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Three years ago New Hampshire instituted a law which required medical malpractice plaintiffs to submit their claims to a non-binding panel to curb medical malpractice costs. So far, nothing suggests its helpful.

New Hampshire set up a system whereby:

The panels, which are chaired by a retired judge and include a doctor and lawyer — screen every medical malpractice case that’s filed in court. After the panel hears the facts, the three members vote in favor of the plaintiff or the doctor. The decision is not binding, but it can be critical because a unanimous ruling either way is given to a jury if the case goes to trial.

Now the head of the superior court system wants to look into the practice because nothing suggests that costs are being lowered. "To the extent that one of the ideas (behind this law) was that we’ll get a quick and dirty resolution, that’s just not happening," said Chief Justice Robert Lynn.

In effect, the law requires medical malpractice claims to be tried twice. This forces plaintiffs’ attorneys to depose everyone before the panel hearing because the outcome can be so critical. While defense lawyers, who charge their insurance backed clients by the hour, claim that costs are less because a panel hearing only "lasts a day," they fail to mention that its not only an extra day of "trial," but an extra few weeks of preparation that would not be necessary without the law.

Maryland has a very similar system in place, in which medical malpractice plaintiffs must file with a state agency before filing a claim, and then show they have an expert willing to testify. At one time, plaintiffs were required to submit their claim to an arbitration panel consisting of a doctor, a lawyer, and a lay person. Now, Maryland has made the arbitration proceedings unilaterally waivable by any party after an expert attests to negligence.

However, even this accomodation has led to significant unnecessary litigation based on highly technical readings of the Maryland law. Cases have – with some regularity – ended up on appeal before they are heard by a jury. And no one is suggesting that the appeal process is less expensive than the trial process.

The bottom line is that these tort reform laws simply do not limit costs. What they do is impose more costs on the plaintiffs who have been injured, and usually even put more costs on the defendants whose counsel must prepare for more than a trial – like in New Hampshire and Maryland. And while study after study shows that malpractice insurance costs are not effected by this type of tort reform, it continues to be a sufficient scapegoat for raising premiums on doctors and hospitals.

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