INSURANCE - MALPRACTICE;
Other States laws/regulations;
June 2, 2003
MEDICAL MALPRACTICE SCREENING PANELS
By: Jerome Harleston, Senior Attorney
You want to know how the Maine and Massachusetts medical malpractice pre-trial screening panels operate.
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 mediation panel to identify (1) medical negligence claims that merit compensation and early resolution before a lawsuit begins and (2) non-meritorious professional negligence claims.
In Massachusetts, a medical malpractice tribunal screens medical malpractice cases. The tribunal is made up of a judge, a doctor, and an attorney. The tribunal’s job is to evaluate the medical evidence and decide whether the case raises a legitimate question of liability appropriate for judicial review or whether it’s an unfortunate medical result.
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 practitioner, and one health care provider who practices in the specialty or profession of the person accused of negligence. If the claim involves two or more people 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 (ME. Rev. Stat. Ann. tit. § 2852).
Submission of Claims
A person may start 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 completing service of process.
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, ask the panel for a binding determination of the claim’s merits, 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 (Me. Rev. Stat. Ann. Tit. 24 § 2853).
The claimant must present the case before the panel, and the person accused of professional negligence must respond. The panel must give the parties wide latitude 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 party additional facts, records, or other information to be submitted in writing or at a hearing that is continued. A continued hearing must be held as soon as possible and the same members of the panel who sat on all prior hearings in the same claim, unless otherwise agreed by the parties, must attend.
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 they 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 and the parties agree, the claim may be submitted to the panel for a 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 (Me. Rev. Stat. Ann. Tit 24 §§ 2854 and 2855).
In Massachusetts, a three-member tribunal consisting of a judge of the Superior Court, a licensed doctor, and a licensed attorney must hear every action for malpractice, error, or mistake against a health care provider. At the hearing, the plaintiff must present an offer of proof, and the tribunal determines if the evidence presented, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is an unfortunate medical result (M. G. L. Chapter 321 § 60D).
Tribunal Selection Process
The judge from a list submitted by the Massachusetts Medical Society selects tribunal doctors. They must represent the field of medicine in which the alleged injury occurred and be licensed to practice medicine and surgery in the Commonwealth. The list submitted to the judge must consist only of doctors who practice medicine outside the county where the defendant practices or resides or, if the defendant is a medical institution or facility, outside the county where it is located. The judge also selects the attorney from a list submitted by the Massachusetts Bar Association. The attorney and doctor, subject to appropriation, are each paid $ 50. 00.
If the malpractice case is brought against a health care provider who is not a doctor, the doctor’s position on the tribunal must be replaced by a representative of the field of medicine in which the alleged tort or breach of contract occurred, as selected by the judge in a manner he determines fair and equitable. Where there are codefendants representing more than one field of health care, the judge must determine who represents the health care field on the tribunal
The tribunal must hear each action for malpractice within 15 days after the defendant’s answer has been filed.
Evidence. The tribunal is guided by substantial evidence, which means such evidence as 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 a health care provider’s practice; statements of fact or opinion on a subject contained in a published treatise, periodical, book, or pamphlet; or statements by experts without the necessity of such experts appearing at the hearing. If either party asks, the tribunal may summon or subpoena any records or individual to substantiate or clarify any evidence which has been presented and may appoint an impartial and qualified doctor or surgeon or other related professional or expert to conduct any necessary professional or expert examination of the claimant or relevant evidentiary matter and to report or to testify as a witness.
Findings. If a finding is made for the defendant, the plaintiff may pursue the claim through the usual judicial process after posting a $ 6,000 bond with the court payable to the defendant for costs assessed, including witness, experts, and attorneys fees if the plaintiff does not prevail in the final judgment. At his discretion, the justice may increase the amount of the bond. If the bond is not posted within 30 days of the tribunal’s finding, the action must be dismissed. On motion of the plaintiff, and a determination by the court that plaintiff is indigent, the justice may reduce the amount of the bond but may not eliminate the requirement.
Whenever the tribunal makes a finding, the court clerk must, no later than 15 days after such finding, send a copy of the complaint and finding to the medical licensing board.
On entry of judgment, settlement, or other final disposition at the trial court level, the clerk must, no later than 15 days after such entry, send a copy of the judgment, settlement, or other final disposition, to the board of registration in medicine. The terms of such judgment, settlement, or other final disposition may not be sealed by agreement of the parties or by any other means and must be available for public inspection, except, that the identity of the plaintiff may be kept confidential by the board.
Costs. The tribunal’s expenses and compensation must be paid by the Commonwealth, provided that the pro rata percentage of such expenses and compensation resulting from negligence actions brought against registered health care providers must not exceed the amount received by the Commonwealth from health care provider registration fees, less the amount expended for expenses and compensation of the respective boards of registration for such health care providers.
Enclosures: Maine and Massachusetts pretrial screening panel statute