Presented by the 
LSMS Medical/Legal Interprofessional Committee

Herbert W. Marks, MD; Roselyn B. Koretzky, JD

The Medical/Legal Interprofessional Committee is charged by the Louisiana State Medical Society and the Louisiana State Bar Association with providing information to members of both professions to help increase understanding and cooperation in areas of mutual interest. Over the years, a number of questions regarding procedures before the Medical Review Panels as mandated by the Louisiana Medical Malpractice Act (LSA R.S. 40:1299.47) have come to the Committee's attention.

In an attempt to assist attorneys and physicians, the Committee has compiled into a "Frequently Asked Questions" format, these most commonly asked questions. The Committee has provided answers which have been mutually agreed upon. The Committee offers this information in an attempt to effect a more efficient and stress-free environment for Panel deliberations.

1. As a physician, why should I participate in Medical Review Panels?
The Louisiana Medical Malpractice Act (LSA R.S. 40:1299.47) was passed in 1975 as Act 817 because of the efforts of the Louisiana State Medical Society and the liability insurance industry. The benefits of the Act include a cap on malpractice claims as well as developing a statute of limitations. One of the provisions of the law provides for the Medical Review Panel Process to provide an objective and fair appraisal of the circumstances surrounding an incident of alleged malpractice. It becomes the duty of physicians to participate in the process as a means of insuring quality medical practice within the state. If physicians were to resist participating on a widespread basis, the continuation of the Act could be jeopardized.

2. Last minute written submissions of data are filed shortly before the Panel meets or are hand delivered to the Panel by one of the attorneys. Should that be considered?
The attorney chairman by statute, has the authority and the mandate to set the limits for receipt of written material. Panel members should never accept any communication about a pending Medical Review Panel from anyone except the Panel chair. Direct communication between Panel members and parties or their attorneys is prohibited. If material is hand delivered at the time of the meeting, the attorney chair may delay the proceedings while the submission is read (if doing so is not unduly burdensome), or may opt to reschedule for a later date. The timing of the delivery of materials will determine the chairperson's decision; the Panelists must take the necessary time to review all data, and it is the chairperson's decision as to how long that would reasonably take. Should a Panelist disregard a submission, he risks having the entire Panel nullified. Christophe v. State of Louisiana, 663 So. 2d 289 (La. App. 3rd cir. 1995). The Act provides that: "The evidence to be considered by the Medical Review Panel shall be properly submitted by the respective parties in written form only."

3. Attorneys often file lengthy legal memoranda, along with their submissions, which the Panelists may not understand. These will often give rise to numerous questions directed by the Panelists to the chairperson. What is the Panel's recourse?
It is not the function of the Panel to be concerned about the attorneys' legal arguments. Explanation of legal concepts as they relate to the standard of care can be obtained solely from the attorney chairman. The attorney chairman as a non-voting member is obliged to distinguish points of law to the medical Panelists. The chair should make it clear that such memoranda will be excluded from the Panel submissions. Maxwell v. Soileau, 561 So. 2d 1378 (La. App. 2nd cir. 1990).

4. May attorneys make formal opening statements or closing statements?
No. LSA R.S. 40:1299.47 (D) (1) says the evidence to be considered by the Panel shall be submitted in written form only. It is therefore inappropriate for statements to be made by the parties or by their counsel directly to the Panel members. The attorneys should be reminded that the meeting is not a trial nor is the Panel a court of law.

5. Attorneys wish to present their own charts, graphs, etc, in their submissions. Is this permissible?
There is nothing in the statute to prohibit it. Charts, graphs, etc may be helpful to Panel members but should only be allowed if supporting data or information that underlies the material is provided. The Panel must satisfy itself as to the accuracy of the material and might even require counsel to provide references to the sources of the data compiled.

6. May attorneys and Panel members participate in the meetings via telephone conference?
There is no prohibition under the statute. Telephone conferencing may be appropriate when Panel members or attorneys are in different cities or one of the Panel may be unable to make it at the last minute. It may prevent a hardship in rural areas. Telephone conferencing should be done with agreement of all parties. The absent individual should arrange to be available for a full Panel meeting as well as a reasonable question and answer period.

7. May the Panel be questioned after reaching a decision?
Yes, the Louisiana Supreme Court has interpreted the Act to allow questioning of the Panel about their decision. McElveen v. LeJeune, 427 So. 2d 643 (La. App. 5th cir. 1983), rev'd 432 So. 2d 263 (La. 1983). While the Panelists are required to put the reasons for their decision in writing, questioning is allowed. Such questioning should be brief and confined only to the basis of the opinion. The attorney chairperson should control the questioning, protect the rights of the parties to question the Panel members about their opinions, and protect the Panel members from abuse by the parties.

8. May the Panel be questioned prior to deliberating and before reaching a decision?
Yes, pre-deliberation questioning is allowed but should be limited to whether the Panelists have sufficient information to render a decision, whether they wish any additional information, need clarification of legal issues, or whether there are any factors that might prevent them rendering an impartial opinion. McElveen v. LeJeune, supra.

