Maximizing Medical Malpractice Screening Panels Through the Use of Screening Panel Testimony at Trial

/by

By
Mark A. Abramson and Kevin F. Dugan
I.Background:
Medical malpractice screening panels under RSA ch. 519-B are now a regular part of our practice. While the screening panel hearing and all proceedings relating to the panel are confidential to outsiders, that does not mean that testimony presented at a panel hearing can be hidden from the jury when a case goes to trial. In fact, the purpose and intent of the statute states that the panel proceedings are only confidential “unless and until the matter proceeds to trial.” In light of this clearly stated legislative intent, when a medical malpractice case proceeds to trial after a screening panel hearing, the litigants should be allowed to comment upon and use all of the panel testimony and affidavits presented by the parties and their experts at trial.

II.Permitted Uses of Panel Proceedings:
RSA 519-B:8 governs the confidentiality of panel proceedings and the admissibility of panel evidence at trial. Pursuant to that statute, “evidence and statements made by a party or a party’s representative during a panel hearing” are only admissible under two circumstances:
(1)Any testimony or writings made under oath may be used in subsequent proceedings for purposes of impeachment.
(2)The party who made a statement or presented evidence may agree to the submission, use, or disclosure of that statement or evidence.
Under this statute it is clearly permissible to use any panel testimony or affidavits made under oath and submitted to the panel for purposes of impeachment at trial. This means that, during opening statements and presentation of their case at trial, the parties should be able to comment upon the substance of the expected testimony that will be presented by their opponent based on the evidence and testimony submitted to the panel, because the testimony will either come in through cross-examination of the opponent’s witnesses or it will come in through impeachment of those witnesses if the substance of their testimony changes at trial.
The statute separately provides that the testimony of experts at a screening panel hearing is privileged and confidential and an expert witness cannot be compelled to testify about his or her panel testimony or opinions unless he or she is called by the person who presented the testimony at the panel. This means that if your opponent calls that expert witness to testify at trial, the expert can be impeached by his or her panel testimony or affidavit if he or she changes the substance of his or her opinion at trial. To allow otherwise would permit, and even encourage, expert witnesses to change or modify their testimony at a later proceeding. The confidentiality provisions of the screening panel statute are expressly waived for purposes of impeachment and fraud. Thus, the statute specifically anticipates waiver of the privileged and confidential nature of expert testimony presented at a screening panel hearing if the party who originally called that expert to testify calls the expert to testify again at trial.
The existing statutory scheme clearly permits the use of panel testimony by a party, a party’s representative, or a party’s expert witness for impeachment purposes at trial, which is consistent with the New Hampshire Rules of Evidence. At trial, a plaintiff can examine a defendant and any expert witness called by the defense who testified at the panel hearing regarding the substance of testimony he or she gave at the panel proceeding. If that witness denies making the statement or changes his or her testimony at trial, he or she may then be impeached to impugn his or her credibility.

III.Use of Panel Testimony as Substantive Evidence at Trial:
But for the statutory restrictions discussed above, the panel hearing testimony of a party or witness would be substantively admissible as a prior statement by a witness or an admission by a party under Rules 801(d)(1) & (2) of the New Hampshire Rules of Evidence. To the extent that RSA 519-B:8 can be read to limit the use of panel testimony to impeachment only, the statute conflicts with the evidence rules and is invalid.
We previously addressed this issue after the statute was enacted in 2005, in our article addressing the Constitutional Considerations of the Medical Malpractice Screening Panel Statute. By enacting legislation that conflicts with an evidentiary rule promulgated by the Superior Court, the legislature appears to have violated Part I, Article 37 of the New Hampshire Constitution, which mandates the separation of powers among the three branches of government, and Part II, Article 73-a, which grants court rulemaking authority to the Chief Justice of the Supreme Court.
A statute that created a similar conflict was struck down by the Supreme Court in Opinion of the Justices (Prior Sexual Assault Evidence). In that case, the Legislature asked the Supreme Court whether it was constitutionally permissible, in light of Part I, Article 37 and Part II, Article 73-a, for it to enact a statute that would put in place a rebuttable presumption that evidence of prior sexual assaults is admissible against the defendant in a civil or criminal case. The Court unanimously ruled that such legislation would violate the separation of powers doctrine set forth in Part I, Article 37, and, as a result, it declined to decide whether it would also violate Part II, Article 73-a.
The Court began its analysis of Part I, Article 37 as follows:
Beginning with volume one of the New Hampshire Reports,
this court undertook its duty of defining the scope of the
separation of powers clause as between the legislative and
judicial branches of government. See Merrill v. Sherburne
& al., 1 N.H. 199 (1818). In Merrill, we reviewed the pertinent
articles of our State Constitution and concluded that nothing

