A handful of states mandate that medical malpractice cases first be reviewed by panels of experts. These panels rule on the merits of a case. They conclude the standard of care was violated or it wasn’t.
In the states that use such panels, such as Indiana and New Mexico, the panel’s decision is not binding. A plaintiff’s attorney can ignore a smack-down and take the case to trial. But, the panel gives a strong signal as to how the winds will blow. Many – but not all – plaintiff’s attorneys take the hint.
An interesting new bill has been drafted. In a sign of bipartisan détente, the bill is sponsored by Congressman Andy Barr (R-KY) and Ami Bera, M.D. (D-CA).
Quoting from the summary of the Saving Lives, Saving Costs Act (H.R. 4106):
- This legislation allows doctors to focus on practicing medicine and improves the quality of patient care by encouraging the use of evidence-based guidelines.
- Physicians who can demonstrate they followed the recommended best practices will benefit from increased liability protection in the form of a legal safe harbor.
- The safe harbor would allow physicians the right of removal to federal court and of alternative dispute resolution (ADR) with an independent review panel of experts.
- If the panel finds the defendant was compliant with the standard of care, the plaintiff would be required to meet a heightened burden of proof if the plaintiff decides to proceed with the case.
- By reducing the necessary practice of defensive medicine and increasing adherence to evidence-based medicine this legislation has the potential to help lower health care costs.
How will such guidelines be formulated? Again, from the summary:
Formation and Standards of the Guidelines:
- Rather than being directed by Washington, the guidelines will be developed by the physician community based on the best available scientific evidence.
- Guidelines should be developed through a transparent process by a knowledgeable, multidisciplinary panel of experts and representatives from key affected groups as recommended by Institute of Medicine’s Standards for Developing Trustworthy Guidelines.
- Professional organizations that have published and maintained clinical practice guidelines are eligible to be certified by the Secretary of Health and Human Services to submit guidelines that will be treated as the standard of care.
Defendant doctors would be able to remove a medical malpractice case from state court to federal court where there is a federal payor, for example, Medicare or Medicaid. Once in federal court, the guidelines would be deemed the standard of care.
Expert Review Panel, ADR, and Implications for Trial:
- After removal and prior to discovery, the case would be subject to mandatory alternative dispute resolution (ADR). The case would be heard by an independent review panel of three experts. The panel’s decision would not be binding, but its findings would be admissible in court.
- The task of this panel is to render a nonbinding finding with regard to compliance or noncompliance with the standard of care.
- The guidelines are to be treated as the standard of care in ADR, but the panel allows for a human element to weigh each case on its own merits.
- If the panel finds that the defendant was not negligent, the plaintiff still has the right to proceed to trial, but would be required to meet a heightened burden of proof – increased from the preponderance of the evidence to a clear and convincing standard – in order to proceed beyond summary judgment.
In one sense, the legislation would nationalize the expert panels that are currently used in states such as Indiana and New Mexico.
One tricky detail will be who pays for the experts. In Louisiana, for example, the panels are mostly underwritten by the doctors. Most Louisiana panels rule in favor of the defendant doctors. Still, that’s cold comfort given that a significant portion of medical professional liability premiums are allocated to pay for these panels.
The language of H.R. 4106 states cost of compensating panel members will be split evenly between the parties – an improvement over Louisiana’s process.
The bill was introduced in the 113th Congress (2013-2014). The latest action: On March 20, 2014, it was referred to the Subcommittee on the Constitution and Civil Justice.