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,
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,
I. Brief Background
The parties do not dispute the following facts for the purposes of this appeal. The underlying superior court action is the plaintiffs 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
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,
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,
1. Medical Injury Screening Panel Statute
The medical injury screening panel statute provides that, “[ujpon the entry of a medical injury case,” RSA 519-B:3,11(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,
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:6,1 (2007) (emphasis added); Petition of George,
The plaintiff challenges RSA 519-B:8-:10. Pursuant to RSA 519-B:8,1(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
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:10,1; see RSA 519-B:8,1(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-.8,1(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 of the evidence presented at the trial.” RSA 519-B:9,1. Specifically, the court must instruct the jury:
(a) The panel process is a preliminary procedural step through which malpractice claims proceed.
(b) The panel in this case consisted of (insert the name and identity of the members).
(c) The panel conducts a summary hearing and is not bound by the rules of evidence.
(d) The hearing is not a substitute for a full trial and may or may not have included all of the evidence that is presented at the trial.
(e) The jury is not bound by the findings of the panel and it is the jurors’ duty to reach their own conclusions based on all of the evidence presented to them.
(f) The panel proceedings are privileged and confidential. Consequently, the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and they may not comment on the panel findings or proceedings except as provided in subparagraphs (a) through (e).
Id.
2. Analysis
Our first task is to determine the scope of the plaintiffs challenge to RSA 519-B:8-:10. See State v. Hollenbeck,
The plaintiff has brought a facial challenge to RSA 519-B:8-:10. Thus, to prevail, the plaintiff must demonstrate that there is no set of circumstances under which these provisions might be valid. Id.
Next, we must determine whether, as the plaintiff asserts, RSA 519-B:8-:10 violate the Separation of Powers Clause of the State Constitution, which provides:
In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.
N.H. CONST, pt. I, art. 37. Part I, Article 37 “contemplates no absolute fixation and rigidity of powers between the three great departments of government.” New Hampshire Health Care Assoc.,
The plaintiff first argues that RSA 519-B:8-:10 violate the separation of powers doctrine because they are akin to evidentiary rules, which the plaintiff views as the exclusive province of the judiciary. For the purpose of this discussion, we assume, without deciding, that the plaintiffs characterization of these provisions is correct. See State ex. rel. Strykowski v. Wilkie,
In making this argument, the plaintiff relies primarily upon Opinion of the Justices (Prior Sexual Assault Evidence),
“Because [PSAE] was an advisory opinion . . . , rather than a litigated case, the opinion does not constitute binding precedent.” State v. Ploof,
Although Part II, Article 73-a provides, in pertinent part, that the chief justice of the supreme court “shall, with the concurrence of a majority of the supreme court justices, make rules governing . . . the practice and procedure to be followed in all such courts,” this provision does not state or imply that the authority to adopt evidentiary rules belongs exclusively to the judiciary. This provision merely endorsed the judiciary’s inherent authority to adopt such rules, see Nassif Realty Corp. v. National Fire Ins. Co.,
Statements of the delegates at the 1974 constitutional convention confirm this interpretation. “We consider a delegate’s statements in determining the meaning of an amendment if they interpret the amendment’s language in accordance with its plain and common meaning while being reflective of its known purpose or object.” Bd. of Trustees, N.H. Judicial Ret. Plan v. Sec’y of State,
Del. GROSS of Concord: The last sentence of the proposed amendment reads: “The rules so promulgated shall have the force and effect of law.” Could you tell us what effect that sentence would have on the Legislature’s ability to provide by statute for court procedures in the future?
Del. NIGHSWANDER [of Gilford]: It is my understanding that the courts now have rule-making power. The rules which they make for the orderly procedure within the courts are within thejurisdiction of the judiciary. All this does is to unify the place where the rules are promulgated; that is, in the Supreme Court. At the present time, for example, the Superior Court makes rules for themselves and then they submit them to the Supreme Court for approval. But I don’t think it changes the general principle that the rules of court, as far as procedure is concerned, have the effect of law.
