Medical Malpractice Screening Panels

Recently, the constitutionality of medical malpractice screening panels was challenged in a New Hampshire case that originated in 2006. In that case, a woman sought treatment at the emergency room for uncontrollable back pain. While she was admitted to the hospital, she unfortunately died. Her family sued the hospital for failing to obtain a specialist consultation, presumably because such consultation would have saved her life.

Prior to the trial of this case, a medical malpractice screening panel reviewed the facts of the case and unanimously decided that the hospital did nothing wrong. The family wanted to go to trial and wanted to keep out the panel’s decision by alleging that the panel itself is an unconstitutional alternative to a jury trial. The trial court granted the family’s request, but the appellate court overturned the trial court’s decision. In other words, the appellate court found that the malpractice screening panel was constitutional.

So what is a malpractice screening panel? The basic concept is that it consists of a group of people, usually a judge, attorney, and a physician. The panel reviews the evidence of a medical malpractice claim and reaches a conclusion regarding liability and sometimes damages. The panel’s conclusions are provided to the litigants, and in some cases, the conclusions are admissible at trial.

However, studies have found that having such panels actually increases the number of claims asserted. Furthermore, the panels may actually discourage claims because the panel proceedings lengthen the litigation process and increase its associated overall costs. Costs are particularly increased in jurisdictions where the panel’s decision is admissible at trial – resulting in lengthy presentations and more detailed discovery of fact.

Therefore, the panels generally have noble goals of reducing expenses and maintaining accuracy of the evaluations. However, the goal of early and inexpensive evaluation of claims conflicts with having an accurate evaluation by an expert for trial. An accurate screening process requires a thorough evaluation by an expert. Such thorough evaluation increases the cost of the screening process and consumes more time.

In Maryland, the options are better for plaintiffs. While a screening panel exists in the Health Care Alternative Dispute Resolution Office, any party can unanimously waive out of the panel. Maryland also has a certification requirement. Prior to the filing of a lawsuit, the plaintiff must file a Certificate of Qualified Expert which states, in essence, that the case has been reviewed by an expert and that expert has found some basis for the plaintiff’s claim. This certification requirement is better than a mandatory screening panel. At a relatively low cost, it turns away frivolous lawsuits as physicians will not support a frivolous case. The drawbacks of the certification requirement are that the plaintiff might not always have all of the available evidence, such as testimony of the doctors and nurses who were present at the time the plaintiff received treatment, or all of the relevant medical records.

In any event, plaintiffs’ lawyers have an incentive to bring only the strong cases as lawyers typically represent medical malpractice clients on a contingency fee basis. Thus, frivolous cases are generally filtered out without screening panels or certification requirements.

You can read the opinion from the New Hampshire Court here.

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