Next year will mark a decade since New Hampshire lawmakers passed legislation creating a unique system for handling medical malpractice cases. Concerned with the rising price of medical malpractice insurance and the associated financial and treatment impacts those skyrocketing costs were having on doctors and patients, the legislature in 2005 started requiring that all medical malpractice claims be presented to and evaluated by a screening panel before they could proceed to a trial.
Recently, there has been an increased debate about the effectiveness of these panels and whether they are in fact accomplishing their intended goals, and changes to the system are currently being proposed. What happens with these proposed changes remains to be seen, but no one is proposing scrapping the system altogether, so it’s important to have an understanding of what the system is and how it works.
When a medical malpractice lawsuit is filed, New Hampshire law requires that a panel comprised of a retired judicial officer, an attorney with litigation experience, and one or two medical providers screen the case within six months after the defendant has been served with the lawsuit. Theoretically, this panel should be comprised of professionals with significantly more knowledge and expertise regarding medical issues than judges who handle a wide range of cases or jurors who likely know little if anything regarding the complicated technical and legal matters involved in malpractice suits.
These panels then conduct a hearing which is supposed to last no more than one day though they often go longer. In advance of the hearing, the parties submit written statements, medical records, deposition transcripts, and other evidence. The hearing is very much like an abbreviated trial, with witnesses testifying and being cross-examined and arguments being made. One of the current concerns is that these “mini-trials” actually increase costs if the matter proceeds to a regular trial, requiring the plaintiff to prove, and defendants to dispute, the claims twice. Since the decision of the panel is not final and can be rejected by either side, this happens often.
Additionally, not all medical malpractice cases go through the panel process. A plaintiff can waive appearing before the panel but only if the defendant agrees.
According to a recent Superior Court report, out of the 609 total medical malpractice cases filed since 2007, 192 went before the panels. Some 226 were resolved before the panels, and 191 times the panels were waived.
One of the more significant facts about the panels is how the decisions made by them are used if the matter does in fact go to trial. If the panel’s decision is unanimous, that decision could be presented to the jury during a trial. Obviously, this can have a major impact on the proceedings.
While the future of medical malpractice tribunals in New Hampshire remains to be seen, these panels will remain a unique feature of the New Hampshire court system for some time and will continue to have a substantial role in malpractice claims filed in this state.
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This article has been prepared by Bouchard, Kleinman & Wright, P.A. for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.