On October 30, 2012, the Supreme Court of New Hampshire (“Supreme Court”) issued an opinion in an appeal regarding New Hampshire’s medical malpractice law. In particular, the Supreme Court was asked to determine if the lower court (the trial court) was correct when it ruled that three provisions of the statute governing medical injury screening panels, RSA 519-B:8-:10 (2007), violated the Separation of Powers Clause of the State Constitution and whether certain portions of the statutes at issue violated a plaintiff’s state constitutional right to a jury trial.
Pursuant to RSA chapter 519-B, the parties participated in a two-day medical injury screening panel hearing in December 2010. Following the hearing, the panel unanimously found that the defendants were not negligent in that their acts or omissions did not “constitute a deviation from the applicable standard of care.” Thereafter, the plaintiff filed a motion, asking the court to find that RSA 519-B:8-:10 violate Part I, Articles 20 and 37 of the State Constitution. The trial court granted the motion on separation of powers grounds, and the defendants requested permission to file an interlocutory appeal. When the trial court denied the defendants’ request, the defendants filed a petition for original jurisdiction to the Supreme Court.
The medical injury screening panel statute provides that, “[u]pon the entry of a medical injury case,” RSA 519–B:3, II(a) (2007), a medical injury screening panel shall be convened, and, “no later than 6 months from the return date . . . all the relevant medical and provider records necessary to a determination by the panel” shall be forwarded to the panel, RSA 519–B:4, II (2007). The panel’s determination is nonbinding, unless the parties agree otherwise. RSA 519–B:4, IV (2007). The parties may also agree to bypass the panel “for any reason.” RSA 519-B:4, IV.
Following a hearing, the panel must answer three questions: (1) “[w]hether the acts or omissions complained of constitute a deviation from the applicable standard of care by the medical care provider charged with that care”; (2) “[w]hether the acts or omissions complained of proximately caused the injury complained of”; and (3) “[i]f fault on the part of the medical care provider is found, whether any fault on the part of the patient was equal to or greater than the fault on the part of the provider.” RSA 519-B:6, I (2007). RSA 507:7-d provides that “Contributory fault shall not bar recovery in an action by any plaintiff … to recover damages in tort . . . , if such fault was not greater than the fault of the defendant . . . .”
The plaintiff challenged RSA 519-B:8-:10. RSA 519-B:8, I(a) provides that the panel proceedings, including its final determination, “shall be treated as private and confidential by the panel and the parties to the claim.” “The findings and other writings of the panel and any evidence and statements made by a party or a party’s representative” at the panel hearing “are not admissible in court” and “shall not be submitted or used for any purpose in a subsequent trial,” except that: (1) “[a]ny testimony or writings made under oath” at the panel hearing may be used in a subsequent proceeding for impeachment purposes; and (2) the party who made the statement or presented evidence may agree to the submission, use or disclosure of that statement or evidence. RSA 519-B:8, I(a)(1), (2). Under RSA 519-B:8, III, “[t]he deliberations and discussion of the panel and the testimony of any expert . . . shall be privileged and confidential, and no such person may be asked or compelled to testify at a later court proceeding concerning the deliberations, discussions, findings, or expert testimony or opinions expressed during the panel hearing, unless by the party who called and presented the nonparty expert,” except as may be necessary to prove fraud.
Under RSA 519-B:10, if the panel unanimously finds “in the plaintiff’s favor, the defendant shall promptly enter into negotiations to pay the claim or admit liability” and if the claim goes to trial, the panel’s findings are admissible at trial. RSA 519–B:10, I; see RSA 519–B:8, I(b). Conversely, if the panel unanimously finds “in the defendant’s favor, the plaintiff shall release the claim or claims based on the findings, without payment, or be subject to the admissibility of those findings” at trial.
The Supreme Court concluded that RSA 519-B:8-:10 do not violate the separation of powers doctrine and also concludued that the mere admission of the panel’s report, in and of itself, did not violate the jury trial right but the Supreme Court did find that because of other statutory provisions, the jury is denied information that may be crucial to its assessment of the report. The Supreme Court found that under the statute as it then existed, the parties were unable to mount a meaningful challenge to the panel’s report at a subsequent trial because RSA 519-B:8, I(a) precludes the introduction at trial of “any evidence and statements made by a party” at the panel proceeding unless the evidence and statements are introduced for impeachment purposes or the party who presented the evidence or made the statement agrees to their introduction at trial and because RSA 519-B:8, III precludes the parties from asking or compelling an expert, who testified at the panel proceeding on behalf of the party’s opponent to testify at a subsequent trial.
Additionally, RSA 519-B:9, I(f) requires the trial court to instruct the jury that “the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and they may not comment on the panel findings or proceedings” except under limited circumstances. The Supreme Court noted that these provisions allow admission of the panel’s report but deny the parties the opportunity to explain or challenge the report, or to place it in context and therefore the effect of these provisions is to materially impair the jury’s ability to evaluate the panel’s findings.
The Supreme Court determined that despite mandatory jury instructions, a New Hampshire jury is, nonetheless, deprived of information “essential to [its] fact-finding role” and therefore concluded that portions of RSA 519-B:8, I(a), III and RSA 519-B:9, I(f) impermissibly infringe upon the jury’s fact-finding role, and, consequently, deprive a plaintiff of the state constitutional right to a jury trial.
Specifically, the Supreme Court held that the following provisions are unconstitutional under Part I, Article 20 of the State Constitution: (1) RSA 519-B:8, I(a), to the extent that it precludes the introduction at trial of “evidence and statements made by a party or a party’s representative”; (2) RSA 519-B:8, III, to the extent that it prevents the parties from asking or compelling an expert, who testified at, or whose report was submitted at, the panel proceeding on behalf of the party’s opponent, to testify at a subsequent trial; and (3) RSA 519-B:9, I(f), to the extent that it requires the trial court to instruct the jury that the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and that they may not comment on the panel findings or proceedings.
Source: Petition Of Southern New Hampshire Medical Center, No. 2011-754.
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