Medical screening panels emerge as political issue

When David Gottesman decided to run for the New Hampshire Senate in District 12, it took some of his friends and neighbors by surprise.

“My life is pretty busy,” said the Nashua attorney. “People were wondering why I was doing it.” Gottesman, however, sees his busy practice as a plus. “Busy people get things done,” he said.

But N.H. Rep. Harry Haytayan of Hollis, one of three candidates seeking the Republican nomination for that same Senate seat, suggests Gottesman may be more interested in what he can prevent being done in the field of tort reform.

“The Trial Lawyers Association has put up a candidate just to keep me out of the Senate,” charged Haytayan, who, as a House Judiciary Committee member in this year’s legislative session, was a key player in the effort to pass House Bill 1413, a bill that would require medical malpractice suits to go through a screening panel — made up of a doctor, lawyer and retired judge — before going to court. The bill passed each House, but died in conference. The issue is expected to come back up when the lawmakers convene next year.

“If I’m in the Senate, it will certainly come up again next year,” said Haytayan, a Hollis resident who is an attorney for a private corporation. That, he said, is one reason the Trial Lawyers Association would like to retire him from the Legislature.

“I find it odd I face an opponent who has never run for office before and who does a lot of plaintiff’s work,” Haytayan said. “I didn’t go into this as anybody’s ally, but I think I made a few enemies.”

Gottesman takes issue with Haytayan’s assessment of the race on a number of points. First of all, he said, his fellow trial lawyers didn’t “put him up” as a candidate.

“They were shocked I even considered running,” he said of his colleagues. “They were absolutely taken aback.”

While he makes no bones about his opposition to the screening panels and other tort reform measures that died in the Legislature last year, he insists he is not the single-issue trial lawyer candidate that Haytayan depicts. And Gottesman, who is unopposed in the Democratic primary, suggests his would-be Republican foe should concentrate on winning his party’s nomination before he attempts to enter the general election fray.

Rising premiums

What impact, if any, the issue will have on this year’s State House races remains to be seen, but there seems little doubt that legislation aimed at tort reform, particularly in medical malpractice, will be back on the House agenda next year.

The Republican leadership supported the screening panels bill, and Gov. Craig Benson testified in favor of it. Both Democrats now running for governor, John Lynch and Paul McEachern, say they support screening panels, but McEachern would change the make-up of the proposed boards. Having a physician on the three-member panel would be prejudicial, he said.

Whatever the composition of the panels, House Speaker Gene Chandler wants something passed to deal with the high costs of medical malpractice.

“It’s been a priority of mine,” said the Bartlett Republican. “I certainly think there is a need to keep plugging away.” Sharply rising premiums have forced a number of doctors out of their practice in the North Country as well as in other parts of the state, Chandler said, adding, “What had been a North Country problem has now gone statewide. It’s a real concern.”

Last year’s bill held that a 2-1 recommendation by one of the three-member panels would not be presented to the jury in a subsequent trial. But the jury would be informed of a 3-0 decision, in favor of either the plaintiff or defendant.

The bill’s supporters argued that issues would be clarified before the committee, and more cases would be settled out of court, and settled sooner, than under the current system. But trial lawyers objected that the law would unconstitutionally interfere with the plaintiff’s right to a trial.

According to outgoing House Judiciary Committee Chairman Henry Mock, R-Jackson, the conflicting claims posed a real dilemma for the lawmakers.

“Our concern was about prejudicing the jury,” said Mock, a six-term legislator who chose not to run for another term. “The first thing the judge would tell the jury is, ‘I want you to know this case has already been reviewed, or previewed, by a doctor, lawyer and a judge and it was determined that there was medical malpractice, or there was not medical malpractice.’ Well, what is the juror thinking? The juror’s thinking, ‘Well, what the hell am I doing here?’”

The compromise the House conferees came up with was an amendment that would allow a 3-0 finding to be brought out during trial through examination or cross-examination of witnesses, but not formally presented to the jury by the judge. The senators, holding out for formal presentation of a 3-0 panel finding, rejected the compromise.

Doctors and insurance companies, on the other hand, insisted that a unanimous panel finding had to be included in the case presented to a jury, or screening panel hearings would become a meaningless exercise. But Mock was suspicious of, among other things, the close alliance between the insurance companies and the medical profession.

“The key thing here is, we’ve looked at the lawyers, we’ve looked at the doctors, but we have not looked at the third leg of the stool, which is the insurance companies,” said Mock. “Who was running around there, following us back and forth into the little conference rooms when we huddled? The insurance people. And another cutie in that whole issue is the lawyer representing the medical society was (Concord attorney Martin) Honigberg. Guess who else he lobbies for? The insurance companies. Why does the medical society think they’re in love with the insurance companies? The insurance companies aren’t their buddies, they’re the ones tuckin’ it to ’em.”

Size of awards

“There’s no real basis for saying that,” Honigberg said when advised of Mock’s comments. “The increase in medical malpractice premiums can be and has been explained by the actuaries who work for those companies and who work for the Insurance Department. The ‘tuckin’ it to ’em’ doesn’t match up with the way insurance companies price and the way medical providers purchase insurance.”

The reason the doctors and the insurers are on the same side in this battle, Honigberg argued, is that screening panels work, as is evident by contrasting New Hampshire’s rates with Maine’s.

Medical Mutual Insurance of Maine, which covers virtually all of Maine’s practitioners and a large chunk of the New Hampshire market, charges significantly higher rates for its coverage in New Hampshire because of the higher legal costs associated with litigation, Honigberg said.

“I think that’s probably something the trial attorneys have fed him,” Dr. Gary Woods, president of the New Hampshire Medical Society, said upon hearing of Mock’s comments. “Trial attorneys, both in state and nationally, have said they’re not the problem, it’s bad doctors or insurance companies trying to make up for a bad stock market. It’s a mechanism to deflect the argument.”

While the frequency of malpractice cases may not have risen appreciably nationwide in recent years, Woods said, the jury awards have gone up considerably.

“Three or four years ago, the average jury award was about a million. Now it’s close to $3 million,” Woods said. “I’ve asked (trial lawyers) on several occasions to show me one peer-reviewed article that said it’s the insurance industry that’s the problem, and the response is silence.”