Between the Lines

A Discussion of Case Law and Statutory Law Affecting Commercial Lines of Insurance


NH Medical Malpractice Mandatory Screening Panel Statute Largely, But Not Completely, Upheld

In a recent decision, In re Southern New Hampshire Medical Center, the New Hampshire Supreme Court held that the state statute permitting the admission at medical malpractice trials of unanimous findings of the mandatory pretrial screening panel does not violate the separation of powers doctrine or the constitutional right to a jury trial.  The decision was not an across-the-board win for tort reform proponents, however, as the Court also held that the statute impermissibly prohibits trial courts from admitting evidence necessary for the jury to meaningfully evaluate the panel’s findings.  It appears, therefore, that a party who loses before the screening panel will now be able to offer the jury some explanation of how and why the panel, in the losing party’s view, reached the wrong conclusion.

Chapter 519-B of the New Hampshire Revised Statutes requires that a panel comprised of a retired judicial officer, an attorney with litigation experience, and one or two medical providers screen every medical malpractice case within six months after proof of service is filed.  The statute tilts the playing field considerably in favor of any party who prevails unanimously before the panel, because unanimous panel findings are admissible if the case goes to trial.  Further, the statute as enacted effectively prevents the losing party from offering evidence at trial to undermine the panel finding.  For example, the statute prohibits parties from offering into evidence statements made or evidence offered at the panel hearing by anyone other than themselves, except for statements offered to impeach trial testimony.  The statute also prohibits parties from asking or compelling an expert who testified for another party at the panel hearing to testify at trial.  The statute does provide a brief set of mandatory jury instructions, which include a description of the summary nature of the screening panel proceeding and a reminder that the panel’s findings are not binding on the jury.

The Court rejected the argument that the provisions of Chapter 519-B permitting admission at trial of a panel’s unanimous findings are unconstitutional.  The Court went on, however, to rebalance the playing field to some degree by striking down as unconstitutional the statutory provisions that prohibit parties from offering proof of testimony or evidence offered during the panel proceeding.  The Court concluded that those provisions prevent the losing party from mounting a meaningful challenge to the panel’s findings and thus deny the jury information necessary for the jury to evaluate the findings.  The decision does not offer any specific guidance on what information about the panel hearing may be provided to the jury, but rather broadly states that the trial court retains its discretion to decide, on a case-by-case basis, the type and amount of evidence that is admissible.  The Court did refer to concerns that its decision might transform medical malpractice trials into referenda on the panel findings, but expressed confidence that trial courts can appropriately confine the parties’ efforts to offer evidence about the panel hearing.

It is hard to predict how the decision will play out.  Will it lessen the emphasis on the screening panel proceeding, because parties know that even if findings of the panel are admitted at trial, they will have some ability to challenge the propriety of the findings?  Will it discourage post-panel settlement discussions, because the prospect of the panel’s finding being admitted without any opportunity for rebuttal will no longer weigh on a party who loses unanimously?  May a party offer at trial evidence that otherwise would be inadmissible on the ground that the evidence was considered by the panel, which is not bound by the rules of evidence?  In addition, the constitutional fight may not be over.  The Court noted at the beginning of its decision that it was not addressing some of the constitutional arguments that had been briefed by the parties, because those arguments (which the Court did not identify) were not properly preserved below.  In the meantime, the New Hampshire decision may provide support for litigants in other jurisdictions that have adopted similar screening panel procedures for medical malpractice cases.

Anne Robbins
(617) 621-6553

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Anne Robbins

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