This article originally appeared in Volume 33, Number 5 of The LINK and has been expanded to include other important questions from our policyholders.
Policyholders often have questions or concerns about serving as a medical review panelist, and frequently contact LAMMICO staff and defense counsel for advice. To help our policyholders navigate this decision, LAMMICO has put together a list of frequently asked questions and given our best answers to them:
Should I serve if asked?
A physician may be excused from serving if doing so presents an “unreasonable burden or undue hardship” or if he/she has previously served on four other Panels in the preceding twelve months. A physician will also be excused if there is an employment or financial relationship with a party or party’s representative. Any other potential conflicts of interest should be discussed with the Attorney Chairman. Generally, potential conflicts of interest are resolved by a determination as to whether or not the Panelist feels that he/she can serve without bias or prejudice in favor of or against any party. In other words, if you are able to sign the Oath of Impartiality, you should be able to serve. Panelists provide an important service, and in the absence of undue hardship or a prohibitive conflict of interest, you should serve if called upon to do so.
Should I serve on a Panel if I am not familiar with the procedure or treatment at issue?
Many specialties have become subspecialized, and occasionally members of a specialty do not possess the requisite knowledge necessary to evaluate the particular treatment at issue. A Medical Review Panelist must possess the knowledge necessary to evaluate the defendant’s care. A Panel should be composed of other members of the defendant’s “same class and specialty of practice”, familiar with the particular treatment at issue. Upon receipt of notification of your appointment, the Attorney Chairman should make you aware of the specific nature of the claim, usually by providing a copy of the complaint. Therefore, when you are appointed, you should immediately review the complaint, or ask the Chairman about the claim, to ensure you are a proper Panelist. In the event you are selected to serve for an issue you are not qualified to review, you should advise the Attorney Chairman and request to be excused from the Panel.
What if more than one specialty is involved in a claim?
A Medical Review Panel is composed of three Panelists, regardless of the number of defendants named. However, Courts have found it is permissible for a Panelist to defer to a fellow Panel member for review of treatment within that Panelist’s field or specialty. Therefore, when there are two or three specialties at issue, and the Panel is composed of those two or three specialties, each of the defendants’ care should be reviewed primarily by the Panel member of his own specialty who is familiar with the standard of care for the treatment at issue. The other Panelists may join in the Opinion if the decision appears reasonable based upon their own training and experience. Therefore, if you are selected to serve on a Panel with multiple specialties involved, you should review the care within your own field and defer evaluation of other specialists to those physicians familiar with the applicable standard of care.
May I serve on a Panel if I am on staff at the defendant hospital or know the defendant physician, the claimants, or the attorneys involved?
The Louisiana Supreme Court has held that a physician may serve on a Panel involving a hospital at which he practices. Therefore, you may serve if you can do so without bias or partiality. In many communities in Louisiana, this is a common occurrence due to the limited number of facilities in some geographical regions. If you feel that you cannot render an objective Opinion, or if you have any employment or financial relationship with the hospital, however, the Attorney Chairman will excuse you from serving for a conflict of interest. Similarly, in the absence of an employment or financial relationship, you may serve if you know the defendant physician, the claimants, or the attorneys involved if you are able to render an impartial Opinion. However, if you have been involved in the care of the patient, you should be excused as you may be a fact and expert witness in the matter. Prior to deliberations, the Attorney Chairman will present each Panelist with an Oath of Impartiality. During the pendency of the Panel proceeding, any questions with regard to procedure, evidence, or any other matter concerning the Panel or claim should be directed to the Attorney Chairman.
What if I am medically qualified but need more information to render an Opinion?
Evidence submitted to a Medical Review Panel may consist of medical charts, x-rays or other films, laboratory results, medical literature, depositions of the parties or other witnesses, written answers to questions or “interrogatories” exchanged by the parties, and affidavits or reports of medical experts. Panelists are entitled to request or procure additional information beyond what is submitted by the claimant and defendant-physician. The Louisiana Medical Malpractice Act expressly provides that Panelists have the “right and duty” to procure all information necessary to render an Opinion.
To facilitate obtaining necessary information, under the Act, the Panel is authorized to request the issuance of subpoenas and subpoenas duces tecum (to compel via Court Order) for the production of testimony or records that the Panelists feel would be beneficial in their evaluation of the claim. Thus, if upon initial review of the evidence submitted, or even after a period of deliberation, the Panel needs additional information before an Opinion can be rendered, the Attorney Chairman should be advised, and the meeting adjourned until the information is obtained. If the Panel needs guidance on a legal, rather than a medical question, the Attorney Chairman should be consulted by the Panelists to provide proper instruction. The Attorney Chairman of the Panel has the statutory duty of advising the Panel relative to any legal question involved in the proceeding. The Attorney Chairman should not be involved in the medical aspects of the claim, except to ensure the Panelists have all the medical records or other information necessary to evaluate the treatment at issue.
Am I obligated to speak with a plaintiff’s attorney regarding an Opinion?
After the panel opinion has been issued, the attorneys representing either side may depose the Panelists after a lawsuit has been filed post-panel. The Panelist should be paid as an expert for the deposition and the preparation for the deposition, if the deposition will require medical opinions and judgment. The Panelist has no obligation to informally discuss any aspect of the Opinion or the case with either attorney, and has no obligation to review any further evidence or records; however, the panelist may choose to do so and should be compensated for their time.