What You Should Know

WHAT IS A MEDICAL REVIEW PANEL?

Medical malpractice lawsuits in Indiana are controlled by statutory law called the Indiana Medical Malpractice Act (“MMA”). Under the MMA, any medical malpractice claims alleging damages in excess of $15,000 against qualified providers must be reviewed by a medical review panel before the claim can be filed in court.  Ind. Code 34-18-8-4 and 34-18-8-6. 

A medical review panel consists of one (1) non-voting chairperson and three (3) health care providers.  The chairperson acts as a facilitator of the process and keeps the process efficiently moving from beginning to end. The panelists will review all materials submitted by the parties (“Submissions”) and reach a determination as to whether the standard of care was met. It is the duty of the health care providers on the panel to express their expert opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standards of care and, if so, whether it was a factor in the resultant injury.

 

HOW ARE THE PANELISTS SELECTED?

Pursuant to the MMA, the panelists are either nominated by the attorneys for the parties or through a random selection process. Each party will essentially select a panelist, with the third panelist being chosen either by the two named panel members or through a random selection process. The panel composition is intended to represent the named Defendants to the extent possible. For example, if a surgeon is the only named party, then the panel will be composed of at least two surgeons. If there are multiple specialties involved in a claim, then the panel will be composed of multiple specialties.

 

HOW DOES THE PROCESS WORK?

The process is begun by a plaintiff filing a Proposed Complaint with the Indiana Insurance Commissioner. The parties then choose a panel chairperson who helps coordinate and facilitate the process. After the panel members are named, the parties then prepare written medical malpractice Submissions of Evidence. These Submissions typically include a narrative discussion, medical records, depositions, affidavits, reports, literature or any other information the parties feel is relevant or important to the case. There are no live testimony or witnesses as part of the Medical Review Panel Process.

After all of the Submissions have been completed and provided to the panel chairperson, the Submissions from all of the parties will then be sent to the panel members for review and consideration. The panel chair is then responsible for scheduling a joint meeting of the medical review panel members. The purpose of the joint meeting is to discuss and reach their opinion(s). Typically, that meeting is conducted by way of a phone conference. After reviewing the materials submitted to the panel members, if needed, the panelists may request further evidence, may research the matter on their own, and may speak with others, who are not associated with the claim, prior to the meeting of the panel.

Any party’s attorney has the right to request an opportunity to preliminarily question the panel members, prior to any joint deliberation. If this request is made, it takes place at the beginning of the panel meeting. Typically, those questions cover whether the panel has knowledge of any further evidence that is needed to make a decision and whether they have consulted with any other authorities prior to the meeting (which, as stated above, is allowed by the MMA). 

After any questioning of the panel members, the attorneys will exit the conference.  The panel chair will first instruct the panel as to any applicable law. Then the panel will have the opportunity to discuss the evidence presented and the claims presented. 

The panel is tasked with reaching an opinion as to whether the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. The panelists are then instructed they must reach one or more of the following expert opinions, as set out in the MMA (Ind. Code 34-18-10-22):

(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.

(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.

(3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.

(4) The conduct complained of was or was not a factor of the resultant damages.

After the panel deliberates and a final determination has been reached as to the statutory opinions, the panel then instructs the panel chair as to what decisions to prepare. Each of the panelists will then sign their prepared decision. Although the chairperson remains present throughout the discussion, he or she does not vote. The parties and the Department of Insurance will be notified of the panelists’ decisions after the opinions have been signed by each panelist. 

Following the conclusion of the medical review panel process, the case can then be filed in court regardless of the panel opinion. However, the decision of the medical review panel opinion is admissible into evidence.

 

I HAVE A DEMANDING SCHEDULE ALREADY; DO I HAVE TO SERVE ON A MEDICAL REVIEW PANEL IF ASKED?

Except for health care providers who are health facility administrators, all health care providers of Indiana, whether in the teaching profession or otherwise, who hold a license to practice in their profession are obligated to occasionally serve as members of medical review panels. Ind. Code 34-18-10-5. Although it is an imposition to serve on panels, most panelists understand the system would not work without willing panelists.

 

HOW LONG DOES THE MEDICAL REVIEW PANEL PROCESS TAKE?

There is no simple answer to this question. The amount of time that it can take to get a matter to panel can range from months to years. It depends on several factors, including: the number of parties and attorneys involved in a claim; the complexity of the case; how long it takes to get a panel selected; whether panelists may need to be replaced because of unavailability or conflicts and how long it takes for all parties to submit their evidence. 

How long the actual panel meetings take varies depending on the number of defendants involved, the amount of evidence submitted and the complexity of the issues.

 

DO I GET COMPENSATED FOR MY SERVICE ON A MEDICAL REVIEW PANEL?

Each health care provider member of the medical review panel is entitled to a statutory stipend of five hundred dollars ($500) for all work performed as a member of the panel up to and including signing the panel opinions. Ind. Code 34-18-10-25. 

