What You Can Expect

HOW LONG DOES IT TAKE TO GET A MATTER TO PANEL?

The amount of time from selection of the panel chair to the conclusion of the matter with a medical review panel opinion is variable depending on many different circumstances relating to the case. However, Panel Chair understands the desire of all the participants to get a case as quickly and as efficiently to a panel opinion as possible. While a case can take as long as two to three years, the most common time frame is eighteen months to two (2) years. We have panels that convene in less than one year’s time. Some of the factors that result in an extended period of time before a panel opinion can be obtained include the following: 

• Multiple extensions and long delays on one or more of the parties’ submissions;
• The need to delay a submission schedule due to depositions or other matters that need to be addressed prior to commencing the selection of the panelists;
• A legal issue that arises resulting in someone obtaining a “preliminary determination of law”;
• The need to replace a panelist, who for one reason or another can no longer serve on the panel;
• The parties putting new information or evidence or arguments in their replies or sur-replies that require yet another reply or sur-reply.

 

WHAT CAN I DO TO GET MY CASE TO PANEL SOONER?

When we first began doing this work, two to three years was not uncommon. We have in most cases gotten the timeframe down to about eighteen months to two (2) years. We have had some panels convene in less than one year and generally if it takes more than eighteen months it is because of attorneys “who do not play well together,” long delays on one or more of the parties submissions, or panel members who for one reason or another have to be subsequently replaced on the panel.

 

WHAT CAN I DO TO GET MY CASE TO PANEL SOONER?

There are many things counsel can do to get their clients’ cases to panel more quickly.

• Consider the status and progress of the case when you decide to select a panel chair and request formation of a medical review panel.  If the parties are aware that extensive discovery is needed or multiple depositions will be taken, then that should be taken into consideration when you decide to begin the process.  
• Do not exercise strikes or claim conflicts without specific and/or sound reason. It is rare these days for a law firm to not have had some contact with a panel member or his/her group. The fact that a firm had some contact with a potential panel member in the past does not necessarily  mean that the panelist cannot take and maintain his or her oath of impartiality.
• Work hard to comply with submission deadlines. It is not uncommon for a party to need an extension of time. Requests for multiple extensions of time is probably the most common cause of delay in getting a matter to panel. It delays the process and may have the potential to alienate the panel members.
• It is suggested that you may not want to list the individual panelists’ names on the submission. It is not uncommon to have to replace a panel member after panel formation. Not putting the panelists names on the cover of the submissions avoids having to re-do them or having the wrong name on the submission.
• We now request that the parties originally only send the panel chair and opposing counsel one single copy of their submission when it is ready. It is not uncommon for parties, upon objection of counsel, to have to modify their evidentiary submissions. If, after review, it is necessary to redact or modify some part of the submission, it is much easier to accomplish that before all copies are made and mailed. Once a submission is reviewed by opposing counsel with either no objections or after those objections are dealt with, the parties can send the panel members’ copies, in final form, to us for dissemination to the panelists.
• Please consider submitting three (3) copies of all x-rays, CAT scans and MRI’s. It saves days or weeks in circulating them.
• Please use a thumb-drive instead of a CD for records and imaging.

 

WHAT SHOULD BE IN MY SUBMISSION?

It is up to the parties what to include in his/her client’s submission. Typically, a Submission includes an introduction, history, argument and supporting documentation. The supporting materials may include: medical records, literature, deposition testimony, affidavit testimony, photographs, imaging, and other evidence. While it is likely important to include relevant medical records, counsel may wish to consider the following: limit medical records to those which are pertinent to the case; coordinate with other counsel to avoid duplication; include some records on a thumb drive, so they are available to the panelists if needed; be specific as to page number references to medical records provided for the panelists’ consideration. Panel members appreciate brevity and conciseness and have negative reactions to unnecessarily burdensome submissions. While mere recitation of the statutes in a submission is not improper, legal argument or interpretation of the statutes is improper.

 

HOW IS THE MAKEUP OF THE PANEL DETERMINED?

The medical review statute requires that when there is only one defendant who is an individual, at least two of the panel members should be of the same specialty as that defendant. In other circumstances the statute is a bit ambiguous, for example whether two of the same specialty is required when there is just one single defendant who is an individual or whether it applies when there are multiple defendants, but only one of which is an individual.

At Panel Chair, we make every effort to accommodate the parties regarding what subspecialties they feel are appropriate for the panel composition. If there are multiple subspecialties involved, it may not always be possible to name a panelist of each. In that event, we first turn to the attorneys to see if they can work the matter out and give us guidance as to the appropriate panel makeup. If they cannot, we will consider the arguments of counsel and try to make the best decision. There also have been times that we may make the first panel members aware of the parties’ thoughts and then leave it to them as to who would be the most appropriate choice for the third panelist.

