2018 Louisiana Laws
Revised Statutes
TITLE 40 - Public Health and Safety
RS 40:1237.2 - State medical review panel
§1237.2. State medical review panel
A.(1)(a) All malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims subject to administrative review in a correctional facility in accordance with R.S. 40:1237.1(E) and claims compromised or settled by the claimant and the division of administration with the concurrence of designated legal counsel for the state, shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, hereinafter referred to as commissioner. The filing of a request for review by a state medical review panel as provided for in this Section shall not be reportable by any health care provider or any other entity to the Louisiana State Board of Medical Examiners, to any licensing authority, committee, or board of any other state, or to any credentialing or similar agency, committee, or board of any clinic, hospital, health insurer, or managed care company.
(b) A request for review of a malpractice claim or malpractice complaint shall contain, at a minimum, all of the following:
(i) A request for the formation of a medical review panel.
(ii) The name of only one patient for whom, or on whose behalf, the request for review is being filed; however, if the claim involves the care of a pregnant mother and her unborn child, then naming the mother as the patient shall be sufficient.
(iii) The names of the claimants.
(iv) The names of defendant state health care providers.
(v) The dates of the alleged malpractice.
(vi) A brief description of the alleged malpractice as to each named defendant state health care provider.
(vii) A brief description of alleged injuries.
(c) A claimant shall have forty-five days from the date of receipt by the claimant of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the commissioner a filing fee in the amount of one hundred dollars per named defendant state health care provider.
(d) Such filing fee may be waived only upon receipt by the division of administration of one of the following:
(i) An affidavit of a physician holding a valid and unrestricted license to practice his specialty in the state of his residence certifying that adequate medical records have been obtained and reviewed and that the allegations of malpractice against each defendant state health care provider named in the claim constitute a claim of a breach of the applicable standard of care as to each named defendant state health care provider.
(ii) An in forma pauperis ruling issued in accordance with Code of Civil Procedure Article 5181 et seq. by a district court in a venue in which the malpractice claim could properly be brought upon the conclusion of the medical review panel process.
(e) Failure to comply with the provisions of Subparagraph (c) or (d) of this Paragraph within the specified time frame in Subparagraph (c) of this Paragraph shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend the time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
(f) All funds generated by such filing fees shall be applied to the costs of the division of administration incurred in the administration of claims.
(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the state medical review panel, in the case of the state or persons covered by this Part, or, in the case of a health care provider against whom a claim has been filed under the provisions of this Part who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the commissioner that after requesting evidence of such qualifications under this Part and waiting the passage of at least ninety days, the commissioner has not received a certificate or other evidence sufficient to establish that the person is covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint or solidary obligors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are subject of the request for review. Filing a request for review of a malpractice claim required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription.
(b)(i) The request for review of the claim under this Section shall be deemed filed on the date the request is:
(aa) Sent, if the request is electronically sent by facsimile transmission or other authorized means, as provided by R.S. 9:2615(A), to the division of administration.
(bb) Mailed, if the request is delivered by certified or registered mail to the division of administration.
(cc) Received, if the request is delivered to the division of administration by any means other than as provided by Subitem (aa) or (bb) of this Item.
(ii) Upon receipt, the request shall be stamped with the filing date and certified by the division of administration. Filing of the request shall be complete only upon timely compliance with the provisions of Subparagraph (1)(c) or (d) of this Subsection.
(c) An attorney chairman for the state medical review panel shall be appointed within one year from the date the request for review of the claim was filed. Upon appointment of the attorney chairman, the parties shall notify the commissioner of the name and address of the attorney chairman. If the commissioner has not received notice of the appointment of an attorney chairman within nine months from the date the request for review of the claim was filed, then the commissioner shall send notice to the parties by certified or registered mail that the claim will be dismissed in ninety days unless an attorney chairman is appointed within one year from the date the request for review of the claim was filed. If the commissioner has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed, then the commissioner shall promptly send notice to the parties by certified or registered mail that the claim has been dismissed for failure to appoint an attorney chairman and the parties shall be deemed to have waived the use of the state medical review panel. The filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section.
(3) It shall be the duty of the commissioner, within thirty days of the receipt of the claim, to:
(a) Confirm to the claimant by certified mail, return receipt requested, that the filing has been officially received and whether or not the named defendant or defendants have as yet qualified under this Part.
(b) In the confirmation to the claimant pursuant to Subparagraph (a) of this Paragraph, notify the claimant of the amount of the filing fee due and the time frame within which such fee is due to the commissioner, and that upon failure to timely comply with the provisions of Subparagraph (1)(c) or (d) of this Subsection the request for review of a malpractice claim is invalid and without effect and that the request shall not suspend the time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
(c) Notify all named defendants, whether or not qualified under the provisions of this Part, that a filing has been made against them and request made for the formation of a state medical review panel; and forward a copy of the proposed complaint to each named defendant at his last and usual place of residence or his office and to the legal section and secretary of each agency named as a defendant. The notification shall request that each defendant who is a person covered by this Part present to the commissioner, within ninety days from the date of such notification, a certificate of employment or appointment or other evidence and proof sufficient to establish his qualification as a person covered by this Part.
