Maine court questions liability panels

Physicians say the panels help resolve 70% of cases before going to trial. Some judges and lawyers say the process is costly, confusing and biased.

By Amy Lynn Sorrel — Posted Aug. 6, 2007

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A recent Maine high court ruling questions the usefulness of pretrial screening panels in medical liability cases.

Maine Medical Society officials say the 20-year-old law has helped weed out frivolous lawsuits and kept insurance premiums among the lowest in the New England region.

But in a June opinion, the Maine Supreme Judicial Court's chief justice said amendments to and interpretations of the statute over the years have made it difficult for judges to rely on it to reduce needless litigation.

"It has, unfortunately, become a cumbersome process with unpredictable results that costs both plaintiffs and defendants money and time in a way that was not intended by the Legislature," Chief Justice Leigh I. Saufley wrote, with one other justice agreeing that it is time for lawmakers to re-evaluate the system.

To bolster her point, Saufley referred to the case at hand, Smith v. Hawthorne. In August, unless a settlement is reached, it will proceed to its fourth trial in eight years because of split panel decisions.

But MMA Executive Vice President Gordon H. Smith (not related to the plaintiff) said that even one "bad" case is "an indictment of the medical malpractice system and demonstrates why we desperately need the panels." The MMA filed a friend-of-the-court brief in the case.

Maine is among at least 16 states using panels to evaluate claims in typically nonbinding opinions before going to court, according to American Medical Association research.

Maine law mandates that plaintiffs submit medical liability complaints to a panel in an informal hearing to answer three questions: whether there was negligence; whether the negligence caused the alleged injury; and whether the plaintiff contributed to the injury.

Saufley's opinion was part of a majority ruling in the Smith case that tested how much of those findings can be used as evidence at trial and by whom.

Under Maine's statute, physicians may present unanimous findings in their favor on any of the three questions. On the other hand, patients may admit the panel's conclusions only if they are unanimous and favorable on both of the first two questions.

The Smith panel split in its decisions on negligence and causation.

They concluded that orthopedic surgeon Catherine G. Hawthorne, MD, deviated from the standard of care when she failed to treat James E. Smith adequately for an open wound from an ankle fracture in 1997, court records show. The wound was leaking from a sore for three months, and the panel found that Dr. Hawthorne failed early on to culture it and prescribe antibiotics for possible osteomyelitis.

James Smith claimed Dr. Hawthorne's lack of treatment led to a bone infection, which made him need more surgeries and time off work and caused long-term impairments. But the screening panelists disagreed and said Dr. Hawthorne's omission did not cause the alleged injuries. Dr. Hawthorne denies any wrongdoing.

In the first two trials, Dr. Hawthorne presented only the panel finding on lack of causation. The first trial resulted in a hung jury. A second jury found in favor of Dr. Hawthorne, and Smith appealed, contesting the doctor's exclusion of the negligence finding while introducing the one on causation. The case went to the high court, which in 2006 ruled that if a party is going to admit one of the two conclusions, he or she must admit both "so that the jury's fact-finding role will not be distorted."

At the third trial, Dr. Hawthorne asked to keep out both findings, but the trial court judge declined her request. She was forced to present both findings at trial, and the jury found in favor of Smith.

Dr. Hawthorne appealed, and in June the high court, in a 4-2 decision, said that the law did not prevent her from excluding both panel findings, and the statute gives the defendant control over admitting split opinions on negligence and causation.

The debate continues

George C. Schelling, Dr. Hawthorne's lawyer, said that compared with other states, Maine was deliberate in requiring unanimous rulings on both factors in favor of plaintiffs before they can use them at trial because that's what they must prove in court.

"The purpose was to emphasize the importance of causation, which is often overlooked by juries," Schelling said. He said the high court ruling should help clarify any confusion about the statute.

On the other hand, the plaintiff attorney in the case, Arthur J. Greif, argues that giving the defendant doctor veto power over what a jury can hear unfairly tips the scales of justice.

"To give the doctor the right to completely exclude a decision creates a privilege where the Legislature never intended one," he said, adding that a unanimous finding should be admissible by either party.

Time for a change?

Nevertheless, Greif contends screening panels have outlived their usefulness. He said panels generally favor doctors over plaintiffs and don't deliberate as long as a jury does.

He also noted that their decisions don't carry much weight with jurors anyway. "It's a myth that three professional decision-makers are better than a jury of community."

In a dissenting opinion, two justices also expressed reservations about the system.

"The Legislature's purpose was to make panel proceedings ... important by utilizing them to promote settlements and allowing their introduction at trial of cases that do not settle," Justice Donald G. Alexander wrote. "Giving the defendant doctor sole power to render the panel proceedings a nullity ... is contrary to the legislative purpose" of the law.

But the MMA's Smith said the panels have worked "extremely well," resolving 70% of cases before trial. Maine internists, general surgeons and ob-gyns in 2006 paid the second lowest premiums in New England behind Vermont, according to the Medical Liability Monitor's national rate survey. Smith noted that New Hampshire last year enacted a statute modeled after Maine's. Vermont also is considering a similar law.

At press time in July, it was unclear whether Maine lawmakers will take up the issue in the next session, as Chief Justice Saufley suggested.

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Pre-court hearing

[download pdf]

At least 16 states use pretrial screening panels to evaluate medical liability claims before they go to court. Here is how some of those panels work.

States with panels: Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia, Wyoming

Mandatory before, or at the time, a claim is filed: Hawaii, Idaho, Indiana (for claims exceeding $15,000), Maine, Massachusetts, Montana, New Hampshire, New Mexico, Wyoming

Not mandatory: Alaska, Delaware, Kansas, Louisiana (applies to physicians covered by state patient compensation fund), Nebraska, Utah, Virginia

Panel's opinion admissible in court: Alaska, Delaware, Indiana, Kansas, Louisiana, Maine (if unanimous), Nebraska, New Hampshire (if unanimous), Virginia, Wyoming

Panel's opinion inadmissible in court: Hawaii, Idaho, Massachusetts, Montana, New Mexico, Utah

Source: American Medical Association

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