Broken Promises: Data Shows NH’s Medical Malpractice Screening Panels Are Not Leading to Early Resolution and Cost Savings

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I. Introduction:
New Hampshire’s medical malpractice screening panel law became effective just over three years ago. It was billed as a means of lowering “system costs” in medical malpractice cases by giving the parties an early, objective view of the merits of their case thus encouraging the prompt resolution of meritorious claims and the quick and quiet death of non-meritorious claims.
At the time of its enactment, however, opponents were concerned that the panels would increase the time it took to resolve medical negligence cases and that they would increase the costs necessary to litigate such cases. The net effect of this, opponents argued, would be that a large group of malpractice victims – those with less than catastrophic damages – would effectively lose the key to the court house.

Unfortunately, data recently released by the Superior Court shows that the benefits promised by the proponents of the law have not materialized and the fears of opponents have proven true.
II. The Latest Data Confirms Opponents’ Fears:
In mid September, the Superior Court issued a report on screening panel cases. The report states that 190 new cases subject to the screening panel law were filed in fiscal years 2006, 2007, and 2008. As of the date of the report, thirty-three cases had been heard by a screening panel. It appears that those thirty-three cases included seventy-six different defendants. Of those seventy-six separate claims heard by a screening panel, fifty-one (approximately 67%) resulted in a unanimous finding in favor of the defendant and only twelve (approximately 16%) resulted in a unanimous finding in favor of the plaintiff. In four other cases, the panel found unanimously in favor of the plaintiff on negligence but found in favor of the defendant on causation. The panels in the nine remaining claims were unable to reach a unanimous decision; six were resolved in favor of the plaintiff and three were resolved in favor of the defendant by a majority vote.
The data in the Superior Court’s report indicates that the mean time between the filing of the writ and the beginning of a panel hearing was 560 days. Of the 190 new cases covered by the report, 101 remain pending and sixty-nine of those have not reached a panel hearing. The system appears to be sinking under its own weight. The mean time from the filing of a medical negligence case to disposition has gone from 324 days in 2007 to 494 days in 2008, and the median time is even more alarming – 410 days in 2007 and 518 days in 2008.
The new report confirms the fears of those who opposed the enactment of RSA 519-B. The screening panel was intended to “identify claims of professional negligence which merit compensation and to encourage early resolution of those claims . . .” According to the proponents of the statute, the panel process would reduce insurance premiums for medical care providers because the panel would identify meritorious claims and non-meritorious claims early on thereby allowing the parties to resolve or dismiss those cases before incurring “system costs.”
The current data confirms what medical malpractice practitioners on both sides have known for some time: Cases are not being heard by screening panels early in the process and, in fact, they can’t be. Since the statute permits unanimous findings to be submitted to the jury it is necessary to litigate these panels in virtually the same way as a trial. Experts on both sides must be disclosed and deposed before the panel hearing can be held.
Nor do the panels perform the type of independent screening function that the statute seems to envision. The data shows that more than three-quarters of the panel hearings held to date resulted in a finding in favor of the defendant and 88% of those were unanimous. This appears to confirm the fact that the screening panels are often dominated by the physician member, who has specialized knowledge and whose opinions are likely to be given greater weight. Unfortunately, the physician members also have a natural bias in favor of their colleagues and are extremely reluctant to vote in favor of a plaintiff. The end result is that plaintiffs are not going to view negative panel findings as a truly objective view of the merits of their case.
It is clear, therefore, that RSA 519-B is not doing what it was supposed to do. It is not helping resolve medical negligence cases more quickly or inexpensively. It’s actually slowing down the process and increasing the expense, primarily because both parties must pay to have their experts testify twice.
As opponents of the statute feared, the increased expense associated with RSA 519-B is preventing meritorious medical negligence cases from being pursued. It simply doesn’t make economic sense to go forward with a case of marginal value now that the litigation expenses are going to be tens of thousands of dollars more than they would have been but for the screening panel process. We have rejected hundreds of potential cases in the three years since RSA 519-B passed that we would have at least carefully considered before the law was enacted.
