MEDICAL MALPRACTICE SCREENING PANEL

          Many New Hampshire citizens are not aware that we have a medical malpractice screening panel system in place. The statement that the system is in place was not meant to be illusory. In fact, many believe it is so firmly in place that it is beginning to sink under its own weight.

          The screening panel process was established by the N.H. Legislature in 2005 with the intent that it winnow out those medical negligence claims which were without merit. Back in 2005, the insurance lobby and the plaintiffs’ lawyers were at odds over the merits of adding such a process. The insurers of doctors and hospitals were quite anxious to have the process established and were quite forceful about the purported merits of the proposed system. The tort lawyers representing the plaintiffs were equally forceful in their skepticism, arguing the system was not a success in Maine, the process on which New Hampshire’s was modeled.

          Now, with the process three years old, some results are available as to how it is working. On a basic level, one can reasonably say that the panel idea is simply not working. It was promoted as a money and time saving mechanism for both sides of the medical claims. The Superior Court Chief Judge issued a report on screening panel cases in mid-September 2008. The promoted idea of less expensive claim resolution has been shown to be unfounded and system issues must be addressed in the near term or the process threatens to collapse by its own weight and grind to a halt.

          Chief Judge Lynn’s report states that while 190 medical malpractice lawsuits were filed in the Superior Court between 2006 and 2008 and were automatically referred to the screening panel process, as the law requires, 101 of those claims remain pending as of the report date. There was a 560 day average time period to get a case before a panel for hearing, far in excess of the 11 months the Legislature anticipated. There is also concern about the availability of doctors and retired judges able and willing to devote the necessary time to sit as panelists.

          While the legislation stated that it was not the intent of the statute to delay the time track of a lawsuit to trial, that is exactly what it is doing. These lawsuits are generally complex claims and require that substantial medical and the legal expertise be involved and analysis occur before the issues of liability and damages can be properly understood and addressed by the parties and the panelists. The concept of a preliminary screening is misguided and ill fated due to the nature and sensitivity of the claims involved. Further, the panels do not have the resources or the funding to an attempt to carry out their legislative mission. The plaintiffs and their families are often being forced to carry on even longer than previously due to the panel system delays. Likewise, the doctors, their practice groups and hospitals, have to operate under the stress and burden of having these lingering allegations hanging over them for years. The legislation appears to miss the target of advancing the goals of either the plaintiffs or the defendants. Finally, and unfortunately far too often, when a claim finally reaches the panel for hearing, it is only the beginning of the process, not the end.

Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com.

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