Screening panels in medical liability cases under scrutiny

A column analyzing the impact of recent court decisions on physicians

By — Posted March 26, 2012.

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New England medical societies are concerned about a case before the New Hampshire Supreme Court that could limit their use of screening panels during liability cases.

Justices are weighing whether courts’ authority is being superseded by a law requiring judges to tell juries about panel findings. Doctors worry that a ruling against the statute could uproot the success screening panels have had, including closer claim scrutiny and faster case resolution, panel proponents say. Neighboring states are concerned that the decision may affect medical screening panels in their jurisdictions negatively.

Panel “cases are resolved more quickly and with less expense and more prompt compensation to legitimate medical malpractice claimants,” said Andrew MacLean, deputy executive vice president and general counsel of the Maine Medical Assn. “We’re concerned [about the New Hampshire case] because our statute was the model for New Hampshire. It could prompt similar challenges here. These things do cross borders.”

Sheila Parker visited the emergency department at the Southern New Hampshire Medical Center in Nashua, N.H., in December 2006 for back pain. She was seen by emergency physician Bernard Bettencourt Jr., DO, who diagnosed her with intractable pain and admitted her to the hospital, according to court documents.

Later that morning, nurses called neurosurgeon Theodore Jacobs, MD, to review Parker’s condition. He initiated a lumbar puncture, indicating that she had meningitis. She was taken to the intensive care unit, where antibiotics were started, but her condition deteriorated, court records say. She later died.

Parker’s family sued the hospital and medical staff, claiming that they failed to contact a neurosurgical specialist in time, despite Parker’s showing signs of a neurological condition. A delayed diagnosis by her doctors, combined with their late treatment, led to her death, the family said. Doctors in the case denied any wrongdoing.

A pretrial medical screening panel reviewed the case in December 2010. As required by New Hampshire law, the panel consisted of a retired judge, an attorney and two physicians. The panel’s findings are confidential, and a court brief addressing the findings has been sealed.

Parker’s family requested that the court declare the panel law unconstitutional. The plaintiffs also asked that the panel’s findings be excluded from evidence at trial. A trial court granted the plaintiff’s motion, saying the panels violate the separation of powers clause in the state Constitution.

“The process mandated by [the law] impermissibly encroaches on core judicial functions ... by requiring the admission of the panel findings without exercise of judicial discretion ... and by dictating the instructions the court must deliver to the jury regardless of the facts,” Superior Court Judge Diane M. Nicolosi said in her opinion.

The defendants appealed to the state Supreme Court. At this article’s deadline, oral arguments had not been scheduled. An attorney for the hospital and Dr. Bettencourt declined to comment.

States cite success of panels

Clarification is needed on the constitutionality of the state law, said Michael Pignatelli, Dr. Jacobs’ attorney. So far, nine lower courts in New Hampshire have reviewed the question since 2008, issuing mixed opinions, according to attorneys involved in the case.

The New Hampshire Legislature has taken too much power away from the courts with its medical screening panel law, said David Slawsky, the plaintiff’s attorney. He disagrees with the way in which the panel’s findings are revealed to juries. Juries cannot ask questions of the experts or be informed of how the panel process works, he said.

“The Legislature has a great degree of authority, but when the Legislature goes so far as to create a process and then tell the trial judge that regardless of what you think is fair, you can only tell the jury these things and the jury can know nothing more, that’s clearly exceeding its authority,” he said. “The Legislature can’t tie the judges’ hands that way.”

New Hampshire’s panels were enacted in 2005, but because of legal challenges, they did not begin until 2007. The panels offer an effective alternative to full trials, and help facilitate prompt and fair conclusions to medical liability cases, said Scott Colby, executive vice president of the New Hampshire Medical Society. A state oversight committee is reviewing the panels’ effectiveness and should release its findings by 2014.

At least 16 states have medical screening panels. A 2008 study by Pinnacle Actuarial Resources, an actuarial and consulting firm, found that these panels were a promising alternative for states that cannot achieve more effective, traditional liability reforms such as noneconomic damage caps. The study, conducted by Pinnacle for the American Medical Association, found that states with screening panels had lower medical liability insurance rates — 20% below the national average — and lower claims costs than states without such laws. States with stronger panel laws also showed a higher percentage of cases that closed without any payout and had quicker settlement times.

Maine can attest to improvements to its medical liability climate since enacting its panel in the 1980s, MacLean said. A 2005 report by the Maine Bureau of Insurance found that Maine’s premium rates were generally less than half the national average and among the 10 lowest states in the nation.

“Over the years, both plaintiff and defense lawyers have reached a comfort level with the panels and understand that the panel systems are the way most medical malpractice cases are going to be resolved and with good results,” MacLean said.

In the New Hampshire case, the Litigation Center for the American Medical Association and the State Medical Societies, along with medical societies in Maine, New Hampshire and Vermont, have filed a friend-of-the-court brief.

If the court rules for the plaintiff, the decision may have a negative impact on the medical liability system in New Hampshire, Colby said.

Medical societies in other states, such as Vermont, worry that a ruling against the New Hampshire law could restrict other jurisdictions from implementing similar panels, said Paul Harrington, executive vice president of the Vermont Medical Society. The medical society has pushed legislators to enact screening panels, but it has been unsuccessful.

“The New Hampshire law is a good law, and we would like to have it here in Vermont,” Harrington said. “If the New Hampshire law is overturned, it would make our efforts even more difficult and decrease our ability to enact a similar law.”

But if the court upholds the law, the opinion would strengthen medical screening panels nationwide, MacLean said.

“It would be a strong signal to patients, doctors and lawyers on both sides that the panel system is likely to remain a permanent part of the system of resolving medical malpractice claims,” he said.

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