In 2007, New Hampshire established an expert-panel system for use in medical malpractice lawsuits 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 has just handed down a decision upholding the use of such panels.

The case involved a woman who went to a New Hampshire emergency department complaining of back pain. The patient was admitted to the hospital, but later died, and her family sued the hospital, alleging that it had failed to contact a specialist in time.

A pretrial medical screening panel made up 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 regardless, 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 complicated legal decision left the panel process largely intact, and the Supreme Court ruled that the panel process is constitutional, but that it will be up to the trial judges to decide how much information about the panel should 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 one 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, but 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.