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Petition of Southern New Hampshire Medical Center & A.

October 30, 2012


The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is:

Argued: September 12, 2012

In this petition for original jurisdiction, see Sup. Ct. R. 11, the defendants, Southern New Hampshire Medical Center (SNHMC) and Bernard Bettencourt, Jr., D.O., seek review of the decision of the Superior Court (Nicolosi, J.) that three provisions of the statute governing medical injury screening panels, RSA 519-B:8-:10 (2007), violate the Separation of Powers Clause of the State Constitution, see N.H. CONST. pt. I, art. 37. We conclude that in so ruling, the trial court erred. Nonetheless, we affirm portions of the trial court's decision, albeit on alternative grounds. See Sherryland v. Snuffer, 150 N.H. 262, 267 (2003) ("When a trial court reaches the correct result, but on mistaken grounds, this court will sustain the decision if there are valid alternative grounds to support it."). Specifically, we hold that the plaintiff, the Estate of Sheila Parker by Wendy Roystan, Administratrix, prevails on its assertion that portions of the statutes at issue violate a plaintiff's state constitutional right to a jury trial, see N.H. CONST. pt. I, art. 20.

Although we granted the parties' request to brief additional arguments regarding the constitutionality of the provisions, we decline to address them because the plaintiff did not argue them in its original motion to the trial court, and they are neither preserved nor ripe for our review. See Town of Atkinson v. Malborn Realty Trust, 164 N.H. ___, ___ (decided August 17, 2012) (declining to address appellants' procedural due process arguments because they were not raised first in the trial court); Petition of State of N.H. (State v. Fischer), 152

N.H. 205, 210 (2005) ("A case may lack ripeness . . . even when it involves a final action presenting a purely legal question" because the contested action does not impose an impact "on the parties sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage." (quotations and ellipsis omitted)). In effect, the parties would have us issue an advisory opinion addressing these other arguments so as to benefit future litigants. This we decline to do. Town of Orford v. N.H. Air Resources Comm., 128 N.H. 539, 542 (1986) ("[T]he judicial power ordinarily does not include the power to issue advisory opinions.").

I. Brief Background

The parties do not dispute the following facts for the purposes of this appeal. The underlying superior court action is the plaintiff's medical malpractice lawsuit brought against the defendants and others. Pursuant to RSA chapter 519-B, the parties participated in a two-day medical injury screening panel hearing in December 2010. Following the hearing, the panel unanimously found that the defendants were not negligent in that their acts or omissions did not "constitute a deviation from the applicable standard of care."

Thereafter, the plaintiff filed a motion, asking the court to find that RSA 519-B:8-:10 violate Part I, Articles 20 and 37 of the State Constitution. The trial court granted the motion on separation of powers grounds, and the defendants requested permission to file an interlocutory appeal. When the trial court denied this request, the defendants filed the instant petition for original jurisdiction.

II. Discussion

A. Separation of Powers

The defendants first contend that the superior court erroneously determined that RSA 519-B:8-:10 violate the Separation of Powers Clause of the State Constitution. See N.H. CONST. pt. I, art. 37. This is a question of law that we review de novo. See Cloutier v. State, 163 N.H. 445, 451 (2012). "In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds." New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 (2011) (quotation omitted). "This means that we will not hold a statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution." Id. (quotation omitted). "It also means that when doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality." Id. (quotation and brackets omitted).

Resolving the issues before us also requires interpreting RSA 519-B:8-:10 and related provisions, which presents another question of law that we review de novo. Petition of George, 160 N.H. 699, 702 (2010). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

1. Medical Injury Screening Panel Statute

The medical injury screening panel statute provides that, "[u]pon the entry of a medical injury case," RSA 519-B:3, II(a) (2007), a medical injury screening panel shall be convened, and, "no later than 6 months from the return date . . . all the relevant medical and provider records necessary to a determination by the panel" shall be forwarded to the panel, RSA 519-B:4, II (2007). See Petition of George, 160 N.H. at 702. The panel's determination is non-binding, unless the parties agree otherwise. Id. at 702-03; see RSA 519- B:4, IV (2007). The parties may also agree to bypass the panel "for any reason." RSA 519-B:4, IV.

Following a hearing, the panel must answer three questions: (1)

"[w]hether the acts or omissions complained of constitute a deviation from the applicable standard of care by the medical care provider charged with that care"; (2) "[w]hether the acts or omissions complained of proximately caused the injury complained of"; and (3) "[i]f fault on the part of the medical care provider is found, whether any fault on the part of the patient was equal to or greater than the fault on the part of the provider." RSA 519-B:6, I (2007) (emphasis added); Petition of George, 160 N.H. at 703. But see RSA 507:7-d (2010) ("Contributory fault shall not bar recovery in an action by any plaintiff . . . to recover damages in tort . . . , if such fault was not greater than the fault of the defendant . . . .").

The plaintiff challenges RSA 519-B:8-:10. Pursuant to RSA 519-B:8, I(a), the panel proceedings, including its final determination, "shall be treated as private and confidential by the panel and the parties to the claim." "The findings and other writings of the panel and any evidence and statements made by a party or a party's representative" at the panel hearing "are not admissible in court" and "shall not be submitted or used for any purpose in a subsequent trial," except that: (1) "[a]ny testimony or writings made under oath" at the panel hearing may be used in a subsequent proceeding for impeachment purposes; and (2) the party who made the statement or presented evidence may agree to the submission, use or disclosure of that statement or evidence. RSA 519-B:8, I(a)(1), (2). Additionally, under RSA 519-B:8, III, "[t]he deliberations and discussion of the panel and the testimony of any expert . . . shall be privileged and confidential, and no such person may be asked or compelled to testify at a later court proceeding concerning the deliberations, discussions, findings, or expert testimony or opinions expressed during the panel hearing, unless by the party who called and presented the nonparty expert," except as may be necessary to prove fraud.

Under RSA 519-B:10, if the panel unanimously finds "in the plaintiff's favor, the defendant shall promptly enter into negotiations to pay the claim or admit liability" and if the claim goes to trial, the panel's findings are admissible at trial. RSA 519-B:10, I; see RSA 519-B:8, I(b). Conversely, if the panel unanimously finds "in the defendant's favor, the plaintiff shall release the claim or claims based on the findings, without payment, or be subject to the admissibility of those findings" at trial. RSA 519-B:10, II; see RSA 519-B:8, I(c).

RSA 519-B:9 sets forth the instructions that the court must give the jury when panel findings are admitted into evidence and, again, before the court submits the case to the jury for decision. RSA 519-B:9, II. The purpose of these mandatory jury instructions is "to provide a basis for the jury to understand the nature of the panel findings and to put the panel findings in context in evaluating all ...

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