Lobbyists for the West Virginia Medical Association want legislators to consider a system Maine uses to screen all malpractice lawsuits. A panel that includes both a doctor and a lawyer reviews each
uit before it proceeds in court. Maine's medical association and
its leading insurer believe the panel system has cut down on the number of
uits there, weeding out meritless claims.
"I personally feel that it serves the common good," said Michael
McCall, vice president of Medical Mutual Insurance Co. of Maine. "The
onmeritorious cases are addressed and weeded out in a less-expensive
Lawyers for people hurt by doctors allege it has wrongly
prevented patients from being justly compensated.
"It is a nightmare," said Robert J. Stolt, a Portland lawyer. "Its
principal accomplishment has been to deny a remedy for people who have
uffered minor injuries."
Maine's plan was passed after a campaign alleging that a "medical
malpractice crisis" was driving doctors from that state.
Maine legislators were told that most of Maine's doctors were being
ued and that 80 percent of all malpractice claims are ultimately
dismissed as meritless. The plan's supporters blamed this climate for
oaring malpractice insurance rates.
The same allegations have emerged from those who advocate that West
Virginia adopt such a law. But a Gazette analysis of West Virginia Board
of Medicine records fails to support such allegations. Maine
lawyers say they never saw any research supporting the allegations
"We're a small state, so they made it down-home and personable. They
aid Maine people would not be able to get doctors," Stolt said. "They
aid they would all leave the state. None of that happened."
Stolt and other lawyers find several faults with the panel
ystem. One is its makeup. At least three people must sit on the panel: a
court-appointed panel chairman who then picks a lawyer and a doctor -
preferably a doctor of the same specialty as the doctor being sued.
"There aren't many specialists, and the doctors pretty much know each
other," Stolt said. "As a plaintiff's lawyer, you start on the theory that
you're one vote behind."
McCall noted that both sides in a claim have to approve the panelists,
though they must have "good cause" to have a panel member removed. He also
aid that concerns over conflicts-of-interest for doctor-panelists have
been raised. "Both sides of the aisle [in the Legislature] are meeting in
committees to address this."
The panel cannot award damages or dismiss claims. Instead, it answers
at least two questions: whether the doctor was negligent, and whether this
egligence harmed the patient. The power of those answers has become the
ubject of debate in Maine.
Patients may show the answers to a jury only if both are decided
unanimously in their favor. Doctors may present answers if either is
answered to their benefit.
McCall said defense lawyers gain no real advantage by telling
the jury about one answer, if the other went against the doctor. Stolt
aid the rules create a burden for patients.
"There have been some wacky results," he said. "The physician generally
votes for the physician, and tends to work as an advocate and expert on
the panel. The others on the panel tend to be swayed by that advocate."
The plan's opponents allege that incentives might tempt the
doctor-panelist to vote for the doctor being sued.
Medical Mutual helped Maine's Medical Association push for the panel
ystem, just as West Virginia's Medical Association has an ally in an
insurer, Medical Assurance. As its name implies, Medical Mutual's
policyholders are also shareholders in the company, which represents a
majority of Maine's doctors.
"They have an ownership interest. They have an interest in making sure
that malpractice cases fail," Stolt said.
"I think that's an unfair attack and challenge to the ethics of the
medical profession," McCall said when asked about the allegation. "I have
ever thought that a doctor panelist had an ulterior motive, an incentive
to be anything less than objective."
Maine's Medical Association and Medical Mutual view the
pre-screening panel as a huge success.
"The panels have proved to be an effective form of alternative dispute
resolution - relieving pressure on an inefficient and overburdened court
ystem, speeding settlement of meritorious claims, and keeping
on-meritorious claims out of lengthy and expensive court trials," Medical
Mutual said in a press release from its Web site.
The medical association touts the panel system as one of its top legal
and legislative successes. It also lauds its stance against "the efforts
of trial lawyers to severely weaken the role of the
"We think it's been successful for both the physician side and the
patient side," said Gordon Smith, a lawyer and executive vice president
for the association.
Smith noted that since its creation in 1987, the panel system has
"It has withstood 14 years of legislative tinkering and trial lawyer
whining," he said.
To contact staff writer Lawrence Messina, use e-mail or call 348-4869.