Patients who are injured by a doctors' (or other medical professional) negligence can file a lawsuit in Louisiana state court, but first the case must be decided by the medical review panel.
Louisiana does not permit a victim who is injured by medical malpractice to file a lawsuit in a state district court if the physician or health care provider is a "qualified health care provider" under the Louisiana Medical Malpractice Act. A qualified health care provider is defined as a health care provider who has paid premiums to the Louisiana Patient's Compensation Fund. Every qualified health care provider is entitled to have any claim of medical malpractice first decided by a medical review panel. This means that the starting point for instituting a claim of medical malpractice in Louisiana is the filing of a Request for Review by a Medical Review Panel with the Louisiana Division of Administration.
What is the Medical Review Panel?
The medical review panel is made up of an attorney chairman and three physicians or health care providers who practice in the same specialty as the doctor who is being sued. Thus, if a patient sues his cardiologist, then the medical review panel will be made up of three cardiologists. The attorney chairman is an attorney who is responsible for the overall scheduling and management of the medical review panel process. However, he does not vote on whether the claim has merit. He is present during the deliberation by the members of the medical review panel and is there to answer any legal questions which may be presented by the evidence.
The attorney chairman is selected by mutual agreement of the parties. In almost every case, the defense attorneys and the plaintiff's attorney agree on a mutually acceptable choice for the person to be the attorney chairman. However, in the unlikely event that the parties cannot agree, the Louisiana Supreme Court will provide a list of names of attorneys and the attorney chairman is chosen by a striking process of those names until a mutually acceptable candidate emerges.
Once the attorney chairman is selected, he will contact the attorney for the plaintiff to ask him to appoint one physician to the medical review panel. Similarly, he will contact the defense attorney and ask him to submit one physician to the medical review panel. Once those two members are selected, those two physicians then get together and choose the third member of the medical review panel. Thus, the medical review panel is made up of one physician chosen by each side and the third member chosen by the first two. If one side refuses or fails to choose a member of the medical review panel within a certain time period, then the attorney chairman will make the appointment of a physician to the medical review panel on behalf of the side that refuses.
How Long Will the Review Take?
Once the medical review panel is formed, it generally has 180 days to render a decision. If a decision is not rendered within that time frame, the parties may petition the state district court to extend the life of the medical review panel. The attorney chairman sets a deadline for the parties to submit their evidence to the medical review panel. He also sets a date on which the medical review panel will meet to discuss and deliberate over the evidence submitted. That evidence generally consists of a position paper by each side setting forth the facts and arguments. In addition to the position papers of the parties, the parties may also present the medical records, affidavits of witnesses, sworn deposition testimony and answers to interrogatories and requests for production.
Once the evidence is submitted to the attorney chairman, he distributes it to the medical review panelists for their review and deliberation at the meeting of the medical review panel. On the day of the meeting of the medical review panel, the attorney chairman presides over the deliberations by the medical review panel and prepares the opinion and written reasons of the medical review panel. He then calls the parties involved and verbally tells them the decision of the medical review panel and their reasons. In most parts of the state, the attorney chairman allows the parties to briefly question the medical review panelists about their decision.
Outcome of the Medical Review
By law, the medical review panel can only render one of three possible decisions:
- the health care providers deviated from the acceptable standard of care;
- the health care providers did not deviate from the standard of care; or
- there is a question of fact, which bears on liability for deviation of the standard of care, which does not require an expert opinion.
Although the first two possible decisions are straightforward, the third possibility usually arises is there is conflicting testimony about a crucial fact. The medical review panelists, as experts, are not permitted to make a credibility call as to which side's witnesses are telling the truth.
If the medical review panel determines that a breach of the standard of care occurred, then they must further decide if the breach resulted in damages to the patient. The opinion of the medical review panel and the brief reasons supporting that opinion are then committed to writing by the attorney chairman, signed by the medical review panelists and sent by certified mail to each party. Regardless of the decision of the medical review panel, the patient has 90 days from the date of the receipt of the medical review panel opinion to file the suit in state district court. In other words, if the medical review panel decides that the health care provider did not breach the standard of care and commit medical malpractice, the patient may still sue in state district court. Statistically speaking, approximately 97% of medical review panels in Louisiana rule against the patient on claims of medical malpractice.
The Opinion of the Review Panel May Be Used as Evidence at Trial
By statute, the opinion of the medical review panel and its written reasons shall be admissible at any subsequent trial in state district court. Additionally, the members of the medical review panel may be called as experts by either side at the trial. However, the jury has the right to give as much or as little weight to the opinion of the medical review panel as it deems fit.