The waiting game delays medical malpractice claims going to court

October 7, 2015

Lawmakers recently received conflicting diagnoses for review panels that evaluate medical malpractice claims. Some see them as broken, while others say they represent an ideal system that just needs some TLC.

Medical review panels are a second prong of proposed malpractice reform under the microscope of a General Assembly interim study committee. The committee previously heard testimony on whether to raise the total cap on malpractice claims from the current limit of $1.25 million.

The Interim Study Committee on Courts and the Judiciary solicited testimony Sept. 24 from those who favor or oppose the review panel system. Before medical malpractice claims may be filed in court, the panels of three medical professionals screen proposed claims and render an opinion on whether the care provided met the appropriate standard.

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Valparaiso attorney Steve Langer testified on behalf of the Indiana Trial Lawyers Association and told the committee the review panel process is broken and plagued with delays. “In our experience, it turns out to be 2.3 years,” he said of the average time it takes for a claim from the establishment of a panel until an opinion is rendered.

Ideally, Langer said, “it should be done in one year or less. … It’s not working the way it was intended.”

But attorneys who defend health care providers noted statutes creating the panels also lay out deadlines for their formation, selection of members, meetings, and other timelines.

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“In real practice, 95 percent of the time, nobody wants (deadlines) enforced,” said Jon Pinnick, a medical malpractice defense attorney with the Indianapolis firm of Schultz & Pogue LLP. Nearly any delays, he said, “are self-imposed by the lawyers” because of the informal nature of the panels. “It has become custom.”

Pinnick said the statutes contain sufficient remedies for intentional delays, but lawyers seldom go to court in an attempt to enforce them.

One source of delay can be the first step: selection of the attorney who will chair the panel. The chair may be chosen by agreement of the parties, but that rarely happens. When it doesn’t, the clerk of the Indiana Supreme Court prepares a list of five lawyers from which each side repeatedly strikes. The last attorney on the list becomes the chair. Then each side appoints a medical professional, and those two members pick the third panelist. However, these members also may be challenged and frequently are, resulting in more delays.

After formation of the panels, opinions are expected within 180 days according to statute, but that deadline often is extended by agreement of the parties as discovery disputes or other issues arise.

Langer pointed to a 2013 Court of Appeals decision, Mooney v. Anonymous M.D. 4, 991 N.E.2d 565 (Ind. Ct. App. 2013), trans. denied) as illustrative of how the panels can run into delays caused by either side. In Mooney, the appeals court reinstated the medical malpractice claim from the estate of a deceased man after a trial court had dismissed the proposed action. Delays in setting the panel and disputes about discovery dogged the proposed claim after it was filed in 2007. The panel chair in Mooney’s malpractice claim repeatedly informed parties that deadlines wouldn’t be strictly enforced unless the parties consented.

medmal-chart.gifITLA’s position is that participating in review panels should not be mandatory for patients who produce an affidavit from a medical expert saying their claim is meritorious, Langer said. Another possible change would be routing claims through an alternative dispute resolution process. Further, courts should be permitted to find a party in default if the evidence shows intentional delay.

“Whatever the reason is, it should not be happening,” Langer said of years-long delays. “The system is broken, and it’s not working.”

But Pinnick said plaintiffs’ attorneys can avoid delays by “dual filing” – opening a case in a court with jurisdiction, naming the defendants as anonymous and requesting trial dates in the future. This could help fast-track claims after a review panel rules. “Plaintiffs take advantage of that less than 25 percent of the time,” he said.

Medical malpractice defense attorney Lara Engelking said review panels have served Indiana well for decades, keeping insurance rates low for providers and attracting talented physicians to practice in the state.

“The thought of getting rid of medical review panels is unbelievable,” Engelking said. She noted Kentucky faces a crisis in malpractice and is considering adopting a review panel system. “They’re begging for the process we have.”

Rep. Greg Taylor, D-Indianapolis, questioned the value of panels since their opinions are nonbinding. Even when plaintiffs or defendants receive opinions that go against them, they may go to court to litigate their cases, sometimes victoriously.

But Engelking said that’s not what typically happens. When a panel rules, she said, “In my experience, that is when the cases get resolved.” She said in 64 percent of cases, the panels find no medical malpractice has occurred.

“(Practitioners) don’t have to be drug into court to testify immediately,” she said. “That’s what’s happening in these crisis states that surround Indiana.”

According to the National Conference of State Legislatures, Indiana was one of 16 states in the nation in 2013 that had some type of medical review panel that screened malpractice claims.

Langer said it’s becoming more difficult to seat panels because of consolidation in the health care marketplace. As greater numbers of specialists are affiliated with large practice groups, it’s harder to find practitioners who don’t have conflicts.

Mike Rinebold, director of government relations for the Indiana State Medical Association, told the committee that review panels remain vital. The organization, which represents about 8,000 health care providers, opposes changing the $15,000 threshold for claims that must go through panels.

Rinebold said 61 percent of Indiana physicians reported they have been sued for malpractice at some point by the time they reached age 55. For surgeons, the number is higher than 90 percent. “The review process is important and critical to the Medical Malpractice Act,” he said.

Pinnick chose a self-deprecating example to dispel notions that the panels are biased in favor of the medical establishment. He noted a pro se litigant with a medical malpractice claim recently presented a proposed case, turned over the responsive medical records, and prevailed against him with a 3-0 decision from a review panel.

“They do their job, and they take it seriously,” he said of the panels.•


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