therein mandated a conclusion other than that the general court
is excluded from the exercise of “judicial powers.” Id. at 206-08.
The question before us today is whether the legislature’s
promulgation of the proposed statute falls within the exercise
of “judicial powers.”
The Court then considered whether rule-making was a “judicial power”:
As a separate and coequal branch of government, the judiciary
is constitutionally authorized to promulgate its own rules. The
inherent rule-making authority of courts of general jurisdiction
in this state to prescribe rules of practice and rules to regulate
their proceedings “as justice may require” has an ancient lineage
supported by consistent custom, recognized by statute and enforced
by numerous judicial precedents.
Concluding that “[o]ur judicial power has always included the power to prescribe procedural rules for the conduct of litigation in this State’s courts,” the Court also observed that, with the passage of Part II, Article 73-a, its inherent power to promulgate procedural rules was endorsed with constitutional authority.
Nevertheless, the Court conceded that, “[u]nder the separation of powers doctrine, the legislature has a limited appropriate role to act on court rules . . .” Specifically, the legislature may enact rules that are substantive in nature, while those that are purely procedural are “under the exclusive jurisdiction of the courts . . .”
After describing the various tests used by other courts to determine whether a legislative enactment is “substantive” or “procedural,” the Court settled on the following definitions:
Substantive laws are those laws which have for their purpose to
determine the rights and duties of the individual and to regulate
his conduct and relation with the government and other individuals.
Procedural laws are those laws which have for their purpose to
prescribe machinery and methods to be employed in enforcing these
positive provisions. There is a critical difference between the rights
of an individual and the method by which an individual’s right will be
presented in a court of law.
Ultimately, the Court determined that the proposed legislation was procedural in nature and that it would have interfered with the operation of New Hampshire Rule of Evidence 404(b), a procedural rule of evidence the Court had enacted under its constitutional rule-making authority. Therefore, the Court concluded that the Legislature had violated the Separation of Powers mandate in Part I, Article 37. In particular, the Court emphasized that
Giving deference to the legislature would, in this instance, abolish

[Rule 404(b)’s] purpose and interfere with the judiciary’s sound
discretion in determining to what extent the rule serves its function
in the circumstances of a particular case.
The Court did not hesitate to strike down the proposed legislation in the strongest of
terms:
Because the proposed bill directly conflicts with Rule 404(b), a
rule concerning a uniquely judicial function, the separation of
powers doctrine is violated. The legislature has no more right to
break down the rules prescribed by this court to assure fundamental
due process in criminal and civil trials than the court has to prescribe
the mode and manner in which the legislature shall perform its
legislative duties.
Under the definition set forth above, RSA 519-B:8 is clearly a procedural law. It does not regulate anyone’s conduct; it merely prescribes the machinery by which the substantive medical negligence law will be enforced in the courts. Thus, to the extent that it prohibits the use of a witness’s or party’s panel testimony at trial for any purpose other than impeachment, it conflicts with the operation of Rules of Evidence 802(d)(1) & (2) and 402, which permits the admission of relevant evidence.
It is clear, therefore, that by enacting RSA 519-B:8 the legislature encroached upon the exclusive jurisdiction of the judicial branch in violation of Part I, Article 37 and Part II, Article 73-a of the New Hampshire Constitution. This conclusion is not merely academic, but instead it goes to the heart of our system of checks and balances:
[I]f the Legislature could overrule the courts in some of their
essential operations, the judiciary instead of being one of the
three coordinate branches of the state government, would be
rendered subservient to the Legislature in a fashion never
contemplated by any.
To the extent RSA 519-B:8 can be read to limit the use of panel testimony at trial, it is unconstitutional and unenforceable. Panel testimony of witnesses who will testify at trial is therefore substantive evidence that can be discussed in opening statements.
In addition to being constitutionally invalid by attempting to place limits on the presentation of evidence at trial, RSA 519-B:8 is logically invalid as well.
In a case decided long before the adoption of the New Hampshire Rules of Evidence, while addressing the limited impeachment purposes allowed for extrajudicial statements of witnesses, our Supreme Court eloquently had the opportunity to address the fallacy of limiting use of such statements to impeachment, stating that it “carries logic to extremes at the expense of ordinary processes of reasoning.” This statement is even more true when applied to the testimony of witnesses and parties at a panel hearing because that testimony is made under oath and is not extrajudicial, so it carries with it the presumption of truth and reliability. As the statute is currently written, it allows testimony and affidavits, which were made under oath, to be discredited by contradiction, but it does not allow the truth of the substance of those statements to be admitted at trial. This is “a technical distinction to the lay mind” of a juror in a medical malpractice case. When inconsistent statements are made, “explanation of them is relevant, and in discretionary authority over collateral matters whatever bears on their force and significance may be received into evidence. Why and under what circumstances and with what meaning the statements were made is all of pertinence in connection with the fact of contradiction.” In short, just as a jury receives the context of the panel proceedings if the panel findings are admitted as evidence at trial, the jury should hear the context of panel proceedings and how the testimony was offered to properly evaluate it at trial.

