You asked whether Maine allows the findings of the medical malpractice-screening panel to be introduced into evidence in the malpractice lawsuit in light of the hearsay rule.

SUMMARY

Maine courts have interpreted their laws as giving parties the right to introduce unanimous screening panel findings in malpractice lawsuits because the statute makes these findings admissable. Juries may consider the findings in the same way they consider any other admissible evidence.

The “hearsay rule” is a rule of evidence created by the common law to exclude certain evidence from trials. “Hearsay” is a statement, oral or written, made out-of-court that is offered at trial to establish the facts contained in the statement.

Maine courts have not dealt with the relationship between the hearsay rule and the admissibility of the screening panel’s findings. This is probably because Maine courts recognize the legislature’s authority to amend and adopt rules of evidence. Thus, the hearsay rule would not prevent the admissibility of evidence mandated by statute.

The hearsay rule would also not appear to be an impediment in Connecticut to the introduction of hearsay evidence such as the screening panel’s findings. Our evidence code explicitly recognizes the ability of the legislature to adopt statutes that require the admissibility of hearsay evidence. Our current statute makes the unanimous findings of the malpractice screening panel admissible at any subsequent trial of the issues (CGS § 38a-36).

The cases in Maine that have dealt with challenges to the introduction of screening panel findings have been based on constitutional issues. In a recent case, the Maine’s Supreme Court required that trial judges give juries certain information and instructions concerning the screening panel’s proceedings and findings. It did so to preserve the law’s constitutionality against a challenge that the law violates the right to a jury trial provision of Maine’s constitution by impermissibly interfering with the jury’s fact-finding role (Irish v. Gimbel). But the court refused to give litigant’s the right to cross-examine panel members or argue against the panel’s findings.

MAINE SCREENING PANEL LAW

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 legal issues. Maine law and procedural rules and safeguards for panel deliberations are described in some detail in OLR Report 2003-R-0871, a copy of which is enclosed.

Admissibility of Panel Findings

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).

HEARSAY RULE

“Hearsay” is a statement made out of court that is offered to establish the truth of the facts contained in the statement (S 801 Ct Evidence Code, Murray v. Supreme Lodge, N. E. O. P. , 74 Conn. 715 (1902)). The test is whether the statement is offered to prove the truth of the matter in the statement. If it is, it is hearsay. If it is offered for some other purpose it is not hearsay (State c. Miller, 154 Conn. 622 629 (1967)). The definition of “statement” includes both real and written assertions (Rompe v. King, 185 Conn 426, 428 (1981)). Thus, written statement including findings of a medical malpractice screening panel would be considered hearsay if introduced at a trial to prove the truth of the findings.

The general rule in Connecticut is that hearsay is inadmissible. But hearsay is admissible if otherwise allowed by the evidence code, the General Statutes, or the Practice Book (Section 802, Evidence Code). Thus, the legislature could by statute require the admissibility of a written statement, such as the screening panel’s findings, and the hearsay rule would not prevent this. Current law makes the unanimous findings of the malpractice screening panel admissible at any subsequent trial of the issues (CGS § 38a-36).

ADMISSIBILITY OF MAINE PANEL FINDINGS IN LAWSUITS—IRISH V. GIMBEL

In Irish v. Gimbel, the Maine Supreme Court held that the mandatory admission of unanimous findings of the medical screening panel, without further information regarding the panel’s procedures, violated the patient’s right to a jury trial guaranteed by Maine’s constitution (691 A. 2d 664 (1997)). But it upheld the introduction of such findings if the trial judge provided certain information and instructions to the jury.

The court also held that the screening panel law does not violate the separation of power mandate. The plaintiff had claimed the law interfered with the trial court’s authority to conduct trials. It also held that the statute does not deny access to the courts in violation of the open court provision of Maine’s constitution. The plaintiff claimed the panel process is unduly burdensome and causes unconscionable delay.

Finally, the court rejected the claim that the prelitigation screening process violates the equal protection provisions of the federal and Maine constitutions by creating an arbitrary distinction between medical malpractice victims and all other tort victims. The court concluded that

the law was constitutionally valid because it was rationally related to the statute’s purpose of expediting the resolution of medical liability claims in order to decrease the high costs of malpractice insurance.

Following is a summary of the portion of the decision dealing with the right to a jury trial because this portion of the case focuses on the mandatory admissibility of the panel’s findings. Please let us know if you want additional information about the other constitutional challenges. We have included a copy of the decision.

Trial Court Rulings and Instructions

The trial court in Irish v. Gimbel denied plaintiffs' pretrial motions challenging the constitutionality of the screening process. Plaintiffs tried to exclude the panel’s findings from evidence. In the alternative, they asked for an instruction that the findings should be afforded less weight than any other evidence in the case.

