This article was originally published August 5, 2015.
Most Louisiana healthcare providers elect to enroll in the Louisiana Patient's Compensation Fund (PCF). Hospitals, physicians, nurses of all levels, EMTs, physician assistants, and many other types of providers are eligible for participation in the Fund. Participation also entitles the healthcare provider to a cap on the quantum of damages that may be awarded at trial. Participation in the PCF deems the healthcare provider as "qualified". Before a Louisiana patient can file a medical malpractice lawsuit against a qualified healthcare provider, the patient must first submit a claim to the Louisiana Division of Administration, which forwards the claim to the PCF. The Medical Review Panel process (MRP) is a review of the claim by a panel of healthcare providers. The process is intended to reduce the number of medical malpractice lawsuits by allowing the patient to receive an early opinion about whether or not the healthcare provider met the standard of care.
After the patient has paid the filing fee of $100 per healthcare provider named in the complaint, the MRP process commences. The patient/plaintiff is required in their letter to the PCF to include a description of the alleged malpractice and other information about the claim. The PCF then issues a letter to the defendant, advising the healthcare provider that the claim has been filed. This letter from the PCF is often the first notice of a malpractice claim. For that reason, it is very important that the letter be immediately forwarded to LAMMICO. LAMMICO will assign a claim representative and a defense attorney to work with the defendant healthcare provider until the claim is resolved.
The healthcare provider’s attorney will respond to the letter by contacting the attorney for the patient. Both will agree to the appointment of an attorney chairperson that will manage the MRP process. The plaintiff will appoint its choice of healthcare provider to the MRP. The defendant will then appoint its choice of healthcare provider, which in the case of a physician defendant is generally a physician of the same or similar specialty. A third panel member will be appointed by the first two appointees.
In most cases, the parties will exchange questions and answers. They will also obtain all the relevant medical records. The appointments, the initial exchange of answers and document exchange process may easily take over six months, often longer. The defendant healthcare provider’s attorney may ask a defendant to provide information about the medical care and reasoning for his or her decisions and diagnosis. A statement concerning the care, together with the medical records, will be the evidence that will be submitted to the three members of the MRP.
The attorney chair will coordinate finding a date on which all the panel members and both the representatives of the plaintiff and defendant can meet. The defendant healthcare provider and the patient have a right to attend this meeting, but rarely do so. When the panel meets, the only evidence allowed is the medical record and other relevant written material. No testimony or other oral evidence is allowed. Only the panel members and the attorney chair may be present during deliberations. After deliberations and the opinion decision, in many cases, the parties may be allowed to ask limited questions about the basis for the opinion.
The only role of the MRP is to decide whether the defendant did, or did not meet the standard of care as charged in the complaint. On occasion, the panel will find that it did not have enough information to make the decision, or that the facts are not clear. The attorney chair will draft a letter which reflects the opinion and the basis for the opinion, and send it to all parties and to the PCF. The majority of panel opinions are favorable to the defendant healthcare providers. The prevailing party pays the fees of the attorney chair and the $300 fee each member is paid to serve on the panel. The MRP process and the opinion are not public record. However, the opinion may be introduced as evidence at trial, and the panel members may be called as trial experts by either side, should the matter proceed to trial.
The time period from receipt of the patient complaint to panel opinion is lengthy: it can easily take over two years. The patient cannot file a lawsuit in court until he or she receives the panel opinion. A lawsuit must be filed within 90 days plus anytime remaining in the prescriptive period. The patient may file a lawsuit even if the panel opinion was favorable to the healthcare provider.
For additional insight, please contact a LAMMICO Claim Department representative at 504.831.3756.