Del. GROSS: Is my understanding correct that this amendment, if adopted, would not deprive the Legislature of its right that it presently has, to regulate court procedure by statute?
Del. NIGHSWANDER: I would think that any power that they now have, they would still have.
Journal of the Constitutional Convention 261-62 (1974). Thus, delegates voting on the amendment understood that it did not deprive the legislature of its concurrent authority to pass laws concerning evidentiary rules.
Additionally, citizens voting on the 1974 amendment were not informed that the authority of the judiciary to create procedural rules was intended to be exclusive. The ballot question submitted to voters merely asked: “Are you in favor of amending the constitution to provide that the chief justice of the supreme court shall be the administrative head of the state courts, and that he shall, with the concurrence of a majority of the supreme court justices, make rules governing procedure in the courts?” Id. at 536.
Because we view our authority to make evidentiary rules as coextensive with the legislature’s, we disagree with the plaintiff that RSA 519-B:8-:10 violate the Separation of Powers Clause merely because they are akin to evidentiary rules. In so holding, we join other courts in recognizing that the legislature has the authority to enact laws affecting evidentiary rules. See Irish v. Gimbel,
The plaintiff next focuses solely upon RSA 519-B.JO, arguing that this provision violates the separation of powers doctrine because it requires a trial court to admit the panel’s findings, and, thus, materially impairs the court’s ability to determine the evidence a jury may fairly consider. This argument is based upon the mistaken premise that the legislature is without authority to deem certain evidence relevant and admissible. To the contrary, the legislature has the authority to deem certain evidence relevant and admissible because, like the judiciary, it has the authority to create evidentiary rules.
The plaintiff next contends that the mandatory jury instruction set forth in RSA 519-B:9 violates the separation of powers doctrine because it conflicts with New Hampshire Model Civil Jury Instruction 2.2. The plaintiff mistakenly refers to the model instruction as a “Model Rule”; however, we have not adopted the model instructions as court rules. Cf. State v. Leveille,
Although the plaintiff also argues that the confidentiality provisions contained in RSA 519-B:8 “implicitly overrule the expansive right of access to court records repeatedly honored by the courts of the nation and of this state,” we decline to address this argument because the plaintiff did not include it in the original petition to the trial court.
B. Right to Jury Trial
Having concluded that RSA 519-B:8-:10 do not violate the separation of powers doctrine, we next consider whether they violate a plaintiffs state constitutional right to a jury trial. Under Part I, Article 20 of the State Constitution, the right to a jury trial in civil causes “shall be held sacred.” N.H. CONST, pt. I, art. 20; Murphy & Sons, Inc. v. Peters,
The plaintiff first argues that the admission of the hearing panel’s findings under RSA 519-B:10 and RSA 519-B:8, 1(b), (c) penalizes “the party who insists on exercising his right to a jury trial despite the negative panel findings,” and, thus, violates the right to a jury trial. The plaintiff does not argue that the medical screening process itself, as an alternative dispute resolution process, violates the jury trial right. Rather, the plaintiff contends that the admission of the hearing panel’s findings acts as a “penalty,” which unconstitutionally infringes upon a plaintiffs jury trial right.
“A statute will unconstitutionally restrict the right to a jury trial when that right is burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable.” Zamora v. Price,
The plaintiff next asserts that admission of the hearing panel’s findings “infects the sanctity of the jury” to pass upon the issues and weigh the evidence. The right to a jury trial guaranteed by Part I, Article 20 entails the right to have a jury decide “the actual controversy between the parties — the questions of fact about which they are contending.” King,
We disagree with the plaintiffs broad assertion that the mere admission of the panel’s findings violates the right to a jury trial. “Similar charges have been leveled in nearly all of the cases which have addressed the constitutionality of statutes providing for some form of non-binding review of medical malpractice claims prior to trial.” Keyes v. Humana Hosp. Alaska, Inc.,
To support its argument, the plaintiff relies upon King. King concerned the constitutionality of a statutory process under which a court could, without the parties’ consent, commit a civil case to a referee, Copp v. Henniker,
On no ground of constitutional principle can the legislature send the issue to the presiding judge, or any other auxiliary tribunal, for decision, and then leave to the jury only the question of the correctness of the auxiliary decision, requiring the jury to give to that decision, on the trial of the question of its correctness, such weight as the legislature choose[s] to attach to it.
