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Medical review panel process complicated by Indiana Court of Appeals' decision

A recent decision from the Indiana Court of Appeals is causing concern among Indiana medical malpractice lawyers. If the decision stands, it could create significant changes in the way Indiana's medical malpractice attorneys pursue and present their cases.

Before reviewing the decision, a brief overview of how Indiana's Medical Malpractice Act works is necessary. Under the Act, claims of malpractice must first be submitted to a medical review panel consisting of three Indiana physicians selected by the parties. The purpose of the panel process is to obtain an expert opinion on the merits of the claim. In an early challenge to the contitutionality of the malpractice act, the Indiana Supreme Court made clear that the panel process was an informal one. "The statute contemplates that the panel will function in an informal and reasonable manner. It is guided by a trained lawyer who presumptively will not deny to each party a reasonable opportunity to present its evidence and authorities. The scope of the panel's function is limited. It does not conduct a hearing or trial and does not render a decision or judgment. There is, therefore, no reason to mandate that the statute relegate burdens of proof or production and to otherwise specify procedures applicable in hearings and trials. The panel is conducting a rational inquiry into the extent and source of the patient's injuries for the purpose of forming its expert opinion." Johnson v. St. Vincent Hosp., 273 Ind. 374, 390-391 (Ind. 1980)

Once the medical review panel issues an opinion, the plaintiff can file his complaint in state court. The medical review panel's opinion is admissible in the state court action, but it is in no way binding on the trier of fact. As envisioned by the drafters of the malpractice act and most previous judicial opinions, the medical review panel process is simply a procedural hoop a patient must jump through before bringing his claim to court.

The court of appeals' decision in Campbell v. Chambers looks to change the panel process from an informal administrative proceeding into something resembling a full-blown trial. In the Campbell case, the defendant nurse and hospital argued that the patient could not raise a claim of negligence at trial because she had not raised the claim in her submission to the medical review panel. The court of appeals agreed with the defendants' argument, finding that a malpractice plaintiff "cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion."

The court of appeals' opinion creates a number of problems for Indiana medical malpractice lawyers. As discussed, the purpose of the panel is to obtain an expert opinion from the panel members. The Campbell decision now places the burden on lay attorneys and their clients to tell the panel what breaches of the standard of care arise from the facts of the case, rather than rely on the panel to tell them where the breaches are. If a patient fails to articulate a potential breach in his submission to the panel, that breach cannot be raised in the trial court. In order to avoid the risk of waiving a claim of negligence, lawyers for the patients will now be forced to conduct full discovery at the panel process stage. This will cause the cost of pursuing malpractice claims to skyrocket.

The court of appeals' opinion also evinces a misunderstanding of what exactly is contained in an opinion from the medical review panel. The court's decision presumes that the medical review panel actually articulates in its opinion the reasons for the panel's finding. This is simply not the case. By statute, a medical review panel opinion simply states whether the panel finds a breach of the standard of care, and whether the breach was a factor in the patient's damages. The opinion does not address the specifics of the panel's opinion. There is no way to looking at a medical review panel opinion and know whether the panel found a breach based upon all or any or none of the arguments made by the patient in his submission to the panel.

The plaintiff's attorneys in the Campbell case intend to seek review of the decision by the Indiana Supreme Court. Jerry Garau of the Indiana medical malpractice firm Garau Germano Hanley & Pennington, P.C., will be submitting a brief in favor of the plaintiff's position on behalf of the Indiana Trial Lawyers Association.

The attorneys at Garau Germano Hanley & Pennington represent patients injured as a result of medical errors throughout the state of Indiana, including Fort Wayne, Evansville, Terre Haute, and Bloomington. If you or a loved one has been seriously injured as a result of malpractice, contact us for a free consultation.

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