“If you have a panel that votes 3-0 for no liability, or 3-0 for liability, that’s pretty persuasive to the attorneys,” Mr. Michaud said in an interview. “And it’s something they can use in their discussion with their own clients about what to do next.”
The fact that professionals make up the panel enables the case to unfold more smoothly, Mr. Michaud noted.
“It’s very important because if there’s any game playing going on by counsel, having a person with judicial experience, plus another attorney, cuts through that,” he said. “Also having a medical professional on the panel helps the nonmedical panelists understand and evaluate the expert evidence submitted by both parties.”
Reduced claims, higher costs
In Indiana, physician defendants have experienced similar benefits from the state’s medical review panel. Medical malpractice claims for more than $15,000 must be presented to the panel, comprised of an attorney and three health care professionals. After reviewing evidence, the panel provides its opinions, which are admissible at trial but not conclusive, according to state law.
J. Richard Moore
When sued, health care professionals generally feel more comfortable that their conduct will initially be judged by a panel of peers before being presented to a jury, said J. Richard Moore, an Indianapolis-based medical liability defense attorney.
“In my experience, the medical review panel process does reduce the number of truly frivolous claims,” Mr. Moore said in an interview. “The panel adds another layer of process that requires knowledge and experience. ”
However, while the panel helps eliminate invalid claims, the process often can increase legal expenses, Mr. Moore said. The discovery process – subpoenaing records, taking sworn witnesses testimony, and obtaining paid expert witness opinions – is a major cost of litigation, he explained, and also happens before a case goes before the panel.
“In panel cases, there is really no cost savings with respect to discovery, and the two-phase process tends to increase, rather than reduce, attorney fees and costs,” Mr. Moore said. ”This is particularly true on the defense side because we are typically compensated via hourly billing.”
Such costs are counterbalanced if the panel finds in favor of the medical provider and the case is dropped without any plaintiff payment or settlement, he added.
Karen E. Beach
The value of a case review depends greatly on the panelists, according to Karen E. Beach, an appellate attorney in Bloomfield Hills, Mich. In Michigan, the majority of claims go before a mediation panel that includes three attorneys and two health care professionals, one chosen by the plaintiff and one chosen by the defendant. Within 14 days of the panel hearing, the group submits an evaluation of the case regarding the applicable standard of care.
Panels that have more experience with medical malpractice law are more useful than those with less, said Ms. Beach. Overall, however, the case review process in Michigan is widely regarded as unhelpful in getting medical malpractice cases settled, she said.
“The sense, especially from defendants, is that the panel does not spend enough time on each case, and the assessment of the value is not realistic in the eyes of the attorney/client,” Ms. Beach said in an interview. “In fact, the Michigan Supreme Court is presently examining whether to do away with or modify the case-evaluation process.”
Screening panels have been repealed in at least seven states and overturned by courts on constitutional grounds in another six states, including Kentucky.