We should all be concerned when an artificial barrier prevents someone who has been injured by another person’s negligence from obtaining compensation. The people whose inquiries we have to summarily reject have great difficulty understanding why the legal system treats them differently even though they may well have a valid malpractice claim. No doubt they are left with a sense of disillusionment and frustration that unfortunately reflects poorly on all of us. On a more practical level, they are left bearing the emotional, physical, and financial burdens arising from their injuries, which are made no less burdensome by the fact that others may have “worse” injuries or greater “damages.”
III. What Happens When A Plaintiff Actually Gets A Unanimous Finding Against A Defendant?
As is discussed above, the drafters of RSA 519-B claimed that the law was intended to speed up the resolution of meritorious cases. However, our recent experience has demonstrated that the statute may lack the teeth necessary to support this intent.
We had a case in which the panel unanimously ruled in the plaintiff’s favor on both negligence and causation. According to the terms of the statute’ when this happens “the defendant shall promptly enter into negotiations to pay the claim or admit liability.” In our case, the defendant flatly refused to do either. The problem is that the drafters of the statute did not expressly set forth the consequences for such conduct.
Our position is that a defendant who elects not to enter into settlement negotiations following a unanimous panel finding against it should be deemed to have chosen the second of the two mandatory options: it should be deemed to have admitted liability. The statute is clear that such a defendant must do one or the other. If a defendant in this position elects not to make a good faith effort to settle the case it should make that choice knowing that it has waived its liability defenses. On the other hand, if the defendant makes a good faith effort to try to settle such a case but the parties cannot agree, the provisions of RSA 519-B:8, I(b) come into play and the jury will be instructed with respect to the unanimous panel findings.
This construction of RSA 519-B:10, I is consistent with the law governing situations where a statute contains a mandatory requirement but does not spell out the consequences for failure to comply. Under New Hampshire law, “when the legislature sets forth a mandatory requirement but does not provide how that mandate is to be enforced, the appropriate mode of enforcement must be judicially determined.” The determination of the appropriate sanction for failure to comply with a mandatory requirement should take into account the statutory goals.
Interpreting RSA 519-B:10, I so that a defendant is deemed to admit liability if it refuses to make a good faith effort to settle a case in the face of a unanimous panel finding against it best serves the statute’s goals. In fact, such a construction is necessary to further the statute’s primary goal of encouraging early resolution of those claims that are found to merit compensation. If such a defendant can flatly refuse to enter into good faith settlement negotiations and can also decline to admit liability this provision is doing nothing to encourage early resolution. In fact, the provision would be entirely superfluous.
IV. Conclusion:
Three years of experience have clearly demonstrated that New Hampshire’s medical malpractice screening panel system does not work. It merely adds an additional layer of time and expense to cases that are already time-consuming and expensive. In doing so, it arbitrarily bars many victims of malpractice from the court house. The effect of the system is directly contrary to its stated goal of encouraging prompt resolution of meritorious claims. Thus, in three years we have learned what the Chief Justice of the Maine Supreme Judicial Court finally acknowledged recently when construing Maine’s thirty year old screening panel law, which is the model for RSA 519-B:
it does appear that the process no longer reflects the original legislative intent, that it has become costly and cumbersome, and that the people of this state would benefit from a legislative evaluation of the medical malpractice screening panel system . . .
If such an evaluation were done, we believe the Legislature would realize that the malpractice screening panels are counterproductive and that RSA 519-B should be repealed in its entirety.
Endnotes
RSA 519-B:1, II(a).
RSA 519-B:1, I.
RSA 519-B:1, I and II.
RSA 519-B:10, I (emphasis added).
See RSA 519-B:10, I (“If the claim goes to a trial, the findings of the panel are admissible as provided in RSA 519-B:8, I(b).”).
New Hampshire Department of Resources and Economic Development v. Dow, 148 N.H. 60, 65 (2002) (Duggan, J. dissenting).
Id. (quoting Appeal of Martino, 138 N.H. 612, 615 (1994)).
RSA 519-B:1, II(a).
Smith v. Hawthorne, 924 A.2d 1051, 1057 (Me. 2007) (Saufley, C.J. concurring).

Mark Abramson
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