In 1975, the Indiana legislature created the Indiana Medical Malpractice Act (“MMA”), which outlines the process for selecting a Medical Review Panel to review claims of medical malpractice filed against qualifying health care providers. As a matter of background, not all health care providers are entitled to the protections of the MMA, and not all claims filed against health care providers fall under the MMA (for discussion of claims that fall outside the boundaries of the MMA, click here). To be covered by the MMA, a health care provider (which can include a hospital, nursing home, surgery center, physician, nurse, chiropractor, pharmacist, dentist, or athletic trainer) must purchase an appropriate insurance policy and file specific paperwork to be considered a “Qualified provider” under the MMA (Ind. Code § 34-18-2-24.5). In Indiana, certain providers are considered “Qualified providers” which are entitled to the benefits of the MMA, while other providers decide to forgo qualification status for various reasons and therefore forfeit the benefits of the MMA. To determine whether you are a Qualified provider or not, you should contact your professional liability insurance carrier or the Indiana Department of Insurance, visit website.

For qualified providers, one of the primary benefits of coverage under the MMA besides the statutory cap on damages is the Medical Review Panel (“MRP”) process. The MRP process is a quasi-peer review process in which three health care providers are jointly selected by the parties to review a medical malpractice claim against a Qualified provider. Parties can generally begin the MRP selection process at any time. However, there may be tactical reasons to delay the MRP selection process until more information is known about the claim. For example, it is common for the parties to wait until initial discovery is complete before they commence the MRP selection process.

1. The first step in the MRP process is selection of the Panel Chair. The Panel Chair is a neutral third-party attorney who assists the parties in seating the MRP. The Panel Chair is paid by the prevailing party, and the fees for the Panel Chair and Panel Members are limited by statute to $2,500 for the Panel Chair and $500 for each Panel Member. In practice, there is a reasonably small pool of experienced Panel Chairs in the State of Indiana. If the parties are unable to come to an agreement regarding a Panel Chair, the MMA outlines a cumbersome process that includes a striking panel of five random attorneys from a selected geographic area selected by the Clerk of the Indiana Supreme Court. The parties take turns striking nominees until one attorney remains. The selected attorney is notified of his or her appointment and is expected to serve unless he or she can show good cause for removal. This striking panel process is usually avoided at all costs because the parties may end up with a Panel Chair with no experience with the MRP process and no interest in serving as a Panel Chair.

2. The second step in the MRP process involves the selection process for the three voting members of the MRP. The Panel Chair is technically a non-voting member of the MRP, and the voting members are generally referred to as the Panelists. The Panelists must be health care providers licensed in the State of Indiana. Typically, the patient/plaintiff has the right to select one of the Panelists, the defendant health care provider(s) jointly select one of the Panelists, and those selected Panelists choose the third Panelist. The selection process can be done by nomination or striking panel. Either party may nominate a health care provider for consideration by the opposing party. However, the opposing party may strike a nominee without cause and without stating a reason. In practice, many Panelists are selected via striking panels. A striking panel consists of three health care providers, usually of a particular specialty, who are randomly selected by the Panel Chair. The parties take turns striking nominees, and the remaining nominee is selected to serve. For example, the patient/plaintiff may request a striking panel of cardiologists. The Panel Chair will send the parties a list of three randomly selected cardiologists and ask the defendant(s)/health care provider(s) to jointly submit the first strike. After the defendants submit their strike, the patient/plaintiff gets to determine which nominee to strike (and the remaining nominee will be asked to serve on the MRP). Defendant’s nominee may be selected in a similar manner, with the plaintiff submitting the first strike. In practice, many third Panelist nominees are selected via striking panels as well. The striking order for the third panelist nominee is usually decided by a coin flip by the Panel Chair. Generally, the parties may request a panel of any specialty they desire. For example, nothing prohibits a party from requesting a striking panel of cardiologists for a case related to orthopedic care. The only guidance under the MMA relates to a scenario where a single defendant is an individual/person, such as in a case against only one physician. Under such a scenario, at least two Panelists must be of the same specialty as the defendant. In practice, most MRPs generally match the specialty make-up of the defendant health care providers. However, cases filed against multiple health care providers, especially those involving more than three specialties, can create difficult choices regarding which specialties will not be represented on the MRP.

3. The third step in the MRP process (after all three Panelists are selected) is the submission process. The Panel Chair establishes a submission schedule, and the parties draft and tender their respective submissions for review by the MRP. The submission process has primarily been developed by custom and practice, instead of pursuant to any strict procedural rules under the MMA. For instance, in the early days of the MMA, parties would provide the MRP copies of the pertinent medical records and ask the Panelists to review all the issues with very little guidance as to what was being alleged. For the past several decades, parties have tendered narrative submissions that summarize the medical care and case issues. Usually these narrative submissions are written by an attorney and include medical records or other persuasive evidence as exhibits. Customs have also developed around the general process for drafting and distributing the submissions. Generally, a plaintiff tenders his or her submission first. The submission is sent to the parties and Panel Chair, but not the Panelists. Next, defendants tender their submission and address the arguments in the plaintiff’s submission. Sometimes, there is a rebuttal process involving reply submissions, sur-reply submissions, and even sur-sur-reply submissions, in which each side fights to have the “last word.” Once all submissions, responses, and replies are tendered, the Panel Chair will send each Panelist copies of all the submissions, responses, and replies at the same time. The Panel Chair then schedules a meeting of the MRP, typically via teleconference or videoconference. The meeting of the MRP is intended to be an informal discussion among the Panelists regarding the merits of the claim. The MMA also allows either party to convene the MRP for questioning, but convening MRPs is relatively uncommon, largely because the parties are only allowed to ask benign questions and cannot discuss core issues involved in the case with the MRP. Either way, after the meeting of the MRP is complete, a panel opinion is agreed to and circulated for signature. The parties often receive a copy of the panel opinion within 30 days of the MRP meeting.

After the panel opinion is issued, the MRP process is complete. At that point, a patient/plaintiff may either pursue a formal lawsuit in state court or forgo further legal action, often depending on the outcome of the panel opinion. If a patient/plaintiff files a state court lawsuit, the panel opinion is admissible evidence at trial (I.C. § 34-18-10-23). The MRP process can be very beneficial and persuasive because the jury will be advised that the MRP process entails an impartial review of the case by three independent health care providers jointly selected by the parties. If a lawsuit is pursued, either party may still present expert witness testimony to support or refute the opinion from the MRP, but juries generally find the panel opinion persuasive. For the reasons stated above, parties should consider the MRP process as a “mini-trial” and make every effort to seat a high-quality MRP. A high-quality MRP will often lead to a favorable panel opinion.

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Posted on March 2, 2022, by Courtney David Mills