 

WHAT IS PANEL CHAIR'S POLICY REGARDING PHYSICAL ATTENDANCE OF THE PANEL MEMBERS AT THE PANEL MEETING?

Everyone is currently aware of the challenges that are being faced for any in- person meetings in every aspect of society as a result of the pandemic. Further, the schedules of the panelists have been especially difficult over the last year or so.  

Although the statute does not specifically require physical attendance of the panel members (as opposed to participation via conference call), we realize that some attorneys prefer to have the physicians physically present. If requested at the initiation of the file, we will make every attempt to help name three panel members from roughly the same geographical area so they can meet face-to-face.

Unfortunately, depending on the subspecialties involved in the case, the number of conflicts with counsel or the parties, the availability of the panel members and their willingness to cooperate, and a variety of other factors that are frequently outside our control, personal attendance cannot always be guaranteed. Again, if this is important to you and your clients, we will make every attempt to accommodate your request. However, we appreciate everyone’s consideration given these unique challenges we all face.

 

SOME COUNSEL ARE NOW ARGUING THAT SINCE NURSES CANNOT GIVE OPINIONS AT TRIAL REGARDING MEDICAL CAUSATION, THEY SHOULD NOT BE ALLOWED TO DO SO AT PANEL. WHAT IS PANEL CHAIR'S POLICY?

It is true that the law holds that at trial a nurse cannot opine as to causation. But at the panel level, the law makes it clear that nurses are appropriate panel members. Obviously, to the extent that matters go on to trial, the parties are required to produce expert testimony regarding causation. But that trial requirement does not obviate the ability of the nurses to consider issues of causation at the panel level.

 

I SEE A "HIPAA" FLAT RATE CHARGE OF $20.00 ON MY BILL. WHAT IS THAT?

We take our clients’ and their clients’ privacy very seriously. We make sure that all of your client’s submissions and medical records as well as the panelist’s personal information (including their tax identification and/or social security numbers) are kept secure and protected. The same is true of the panelists’ personal information including addresses, contact information and tax i.d. and social security numbers. At the completion of a case, we then professionally shred this information to protect their privacy. In most cases, the $20.00 charge does not cover the actual expense of properly protecting and destroying the file materials. However, we feel it of the utmost importance to protect that most important personal information.

 

MY CASE INVOLVES "SWORD" ISSUES. HOW DOES PANEL CHAIR INTEND TO INSTRUCT THE PANEL AS TO ISSUES OF VICARIOUS LIABILITY AND OSTENSIBLE AUTHORITY?

If counsel cannot agree on the employment relationship of the parties, it is then not plausible for the panel chair to instruct the panel as to such information. We understand that counsel may argue the issue of an ostensible authority at trial. However, we usually do not feel such factually sensitive legal issues are proper for panel consideration and take the position that such issues are best left for the trial court.

 

I AM A PLAINTIFF WHO IS NOT REPRESENTED BY AN ATTORNEY, WHAT DO I NEED TO KNOW?

Someone who has brought a claim and is not represented by counsel is referred to as a “pro-se plaintiff”. At Panel Chair, we have been selected as panel chairs in many cases over the years involving a pro-se plaintiff. There are some important things for the pro-se plaintiff to know:

• The panel chair is a neutral third-party whose job is to coordinate the medical review panel process and efficiently move a case to a panel decision.
• The panel chair cannot stand in the shoes of an attorney and give legal advice to any pro-se plaintiff or party.
• At PanelChair, while we are happy to answer questions and generally guide a participant through the process, the panel chair and staff are not in a position to answer substantive questions or give advice.
• One resource for the pro-se plaintiff is the medical malpractice division of the Indiana Department of Insurance website. The link is:  https://www.in.gov/idoi/2614.htm. 
• The Medical Malpractice Act includes laws specific to the medical review panel process, which could be helpful. One link to the statute is:  https://law.justia.com/codes/indiana/2019/title-34/article-18/chapter-10/.  (The link may not be the most current version of the statute.)

 

CAN THE PARTIES QUESTION THE PANEL?

While an opportunity to question the medical review panelists is offered, it is for very limited purposes. The opportunity to question the panel occurs before the panelists have an opportunity to discuss the case between themselves. They will have received and reviewed the submissions, but they will not have yet had the chance to discuss the case together before reaching a decision. Because of that fact, the only questions that are allowed would be general questions such as the panelist’s education, training and experience. The panelists could be asked if there were any records or materials that they felt they needed to review and reach an opinion about the case but did not have. The panel could be asked if they know any of the defendants personally. These types of general questions are allowed.

However, no questions will be allowed regarding specifics of the case or the individual panelist’s opinions as to the care rendered in the case. For instance, questions of the panelists regarding whether they think the standard of care was breached or if the care caused harm in the case will not be allowed. Specific questions relating to the case are not appropriate as the panelists have not yet had the opportunity to discuss the case together. This is the typical practice in all medical review panel matters at Panel Chair.