Medical Malpractice Screening under Scrutiny in New Hampshire

It’s been three years since New Hampshire started screening medical malpractice cases before trial, but it’s hard to say whether the new system is a success.

Doctors and their lawyers say having a special panel screen cases saves money and time by encouraging settlements and keeping meritless claims from juries. But attorneys representing injured patients say the system doesn’t work because lawyers are preparing as much for the panel hearings as they do for trials.

There’s no way to tell whether cases are being resolved faster or whether there’s been a drop in legal costs or insurance rates because more than half of the malpractice lawsuits filed after the new system began in August 2005 remained unresolved three years later. Those numbers have prompted the head of the superior court system to schedule a meeting in January to discuss changing the process.

“To the extent that one of the ideas (behind this law) was that we’ll get a quick and dirty resolution, that’s just not happening,” said Chief Justice Robert Lynn.

The panels, which are chaired by a retired judge and include a doctor and lawyer — screen every medical malpractice case that’s filed in court. After the panel hears the facts, the three members vote in favor of the plaintiff or the doctor. The decision is not binding, but it can be critical because a unanimous ruling either way is given to a jury if the case goes to trial.

The goal was to contain the climbing cost of medical malpractice insurance — thereby keeping doctors practicing — by reining in the legal expenses of fighting lawsuits. The system’s proponents argued that insurance costs would drop because claims would be settled sooner.

“A jury trial can last a week or more,” said Hampton attorney Ken Bouchard. “If you go to the panel, that lasts a day. The preparation is less. The number of witnesses are less. The expense is less.”

Bouchard said he recently spent about $2,000 on a panel hearing. A weeklong jury trial, he said, can costs $40,000 or more.

But several lawyers representing plaintiff’s said the opposite.

“In my opinion, this has been a failure,” said Nashua lawyer David Gottesman. “If an attorney wants to do a good job, they most depose everyone because they have to go the panel hearing prepared and with witlessness. I think this like trying the case twice because the panel decision is so critical.”

Retired judge Harold Perkins, who has chaired several panels, said he likes the concept but the details need to be changed.

“I think (the lawyers) are putting a lot more into them than I think anyone every envisioned,” he said, adding that lawyers are asking for more than a year to prepare for the screenings despite the fact that the law says they’ll go before a panel within six months of bringing a lawsuit.

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Information from: Concord Monitor