In Louisiana, a patient may not generally bring a lawsuit for medical malpractice until after they have submitted a claim to a medical review panel. The medical review panel is a type of administrative process in which three doctors, who are generally in the same medical specialty as the doctor who is accused of medical malpractice, review the case to determine if that doctor committed medical malpractice.
How Do I Initiate the Medical Review Panel Process?
To initiate the medical review panel process, a patient, or their attorney must file what is called a "Request for Review" by a medical review panel. This request must be sent to the Louisiana Division of Administration within one year from the date of the alleged malpractice.
What Information Is Included In A Request For Review?
Generally, the Request For Review should contain the name of the patient, the names of the claimants, the names of the defendant health care providers, the dates of the alleged malpractice, a description of the alleged malpractice as to each named defendant health care provider, a brief description of the alleged injuries caused by the medical malpractice and a request that a medical review panel be formed to review the actions/inactions of the defendant health care providers.
Does It Cost Money To File A Request For Review?
Yes, in 2003, the Louisiana Medical Malpractice Act was amended to require payment of $100.00 for EACH NAMED DEFENDANT. If the claimaint does not submit this filing fee with his Request For Review, he will be sent a letter telling him he has 45 days from the date the Request For Review was received to pay these sums or his case will be dismissed. This statute allows for the waiver of that fee fo an in forma pauperis case. Be careful, because a finding of pauperis must be made by a court.
What Is The First Step After Filing The Request For Review?
The first step after filing the request for review is to select an attorney chairman who will oversee the panel process. The attorney chairman is picked by agreement among the patient and/or his attorneys and the defendant and/or his attorneys. If the parties cannot agree on the selection of an attorney chairman, a list is provided by the Louisiana Supreme Court and the parties engage in a striking process until an attorney chair is picked. An attorney chairman must be picked within two years after the panel is formed or the case will be dismissed.
Once The Attorney Chairman Is Selected How Are The Physician Panelists Selected?
Once the attorney chairman is selected, he will contact the patient or his attorney and ask them to make a selection of a physician to serve on the medical review panel. The physician should generally be in the same medical specialty as the defendant doctor and must be a physician licensed to practice medicine in Louisiana. If the defendant health care provider is a nurse or hospital, then either a nurse or a physician, licensed in Louisiana may be selected. If the patient or his attorney does not make a selection, the attorney chairman may make the selection on behalf of the patient or his attorney. Once the patient selects a panelist, the defendant selects the second panelist. Then, those two panelists get together to pick the third panelist.
Once The Panel Has Been Formed, What Is The Next Step?
Once the panel has been formed, the law states that the panel will expire within 180 days if a decision has not been rendered by the medical review panel or if the life of the medical review panel has not been extended by a court order. During the six month life of the medical review panel, the parties are free to engage in the discovery process. This includes requesting the production of documents between the parties and taking depositions.
How Does The Medical Review Panel Receive Evidence To Make Its Decision?
When the panel is formed, the attorney chairman sets a deadline for the parties to submit evidence to the medical review panel. When the parties have gathered all of the evidence that they want the medical review panel to consider, they submit a position paper or brief to the attorney chairman along with any medical records, films, reports of medical experts and/or depositions/affidavits of sworn testimony of witnesses. Once the attorney chairman receives the evidence from the parties, he then schedules a date and time for the medical review panel to meet to review the evidence and make a decision.
What Happens At The Medical Review Panel Meeting?
The attorney chairman generally schedules the meeting of the medical review panel at his office. The physicians and the attorneys for the patient and doctor are also usually present. The medical review panel and the attorney chairman meet in a room outside the presence of the attorneys for the patient and defendant doctor to discuss all of the evidence submitted by the parties. The physicians on the panel are not supposed to discuss the case or form an opinion until the panel meeting. The attorney chairman participates in the deliberations and is there to answer questions about the legal standards and burdens. However, he does not vote on whether medical malpractice was committed.
What Decision Can Be Made By The Medical Review Panel?
By statute, the decision of the medical review panel is limited to only one of three possible choices: (i) that the evidence demonstrates that the involved physician breached the standard of care, (ii) that the evidence demonstrates that the involved physician did not breach the standard of care, or (iii) that a question of fact exists bearing on the issue of liability which does not require expert opinion and therefore the medical review panel cannot render a decision.
What If The Panel Decides That The Doctor Breached The Standard Of Care?
Statistically speaking, a medical review panel in Louisiana only finds in favor of the patient and against the physician in only about 3-5% of the cases they review. That means that the physicians win most panels. Local physicians do not like to find against other local physicians. However, if the panel decides in favor of the patient, then the panel must determine whether the medical malpractice caused any damage to the patient.
What If The Panel Decides Against The Patient and In Favor Of The Doctor?
Most panels rule in favor of the defendant doctors. The panel opinion is committed to writing by the attorney chairman and is signed by all of the panel doctors. It is then sent to the patient or the patient's attorney. The patient then has 90 days to institute a lawsuit in State district court or the case will be barred by the statute of limitations.
What Is A Question Of Fact That Does Not Require A Decision By the Medical Review Panel?
If the evidence presented to the medical review panel presents conflicting facts - - i.e. like the doctor claims he examined the patient and the patient claims that the doctor did not examine her ,AND the records or other documentary evidence does not say whether the examination took place, the panel may decide that a question of fact exists which does not require their medical expertise to decide. In other words, a jury or judge will have to decide which party to believe. It does not require medical expertise to determine who to believe if both parties make conflicting assertions of fact. Generally, if the panel decides in this fashion, the answer to the fact question will determine if there is malpractice. For instance, if the doctor did not do the exam he committed malpractice. If he did the exam, he did not commit malpractice.
Regardless Of The Panel Decision, A Lawsuit Must Be Instituted Within 90 Days
Whether the medical review panel determined that there was malpractice or not, a lawsuit must be instituted in a State district court within 90 days from receipt of the panel opinion or the case will be barred by the statute of limitations. Once that suit is filed, the patient will have the burden of proving with expert testimony that medical malpractice occurred. The opinion of the medical review panel shall be admitted into evidence at any trial of the matter.
The Medical Review Panel and Trial
The written opinion of the medical review panel as well as the testimony of the physians sitting on the medical review panel are admissible at any trial of the case. The party who wins the medical review panel will generally call the panel members as witnesses at trial. The losing party must obtain the expert opinion of an outside physician expert to provide testimony for their case.
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