In light of the many medical malpractice claims that have been filed statewide, it is clear that the statutory requirements of holding panel hearings no later than eleven months from the return date cannot be met.

It is unclear, however, if this failure is caused by the parties to the procedure or by the failures in the system itself. Because no fiscal note was attached to fund the bill enacting this statute, our already underbudgeted Superior Courts are now being asked to create duplicate dockets and additional files, devote clerical resources to the procedure, hold duplicate structuring conferences issuing additional orders to additional parties and panel members, and devote courtrooms for days at a time for the panel hearings to be held. Similarly, the statute requires a retired judge or person with judicial experience to serve on these panels. There are a finite number or retired judges in the Court system who are available to do this, especially after the changes to the judicial retirement system that occurred in 2004, which could add to the difficulties of appointing panel chairs to initiate this process. Finally, the compensation issue makes it economically prohibitive for the volunteer panel members to serve on panels that may last for one or more days.

III. PRACTICAL EFFECTS OF MEDICAL MALPRACTICE SCREENING PANELS IN NEW HAMPSHIRE AND THE EXPERIENCE OF OTHER STATES

A. NEW HAMPSHIRE EFFECTS

Because only two cases have been screened by a panel under this statute to date and the panel findings are confidential unless they are admitted at trial, it is difficult to tell what the practical effect of the statute will be on the future of medical malpractice litigation in New Hampshire. In our office, however, the statute has had certain noticeable effects. First, medical malpractice defendants, whose insurers were the proponents of this statute to reduce time and costs, now request longer discovery schedules at the structuring conference of the Court proceeding by asserting that a longer period of discovery is necessary to prepare for two proceedings. In contrast, our office now requests shorter discovery and trial periods because the screening panel statute requires all discovery and depositions to be completed before the panel hearing under the six or eleven month time frame. The panel process also requires our clients to be prepared to testify at deposition, at a panel hearing and at a trial. Clients are informed of the mandatory two-tier procedure and of the potential for greatly increased expenses if expert witnesses are required to be paid to testify at three proceedings as well - - the deposition, the panel and the trial. The potential for increased expenses also limits the cases that our office will accept to bring forward and file suit. If the expected expenses of taking a case through a panel and trial are higher than an expected recovery on a potential client’s behalf, then it is not beneficial for the client or our office to spend years litigating a case in which no one will receive payment. Indeed, we often tell potential clients that they should contact their legislators to fix the current system, because then their valid but smaller medical malpractice claims could justifiably proceed to trial.

Attorneys from Maine report that the mandatory panel proceeding, on average, takes more than a year and a half to occur, and it greatly increases the costs and expenses of litigating medical malpractice claims. They also report that the panel can be used as a preview of the strengths and weaknesses of a case and of how potential witnesses will do at trial, thereby allowing a strategic change of witnesses or experts prior to the second proceeding and requiring additional discovery and depositions to occur. In States with smaller bar associations and medical associations such as Maine, it is often very difficult for the panel chair to find panelists who are completely unbiased and unaffiliated with the parties or counsel to the cases. This is especially true for appointment of the physician member of the panel since that panel member will often be insured by the same insurer defending the claim and present at the panel. The practical effect of the mandatory screening panel procedure is opposite of its intended effect because the costs are duplicated and defense attorneys can bill the medical malpractice insurance companies for their compliance with the duplicate procedures, thereby increasing the costs of defending each individual claim. While this is certainly beneficial to insurance defense attorneys and their practices, it is not beneficial to the Courts, the insurers, and the injured plaintiffs who are entitled to compensation.

