By William A. Ramsey
Medical review panels in Indiana consist of an attorney chair and three healthcare providers. By statute, the plaintiff selects one of the health care members, the defendant selects one member, and these two members select the third. In practice, parties often agree to use a variety of alternate approaches to selecting panel members; but no procedure exists to alter the number of providers on a medical review panel. In many (and probably most) cases, providers from no more than three medical professions or specialties are necessary. However, some cases involve defendants from a breadth of practice areas that makes it difficult — and potentially impossible — to find three health care providers qualified to offer opinions on the standard of care and causation for all issues and claims raised in a claim. A slight and modest modification to the medical review panel statutes, modeled after procedures used by other states, could remedy this problem.
Overview of medical review panel member selection
Absent limited exceptions, 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 § 34-18-8-4. In cases involving only a single defendant, that defendant can control the practice area and identity of at least one of the panel members who will review the case. See Ind. Code § 34-18-10-6. For cases involving multiple defendants, the defendants must collaborate and agree on one of the specialties that will be represented on the panel. See Ind. Code § 34-18-10-7 (“The plaintiff, whether single or multiple, has the right to select one (1) health care provider and the defendant, whether single or multiple, has the right to select one (1) health care provider.”). This system is not unique, and is substantially similar to the approach used by other states, such as Nebraska. See R.R.S. Neb. § 44-2841(2)(c) (“When there are multiple plaintiffs or defendants, there shall be only one physician or hospital administrator selected per side. The plaintiff, whether single or multiple, shall have the right to select one physician and the defendant, whether single or multiple, shall have the right to select one physician.”).
As the patient or plaintiff and the medical defendants usually have a vested interest in selecting a panel that can, collectively, address all issues on which the panel may offer an opinion, the parties and panel chair usually, through open discussion, come to an agreement or compromise on the panel composition. One common procedure is for the parties to agree on the three specialties that will be represented on the panel and the panel chair to then provide the parties with striking panels of three providers for each panel slot. This procedure, through which the parties alternately strike potential members until one member remains in each slot, usually leads to a fair and mutually agreed-upon panel to review a case. However, while the present system works well in most cases, a modest improvement can address deficiencies that still exist.
Issues raised when multiple specialties are involved
In most cases, the parties can collectively select a panel that is competent and qualified to offer opinions on all the alleged breaches and causation issues. But what happens when more than three practice areas are at issue? For example: a patient alleges that an oncologist failed to timely diagnose cancer, an anesthesiologist and surgeon both acted negligently during the surgery to address the cancer, leading to an adverse outcome, that was then aggravated by allegedly subpar care by nurses and a hospitalist in the ICU during the following hospital stay. Which specialty would fail to be represented on the panel?
Medical defendants generally want a provider from their profession and specialty on a 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, although a panel chair would arguably have the authority to intervene. See Ind. Code § 34-18-10-3(c) (recognizing that the chairman “shall expedite the selection of the other panel members”). But this chair’s unenviable position would be far from ideal. And regardless of who ends up on the panel, it is difficult to justify the potentially arbitrary exclusion of one defendant’s practice area.
Regardless of how a result is reached that leaves one defendant without a peer on the panel, allowing such a result is inconsistent with the overall intent and purpose of the Medical Malpractice Act. Indeed, the act specifically recognizes the preference of having panel members who share the same specialty as a defendant. See Ind. Code § 34-18-10-8. When there is only one defendant who practices in a specialized area, two of the panel members must be of the same specialty. However, the act contains no procedure to ensure that cases involving multiple specialties have an adequate review by providers with the requisite qualifications and experience. A safeguard to address this issue should exist.
Qualification of panel members to offer opinions in court
The problem caused by depriving a defendant of a peer on a medical review panel is compounded by the position taken by the Court of Appeals: Evidence Rule 702 trumps the statute rendering the medical review panel opinion admissible in a state court proceeding. This position is understandable, as a statute is ineffective to the extent it conflicts with an evidentiary rule. See T.H. v. Ind. Dep’t of Child Servs. (In re Termination of the Parent-Child Relationship of B.H.), 989 N.E.2d 355, 357 (Ind. Ct. App. 2013); But cf. Humbert v. Smith, 664 N.E.2d 356, 357 (Ind. 1996) (recognizing that the Supreme Court can assent to a statute that conflicts with an evidentiary rule). Thus, even if a panel member renders an opinion as to all defendants and causation, that panel member’s opinions are still subject to exclusion under a Rule 702 challenge. See Totton v. Bukofchan, 80 N.E.3d 891, 894-95 (Ind. Ct. App. 2017); Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 51-52 (Ind. Ct. App. 2010), trans. denied. And while providers can sometimes offer opinions on the standard of care for other specialties, such is not always the case. See Lusk v. Swanson, 753 N.E.2d 748, 754 (Ind. Ct. App 2001) (finding it was not “reasonable to conclude that a pulmonologist is familiar with the standard of care required of an orthopedic surgeon”), trans. denied.
