Approximately twenty states in the United States employ medical screening panels to preview medical malpractice cases at the onset of litigation in an effort to screen out legally baseless claims. In addition to weeding out meritless cases, medical malpractice screening panels can encourage early settlement of cases. While each state’s panel differs slightly, most are made up of a combination of New York personal injury attorneys and physicians. Most states require that at least one physician member specialize in the same field as the defendant physician. The panel will review the claims, analyze evidence and determine whether the plaintiff has a meritorious claim.
In most of the states’ systems, plaintiffs whose claims are deemed baseless are not prohibited from going forward with their suit. They may, however, be forced to pay the defendant’s costs and attorney fees if the plaintiff loses at a subsequent trial. Under New Mexico’s screening panel scheme, if the plaintiff prevails at the pretrial screening, the New Mexico Medical Society is obligated to assist the plaintiff in finding an expert witness for trial. In Nevada, the parties are required to attend a settlement conference if the plaintiff prevails at the screening tribunal. The judge at the settlement conference then determines the reasonable value of the claim. If the defendant rejects the claim and the plaintiff is awarded a larger verdict at trial, the defendant is responsible for paying the plaintiff’s costs and attorney fees. Likewise, if the plaintiff rejects the settlement figure and is awarded less by a jury, the plaintiff is responsible for the defendant’s costs and fees.
Most states that require malpractice screening panels mandate that plaintiffs substantiate their claims with an expert opinion. For example, in Massachusetts, attorneys for medical malpractice plaintiffs are required to file a formal offer of proof containing the plaintiff’s medical records and a letter by an expert opinion substantiating the plaintiff’s claim of malpractice. This offer of proof is the required evidence before the screening panel. Nevertheless, there are some exceptions to the expert witness requirement in cases of obvious negligence, such as the amputation of the wrong limb or the retention of surgical instruments inside a patient after surgery.
Some states prohibit the admission of the medical screening panel’s findings into evidence at a subsequent trial; others allow the evidence. In Maine and Connecticut, the findings of the panel are allowed into evidence at trial only if the decision was unanimous in favor of either the plaintiff or the defendant.