Unconstitutional Asymmetry or a Rational Basis for Inconsistency? The Admissibility of Medical Malpractice Prelitigation Screening Panel Findings Before and After Smith v. Hawthorne I and II

Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to the admissibility of screening panel findings at a subsequent trial. The legislature created a system of mandatory pre-litigation screening panels in sections 2851 through 2859 of the Maine Health Security Act (MHSA) with the express purpose of identifying those “claims of professional negligence which merit compensation” prior to the commencement of a lawsuit, and “encourag[ing] early withdrawal or dismissal of non-meritorious claims.” Sections 2852 through 2854 outline the composition of the panel and the mandatory procedures that a claimant must follow to commence an action for professional negligence. Section 2855 provides that this panel shall hear evidence from both the claimant and the doctor accused of professional negligence in order to make three separate findings as to the doctor’s deviation from the standard of care, causation, and the claimant’s comparative negligence. Although plaintiffs have challenged the constitutionality of the screening panel process as outlined in these sections, the Law Court has repeatedly upheld the constitutionality of the process as a whole and deferred to the legislative purpose to promote pretrial resolution explicated in section 2851. The Smiths argued that section 2857 violated their fundamental right to a jury trial by “requiring that the jury be told a half-truth.” The Law Court in Smith I did not go so far as to say that section 2857 is unconstitutional as written, but did hold that the application of the statute, which allows admission of only those findings favorable to the doctor, deprives the jury of the meaningful information required to render a fair verdict, and thus, deprives a malpractice claimant of his right to a jury trial guaranteed by the Maine Constitution. Whereas Smith I addressed a malpractice claimant’s constitutional challenge to section 2857’s substantive asymmetry, Smith II addresses whether the statute gives the party who prevailed at the panel stage the right to refuse to submit all unanimous findings. In a 4-2 majority opinion authored by Justice Calkins, the Law Court held that a doctor who has prevailed at the screening panel stage with respect to either the question of breach of duty or causation should be permitted to refuse to submit all of the panel’s findings to the jury. Both Smith I and II illustrate an urgent need for the Maine Legislature to fundamentally reevaluate the structure, constitutionality, and effectiveness of the admissibility-oriented statutory disincentives in sections 2857 and 2858 of the MHSA. The Maine Legislature could avoid further constitutional challenges to section 2857 without sacrificing its interest in promoting pretrial settlements by amending the MHSA to provide (1) that all screening panel findings—unanimous and non-unanimous alike—shall be admissible at a subsequent trial, and (2) that reasonable attorneys’ fees shall be assessed against the party who unanimously loses at the panel stage, refuses to abandon or settle the claim, and then loses again at a subsequent trial