The unconstitutional malpractice panels

To the editor:

I enjoy your articles in NHBR almost as much as I do the “Flotsam and Jetsam” page.

In particular, you somehow got your arms around the problems with the medical malpractice screening panels (“Questions swirl around effectiveness of medical malpractice panels,” Feb. 7-20 NHBR) without having to live with them, as I have since their onset.

There is no question that the requirement of a patient to prove her case twice, once before a screening and then again before a jury, regardless of the screening panel’s verdict, raises a very high financial obstacle in her way. Medical malpractice cases have always been the most difficult cases to win. Somebody on the jury always has a doctor who has been wonderful to them and they think punishing one doctor hurts them all.

In addition, most doctors in New Hampshire are insured with the same company or companies, and they all have gotten “the word” about not cooperating with medical malpractice patients. For that reason, it’s impossible to get a New Hampshire doctor to testify against another New Hampshire doctor, except in the most extreme circumstances.

You also got your hammer on the nail in respect to the use of screening panels as they have developed. The fact of the matter is that insurance companies have decided that they don’t want to spend the money on these things either. As a result, most often in medical malpractice cases, defense counsel calls us and asks us to agree to waive the panel process. Most of the time we do, for the obvious reason – again, it costs a heck of a lot more for the poor patient to “prove” her case twice.

What has bothered me about the whole process, however, is that I have believed that the “screening panel hurdle,” as I call it, was unconstitutional.

There’s no question that the judicial process, including jury trials, are within the judicial branch’s purview, and the effort of the Legislature to alter that process or establish rules of an obviously judicial nature, ought to be struck down as unconstitutional.

Even more to the point, New Hampshire’s Constitution provides, “It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit,” which pertains, by Supreme Court decision, to jurors.

My real problem with the screening process derives in part from the fact that having a separate tribunal have its unanimous opinion read to the jury at the close of the jury trial clearly avoids the constitutional obligation that a citizen “be tried by judges (and jurors), as impartial as the lot of humanity will admit.”

Somehow, these constitutional issues did not come up when the screening process was challenged, and thus we are left in limbo.

The saving grace, if it be that, is that, again, the cost of the screening panel process has become prohibitive – not only to patients and their lawyers, but also to insurance defense companies, who, of course, run the show.

In the meantime, as I recall it, medical malpractice insurance rates for doctors have not decreased, as the advocates of the screening panel process indicated (they avoided promising) that malpractice insurance rates would go down. Very wise of them.


David L. Nixon

Nixon, Vogelman, Barry, Slawsky & Simoneau


Categories: Letters to the Editor, Opinion