LIABILITY (LAW); MALPRACTICE; MEDICAL MALPRACTICE;

MALPRACTICE;

You asked for information on the procedures involved in using Maine’s malpractice screening panel. You also want any statistics available on panel usage. (We have contacted Maine’s Office of the Chief Judge of the Superior Court for statistical information and will pass this on upon receipt. )

SUMMARY

Mandatory pre-litigation screening panel review of all medical liability claims has been required under Maine’s Health Security Act (Maine Rev. Stats. Title 24, §§ 2851 et seq. ) since 1985.

The pre-trial screening panels are meant to encourage both the early resolution of claims and the withdrawal of unsubstantiated claims. But the 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. The panel chair can request that dispositive legal issues be tried in the Superior Court before the panel’s hearing.

A unique screening panel is convened for each claim. Maine law requires the Chief Justice of the Superior Court to recommend to each Superior Court clerk the names of retired judges and justices, persons with judicial experience, and other qualified persons to serve on screening panels. After receiving notice of a claim, the clerk of the Superior Court receiving the notice must notify the Chief Justice who in turn must choose a retired justice or judge, a person with judicial experience, or other qualified person from the list kept by the clerk to serve as the panel’s chair. After receiving notice of the Chief Justice’s choice to chair the panel, the clerk must notify that person and provide him with the clerk’s lists of health care practitioners.

The chairman chooses two or three additional panel members as follows: 1) one attorney; 2) one health care practitioner, who, if possible, practices in the specialty or profession of the person accused of negligence; and 3) if the claim involves more than one person accused of professional negligence, the chair can choose a fourth member who is a health care provider or practitioner. (Again, if possible, this person should practice in the specialty or profession of the person accused of professional negligence. ) When all parties agree, a panel member may be selected who is not on the clerk’s list.

MEDICAL MALPRACTICE SCREENING PANEL PROCEDURES AND POLICIES

Screening Panel Hearing Procedures

The following policies and procedures derive from the Maine Superior Court’s Administrative Orders JB- 01-03, effective July 1, 2001.

A. CONDUCT OF PANEL HEARINGS

1. Every effort will be made to conduct panel hearings in courtrooms. If a courtroom cannot be available for a panel hearing, the panel chair will select a site for the hearing that lends some formality to the proceedings.

2. Panel members should avoid mingling or fraternizing with hearing participants (parties, witnesses, and counsel) and engaging in any other conduct which presents the appearance of impropriety or partiality to any party.

3. Panel members should refrain from inquiring of a witness until all counsel have completed their inquiry of that witness.

4. Panel hearings that extend more than one day shall be conducted, whenever possible, on consecutive days, unless all parties agree otherwise.

5. Panel members will be administered an oath to conduct themselves in accordance with the law and orders of the court and otherwise appropriately by a court clerk or other court official, where feasible, otherwise by the panel chair, in the presence of all parties and their counsel at the start of the panel hearing.

B. PRE-PANEL HEARING CONFERENCE.

The panel chair shall, at least 21 days before a scheduled hearing, hold a pre-panel hearing conference. The chair shall decide if the conference is to be telephonic or in person.

Counsel shall be prepared to discuss at the conference: (1) the names of the witnesses reasonably expected to be called to testify; (2) disclosure of exhibits, articles,and depositions that will be provided to the panel; (3) the amount of time that counsel reasonably believe to be necessary in order to present their case; (4) any unusual issues that may require a ruling by the chair before the panel hearing or that counsel believes the chair should be made aware of before the hearing; (5) any logistical issues in the presentation of witnesses that the chair should be made aware of, and; (6) any motions “in limine” (preliminarily) filed at least 10 days before the conference.

When the conference ends, the panel chair shall advise counsel as to how much time it is anticipated will be required for the hearing consistent with each side having a fair opportunity to present their case and make such other rulings as the circumstances require. Rulings as to evidentiary issues and motions in limine shall be made by the panel chair no less than ten days before the panel hearing.

C. PANEL BRIEFS.

No later than 7 days before the beginning of any scheduled panel hearing, each party shall file with the chair, each panelist, and each other, a complete copy of their Panel Brief which should contain only:

1. Statement of the party's claim or opposition,

2. Copies of relevant medical records which are expected to be utilized during the presentation of the claim,

3. Copies of depositions or portions of depositions which are relevant to the proceedings, and

4. Other exhibits as discussed at the pre-trial conference.

If any party wishes to submit more than the items listed above, the party must seek leave of the panel chair to do so at the pre-panel hearing conference. Additional items may not be submitted to the panel without permission of the panel chair.

D. CONTINUANCES.

Once a panel hearing date has been established, continuances may be granted by the panel chair; (1) if all counsel agree, (2) for good cause shown by any party, (3) if the panel chair is unable to assemble a panel due to illness or other unavailability of a panelist. Should a panelist become unavailable for any reason prior to the panel hearing, the panel chair shall make all reasonable efforts to find a replacement in such a manner as to not cause a continuance of the hearing.

E. OPENING AND CLOSING STATEMENTS.

Each party shall be entitled to make a brief opening and a closing statement.

