Upholding of “Panel” as Alternative to Trial Indicates Need to Protect Plaintiff’s Rights

The focus of most “tort reform” efforts relate to medical malpractice cases. Yet, nursing home residents and their families are well-advised to pay attention to those issues as concerns about medical negligence is sometimes an issue in nursing home case. When medical professionals like nurses and doctors do not follow proper standards of care in their dealing with residents in skilled nursing facilities, then medical malpractice may be at issue. This should be distinguished from acts of negligence that lead to falls, resident-on-resident attacks, and similar incidents which usually implicate ordinary negligence and not professinal negligence.

In all cases, however, those who care about the rights for recovery of those hurt by the misconduct of others should be concerned about the rise of “alternative” adjudication options which claim to streamline legal cases but actually do nothing more than slowly take away rights from community members.

For example, the Nashua Telegraph reported recently on another state’s supreme court ruling which mostly upheld the constitutionality of a “panel” hearing before medical malpractice cases. This panel is usually formed shortly after the lawsuit is filed. Unlike traditional court systems, there are lax rules during these panel hearings regarding witnesses and evidentiary admissibility. There are also much shorter timeframes, as the panel usually operates within a day, hearing the evidence, deliberating, and then issuing a ruling.

The panel ruling does not automatically decide the matter, as parties can still seek a traditional trial following the hearing. However, the panel’s decision will be told to the jury. In addition, certain aspects of the panel’s deliberation process may be shared with the jury. All of this is likely to have tremendous weight at trial, perhaps more than actual arguments and evidence presented by the advocates in the case. In that way, the panel has significant sway over the ultimately resolution of the case.

A trial court in this case first ruled that the panel was an unconstitutional violation of the plaintiff’s right to a jury trial. But the case was appealed up to the state’s high court. This recent ruling largely reversed the earlier finding and upheld the constitutionality of the panel. That means that more and more cases will likely be influenced by these jury alternatives. According to the report at least 16 states across the country currently have similar panels in place.

More Hurdles for Negligence Victims
The disappointing bottom line of this situation, and others like it, is that it represents yet another hoop that those hurt by negligence must jump through before receiving farir compensation for their losses. While this specific case deals with medical malpractice suits, all those who have sought legal accountability following negligence in nursing homes understands the inherent difficulties already in place for plaintiffs. Many big defendants–like insurance companies and nursing home congomerates–eagerly support all chages to the legal system that add layers of adjudication that plantiffs must jump through. It is the same motivation that underlies binding arbitration clauses.
The lawyers at our firm urge all local families to stay aware of these efforts to take away legal rights and act boldly to fight against these unnecessary and unfair encroachments on legal fairness.

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