The law created special screening panels designed to encourage people to settle or drop their suits. But in a report last month, Superior Court Chief Justice Robert Lynn said only eight of the 131 cases filed since the law was enacted had been screened. Another 34 of the cases were settled before they could be screened.
The law passed after a bitter fight between the medical community and trial lawyers. Modeled on a system in Maine, the panels were supposed to weed out weak or losing cases, encourage more people to settle and ultimately lower malpractice insurance rates.
The panel hearings were to be held within six months in most cases. Parallel court dockets were to be opened, but no trial could be held until after a screening hearing.
Critics say the results to date show the law adds to the time and cost of resolving malpractice cases, the exact opposite of what it is supposed to do. Supporters attribute the problems to "growing pains" and early court challenges that kept the system from starting on schedule.
The concept has gotten mixed reviews across the country.
New Hampshire and Maine are among perhaps 16 states with similar screening-panel laws, according to research by the American Medical Association. But a 2003 study found the laws had been repealed or invalidated in roughly one-third of the 31 states that had adopted them. The study, by University of Pennsylvania Law School Professor Catherine Struve, was part of the Pew Charitable Trusts's project on medical liability.
Struve concluded that procedural reform should focus instead on helping judges and juries assess scientific and medical questions. She said better screening alternatives existed, such as requiring plaintiffs to have an expert review the claim ahead of time and certify it had merit.
Earlier this year, Vermont considered adopting the Maine law, but the bill died in committee. The chairman of the Senate Judiciary Committee, Dick Sears, said the committee concluded the panels wouldn't make much difference in malpractice rates because Vermont already has a mediation process.
In his Sept. 10 letter, Lynn agreed with supporters that more time is needed to make definitive conclusions about the New Hampshire law. But Lynn -- who is in charge of the panels -- said the time frame for hearings in the statute is impossible to meet.
Lynn attributed the backlog to reasons including too few volunteers to staff the three-member panels comprising a judge, a lawyer and a doctor. In a small state, the number of volunteers available is reduced by conflicts of interest, especially among medical specialists who know one another.
"I can't order any of these people," he said. "They can say, 'Thank you, Bob, I'm busy that day.' "
Lynn does not believe the addition of the panels will significantly delay trials in unresolved cases. A typical malpractice case takes 15 to 21 months to go to trial, he said. Panel hearings might take 15 to 18 months with the trial starting soon after.
"It's going to be broken up differently," he said. "The panel hearing will be held relatively close to the time the trial was held."
All agree the biggest cause of delays is that both sides treat screening hearings like mini-trials.
"The panel hearing was supposed to be a look-see to determine if it is a frivolous lawsuit, but because it's admitted to a jury if the finding is unanimous, no one wants to go halfway," said state Sen. David Gottesman, a lawyer who opposed the law. "So it is two trials."
Gottesman and other trial lawyers say that adds to their costs, which means they can't afford to take on as many smaller claims on a contingency basis. Experts have to be paid once to testify at a panel hearing and again if the case goes to trial,...
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