Id. at 355.
However, this part of King may no longer be good law, see Murphy,
Although we reject the plaintiffs assertion that the mere admission of the panel’s report, in and of itself, violates the jury trial right, we agree with the plaintiff that because of other statutory provisions, the jury is denied information that may be crucial to its assessment of the report. Under the statute, as currently configured, parties are unable to mount a meaningful challenge to the panel’s report at a subsequent trial. RSA 519-B :8, 1(a) precludes the introduction at trial of “any evidence and statements made by a party” at the panel proceeding unless the evidence and statements are introduced for impeachment purposes or the party who presented the evidence or made the statement agrees to their introduction at trial. (Emphasis added.) RSA 519-B:8, III similarly precludes the parties from asking or compelling an expert, who testified at the panel proceeding on behalf of the party’s opponent, to testify at a subsequent trial. RSA 519-B-.9,1(f) requires the trial court to instruct the jury that “the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and they may not comment on the panel findings or proceedings” except under limited circumstances. These provisions allow admission of the panel’s report but deny the parties the opportunity to explain or challenge the report, or to place it in context. The effect of these provisions is to materially impair the jury’s ability to evaluate the panel’s findings.
In this regard we find the Maine Supreme Judicial Court’s opinion in Irish instructive. Irish concerned a medical injury screening panel statute like RSA chapter 519-B. Irish,
Although the mandatory instructions set forth in RSA 519-B:9, I, codify those crafted by the Irish court, we conclude that they are insufficient. Despite the mandatory jury instructions, a New Hampshire jury is, nonetheless, deprived of information “essential to [its] fact-finding role.”
Specifically, we hold that the following provisions are unconstitutional under Part I, Article 20 of the State Constitution: (1) RSA 519-B.-8,1(a), to the extent that it precludes the introduction at trial of “evidence and statements made by a party or a party’s representative”; (2) RSA 519-B:8, III, to the extent that it prevents the parties from asking or compelling an expert, who testified at, or whose report was submitted at, the panel proceeding on behalf of the party’s opponent, to testify at a subsequent trial; and (3) RSA 519-B:9,1(f), to the extent that it requires the trial court to instruct the jury that the parties may not introduce panel documents or present witnesses to testify about the panel proceedings, and that they may not comment on the panel findings or proceedings. Because the plaintiff has not argued or demonstrated that, in order for the jury to properly assess the panel’s report at trial, it needs information about “[t]he deliberations and discussion of the panel,” we leave this part of RSA 519-B:8, III intact, and observe, in particular, that nothing herein is intended to suggest that parties may call screening panel members to testify as witnesses at trial.
We need not decide as a matter of law the type or amount of evidence a party may use to challenge a panel report in a subsequent trial. The trial court maintains its broad discretion to decide, on a case by case basis, the type or amount of evidence that may be admitted at trial. We note that, at oral argument, concerns were raised that permitting an attack upon the findings of the panel would redirect the focus of trials away from the conduct of the parties and toward the panel proceedings, and could spawn a “trial within a trial” regarding the validity of panel findings. We are not insensitive to these concerns, but we also are aware that trial courts deal with these kinds of relevancy-versus-competing-interests issues on a regular basis in a variety of contexts. See, e.g., N.H. R. Ev. 403. We are confident that they are up to the task in this context as well.
Affirmed in part; reversed in part; and remanded.