A 20-year Experience with Malpractice Screening Panels

by William W. Kridelbaugh, MD, FACS, Albuquerque, NM,
and
Donald J. Palmisano, MD, JD, FACS, Metairie, LA

Medical malpractice screening panels date from the decade of the 1960s, when increasing numbers of malpractice actions began filling court dockets. The concept of a screening system came from physician organizations that were convinced that many cases had no legal merit. Trying these cases wasted time for both medical and legal professions and indirectly increased the cost of medical care. Rather than going directly to court, with the attendant expenditure of time and money, physicians believed a screening system could evaluate the complaint and discourage a non-meritorious case from going to trial.

By 1996, 25 of the 50 states were using screening panels in some form. No panel design has been proposed that would prevent either the plaintiff or the defendant from subsequently going to court. But there are significant differences in the composition of these panels. Some are composed entirely of physicians, others are a mixture of physicians and lawyers. In some states panel findings are admissible to court when there is a subsequent trial. In other states the panel findings cannot go forward to a court. There is no consistent panel size from one state to another.

This article will examine the operation of two successful screening panels, Louisiana and New Mexico, at a time when the value of panels generally may be suspect.

The New Mexico panel began as a voluntary panel in 1962. Under the rules of that panel only a plaintiff could initiate a panel hearing. Each panel is composed of three physicians and three lawyers, and all are moderated by a lawyer acting as judge and facilitator for the deliberations. The plaintiff presents his or her case first, then the defendant. The opposing litigant is not in the room when the other's case is presented. No cross-examination is permitted. Written questions can be submitted to either plaintiff or defendant by opposing attorney after hearing testimony. Panel members may ask questions of either the plaintiff or the defendant. After hearing each side, the panel members discuss the case and then vote on two questions: (1) Is there substantial evidence the acts complained of did occur and that they constitute malpractice? (If this vote is affirmative a second vote is taken.) (2) Is there a reasonable probability the patient was injured thereby?

From 1962 to 1976 there was a gradual increase in the total number of malpractice cases in New Mexico. During these years the percentage of plaintiffs requesting a panel hearing also increased. In the mid-1970s both new Mexico and Louisiana were experiencing a crisis in malpractice insurance coverage, and each state enacted malpractice statutes that contained provision for an obligatory screening panel hearing prior to filing a suit in any district court. The statute making the panel obligatory was enacted in 1976 in New Mexico. In Louisiana the statute was enacted in 1975. There had been no voluntary panel in Louisiana prior to 1975. The New Mexico panel composition has remained the same. The result of a panel hearing in New Mexico has never been transmissible to district court.

New Mexico panel members are drawn from volunteers. There are 240 physicians who have volunteered to be panelists, and these physicians are divided into four groups. There are 240 lawyers who have volunteered to serve on panels, and they are divided into four groups. The entire system is run by the New Mexico Medical Review Commission, an arm of the New Mexico Medical Society. It is funded by an annual appropriation from the New Mexico legislature. When a lawyer decides to submit a case for panel hearing, he or she files a case summary and the plaintiff's signed permission for release of information with the New Mexico Medical Review Commission. By statute, the panel hearing must be conducted within 60 days. A postcard identifying the medical discipline involved as well as the general subject of the accusation and the date of the hearing is sent to all panel members. The physicians and lawyers return the cards indicating their availability to serve as a panelist.

A physician-volunteer appointed by the president of the New Mexico Medical Society acts as panel supervisor and selects three physician panelists and three alternates for each panel. The New Mexico Bar Association uses a similar method of selecting the lawyer panelists. At the conclusion of a panel hearing each party is notified in writing of the panel vote. If the plaintiff prevails at the panel, the New Mexico Medical Society agrees to assist the plaintiff in finding an expert witness if requested by plaintiff.

__________

New Mexico experience

Total cases heard at the panel - 2,141
Defense verdict at the panel - 1,717
Cases dropped after hearing - 830
Cases settled after hearing - 390
Cases going on to trial - 497
Verdict for defendant - 477
Verdict for plaintiff - 20

Plaintiff verdict at the panel - 424
Settled after panel hearing - 344
Cases going on to trial - 80
Verdict for defendant - 70
Verdict for plaintiff - 10

__________

Louisiana's panel is simpler. It is composed of three physicians. Each party selects one physician and these two select a third. Physicians must serve if selected. An attorney serves as a non-voting chairman of the panel. He or she is chosen either by agreement of the parties or by a selection process detailed by statute. Evidence is presented to the panel by the parties, and the panel determines whether the conduct complained of failed to meet the appropriate standard of care. Findings of the Louisiana panel can go forward as evidence in any subsequent trial.

