Evidence v. Emotion: How Medical Malpractice Screening Panels Work

October 12, 2007

Not all medical injuries are malpractice.

“It’s not easy to tell a patient, ‘You have a harm but it’s not anybody’s fault,”‘ says Marilyn Ashcroft, a medical injury screening panel judge for 15 years in Maine.

“The public perception is: ‘My wife died, therefore somebody made a mistake.’ That’s not always the case. It can be, but not always is.”

Medical malpractice screening panels were developed in the 1970s in response to complaints that claims were driving up insurance rates, forcing some doctors to give up their practices. Supporters hoped the panels would help contain costs by screening out weak cases and resolving the rest as early and inexpensively as possible.

New Hampshire set up screening panels in 2005 based on a 1987 Maine law.

Under New Hampshire’s law, Superior Court Chief Justice Robert Lynn appoints a panel chairman or chairwoman, usually a retired judge. The chairman appoints a lawyer and a doctor — preferably of the same specialty as the doctor being sued. Only the judge is paid.

New Hampshire’s cases move simultaneously through the courts. That is supposed to speed the time from the conclusion of a panel hearing to the start of a trial for unresolved cases. In Maine, the court process starts after the panel hearing.

“Most of these cases are going to settle eventually,” said Concord attorney Martin Honigberg, who represents the New Hampshire Medical Society. “They cannot settle until both sides understand the strengths and weaknesses of the case.”

The hearings are confidential and supposed to take a day or two with both sides free to call witnesses. The panel examines whether negligence occurred, but does not address any potential damages. The panel issues findings on three questions:

Did the medical provider do anything outside the accepted standard of care?

What caused the injury?

If the medical provider is at fault, to what extent, if any, did the the plaintiff share responsibity for his injury?

Honigberg said most cases end if the doctor adhered to the accepted standard of care and did not cause the injury.

Unanimous panel findings are admissible, but not binding, in court.

The law is silent on split decisions, which has led to problems in Maine. Two judges in Maine urged lawmakers to re-evaluate the system after a case that went through three trials in eight years because of split panel decisions.

Ashcroft believes the panels work because their members are professionals who look at the evidence and aren’t swayed by emotion.

“I’ve had doctors cry. I’ve had patients cry. We look at the
evidence,” she said. “A jury is a whole different approach. They
are going to have the evidence, but they are also going to have the
personalities and everything else. We’re more focused on what the
issues are.”

Source: “Expertise in Medical Malpractice Litigation: Special Courts, Screening Panels, and Other Options” by Catherine T. Struve for the Pew Charitable Trust’s project on medical liability, 2003.

On the Net:

Kevin Dugan article:

American Medical Association article:

Maine Supreme Judicial Court opinion:

2005 law:

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