By virtue of being named a panel member, you are automatically considered to be a potential expert witness on the case since your opinion is admissible at trial. Consequently, it is common that you may be contacted by counsel who may wish to explore the basis of your opinion. There are two very important things to keep in mind should that occur. First, you have absolute, perpetual immunity for serving as a panel member. There is not anything you can every say in any setting, right, wrong, the same or different, that would subject you to any personal exposure. All you can do is answer lawyers’ questions as truthfully and objectively as you can. Secondly, any additional imposition on you after you sign and return your opinions is not included in your $500 statutory stipend. If you are asked to spend additional time on the case after you sign and return your opinions, you may then bill your usual medical-legal hourly rate for any meetings or calls requested by any party, for preparation for any meetings, deposition testimony or if called as a witness to testify in court, also for time traveling to and testifying at a trial deposition or in court.

 

WHAT ARE MY DUTIES?

As a panelist, it is your duty to review the facts of the case in an objective neutral manner and reach a decision as to whether the standard of care was met. You will sign an oath affirming that you are able to consider the matter without letting sympathy, prejudice or bias enter into your opinion.

 

HOW DID I GET SELECTED FOR THIS?

Each party to the action has a chance to choose one panelist, so it is likely you were chosen by one of the parties. However, once the first two panelists are chosen, they are instructed to choose the third member of the medical review panel; therefore, depending on how far the case has developed may affect how you were chosen. In the event the parties or the chosen members were unable to agree on a health care provider, the panel chairman randomly generates a striking list of three (3) potential panelists from which the parties strike until we are left with one remaining member. The names are randomly selected from a complete list of health care providers who are licensed to practice in the State of Indiana.

 

HOW CAN I HELP?

It is the panel chairperson’s duty to set up the meeting for the panel to render a decision. You can help by providing us with your most current information: cell phone number, best mailing address, work number, fax number, as well as the best person to contact in order to find your earliest availability to meet. 

Please remember that the scheduling of the panel includes two (2) other panel members and the panel chair. It is important that we be able to communicate throughout the scheduling process, as the panel meeting approaches, and at the time of the convening.

Once the panel has reached a determination, the panel chair will prepare the opinion in writing and each panelist will be asked to sign and return the written opinion. It is appreciated if the panelist can sign and return this written opinion at the earliest opportunity so the matter can be concluded.

 

DOES THE OPINION REACHED BY THE MEDICAL REVIEW PANEL HAVE TO BE UNANIMOUS?

No. Each panel member should take into consideration the other panelists’ thoughts and positions but unanimity is not required in the final opinion. Each panelist should decide the case in a way that they feel comfortable backing up if called to testify under oath at trial.

 

CAN I FACE ANY LIABILITY FOR SERVING ON A MEDICAL REVIEW PANEL?

No. All panel members who serve have absolute statutory immunity for serving on medical review panels. There is nothing you can do or say that would subject you to any liability whatsoever. You are protected by the law.

 

WHERE WILL THE PANEL MEETING BE HELD?

The panel meetings are generally held via phone conference. They generally are set at 5:30 p.m. Eastern standard time, however the panel chair makes every effort to find a date and time convenient for each of the panelists.

 

WHAT HAPPENS AFTER THE PANEL MEETS AND A DECISION IS RENDERED?

Many times a case may be resolved by the parties after a panel renders its decision. There are also times that the matter does not go forward. However, either party can take the matter to trial. If the case goes to trial, the panel opinion is admissible into evidence. The panel members can be contacted by counsel for the parties or called as witnesses; however the panelists are entitled to charge their usual medical-legal hourly rate for such additional involvement.

The panelists are encouraged to cooperate with the counsel for the parties after the completion of the medical review panel process as it may further help with resolution of the claim.

 

"I HAVE ALREADY SERVED ON ONE OF THESE PANELS; DO I HAVE TO DO IT AGAIN?"

There is no statutory limitation on how often a medical provider can be named to panels. Some specialty practice areas get sued more often than others. Other specialty practice areas have a limited number of physicians who can serve. Some doctors have served on fifty (50) or more panels and others have never served. While there is no simple answer to this question, you are welcome to discuss any concerns with the panel chairperson.

 

WHAT WOULD EXCLUDE ME FROM SERVING ON A MEDICAL REVIEW PANEL?

If a healthcare provider has a current Indiana license, then living out of state or retiring does not exclude that person from serving on a panel. However, there are a few circumstances that could exclude a healthcare provider from serving on a medical review panel. Some examples would include if the panelist has a conflict of interest (if you know or have a relationship with one of the parties that would prevent you from being able to neutrally render an opinion) or if the focus of the claim is outside the area of the panelist’s expertise. In rare occasions, there may be circumstances where a healthcare provider is released from serving if serving would cause undue hardship.