Medical Malpractice Screening Panels Not Working for New Hampshire
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A long-established staple of the tort reform movement has been a push for screening panels that evaluate medical malpractice claims before trial–the goals being to dispose of the case without the need for for a trial and its attendant expenses, and to do so for a reasonable settlement amount. According to its proponents, the end result would be a reduction in the high premiums some physicians pay for medical malpractice liability insurance. Such panels are usually comprised of a judge (active or retired) and a lawyer for each party. Some lawmakers in our own state have proposed turning such panels into “health courts,” in which the judges would be able to retain their own, “objective” physician-witnesses to review the merits of the case.
Unfortunatley, such panels have proved to be inefficient in practice, and their results often favor doctors and hospitals over patients. Nancy West, writing for New Hampshire’s Union Leader, describes the problems that have resulted in her state following the implementation of such screening panels, and notes that they have not fared any better in the neighboring state of Maine, whose chief justice, Leigh Saufley, opined in a 2007 opinion that: “The [Maine panel system] has, unfortunately, become a cumbersome process with unpredictable results that costs both plaintiffs and defendants money and time in a way that was not intended by the legislature.”
5 Comments on this post
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Brad said:
From my read of the article, still seems like the question is unanswered and both sides can cite evidence of success or failure. Yes, looks like disproportionate number of cases went to the docs, but would need data to refute or substantiate whether correct decisions were made.
I hardly think the baby should be thrown out with the bathwater. Execution might be broke in this instance, but concept may be sound. I am still staying tuned…
January 11th, 2009 at 8:26 am -
throckmorton said:
The Union Leader’s article states that “Critics say the panels’ unanimous decisions favor doctors and hospitals about 75 percent of the time, add a huge expense to the process, and block people with legitimate malpractice injuries from having recourse in the courts.”
These critics are first upset as they find that 75% of the suits show that the hospital or doctor did nothing wrong. This means that only 25% of the time do they feel that there should be a case. Secondly, is the huge cost. They site that this turns into a case within a case where the cost is from preperation and expert witnessess to sway the panels. The last comment is that it “blocks people with legitimate injuries from having recourse in the courts”. This does not seem to make sense in why or how does it limit them expect for the unwillingness of their attorney to take the case.
It may be essential to look at the make up of these screening panels. You have a retired or volunteer physician, a judge and an attorney. I suggest that the panel first be made of physicians in the specialty of the area in question from the specialty medical boards and include a judge and attorney. The physicians to look at the evidence based standard of care, the judge and attorneys for the issues of law.
Costs can be greatly reduced because the screening panel physicians are already the medical experts in the field and are those that define the standard of care. Their fees for this service can be born by the state medical societies and or boards. Their is already a big push for this in order to ensure that those who present themselves as expert witnessess are indeed expert witnessess.
The Maine panel system is also fraught with problems like the New Hampshire’s. Attorneys dont like the panels because they find for the defendants more times than not and therefore cost them money and prevent a hassle settlement. The defendants are still mad because it still costs them to defend themselves when the panel shows that they did nothing wrong.
What do you feel would be a good solution?
January 11th, 2009 at 12:50 pm -
Andrew Barovick said:
What would be a good solution? I think about that question all the time, and I don’t see any easy solutions. But as an initial step, I’d like to de-politicize the issues of “tort reform” and the “medical malpractice crisis.” I’d like the medical liability companies to acknowledge that they can’t lay all blame for their empty coffers at the feet of “exorbitant” verdicts arrived at by “runaway juries” tricked into their decisions by soulless “trial lawyers.” The insurance companies have found ways to squander substantial sums of money on their own, in ways that have nothing to do with medical malpractice verdicts. In fact, here in New York State, the insurance companies had, as recently as a few years ago, a multimillion dollar fund that they quickly decimated due to poor money management. But it remains convenient for them to point the blame away from themselves.
Studies have shown time and again that it is a few incompetent physicians who repeatedly rack up most of the medical errors in our state. One sure way to cut down on such mistakes, and the verdicts or settlements that may result, is to suspend or revoke licenses of such physicians, because they are surely ruining it for everyone else. But that does not happen. The medical societies have not pushed for it. The hospitals and practice groups in which the offending physician practices sit silently on their hands, often because the physician is a fading star who still brings in a lot of business.
Costs are also run way up by the liability insureres when they send their cases out to the many law firms charged with defending their insureds. Ask any practitioner, on either side of the aisle, and you will rarely, if ever hear, of a case that deserves to be settled actually getting settled early in the litigation. The insurers insist on dragging things out, sometimes for years, which naturally requires them to keep on shelling out to the defense lawyers, who are trained to work not according to what needs to be done, but according to what needs to be done to meet their quota for billable hours for the month. The insurers sit on the money, collecting interest on it until the last possible moment, profiting as much as possible at the expense of the victim of the malpractice, for whom justice delayed is justice denied. The truly cynical have argued that the insurers make sure to drag cases out when they involve plaintiffs who are terminally ill, or elderly, since paying out on a case where the plaintiff has died is much more cost effective than doing so when he is living, and may be compensated for expenses he will incur over the remaining course of his life.
So I don’t think we need tort reform, and I don’t thing there is a medical malpractice crisis. I think we need less hypocricy by the insurance companies and medical societies; less politicizing of healthcare issues by politicians; more oversight and dicipline of physicians with histories of committing medical errors; and a little empathy for the victims whose lives have been irreparably changed by a doctor’s mistake.January 11th, 2009 at 3:02 pm -
throckmorton said:
I agree that there should be greater physician discipline and that money management is a big thing. Tort cases tend to be about the money and insurance companies and plaintiffs both play to the economics. If we cant fix the Tort System, then lets fix the economics of it so that the innocent defendants dont have to pay a high price or settle because of economics and plaintiffs with real cases get their day in cort.
To change the economics, we need to get rid of the incentives to drag cases out and to prevent the filing of those cases without merit. In the article that was cited, 75% of the cases were felt to be of no merit, yet these still required defensive spending of billable hours. I dont think it is the economics of the medical liability insurance companies that are the problem, but the economics of the legal profession. Medical liability insurance dollars have to support the truly injured patients, those plaintiffs with cases that are just looking for a settlement and the trial attorney industry.
Options that are out there include health courts, arbitration agreements, and loser pays. Although there is limited experience with the later in Florida, I think that it has merit. I also think that it is essential that attorneys be held to the same criteria of malpractice as other professionals. In this way, there would be true punishment of attorneys who file frivolous cases just as physicians who commit multiple acts of malpractice should be punished.
January 11th, 2009 at 7:02 pm -
Dan said:
Perhaps this is not the place to discuss this, but I throw it out for your consideration. Protecting yourself and your family be planning for challenges – lawsuits – should include compartmentalizing your personaal and business assets (and liabilities) into separate corporations or LLCs. In the U.S. you can lose big time, even if you haven’t done a thing wrong. The fight itself is so costly you can go broke. Here in Nevada, MDs are leaving because of the cost of liability insurance and frivolous lawsuits.
You must take proactive steps to protect what you have. Obviously, I am referring to legitimate practices and not to the reckless or careless.
I work with professional practices to help them minimize their risks and maximize their corporate liability shields. it only make sense.
January 12th, 2009 at 8:19 pm