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Wednesday, October 31, 2012

Malpractice screening panels largely upheld by state Supreme Court

An expert-panel system established several years ago in an attempt to improve medical malpractice lawsuits has withstood a legal challenge, although the state Supreme Court has changed the way the panel’s rulings can be used in jury trials.

The decision was handed down Tuesday in a case that dates back to 2006, when a woman named Sheila Parker visited the emergency department at the Southern New Hampshire Medical Center for back pain. ...

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An expert-panel system established several years ago in an attempt to improve medical malpractice lawsuits has withstood a legal challenge, although the state Supreme Court has changed the way the panel’s rulings can be used in jury trials.

The decision was handed down Tuesday in a case that dates back to 2006, when a woman named Sheila Parker visited the emergency department at the Southern New Hampshire Medical Center for back pain.

According to press reports, Parker was diagnosed with intractable pain and she was admitted to the hospital. She later died and Parker’s family sued, claiming the hospital failed to contact a specialist in time.

A pretrial medical screening panel, consisting of a retired judge, an attorney and two physicians as established by state law, reviewed the case in 2010. The panel unanimously found that the hospital was not negligent.

Parker’s family wanted to take the case to trial and filed a motion asking that the panel’s findings not be presented, arguing that the panels are an unconstitutional alternative to a jury trial. A court granted the plaintiff’s motion.

That decision, and the possibility that the medical panels would be banned, led to concern in many medical associations, which, in general, supported them, claiming they cut back on “frivolous” malpractice suits.

Southern New Hampshire Medical Center appealed to the state Supreme Court, with several medical societies signing on in support.

In a complicated legal decision, the Supreme Court has largely overturned the earlier ruling.

“It leaves the panel process mostly intact,” said Michael Pignatelli, a Nashua attorney who represented several hospitals and medical associations in the suit.

“It allows the parties more leeway in a trial to comment on the limitations of the panel hearing process,” he said. “It will affect the strategies if a case goes to jury trial.”

Attorney Michael Honigberg of Concord, who represented the defendant in the case, said he was pleased.

“The panel process itself is constitutional,” he said.

Medical injury screening panels exist in some form in 16 states, hearing malpractice arguments before they go to trial. Their aim is, in the words of New Hampshire’s law, to “encourage early withdrawal or dismissal of nonmeritorious claims” and “encourage early resolution of those claims prior to commencement of a lawsuit.”

New Hampshire has had such panels in effect since 2007, and they are used in roughly half the malpractice cases filed in New Hampshire, Pignatelli estimated.

The panels, which under state law consist of a former judge, attorney and a physician or two, are formed whenever a malpractice suit is initiated, and they spend roughly a day reviewing malpractice disputes.

The panels operate with much less stringent rules of discovery and witness examination and much tighter schedules than trials do.

If the panel has a unanimous ruling, then the ruling is binding, although the case can still go to trial. If the panel has a split decision, it has no effect.

If the case goes to trial after the panel’s ruling, the jury is told about the panel’s findings, but state law prevents it from being told much else about the deliberations. That restriction has been partly overturned by the Supreme Court, although details must be worked out in future trials.

One reason information about panels was limited in trials came from fear they would exert too much influence on juries; another was that discussion about them would result in a “trial within a trial” that would lengthen and complicate proceedings.

The Supreme Court largely dismissed those concerns, saying the law’s limits were unconstitutional because the Legislature limited the actions that a judge could take in court.

It will be up to superior court judges to determine how much information can be given to juries about the panel at individual trials.

David Brooks can be reached at 594-6531 or dbrooks@nashua
telegraph.com. Also, follow Brooks’ blog on Twitter (@GraniteGeek).