Ruling upholds role of medical liability screening panels

Physicians say they hope a ruling by the Supreme Court of New Hampshire that supports the use of screening panels during medical liability cases will curb future challenges of such tort reforms.

At question was whether courts’ authority was being superseded by a 2005 state law requiring judges to tell juries about panel findings. The state Supreme Court largely upheld the constitutionality of that law, but justices changed how much detail juries can receive about panel proceedings.

Overall, the ruling is a victory for doctors who long have defended the benefits of screening panels, said Scott Colby, executive vice president of the New Hampshire Medical Society. The medical society, along with the Litigation Center of the American Medical Association and the State Medical Societies as well as several other state medical societies, filed a friend-of-the-court brief in support of the screening panel law.

“Every year since the panel law was enacted, the plaintiff’s bar has challenged the law in the legislative arena and in Superior Court, all along assuming that it would ultimately be struck down in the state Supreme Court,” Colby said in an email. “The medical society is pleased with the court’s ruling, because it supports the reasons we sought enactment in the first place — to encourage earlier resolution of cases outside of the expensive and burdensome jury process.”

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 damages 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.

The ruling stems from a medical negligence lawsuit by Sheila Parker’s family against Nashua, N.H.-based Southern New Hampshire Medical Center and medical staff. Parker visited the center’s emergency department in 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, nurses called neurosurgeon Theodore Jacobs, MD, to review Parker’s condition. He initiated a lumbar puncture, which showed that she had meningitis. Court records say she was taken to the intensive care unit, where antibiotics were started, but her condition deteriorated. She later died.

Parker’s family claimed that the hospital failed to contact a neurosurgical specialist in time, despite Parker showing signs of a neurological condition. A delayed diagnosis by her doctors, combined with their late treatment, led to her death, the family claimed. 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 unanimously found that the defendants were not negligent, in that their acts or omissions did not “constitute a deviation from the applicable standard of care,” according to the Supreme Court of New Hampshire’s opinion.

Parker’s family requested that the panel findings be excluded from trial and that the court declare the panel law unconstitutional. A trial court granted the plaintiff’s motion, saying the panels violated the separation of powers doctrine, and the defendants appealed.

In its Oct. 30 ruling, the state Supreme Court said allowing panel findings during a trial does not impair the court’s ability to determine the evidence a jury may fairly consider.

The plaintiff’s argument “is based upon the mistaken premise that the Legislature is without authority to deem certain evidence relevant and admissible,” justices said. “To the contrary, the Legislature has the authority to deem certain evidence relevant and admissible because, like the judiciary, it has the authority to create evidentiary rules.”

However, the court struck down three provisions of the panel law related to how much juries can learn about panel hearings. For example, the court ruled unconstitutional a provision that had prevented attorneys from calling experts to speak during trial who also had testified at a panel proceeding. The court also overturned a rule that prevented parties from commenting at trial about evidence presented during panel hearings.

Both sides claim victory

Trial judges now will have more discretion over what evidence from panel hearings is admissible during trials, said David Slawsky, the plaintiffs’ attorney.

“That, of course, was one of our main arguments — that [the law] left nothing to the discretion of the trial judges,” he said. “Now those judges will have the opportunity to exercise their traditional judgment in deciding what is fair in each case. Our job now is to persuade the trial judges to allow us to educate the jury as thoroughly as possible about the panel process and results.”

Southern New Hampshire Medical Center also praised the ruling.

“We are pleased the court accepted our arguments that the panel process is constitutional and especially that unanimous findings of the panel may be given to the jury,” hospital attorney Martin P. Honigberg said in an email. “Regarding the right to a jury trial, the court found that admitting unanimous decisions [from panels] would not unfairly influence the jury. But the court’s ruling will open up the process somewhat at trial, as the parties will be able to introduce additional evidence regarding what took place before the panel.”

Physicians hope the ruling will prevent future constitutional challenges of screening panels, said Andrew MacLean, deputy executive vice president and general counsel of the Maine Medical Assn. Maine’s panel law has been in effect since the 1980s, and New Hampshire used the statute as a model in drafting its 2005 law. Neither Maine nor New Hampshire has noneconomic damages caps.

The New Hampshire decision “is largely consistent with the conclusions of other states that have panel processes,” MacLean said. “Consistency is good. The most important aspect of the decision in upholding the constitutionality of the [law] is I think these attacks will subside.”