F. ORDER OF INTERROGATION OF WITNESS.

A party presenting a witness shall examine first, followed by counsel for the other party(s). After counsel have concluded, the panelists may ask such questions as they have for the witness.

G. VOIR DIRE QUESTIONS.

1. Are you acquainted with any of the parties to this case? If so, identify them and describe how you are acquainted.

2. Are you acquainted with any of the attorneys representing the parties or their firms? If so, identify them and describe how you are acquainted.

3. Are you acquainted with any of the expert witnesses in this case? If so, identify them and describe how you are acquainted.

4. Are you acquainted with any of the lay witnesses in this case? If so, identify them and describe how you are acquainted.

5. Have you, any family members or close personal friend ever had any business or professional relationship with any of the parties, attorneys or witnesses?

6. Have you, any family member or close personal friend ever had any personal relationship with any of the parties, attorneys or witnesses?

7. Are you currently a plaintiff or a defendant in any medical malpractice case?

8. Would you have any difficulty in finding either for the claimant or the respondent if the evidence supported such a decision?

9. Is there any reason you feel that you could not serve impartially as a panel member in this case? If so, please explain.

10. Do you have any knowledge of this case?

Evidence Policies

The following evidence policies derive from Maine Superior Court Administrative Order JB-01-02, effective July 1, 2001.

Wide latitude is currently allowed in the introduction of evidence at panel hearings. The formal rules of evidence do not apply. Evidence may be admitted if ". . . it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. . . "( 24 MRSA § 2854 (1)).

In order to provide panel chairs with standards for the application of this broadly stated standard, the following guidelines are hereby adopted:

A. USE OF DOCUMENTS

1. Documents which are to be used in case-in-chief should be provided with the panel notebooks.

2. Medical literature which is to be used in any parties' case-in-chief should be provided with the panel notebooks.

3. Medical literature which is to be used solely for cross examination need not be disclosed with the panel notebooks.

4. In determining whether or not material which has not been included with the panel notebooks shall be allowed to be used, the panel chair shall consider whether there has been a reasonable and good faith effort to provide the materials promptly and whether or not any prejudice has been demonstrated.

5. Summaries of voluminous medical records are admissible. They should be provided within a reasonable time prior to the panel so that opposing counsel may assess whether they accurately reflect the medical records or other material that they summarize.

B. QUESTIONING OF WITNESSES

The panel chair's responsibility is to insure that the parties' rights to examine and cross examine witnesses are enforced. 24 M. R. S. A. § 2854(1). To this end, the panel chair should endeavor to:

1. Allow attorneys a full opportunity to do their direct examination of witnesses.

2. Questions from the panel should be deferred until questioning by the attorneys has been completed.

3. Witnesses should not be allowed to ask questions of other witnesses or otherwise engage in a dialogue among themselves.

4. While panel members obviously have the right to ask follow-up questions, the practice of allowing each of the parties to make an open ended statement at the conclusion of a case should be discouraged because it does not provide an appropriate opportunity for examination by the attorneys and presents the distinct risk that inappropriate material may be introduced before the panel. This practice also prevents timely objections and allows a narrative which can be unpredictable.

C. SPECIFIC PROTOCOLS FOR DIRECT AND CROSS EXAMINATION OF WITNESSES/EXTENT OF QUALIFICATIONS OF AN EXPERT

1. Impeachment is allowed by the party calling a witness.

2. Because the Maine Rules of Evidence do not apply, the strict expert requirements of Rule 702, et seq. , are inapplicable.

3. However, the extent of qualifications and familiarity with the standard of care are factors to be considered by the fact finders in evaluating the weight of the testimony.

4. The panel chair has control over the mode and order of witnesses as well as control over the types of questions which are appropriate. The chair has the authority to exclude questions whose form is inappropriate (leading, argumentative, asked and answered) and can limit cumulative evidence.

5. Leading questions are appropriate on cross examination and while examining hostile or adverse witnesses, but ordinarily should be avoided on direct examination.

6. The panel chair shall encourage the use of leading questions to develop testimony in areas where significant matters are not in dispute. The panel chair retains the authority to sustain leading question objections in situations in which matters crucial to determination of the factual issues is at issue.

7. Writings used to refresh memory are required to be produced to opposing counsel to allow adequate cross examination of witnesses.

8. Prior statements of witnesses need not be shown to the witness before questioning.

D. EXCLUSION OF EVIDENCE DISCOVERY

Since the panel chair has authority to rule on discovery matters, and the law allows appropriate sanctions including dismissal and default orders regarding discovery, he has the implied authority to rule evidence inadmissible in appropriate instances involving discovery abuse (24 M. R. S. A. §§ 2852(6), 2853(8)(b), and 2853(9)(a)).

E. MOTION IN LIMINE

The panel chair has authority to exclude evidence which is cumulative or which will unfairly prejudice a party and the panel chair shall allow a motion in limine process in which evidence, which is possibly unfairly prejudicial to either the claimant or respondent, shall be heard and ruled upon outside the presence of the other two members of the panel.

F. PRIVILEGES

Although the dictates of the Maine Rules of Evidence do not apply according to the statute, it is the view of the court that evidentiary privileges set out in the Maine Rules of Evidence continue to apply on either their statutory or common law basis.

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