Medical Malpractice Screening Panels: An Update and Assessment

Abstract

Many states enacted screening panel statutes as part of their medical malpractice reform packages. Studies on the effectiveness of medical malpractice reforms are inconclusive at best due to insufficient data and conflicting results. Recent federal healthcare reform largely ignored medical malpractice litigation. Observers concluded that screening panels might not deliver the anticipated systemic results. Many states remain committed to medical malpractice reforms, including screening panel statutes, which have undergone state constitutional challenges and mostly survived, although the challenges persist. One controversial provision in some panel statutes is the admissibility of panel findings in a subsequent trial. A recent New Hampshire Supreme Court case provides renewed heft to arguments against admissibility. This article emphasizes the need for an updated and broad-based empirical study of medical malpractice claims, but concedes that such a study may not be forthcoming. It concludes that states with screening panels should encourage judicial efficiency through pretrial resolution of actions and offers provisions to assist in this process.

Keywords: medical malpractice, pretrial procedure, alternative dispute resolution, litigation

JEL Classification: K13, K41