Although the panels are significantly different in composition, the primary goal of each is to resolve the conflict short of the courtroom. If accomplished this will decrease the overall costs. It may also pressure both parties to resolve the dispute, which would accord a truly injured patient savings in time and expense, and relieve an innocent defendant of the stress of anticipated litigation.

A panel's success in attaining resolution can be evaluated by answering the following questions:

• If the plaintiff loses at the panel, will he or she choose not to proceed to trial?

• If the losing plaintiff does go to court, does the trial verdict support the panel decision in the majority of cases?

• If the defendant loses at the panel, does a negotiated settlement occur prior to trial?

• If the defendant loses at the panel and continues to court, does the trial verdict support the panel decision in the majority of cases?

• Over time, do both legal and medical professions continue to support the use of the screening panel?

Since 1976, New Mexico has had experience with panel hearings, as previously demonstrated.

There are some points of interest when evaluating the effective functioning of the panel against the above criteria:

• In New Mexico, 48 percent of the losing plaintiffs dropped the case. In Louisiana, 40 percent of the losing plaintiffs dropped the case.

• In New Mexico cases, when the losing plaintiff then went to court, the defendant physician won 95 percent of the cases.

• When the defendant physician in New Mexico lost at the panel, a negotiated settlement was reached with the plaintiff in 81 percent of cases.

• In New Mexico, for a variety of reasons, 80 cases in which the defendant lost at the panel were taken by the defendant to trial. When this occurred the defendant physician won in 88 percent of the cases. This experience contradicts the stated expectation that if a physician loses at the panel he or she will lose in court as well. This may support the frequent assertion that professionals judge their colleagues more severely than does the public at large.
  Of the 2,141 cases heard at the New Mexico panel, 1,552 cases (72%) were resolved without going to court. The Louisiana Patient's Compensation Fund reported that the period of 1987 to 1996 records 535 decisions for the plaintiff and 6,586 decisions for the defendant. An additional 3,324 cases were either settled voluntarily, were dismissed, or were abandoned.

• With 20 years of experience in both New Mexico and Louisiana, as might be expected, there are some lawyers (plaintiff and defense) who decry screening panels as obstacles that add unnecessary costs. However, both states continue to support the panels.

The constitutionality of the Louisiana panel was challenged in Everett v. Goldman (359 So 2d 1256 [La.1978]), and the Louisiana Supreme Court ruled it constitutional. The court stated, ``The valid state purpose served by the two provisions of the medical malpractice act before us is lowering the cost of health care generally and the assuring of available medical care for the citizens of the state. We cannot say the two challenged provisions of the act adopted by the legislature represent an unreasonable response to the medical malpractice problem. Nor are the provisions especially far reaching.''

In New Mexico the average cost for a panel hearing has been $1,500. In Louisiana the total fees paid for a single panel cannot exceed $2,750 ($2,000 per attorney chairman, $250 per physician). These costs do not reflect the fees charged by plaintiff and defense lawyers in preparing the case for a panel review. We believe the costs represent a reasonably economical review of cases and an overall savings to the health care system.

Thus, as demonstrated in New Mexico and Louisiana, the primary goal of the panel was achieved: Many cases without merit were not pursued to court. There are other benefits of a successful panel as well. Because the plaintiff must present his or her case to a panel before filing in court, there tends to be less adverse publicity for physicians involved in malpractice accusations. The public press rarely is aware of medical review panel cases.

Finally, the creation of a panel system, its continued operation, and the evaluation of its effectiveness promotes a continuing dialogue between physicians and lawyers that is beneficial to interprofessional relations.

__________

This article on professional liability was generated through the efforts of the Committee on Professional Liability of the ACS Board of Regents. Members of the committee believe that this and other articles published in the Bulletin should stimulate thought and possible action on a wider spectrum of issues related to professional liability.

__________

Dr. Kridelbaugh is a former Regent and a current member of the ACS Board of Regents' Committee on Professional Liability.

Dr. Palmisano is president of Intrepid Resources|Pr/The Medical Risk Manager Company, Metairie, LA, and a current member of the ACS Board of Regents' Committee on Professional Liability.

________________

Bulletin of the American College of Surgeons
Vol. 82, No. 5, May 1997

_________________

Professional Liability

This page and all contents are Copyright © 1996-2000
by the American College of Surgeons, Chicago, IL 60611-3211