Navigating through the Medical Malpractice Review Panel Procedure

by Kelly M. Brian, JD

I just received notice that a medical malpractice complaint has been filed against me.  Now what do I do?

First, take a deep breath. Chances are good that if you practice medicine for any length of time, you will be on the receiving end of one or more requests for the convention of a medical review panel. And, if you practice in a specialized field of medicine, your chances may increase. Studies have shown that neurosurgeons, thoracic-cardiovascular surgeons, general surgeons, and obstetricians and gynecologists run a risk of receiving a medical malpractice complaint during their career three or four times greater than that of dermatologists, pediatricians and family general practitioners.

Why do we participate in the Medical Review Panel process?

As outlined by the Louisiana Division of Administration (DOA), the purpose of the State Medical Review Panel is to “guarantee that all qualified State health care providers receive a Medical Review Panel in accordance with LA R.S. 40:1299.39.1 and to provide a source of inquiry and relief for legitimate victims of medical malpractice under this Statute.”

In other words, the medical review panel process allows the parties, outside of the court, to review all of the relevant facts of the matter and have the matter reviewed by an independent panel to determine the viability of the patient’s complaint. This process benefits both parties; the plaintiff is given an objective view of her complaint and the defendant doctor potentially receives a critique of his care and treatment by his peers. Through this process, many malpractice claims either settle or are dismissed after the medical review panel is completed.

Starting the Process

Once you have received your notice from the DOA, contact your malpractice insurer. Provide your insurer with all the information you have in your possession regarding the complaint. This might include the complaint filed by the patient and any letters from the DOA or the PCF regarding your involvement. If you have a preferred attorney or law firm, now is the time to let your insurer know. Insurance companies often have lists of approved attorneys and law firms, but some may take your preference into consideration. Obviously, having an attorney you trust goes a long way in alleviating the stress that accompanies any litigation.

Once an attorney is selected, you will meet with him or her to discuss the matter and the strengths and weaknesses of the plaintiff’s complaint. You may even be requested to provide your attorney with a narrative—a written statement regarding your account of the events. It’s important to provide your attorney with all of the relevant details of the matter. Review your medical chart for the patient. What do you notice? Were the proper diagnostic tests requested? Were the proper consults made? Was there anything unusual about the patient, her complaints, or her presentation? Be honest and thorough.

How is the panel selected?

First, the parties jointly select an attorney chairman to oversee and administrate the panel. Once an attorney chairman is selected, he is notified of his duties. From this point, each side will select a potential panelist, who, ideally, will practice medicine in the same field as the defendant. If there are multiple defendants, those parties will agree among each other as to an appropriate panel member.

Once each side selects a panel member and all conflicts have been ruled out, the two panelists select a third, independent, panel member, who should also practice in the same field of medicine as the defendant.

When the panel is set, the attorney chairman will set deadlines for each party to submit their position papers to the panel. By law, the panel must convene and render a decision within one year of the plaintiff’s request for same.

What does the discovery process entail?

Once the panel is set and deadlines have been established, the parties will participate in a discovery process where information is requested and exchanged. During this period you will likely have to assist in responding to written discovery requests. During the discovery process, the parties will exchange documents including medical records, affidavits, and expert reports.

Depending on the plaintiff attorney’s strategy, you may also have to give a deposition prior to the panel meeting. Your attorney will help you prepare for your deposition and guide you along the way.

What happens when the medical review panel convenes?

Again, under the Medical Malpractice Act, the medical review panel must convene and render an opinion within one year of the date of the plaintiff’s request to the DOA. Your attorney will monitor the progress of the medical review panel and will request any continuances if necessary to preserve your right to the medical review panel. Prior to the medical review panel meeting, the parties will have submitted position papers establishing their position and providing the panel with relevant medical records and other documents to support that position. The panel members will have reviewed those documents prior to the meeting.

At the medical review panel meeting, the parties will have an opportunity to meet the panel members, who may ask any questions and request any further documents that they deem relevant. Your attorney will be your proxy at the medical review panel meeting and, as such, your attendance is not necessary.

Once the panel members are satisfied with the materials before them, they will convene in private. The attorney chairman plays only an administrative role in the proceedings.  He will not try to persuade the panel members with his own opinion.

When a decision is rendered, the parties will reconvene and the opinion will be revealed.  The panel will render one of the following opinions for each of the defendants: 1) the evidence does not support the position that the defendant breached the applicable standard of care, 2) the evidence does support the position that the defendant breached the applicable standard of care, or 3) there is a material issue of fact, not requiring expert opinion, bearing liability for consideration by the court. The third finding does not mean that the panel found that malpractice occurred; instead, whether any breach occurred hinges on a simple issue of fact for which the panel cannot comment.

Is that the end?

Unfortunately, the conclusion of the medical review panel meeting is not the end of the plaintiff’s complaint. Once an opinion has been rendered, the plaintiff has ninety days to file a petition for damages in district court. However, at this point, you will have established a relationship with your attorney and can feel secure that you will receive a great defense throughout the remainder of the process.

 

For more information, contact the author, attorney Kelly M. Brian.