MALPRACTICE; MEDICAL MALPRACTICE;

MALPRACTICE;

You asked some follow-up questions to a previous OLR report (2003-R-0465) addressing malpractice-screening panels in Maine and Massachusetts. For Maine, you are interested in (1) the difference, if any, between a health care practitioner and health care provider; (2) compensation of panel members and the frequency of use of the panels; (3) the meaning of the term “claimant or his representative,” and (4) the necessity, if any, of a unanimous decision by the panel. For Massachusetts, you want to know (1) when the screening panel was created; (2) who the responsible state entity is and how the panels are paid for; and (3) the qualifications for the attorney members of the panel.

MAINE

Background

Before a medical malpractice claim can be filed in Maine, a complaint must be filed with a pre-litigation screening panel (Maine Rev. Stats. Title 24, § 2851 and 2853). The screening panels are meant to serve a twofold function of encouraging both the early resolution of claims and the withdrawal of unsubstantiated claims. But the pre-trial screening process can be bypassed if all parties agree. Alternatively, all parties may agree in writing to submit the claim to a binding decision of the panel. The parties can also use a combined method where certain issues are heard by the panel and others by the court. The panel does not have the power to decide dispositive legal issues.

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 the panel chairman. The chairman can request that dispositive legal issues be tried in the Superior Court before the panel’s hearing.

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 practitioner, and another practitioner who practices in the specialty or professions of the person accused of negligence. When all parties agree, a panel member may be selected who is not on the clerk’s list.

“Health Care Practitioner” vs. “Health Care Provider”

Maine law defines a “health care practitioner” as physicians and all others certified, registered, or licensed in the healing arts, including but not limited to, nurses, podiatrists, optometrists, chiropractors, physical therapists, dentists, psychologists, and physicians’ assistants (Title 24, § 2502, 1-A). A “health care provider” is any hospital, clinic, nursing home, or other facility in which skilled nursing care or medical services are prescribed or performed under the general direction of someone licensed to practice medicine, dentistry, podiatry, or surgery in Maine and which is licensed or otherwise authorized by state law (§ 2502, 2-A).

Panel Compensation and Panel Frequency

The chief justice establishes the compensation of the panel chair. Other panel members serve without compensation or payment of expenses. The clerk of the Superior Clerk in the judicial region in which the notice of claim is filed, must, with the consent of the chief justice, provide clerical and other assistance to the panel chair (§ 2852). The panel is not categorized as “full-time” or “part-time” and more than one panel could be in operation at a given time in the various judicial regions.

“Claimant or His Representative”

The Maine law uses the phrase “claimant or a representative of the claimant” in terms of who presents the case before the panel (e. g. his attorney; see § 2854).

Unanimous Decision of the Panel

The Maine law does not require a unanimous decision by the screening panel. But a unanimous decision has important implications for the rest of the process. The findings of the panel and any disclosures made at the panel hearing are confidential and cannot be used later in subsequent litigation, unless the panel’s decision is unanimously in favor of either the plaintiff or the defendant (§ 2857).

MASSACHUSETTS

Background

Under Massachusetts law, after a medical malpractice suit is filed, the plaintiff must submit an “offer of proof” to a tribunal (the Massachusetts Medical Malpractice Tribunal). The tribunal consists of a judge of the superior court, a lawyer, and a physician or other health care provider in the same field as the doctor or provider being sued. The tribunal concept was created in 1975 (see Mass. Laws, Chapter 231, § 60B).

Basically, the offer of proof must contain evidence, which if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result. The evidence must be that which a reasonable person might accept as adequate to support a conclusion. Admissible evidence includes, but is not limited to, hospital and medical records, nurses’ notes, x-rays, and other records kept in the usual course of the practitioner’s practice, statements of fact or opinion on a subject contained in a published treatise, book, periodical or pamphlet, or statements by experts (who do not have to appear).

If a finding is made for the defendant, the plaintiff may pursue the claim through the usual judicial process only by filing a $ 6,000 cash bond (or its equivalent) with the clerk of the court in which the case is pending, payable to the defendant for costs assessed, including witness and experts’ fees and attorneys’ fees if the plaintiff does not win the case. The judge, at his discretion, can increase the bond amount. But the judge may reduce the bond amount, although not entirely, if the plaintiff can prove indigency.

The tribunal’s findings, as well as the expert testimony given before the panel, are admissible at trial.

The Massachusetts Supreme Judicial Court upheld the constitutionality of the pretrial screening requirement in the 1977 case of Paro v. Longwood Hospital.

Responsible State Agency and Costs

The Massachusetts Medical Malpractice Tribunal is under the Massachusetts Court System, Superior Court Department, Administrative Office of the Trial Court. The state pays the expenses and compensation of the tribunal, provided that the pro rata percentage of such expenses and compensation resulting from negligence actions brought against health care providers cannot exceed the amounts received by the state from health care provider registration fees, less the amount spent on expenses and compensation of the respective licensing boards for such providers.

Attorney Members of the Tribunal

The attorney member of the tribunal is selected by the judge of the Superior Court from a list submitted by the Massachusetts Bar Association. Qualifications for attorney members of the tribunal are set by the bar association. (We have contacted the Massachusetts Bar Association for more information on the qualifications and will pass this on to you when we receive it).

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