Issues can also arise when the defendant health care providers are not medical doctors. Although there is no blanket rule prohibiting health care providers who are not physicians, such as chiropractors or nurses, from offering causation opinions, the Court of Appeals has also stated that “[t]he general rule is that non-physician healthcare providers are not qualified under Evidence Rule 702 to render opinions as to medical causation.” Totton v. Bukofchan, 80 N.E.3d 891, 894-95 (Ind. Ct. App. 2017); see also Curts v. Miller’s Health Sys., 972 N.E.2d 966, 971 (Ind. Ct. App. 2012) (finding no blanket rule prohibiting nurses from qualifying as experts regarding the standard of care and causation, but finding the nurse in that case unqualified). Thus, while parties often select non-medical doctors to serve on medical review panels, they do so with the inherent understanding that those members may be unable to ultimately offer opinions on causation or the standard of care for other defendants. There are often good reasons to want non-medical doctors on a medical review panel, and it seems counterintuitive for this choice to lead to a situation in which only one — or even none — of the panel members can offer a causation opinion. See, e.g., Totton, 80 N.E.3d at 895 (holding that none of the three chiropractors on a medical review panel could offer opinions on causation).
Potential for unfair results
Although most cases will result in an admissible panel opinion that addresses all alleged breaches and causation, the strict three-person limit for a panel could, in some cases, easily create an unfair result. Take the example above with the defendant oncologist, surgeon, anesthesiologist, and nurse. A panel consisting of a nurse, surgeon, and oncologist could render an opinion stating that none of the panel members feels able to offer an opinion regarding the anesthesiologist. Alternatively, a panel member could render an opinion regarding the anesthesiologist that is later found inadmissible under Evidence Rule 702. If the plaintiff files the claim in state court, the nurse, surgeon and oncologist would then be in a position to move for summary judgment and force the plaintiff to obtain an expert to rebut the panel opinion, while the anesthesiologist would not have this option. Alternatively, the plaintiff might sue only the anesthesiologist and proceed to court effectively with no panel opinion in place. This result would be fundamentally unfair to the anesthesiologist and would not assist the plaintiff in evaluating whether to bring a state court claim against the anesthesiologist. Such a result would certainly not satisfy the purpose of the panel process.
How to fix the problem — flexibility in the number of panel members
A clear solution to address cases with defendants of more than three specialties is to allow for more than three panel members. This approach would be new to Indiana, but would not be unique. Other states that use a panel process similar to Indiana’s allow for flexibility in the number of providers that review medical malpractice cases in a way that mitigates against a situation in which a medical malpractice defendant is deprived of any meaningful review of the care before a lawsuit is filed.
For example, Kansas allows for the convening of multiple screening panels within a single case to address the care of different providers. See, e.g., Smith v. Frazier, 717 P.2d 531, 532 (Kan. Ct. App. 1986) (addressing a case that had involved four separate screening panels to review alleged negligence by five physicians, a hospital, and a mental health counselor). New Mexico also allows for multiple panels within a single case when appropriate. See N.M. Stat. Ann. § 41-5-17. These approaches certainly protect against a defendant failing to receive an adequate review but could also lead to numerous providers being called upon to serve in a single case.
The Virgin Islands uses a screening process that differs from the panel approach: one committee is responsible for rendering a prelitigation expert opinion for multiple cases but certain cases will require review from multiple specialists. The Virgin Islands approach gives the committee the ability to determine “the type of medical expert or experts who are needed to review the malpractice claim,” and to obtain multiple expert opinions if needed. See 27 V.I.C. § 166i.
The obvious push-back to allowing more than three panel members relates to the burden on the medical community, delay and cost. Medical providers are busy people. Serving on a panel is necessary and important work but also takes away from the time spent providing care to patients. For the parties, although the compensation for panel service is relatively nominal, see Ind. Code § 34-18-10-25 (providing that panel members are paid up to $500 plus reasonable travel expenses), the cost of interviewing, deposing, or calling panel members as witnesses would increase in cases with more than three panelists, see id. (making clear that the $500 fee does not include time involved if a panelist is called to testify). And delays in panel selection due to conflicts of interest, panelists moving or retiring, or other situations would be amplified if panel chairs and parties had to select four (or more) panelists. However, cases that would require more than three panelists would be the exception rather than the rule, and 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.
Therefore, the General Assembly should consider a modest amendment to the medical review panel statute that allows a panel chair or the parties to order or agree that a medical review panel may include more than three members if there are more than three specialties at issue and three panel members cannot adequately address the issues in the case. This approach would be unlikely to lead to increases in the number of panel members except in the most complex cases. It should ensure that in all cases, at least one panel member will be able offer an expert opinion on each defendant’s actions.
The General Assembly has constructed an admirable process for reviewing and administering medical malpractice claims. The hole that exists for complex cases involving numerous specialties occurs infrequently. But the hole exists and under certain circumstances could lead to unfair results that do not accomplish the goals of the panel process. This small change to our statutes could make an already good system even better.•
■ William A. Ramsey is a partner in the Fort Wayne firm of Barrett McNagny and a member of DTCI. Opinions expressed are those of the author.