B. EFFECTS IN OTHER STATES

In States that have tracked the practical effect of mandatory screening panels on the medical malpractice litigation system, the consensus is that the mandatory panels create demands and impose burdens on an already overworked court system. In New York, trying to assemble the required panels created a significant backlog in the court system docket because more cases were filed each year than those in which panels could be appointed or heard.xc Thus, cases became delayed by years on the docket because they could not proceed to trial without the mandatory screening panel process being complied with.xci Specifically, one New York Court explained that:

Rather than facilitating the disposition of cases, it is the view of the court, supported by the findings of the Committee, that the functioning of the panel has had the direct opposite effect [of its intended purpose]. A unanimous finding of liability only serves to inflate the plaintiff’s settlement demand. A no-liability determination merely solidifies the defendant’s resolve to proceed to trial. In those cases in which the panel is unable to reach a unanimous conclusion, the parties are left where they were before the panel met . . . thereby substantially increasing the cost of litigation (and, presumably, the premiums doctors are required to pay). These costs are in addition to the court costs discussed in the Committee’s report.xcii

These findings have been confirmed in several other states such as Pennsylvania, Florida and Maryland, all which have since repealed their requirements for mandatory medical malpractice screening panels.xciii

In Arizona, another State that has abandoned the mandatory screening panel process, a study conducted by the National Center for State Courts concluded that: (1) the frequency of medical malpractice case filings had declined but the percentage of settlements had increased; (2) review panels had little impact on the frequency or amount of recovery by plaintiffs; (3) since creation of the panel system, medical malpractice cases took longer to reach disposition either by settlement or trial; (4) the only discernable changes were in attitudes of attorneys by spending more time assessing costs imposed by the medical review panel system; and (5) the panel system did not operate as intended because panels were not being appointed or convened within the established time limits, the hearings were being conducted as mini-trials, and the administrative burdens placed on the Superior Court system were substantial.xciv A second study was then conducted by the Insurance Claims Commission in Arizona, but did not take into account any court or qualitative data other than the increased costs to insurance companies. This study:

found little evidence that the review panel system works as intended. The panel system does not alter the frequency or amount of recovery by the plaintiff over the longer time span. In fact, in the short run the plaintiff’s recovery is actually enhanced by the panel system. . . . Extra costs are incurred in a significantly greater percentage of cases . . . In sum, the panel system . . . seems to lead to more formal disputes which take longer to resolve at greater cost. xcv

A 1992 study conducted by the National Center for State Courts on the data for the frequency of medical malpractice claims filed in 21 states found that the states with mandatory panels had a significantly higher rate of litigation.xcvi In jurisdictions where panel findings are admissible at trial, it is more likely that the parties will need to engage in extensive discovery and a comprehensive presentation to the panel, which will "entail the costs and delays that panels are intended to prevent."xcvii Other studies have found that mandatory panels actually delay settlement talks between the parties because the parties will not be inclined to engage in settlement negotiations before hearing the panel’s assessment of the case.xcviii

In addition to the practical difficulties experienced by other States, many States have repealed their panel systems on constitutional grounds including separation of powers, equal protection, due process, denial of access to the courts, and denial of the right to trial by jury.scix In Pennsylvania and Florida, the undue burden and delay of panels were found to be an impermissible burden on due process and the right to a jury trial.c Additionally, New York Courts have had cases where the findings required by the panel also required the panel to resolve factual disputes, which is a function exclusively reserved to the jury.ci In Massachusetts, while the constitutionality of the tribunal system has been upheld under the Massachusetts Constitution, the admissibility of tribunal findings was not because it was found to violate the right to trial by jury.cii Most recently in Maine, the Supreme Court recently found that the asymmetrical admission of panel findings in favor of defendants under the Maine statute, upon which our statute is based, unconstitutionally infringes on a plaintiff’s right to trial by jury.ciii

IV. CONSTITUTIONAL CONCERNS AND CONSIDERATIONS

Similar to the challenges brought in other states, several constitutional challenges to RSA ch. 519-B have already been filed in the New Hampshire Superior Courts. Unfortunately, many of these important constitutional issues were not addressed due to ripeness concerns because no panel findings have yet been made in any case or have been submitted to a jury. civ

