MEDICAL MALPRACTICE; COURT PROCEDURE;

INSURANCE - MALPRACTICE;

You asked us to compare Maine and Connecticut’s pre-trial medical malpractice screening panel provisions.

SUMMARY

Pre-trial screening panels, like most alternative dispute resolution mechanisms, operate to encourage parties to settle meritorious claims and to deter or eliminate “nuisance” suits.

The Maine Health Security Act established a mandatory pre-litigation screening and meditation panel to identify (1) professional negligence claims that merit compensation and early resolution before a lawsuit begins and (2) non-meritorious professional negligence claims.

Connecticut’s pre-trial screening system can be characterized as a non-binding, voluntary panel convened with the parties’ consent. The panel’s findings are admissible at trial if unanimous and carry no presumption other than that afforded by the trial’s trier of fact.

MAINE

In Maine, screening panels are composed of retired justices and judges, people with judicial experience and other qualified people recommended by the chief justice of the Superior Court.

The chief justice chooses someone to serve as panel chairman. Once the chairman is chosen, the Superior Court clerk must notify the claimant and provide him with lists of health care practitioners, providers and attorneys. The chairman chooses two or three additional panel members as follows: one attorney, one health care practitioners and one health care provider who practices in the specialty or profession of the person accused of negligence. If the claim involves more than one person who is accused of negligence, the chairman may choose a fourth panel member who must be a health care practitioner or provider. When all the parties agree, a panel member may be selected who is not on the clerk’s list.

Submission of Claims

A person may commence an action for professional negligence in two ways.

1. He can serve a written notice of claim on the person accused of professional negligence setting forth under oath the professional negligence alleged and the nature and circumstances of the injuries and damages. The notice of claim must be filed with the Superior Court within 20 days after delivery of the notice.

2. He can file with the Superior Court a written notice of claim setting forth under oath the professional negligence alleged and the nature and circumstances of the injuries and damages. The claimant must serve the notice of claim on the person accused of professional negligence. The return of service must be filed with the court within 90 days after filing the notice of claim.

Notice of Claim. The notice of claim and all other documents filed with the court during the pre-litigation screening process are confidential. The claimant must pay a $ 200 filing fee per notice when he files the notice of claim. Within 20 days of receiving the notice served on the clerk, the person accused of professional negligence must file an appearance before the panel with a copy to the claimant and pay a $ 200 filing fee.

Waiver. Any party may, at the time of filing, apply to the panel chairman to waive the filing fee. The chairman must grant the waiver if:

1. the party is indigent;

2. the party is or was an employee of another party that stipulates that at the time of the claimed injury the employee was acting in the course and scope of his employment; or

3. the waiver is necessary to avoid requiring an individual who is a party to the case from paying two or more filing fees because a professional association or other business entity to which he belongs is also a party and has substantially the same interests as the individual in the case.

Lawsuits. The pre-trial screening panel may be bypassed if all parties agree to resolve the claim by lawsuit. Parties may, by written agreement, submit a claim for a binding determination of the claim’s merits by the panel, either before or after the lawsuit begins. Parties may agree to bypass the panel and commence a lawsuit for any reason, or they may request that certain preliminary legal affirmative defenses or issues be litigated before submitting the case to the panel.

The panel has no jurisdiction to hear or decide, absent the parties’ agreement, dispositive legal defenses and comparative negligence. The panel chairman may require the parties to litigate dispositive legal defenses in the Superior Court before submitting the case to the panel. Any such defense, as well as any motion relating to discovery that the panel chairman has chosen not to rule on may be presented, in Superior Court without the necessity of a complaint having been filed first.

Hearing Procedure

The claimant must present the case before the panel to which the person accused of professional negligence must respond. Wide latitude must be afforded the parties by the panel in the conduct of the hearing, including, but not limited to, the right of examination and cross-examination by attorneys. Depositions are admissible whether or not the person deposed is available at the hearing. The chairman must make all procedural rulings, and those rulings are final; the Maine Rules of Evidence do not apply. Evidence must be admitted if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel must make its findings based on evidence as is presented at the hearing and records and any expert opinions provided by or sought by the panel or the parties.

After presentation by the parties, the panel may request from either party additional facts, records or other information to be submitted in writing or at a continued hearing, which hearing must be held as soon as

possible. The same members of the panel who sat on all prior hearings in the same claim, unless otherwise agreed by the parties, must attend the continued hearings.

Findings By Panel. The panel must make its findings in writing within 30 days after the presentations end, by answering the following questions:

1. whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or provider charged with that care.

2. whether the acts or omissions complained of proximately caused the injury complained of; and

3. if negligence on the part of the practitioner or provider is found, whether any negligence on the part of the patient was equal to or greater than the negligence on the part of the practitioner or provider.

Notification and Effect of Panel Findings. The panel’s findings, signed by the panel members and indicating their vote, must be served by registered or certified mail on the parties within seven days after they are made. The finding, notice of claim, and record of the hearing must be preserved until 30 days after final judgment or the case is finally resolved, after which time it must be destroyed. All medical and provider records must be returned to the party providing them to the panel.

If the unanimous findings of the panel regarding negligence, causation, and the standard of proof are in the affirmative, the person accused of professional negligence must promptly enter into negotiations to pay the claim or admit liability. If liability is admitted, the claim may be submitted to the panel, on agreement of the claimant and defendant, for determination of damages. If suit is brought to enforce the claim, the findings of the panel are admissible in Superior Court.

If the unanimous findings of the panel regarding negligence, causation, and the standard of proof are in the negative, the claimant must release the claim or claims based on the findings without payment or be subject to the admissibility of those findings in Superior Court.

CONNECTICUT

In the mid 1980s, the nation received warnings about a medical malpractice crisis then brewing. A number of states implemented legislation in response to this perceived problem. Although Connecticut did not implement reforms as extensive as some other states, it did create a medical malpractice pre-trial screening panel (CGS § 38a-32).

Use of the panel depends on the consent of the parties. In accordance with the party’s mutual agreement, the insurance commissioner or her designee selects panel members from lists of names submitted by the Connecticut State Medical Society and the Connecticut Bar Association. The panel is composed of two doctors and one attorney with trial experience in personal injury cases, who acts as chairman. One of the doctors must practice in the same field of specialty as the defendant. Panel members should not be from communities in which the defendant doctor or the parties’ attorneys maintain their practice. Panel members are not compensated. The panel holds confidential hearings when and where it decides; transcripts are available at cost to either party.

The panel’s conclusion as to liability is set forth in a finding signed by the members and recorded by the Insurance Commissioner. The panel does not address the issue of damages. Each party receives a copy of the panel’s findings. If a subsequent trial is held, only unanimous findings of the panel are admissible. The trier of fact (court or jury) determines the weight assigned to such admissible findings. No member can be compelled to testify.

JH: ro