In 2007, New Hampshire established an expert-panel system for use in medical malpractice lawsuits in order to cut back on frivolous suits and speed up resolution of cases. This system was recently challenged as unconstitutional, but the New Hampshire Supreme Court just handed down a decision upholding the use of such panels.

The case involved a woman who went to a New Hampshire emergency department (ED) complaining of back pain. The patient was then admitted to hospital with a diagnosis of intractable back pain. A neurosurgeon was called to review the case several hours later. The neurosurgeon initiated a lumbar puncture, indicating meningitis.

The patient was taken to the intensive care unit, but her condition quickly deteriorated and she died. Her family proceeded to sue the hospital, claiming that there were clear signs of neurological illness and that a specialist should have been consulted sooner.

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A pretrial medical screening panel, comprised of a retired judge, an attorney, and two physicians unanimously found that the hospital was not negligent. The patient’s family took the case to trial nonetheless, and filed a motion asking that the panel’s findings not be presented, arguing that the panel is an unconstitutional alternative to a jury trial. The court granted the motion, but the hospital appealed.

The resulting legal decision left the panel process largely intact, and the New Hampshire Supreme Court ruled that the panel process is constitutional. However, the court noted that it is the purview of the trial judges to decide how much information about the panel will be presented to juries. There has been concern that information about the panel’s decision could exert too much influence on a jury, but the Supreme Court decision largely dismissed these concerns.

Medical malpractice screening panels are used in some form or another in 16 states, and largely operate with much less stringent rules of discovery and witness testimony, and far shorter schedules than trials. In New Hampshire, the panel must consist of a retired judge, an attorney and one or two physicians.

Even if the panel makes a unanimous decision that there is no liability, the case may still go to trial, however, the jury is told of the panel’s findings. The state Supreme Court has now left it up to Superior Court judges to decide on an individual basis precisely how much information about the panel process the jury should be allowed to hear.