A. EXISTING CONSTITUTIONAL CHALLENGES

In one of the first constitutional challenges to this statute, Wilson v. Valley Regional Hospital, Judge Houran stayed panel proceedings to address the constitutionality of the statute on numerous grounds.cv The Wilson Court divided its constitutional analysis of the statute into two parts. The first part of the order analyzed the constitutionality of RSA 519-B: 1-7, which are the sections of the statute that establish the procedures for the screening panel from the appointment of panel members to the findings the panel is instructed to make.cvi The second part of the order declined to analyze the constitutionality of RSA 519-B:8-10, which are the sections of the statute that address the admissibility and effect of the panel findings, finding that the challenge to these sections was not ripe for review since the panel process had been stayed and no panel findings existed to be challenged.cvii

With respect to the procedural provisions of the statute, RSA 519-B:1-7, the Wilson Court found "some overlap between the panel and court processes" but not enough "to rise to the level of interference with core judicial functions."cviii Because the Court found no interference with the procedural aspects of in-court proceedings or core judicial functions, it found no violation of the separation of powers doctrine under Part I, Article 37 of the New Hampshire Constitution.cix

Similarly, the Wilson Court found that none of the provisions of RSA 519-B:1-7 violated the right to a jury trial under Part I, Article 20 of the New Hampshire Constitution because the provisions do not prevent litigants from having their case fully and finally determined by a jury.cx The Court made similar findings regarding due process concerns and the right to a free, prompt and complete remedy under Part I, Article 14 of the New Hampshire Constitution, ruling that nothing in the provisions of RSA 519-B:1-7 imposed any condition precedent before filing a medical injury action, deprived any plaintiff from obtaining a jury trial, or deprived any plaintiff of a meaningful opportunity to be heard.cxi The Court did note, however, that if the statute ultimately caused an undue delay by causing a plaintiff to lose witnesses or if it unreasonably increased litigation costs by creating duplicative proceedings, then it may unconstitutionally deprive a plaintiff access to the Courts.cxii

B. EQUAL PROTECTION AND INTERMEDIATE SCRUTINY

When addressing the plaintiffs’ equal protection challenge, the Wilson Court found that, under the intermediate scrutiny analysis articulated in Carson v. Maurer, 120 N.H. 925 (1980), the statutory requirements and differential treatment of medical injury claimants from other tort claimants under RSA 519-B:1-7 were reasonable and had a fair and substantial relation to the object of the legislation.cxiii The Carson test for intermediate scrutiny analysis of equal protection violations under the New Hampshire Constitution was recently overruled, however, by the New Hampshire Supreme Court in Community Resources for Justice, Inc. v. City of Manchester, 154 N.H. ___ (decided January 24, 2007) for being too deferential to the legislature. Indeed, the New Hampshire Supreme Court found that the Carson test had to be abandoned "because related principles of law ha[d] so far developed as to have left th[e] test no more than a remnant of an abandoned doctrine."cxiv The Court found that the intermediate scrutiny test and the rational basis test for equal protection both had remained substantially similar over the years, by requiring only a legitimate governmental interest, by presuming that the challenged legislation was valid, and by failing to examine the factual basis relied upon by the legislature for justifying the statute.cxv

The Court ruled that the similarity of the tests created too much confusion and was inconsistent with the federal standard for intermediate scrutiny.cxvi As such, the Court adopted the following test: (1) the challenged legislation must be substantially related to an important government objective; (2) the burden of justifying the classification made by the legislation rests upon the government; and (3) to meet the burden, the government cannot rely upon justifications that are hypothesized, created in response to litigation, or based on overbroad generalizations.cxvii In short, the test "requires that such classifications serve important governmental objectives and be substantially related to achieving those objectives," and "the defender of the classification has the burden of demonstrating that its proffered justification is exceedingly persuasive."cxvii

Under this standard, it is highly unlikely that the Wilson ruling on the plaintiffs’ equal protection challenge to RSA 519-B can be upheld. The Wilson Court gave complete deference to the legislative record.cxix Indeed, the Wilson Court recognized that there was significant conflicting evidence in the legislative record in support of and in opposition to the statute. The Wilson Court did "not, however, second guess the legislature’s judgment in the face of conflicting evidence, even when that evidence could reasonably have supported conclusions different than those reached by the legislature."cxx

