LIABILITY (LAW); MALPRACTICE; MEDICAL MALPRACTICE;

MALPRACTICE;

OLR Research Report


November 28, 2003

 

2003-R-0871

MAINE MALPRACTICE SCREENING PANEL

By: John Kasprak, Senior Attorney

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.

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:

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.

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:

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:

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

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.

JK: ro