Because the existing statutory scheme is constitutionally invalid and logically infirm, we submit that panel testimony should be used not only for impeachment purposes, but also as substantive evidence at trial. As such, it is permissible to provide our own experts and witnesses with the defendant’s panel testimony to prepare them for the substantive evidence that will be admitted at trial. Likewise, it is permissible to comment upon the screening panel hearing testimony of trial witnesses in opening statements because it is substantive evidence that will be admitted either through the direct examination of witnesses or through the cross-examination of the witness through impeachment, as a prior statement of a witness or as an admission of a party opponent.
IV.Practical Matters for Use and Transcription of Panel Testimony at Trial:
Despite the statutory timeframe for panels to occur within six months of the return date of the writ, due to inherent delays in the discovery process and the increasing constraints on the Superior Court docket, often the medical malpractice screening panel hearing will immediately precede the trial. To effectively use the testimony presented at the screening panel hearing at trial, you must have it transcribed so you can provide the transcripts to your witnesses and use them for trial preparation. Our practice is to retain a private stenographer to transcribe the panel proceedings for our later use for trial preparation and at trial. We try to do so by agreement with opposing parties, but if an agreement is not reached we will file a motion to retain a private stenographer with the panel chair. To date, no panel chair has denied this motion and we have always been able to use a private stenographer in any case where we anticipated it was necessary to have an expedited transcript of the proceedings.
RSA 519-B:5 does provide that the panel shall maintain a tape recorded record, which may only be made public with the consent of the parties or as allowed in RSA 519-B:8, which may be transcribed for the limited permitted uses under the statute. This tape recorded record provided by the statute, however, does not provide a transcript of the proceedings to the parties automatically and there is no statutory provision for mandatory transcription of the record. Having an independent stenographer at the hearing is the most cost effective and efficient method of transcribing the proceedings, by avoiding the delays inherent in requesting transcription of the tape recorded record.

Based upon recent experiences with requesting a transcription of the tape recorded screening panel record, it can take eight to twelve weeks or more to get the transcript because a motion to unseal the record must be filed and ruled upon by the Superior Court, formal requests for the transcript must then be made to a private New York transcription service, and, depending upon the backlog at the transcription service for beginning the requested transcription, it can take up to four weeks before transcription of the proceedings even begins. This is true even with an expedited request. After this significant delay, the transcription costs are then similar, if not identical, to the costs of private stenographic services in this State, which do not have the corresponding inherent delays associated with the contracted company. Furthermore, if the tape recorded record of the proceedings is later transcribed by the private stenographic service from New York, all parties who want a copy of the transcription must pay the total cost for the transcription service at that time, rather than just pay for the cost of copies of the transcript as they would with a private stenographic service in New Hampshire. Finally, if the quality of the tape recording is poor, the transcript will be incomplete because it will be filled with inaudible insertions where important substantive testimony may be unable to be transcribed.
When a New Hampshire stenographer or court reporter is retained, the transcript is not only accurate but it can be produced immediately if requested. In multiple day panel hearings, the testimony from day one is often available for use in subsequent days. Certified Court Reporters in New Hampshire understand the need for strict confidentiality of proceedings in medical malpractice screening panels. Thus, if a party retains a Certified Court Reporter at their expense, the reporter will be an agent or representative of that party’s law firm, taking real time notes and will be subject to the same confidentiality rules as any other representative of the party who would be present taking notes at the proceeding. There is no prejudice to any party by the presence of a Certified Court Reporter making a stenographic record in addition to the already present Court Monitor making a tape recorded record. Private transcription of the panel hearing testimony is not only efficient, but it is cost effective for all of the parties and it is permitted under the statute for the limited uses and purposes addressed in this article.
V.Conclusion:
Under both the screening panel statute and the New Hampshire Rules of Evidence, testimony and affidavits submitted under oath at a screening panel hearing by witnesses who will testify are admissible at trial. To the extent that the statute prohibits use of that testimony, it is constitutionally invalid. In order to effectively use the testimony at trial, you must have a transcript of the proceedings. By hiring a private stenographer to make a record of the screening panel proceedings, you will provide yourself with an immediate way to use the testimony presented at a screening panel hearing for your trial preparation. With the testimony in hand, you can properly prepare your expert witnesses to address your opponent’s position at trial and you can properly prepare your opening statement and cross-examination of your opponent’s witnesses for trial.

Kevin Dugan
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