While it is likely that the New Hampshire Supreme Court would agree that providing affordable healthcare to New Hampshire citizens and encouraging prompt resolution of litigation are important government objectives, it is unlikely that the Court would find that RSA 519-B is substantially related to achieving those objectives. This is especially true based on the testimony at the legislative hearings that there is no guarantee that medical liability premiums would be reduced by implementing screening panels and that the experience of other states, including Maine, have found that the mandatory screening panels delay resolution of disputes and increase delays and administrative burdens on the court system. Finally, it is clear that the government could not prove that its proffered justification for enacting 519-B is exceedingly persuasive and not based on hypothesis, generalization or created in response to litigation.cxxi Indeed, the Wilson Court expressly found that "there was evidence before the legislature which could reasonably be viewed as supporting the legislature’s conclusion that the increasing number and size of medical malpractice claims worked to increase liability insurance costs and concomitantly posed a threat to the continued effective delivery of reasonably priced healthcare in New Hampshire." cxxii This evidence alone demonstrates that this statute was created only in response to medical malpractice litigation. Under the new intermediate scrutiny test for equal protection under the New Hampshire Constitution, this legislation fails and is inherently unconstitutional.

C. ADMISSIBILITY OF PANEL FINDINGS

While the Wilson Court did not have the benefit of the newly articulated guidance from the Supreme Court for deciding that this statute violates equal protection, it did allude to several potential constitutional violations created by RSA 519-B:8-10. These provisions are the sections of the statute that address the admissibility of the panel findings at trial.cxiii When enacting RSA 519-B, the legislature stated that it is "essential to the effectiveness of the panel process that a panel’s unanimous findings be presented to the jury in any matter that is not resolved prior to trial." The Wilson Court found that the plaintiffs’ challenges to these statutory sections were not ripe for review because no panel findings had been issued due to the stay of proceedings and lack of submission of the panel findings to a jury.cxxiv The Court noted, however, that the submission of the panel findings to a jury do affect the right to a jury trial and may be unconstitutional.cxxv The Court also noted that if the actual panel process proves to cause undue delay or expense to litigants, it may deny them of due process or their right of access to the courts.cxxvi If, as the legislature states in its findings, purpose, and intent of the statute, the admission of the panel findings are essential for the process to be effective, then the unconstitutional nature of these provisions would render the entire statutory chapter ineffective and invalid.

D. THE RIGHT TO TRIAL BY JURY

Our sister states in Maine and Massachusetts have each found that submitting panel or tribunal findings to a jury violate constitutional provisions of those states’ respective constitutions. In Maine, the Supreme Court found that the "asymmetrical admission requirements" for panel findings to a jury, of requiring the plaintiff to receive a unanimous decision on all findings for the findings to be submitted to a jury but the defendant only needed to receive a unanimous decision on any finding to get it submitted to a jury, violated the right to a jury trial.cxxvii In Massachusetts, the Supreme Judicial Court found that admission to a jury of any tribunal findings violated the right to a trial by jury. Because the New Hampshire Constitution is based on the Massachusetts Constitution, it is likely that the New Hampshire Courts would agree with those in Massachusetts and find that any submission of panel findings to a jury is unconstitutional.cxxviii At a minimum, however, the New Hampshire Supreme Court should agree with the Maine Supreme Court that the identical "asymmetrical admission" requirement contained in RSA 519-B:8 violates a plaintiff’s right to a jury trial.

Admission of the panel findings effectively substitutes another tribunal’s conclusions for the factfinding that New Hampshire’s Constitution reserves to the jury. Thus, RSA 519-B:8-10 violate the state constitutional guarantee of trial by jury in civil suits.cxxix The impermissible substitution of non-jury factfinders happens because the screening panel procedure is mandatory, the panel’s findings are placed before the jury, and the findings are admitted in an asymmetrical manner disproportionately favorable to defendants. Finally, the panel members making the findings that are presented to the jury are not witnesses, expert or otherwise. They do not appear at trial, and their thought process and methods of decision are never