LAWYERS BASH SUIT SCREENING PROGRAM


 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
  •  
    fashion."  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 there, either.  "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 
  • creening panels."
  •   "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 remained intact.  "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.  
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