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Modifications for a Fair and Meaningful Medical Review Panel

By Jack H. FarnbauchNovember 10, 2019

Medical Review Panels in Indiana consist of an attorney chair and three healthcare providers. The plaintiff selects one of the health care members, the defendant selects one member, and these two members select the third. Often parties agree to use a variety of alternate approaches to selecting panel members. It is the job of the Medical Review Panel to offer opinions on the standard of care and causation for all issues and claims raised in a claim, but some cases involve defendants from multiple practice areas, in which cases make it difficult to find three health care providers qualified to offer such opinions. A modest modification to the medical review panel process, modeled after other states, could rectify this problem. 

Qualified health care providers are entitled to have their care reviewed by a medical review panel before being sued in state court. See Ind. Code 34-18-10-7 The plaintiff, whether single or multiple, has the right to select one health care provider and the defendant, whether single or multiple, has the right to select one healthcare provider. Typically, the parties agree on the three specialties that will be represented on the panel and the panel chair then provides the parties with striking panels of three providers for each nominee on the panel.

 Many times, the parties can select a panel that is qualified to offer an opinion on all the alleged breaches and causation issues, but sometimes there are more than three practice specialties at issue. In that instance, which specialty would fail to be represented on the panel? No statutory procedure exists for a stalemate that could result if the defendants are unable to agree on which specialty would be left off the panel. Such a result as allowing one defendant without a peer on the panel is inconsistent with the overall intent and purpose of the Medical Malpractice Act. Some type of safeguard should exist to address this issue.

 Sometimes providers can offer opinions on the standard of care for other specialties, but that’s not always the case. The position taken by the Court of Appeals that Evidence Rule 702 trumps the statute rendering the medical review panel opinion admissible in state court causes an additional problem. Therefore, even if a panel member renders an opinion as to all defendants, the opinion is still subject to exclusion. There is no rule stopping health care providers like chiropractors or nurses (non-physicians) from offering causation opinions, but the Court of Appeals has stated that the general rule is non physician healthcare providers are not qualified under Evidence Rule 702. Parties often select non-medical doctors to serve on the medical review panel, but they do so with the understanding that those members may be unable to ultimately offer opinions on causation or standard of care for other defendants.

 The three person limit for a panel could create unfair results. A panel of a nurse, surgeon and oncologist could result in an opinion that none of the members feel able to offer opinions regarding the defendant, anesthesiologist. This would be unfair to the anesthesiologist and to the plaintiff as it would not assist the plaintiff in evaluating whether to bring a state court claim.

 Some states use a panel process similar to Indiana’s, but allow for flexibility in the number of providers that review medical malpractice cases like Kansas, who allows the convening of multiple screening panels within a single case. This, however, would cause delay and be costly because medical providers are busy people. For the parties, the compensation for panel service is relatively nominal. The added cost or time in these select cases would be more than justified given the alternative of completely depriving a defendant (and the patient) of a panel review of a particular provider’s care and cases that would require more than three panelists would be the exception rather than the rule.

 A modest amendment to the medical review panel should be considered by the General Assembly to allow a panel chair or the parties to order or agree that a medical review panel may consist of more than three members if there are more than three specialties at issue. A small change to our statutes could make the system even better.

 You can read more here.