The trial court allowed the panel findings to be admitted as evidence. It made the following preliminary remarks to the jury:

“It is important for you to understand that you are not bound by the findings of the panel. You are the final decision makers in this case. However, in your deliberations at the close of this case, you may consider those findings as you would any other evidence that may be presented in this trial. You may give those findings whatever weight you find is appropriate. ”

The court restricted counsel to "comments that do not go essentially beyond my comments" and prohibited counsel from informing the jury that his ability to comment on this particular piece of evidence was restricted. The court permitted defendant to display an enlarged copy of the finding to the jury on a 3' x 4' poster and to refer to the panel as a "neutral panel," but denied defendant's request to be permitted to identify the panel members or their profession. The finding was admitted as defendant's exhibit # 1 in the form of a decree containing the signatures of the panel members. The signatures, however, were not very legible. The decree did not identify the professions of the panel members. (The panel was comprised of a retired judge, a physician, and an attorney in accordance with Maine law (24 MRSA § 2852). )

At the conclusion of the trial, the court provided the following instructions with reference to the panel finding:

The jury found in favor of the defendants and the plaintiff appealed.

Issues on Appeal

The plaintiffs claimed the statute violated their right to a jury trial under the Maine Constitution, which provides in part:

Although plaintiffs presented their case to a jury, they argued that the statute and the court's instructions interfered with the jury's fact-finding function and effectively deprived them of their right to a trial by jury. They contended that the mandatory admission of unanimous findings "without explanation" prevents effective impeachment of the findings and results in juror deception, thereby hindering the jurors' ability to properly weigh the evidentiary significance of the findings. They claimed the right to impeach the findings of the panel by informing the jury of the procedural and evidentiary flaws of the panel process through examination of the panel members and argument.

According to the court, the issue was whether the statutory screening process, as applied in this case, was inconsistent with the constitutional right to a jury trial. The court pointed out that under Maine case law, a litigant's right to a jury trial, in general, means the right "to have a determination made by the jury" on material questions of fact (Peters v. Saft, 597 A. 2d 50 (1991). It noted that the United States Supreme Court held that the right to a jury trial mandates that the ultimate determination of issues of fact by the jury be not interfered with (In re Peterson, 45 S. Ct. 543, 546 (1920)).

In its Peterson decision the U. S. Supreme Court rejected a Seventh Amendment challenge to a court order appointing an auditor to investigate facts, hear witnesses, and file a report expressing the auditor's opinion on disputed issues of fact. The Court held that the admission of the auditor's report would not unduly interfere with the jury's determination of the facts. "The parties will remain as free to call, examine, and cross- examine witnesses as if the report had not been made. " (At 311) The Court observed that the right to a jury trial does not "require that old forms of practice and procedure be retained . . . nor does it prohibit the introduction of new rules of evidence. " (At 300). The Court also noted that in an earlier decision it had held that a statute making an auditor's report prima facie evidence in a jury trial was a "legitimate exercise of legislative power over rules of evidence and in no wise inconsistent with the constitutional right of trial by jury. "

The Maine Supreme Court compared the report of the screening panel with the pre-trial auditor’s report, which it had previously allowed in evidence because, "The results reached by the auditor are not conclusive upon the parties, but his report when offered in evidence is subject to be impeached, rebutted, controlled or disproved by competent evidence to be laid before the jury (Howard v. Kimball, 65 Me. 308, (1876)).

The court noted that a majority of the courts considering this issue have upheld prelitigation screening statutes against the right to a jury trial challenge. These courts have consistently applied the rationale and language in Peterson, and have compared the screening panel to a court appointed auditor.

Insufficient Safeguards

The plaintiffs in Irish v. Gimbel, contended that the statutes upheld by other courts contain safeguards not found in the Maine statute; they permit court instructions informing the jury of the limitations of the panel proceedings, and they permit direct or indirect impeachment of the panel findings by argument and comment, or in some statutes, by cross- examination of panel members. The plaintiffs suggested that the mandatory admission of unanimous findings "without explanation" is unique to Maine and is a "fatal flaw" because it prevents the court from instructing the jury about the findings and it prevents the parties from attacking the findings. Thus, they claimed the jury is left with nothing but the bare findings and is denied any basis for evaluating credibility or comparative weight.

Essential Information for the Jury

The court agreed that such a prohibition, as applied by the trial court in this case, withholds information that is essential to the jury's fact-finding role. The trial court instructed the jurors that they were not bound by the panel’s findings and should give the findings whatever weight they thought appropriate. But the Supreme Court believed this admonition was insufficient when the jurors are deprived of any and all information of the context in which the panel operates. To make matters worse, in the court’s view, the trial court barred the parties from informing the jury they were restricted from commenting on the findings. The court concluded that the total absence of information and the unexplained silence of plaintiffs' counsel in the face of the highly prejudicial findings invited unprincipled evaluation and could only result in juror confusion.

The court rejected the plaintiffs' contention that the integrity of the jury's function depends on plaintiffs' ability to attack the findings by argument or cross-examination of panel members. According to the court, the constitutional deficiency lies in the lack of relevant neutral information, not the restriction on skillful advocacy.

The court determined that a jury will be able to perform its function if the court gives the jury the following information and instructions:

In the court’s view, this information provides a basis for the jury to understand the nature of the panel findings and to put the findings in context in evaluating all of the evidence presented at the trial. In short, the purposes of the screening statute will be preserved, the jury's fact-finding role will be preserved, and plaintiffs' right to a jury trial will be protected.

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