9. Approximately how long may the Panelists be questioned after reaching a decision? What remedies are there if it goes excessively long?
There is no set time determined for Panelist questioning. The attorney chairperson should set these guidelines at the outset. It is the chair's duty to prevent excessive and/or abusive questioning. But, complicated cases require lengthy discussions. The Panelists should be questioned for the time it will take to put forth logically and cogently the reasons for their decision. It is not meant as a substitute for a deposition. If the questioning becomes unduly lengthy, the physicians should ask for relief from the attorney chairperson.

10. Will a court reporter be allowed to transcribe the questioning of the Panel by the attorneys?
Yes. Recording of the questioning period is allowed, but while the Panel is deliberating, only the Panel members and attorney chairperson are allowed to be present. The parties are not allowed to record the deliberations. McElveen v. LeJeune 432 So. 2d 263 (La. 1983).

11. Why would a court reporter transcribing the questioning be important?
A court reporter is an effective way to take down exactly what is said during the post-opinion questioning. The parties can read exactly what was said during the questioning. It is also a method of holding the physicians to their opinion during later depositions and court testimony. Although you are not "sworn" during the post-Panel questioning, you are still bound by your oath. The prudent Panelist should request a copy of the transcript and read it prior to giving a deposition.

12. Can a video be made of the Panel questioning?
Yes. This issue was decided in the affirmative by the trial court. In Re: Irma Simoneaux Vial, #89-10111 CDC, Div. C. Citing McElveen, supra., as controlling.

13. Why would a videotape be desirable?
Videotapes can aid in the evaluation of the physicians as placed before a judge and jury. It also allows the plaintiff's attorney the opportunity to show the tape to their client to reevaluate the facts in light of the Panel's opinion.

14. May the parties be present during the questioning of the Panel? What about the deliberations?
Neither the parties nor their counsel may be present during the deliberations, but they may be present during the questioning of the Panel. However, only counsel is allowed to question the Panel.

15. Claimants often refuse to participate in the Review Panel Process in order to achieve or perceive strategic advantage at trial. They also wish to cross-examine Panelists at trial to show the decision was reached without the plaintiff attorneys' input. Can this legally be done?
Although the statute does not provide for sanctions against those who refuse to participate in the Panel process, a Louisiana Appeals Court has ordered claimants to participate in the Medical Review Process, to the extent required by law, as a prerequisite to filing judicial proceedings in pursuit of Wilitz v. Laborde 546 So. 2d 1384 (La. App. 3rd cir. 1989). The Panel has the "right and duty to request and procure all necessary information." In Christophe v. State of Louisiana, supra., the Court found "no requirement that plaintiff has to even submit any evidence to the Medical Review Panel, unless the Panel requests such evidence." Most physicians do not know the Panel has subpoena power through the chairman to obtain all evidence to render a complete and proper opinion.

16. I have spent hours reviewing lengthy medical records and depositions prior to convening the Panel. Can I charge for my time?
Unfortunately not. The payment for Panelists is provided by the statute, limited to $300. It is part of the compromise worked out when the statute was passed.

17. After serving on a Panel, I am now being required to give depositions and appear in Court. Can I charge for my time?
Members of the Panel can be deposed and be subpoenaed to Court to testify concerning the review of materials and their decision concerning the standard of care. Any written or verbal interaction after the Panel concludes would come under the definition of expert witness testimony. As such the physician's time is reimbursable under the usual fee schedule for conferences, depositions and court testimony. Refer to the Interprofessional Code.

18. What do I do if I receive materials for review and I believe important or relevant material exists, which I have not seen, eg, pre- and post-operative photos in cosmetic cases, x-rays in radiology failure to diagnose cases?
Panel members are obliged by law to request and procure all necessary information, and, in fact have subpoena power. (LSA R.S. 40:1299.47 (D) through (F). Contact the attorney chairman and request any materials you would want to see.

19. Why do I sometimes get asked if I have reviewed authoritative texts or articles in preparation for the Panel?
There are several reasons. The attorneys may wish to learn whether there is some support other than personal experience for the opinion rendered. The statute provides for Panelists "to consult with medical authorities or examine reports of other health care providers. The articles or text can then be reviewed by the attorneys in preparation for a Panel meeting." Be aware that the use of authoritative texts for Panel preparation will likely invite questions concerning these texts if the case goes to trial.

20. Can a physician refuse to serve on Medical Review Panels?
Generally no. A physician may be excused for a conflict of interest or if he or she has treated the patient. A physician may be excused if that physician has served on four other Panels within the calendar year.

21. Can physicians on a Panel ask the attorney chairman to excuse one of the physicians for any cause?
A physician can be removed only for "good and just cause." This could involve conflict of interest or failure to take the oath.

22. What if physicians cannot agree on a unanimous decision? Can there be a split vote?
Yes. It is absolutely imperative that no Panel member be subjected to any type of pressure simply to arrive at a unanimous decision. Each physician will sign and attest to their individual conclusion.

23. What is the impact of a split vote on how the Panelists will be paid for their Panel time?
In a unanimous vote, the "winning" side pays the Panel expenses. The costs are divided if a material issue of fact is found. In the case of a split vote, the costs would be divided based on the percentage of the findings, eg, 1/3, 2/3, etc.

24. As a physician serving on a Panel, can I be sued for my decision? Does the statute give me immunity?
Suits have been filed but thrown out of court. The statute states "A Panelist shall have absolute immunity from civil liability for all communications, findings, opinions or conclusions made in the course and scope of duty presented by this participation." LSA R.S. 40:1299.47 (H).