(4) The commissioner shall notify the claimant and all named defendants by certified mail, return receipt requested, of any of the following information:
(a) The date of receipt of the filing fee.
(b) That no filing was due because the claimant timely provided the affidavit set forth in Item (1)(d)(i) of this Subsection.
(c) That the claimant has timely complied with the provisions of Item (1)(d)(ii) of this Subsection.
(d) That the required filing fee was not timely paid pursuant to Subparagraph (1)(c) of this Subsection.
(5) In the event that the commissioner is unable to determine after forty-five days from the date of mailing of the notification, whether notification by certified mail, return receipt requested, provided for in Paragraphs (3) and (4) of this Subsection has been received by the claimant, or the notification is not claimed or is returned undeliverable, the commissioner shall provide such notification by regular first class mail, which date of mailing shall have the effect of receipt of notice by certified mail for purposes of Subparagraphs (1)(c) and (d) of this Subsection.
(6) In the event the commissioner receives a filing fee that was not timely paid pursuant to Subparagraph (1)(c) of this Subsection, the commissioner shall return, or refund the amount of, the filing fee to the claimant within thirty days of the date the commissioner receives the untimely filing fee.
B.(1)(a)(i) No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before the claimant's complaint has been presented to a state medical review panel established pursuant to this Section.
(ii) Each person covered by this Part who is a defendant shall, within ninety days after the date of the notice from the commissioner that a complaint has been filed naming such person as a defendant, cause a certificate of employment, appointment, or agency covering him to be issued to the commissioner by the employing or contracting state department or shall present other evidence and proof sufficient to qualify him as a person covered by this Part with respect to the medical malpractice claim. Such certificates and proof shall be admitted in evidence.
(b) If an opinion is not rendered by the panel within twelve months after the date of notification of the selection of the attorney chairman by the commissioner to the selected attorney and all other parties pursuant to Paragraph (C)(1) of this Section, suit may be instituted against the state or a person covered by this Part. However, either party may petition a court of competent jurisdiction for an order extending the twelve month period provided in this Subsection for good cause shown. After the twelve month period provided for in this Subsection or any court-ordered extension thereof, the state medical review panel established to review the claimant's complaint shall be dissolved without the necessity of obtaining a court order of dissolution.
(c) By agreement of both parties, the use of the state medical review panel may be waived.
(2)(a) The state or a person, against whom a claim has been filed under the provisions of this Part, may raise peremptory exceptions of no right of action pursuant to Code of Civil Procedure Article 927(6) or any exceptions or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the state medical review panel.
(b) If the court finds that the claim had prescribed or otherwise was perempted prior to being filed, the panel, if established, shall be dissolved upon the judgment becoming final. If the court grants the peremptory exception of no right of action as to all claimants, the panel, if established, shall be dissolved upon the judgment becoming final. If the court grants the peremptory exception of no right of action as to less than all claimants, the claimants as to whom the court granted the peremptory exception of no right of action shall be prohibited from participating in the panel process as a claimant.
(3) Ninety days after the notification to all parties by certified mail by the attorney chairman or the commissioner of the dissolution of the state medical review panel or ninety days after the expiration of any court-ordered extension as authorized by Paragraph (1) of this Subsection, the suspension of the running of prescription with respect to the state or person shall cease.
C.(1) The state medical review panel shall consist of one attorney and three health care providers who hold unlimited licenses to practice their profession in Louisiana. The parties may agree on the attorney member of the state medical review panel. If no attorney for or a representative of any health care provider named in the complaint has made an appearance in the proceeding or made written contact with the attorney for the plaintiff within forty-five days of the date of receipt of the notification to the health care provider and the insurer that the required filing fee has been received by the commissioner or the patients compensation board as required by Subparagraph (A)(1)(c) of this Section, the attorney for the plaintiff may appoint the attorney member of the state medical review panel for the purpose of convening the panel. Such notice to the health care provider and the insurer shall be sent by registered or certified mail, return receipt requested. If no agreement can be reached, then the attorney member of the state medical review panel shall be selected in the following manner:
(a) The office of the clerk of the Louisiana Supreme Court, upon receipt of notification from the commissioner, shall draw five names at random from the list of attorneys who reside or maintain an office in the parish which would be proper venue for the action in a court of law. The names of judges, magistrates, district attorneys, and assistant district attorneys shall be excluded if drawn and new names drawn in their place. After selection of the attorney names, the office of the clerk shall notify the office of the commissioner of the names so selected. It shall be the duty of the office of the commissioner to notify the parties of the attorney names from which the parties may choose the attorney member of the panel within five days. If no agreement can be reached within five days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two names alternately, with the claimant striking first and so advising the state or the person covered by this Part of the name of the attorney so stricken; thereafter, the state or the person covered by this Part and the claimant shall alternately strike until both sides have stricken two names and the remaining name shall be the attorney member of the panel. If either party fails to strike, the clerk shall strike for that party within five additional days.
(b) After the striking, the office of the commissioner shall notify the attorney and all other parties of the name of the selected attorney.
(2) The attorney shall act as chairman of the panel and in an advisory capacity but shall have no vote. It is the duty of the chairman to expedite the selection of the other panel members, to convene the panel, and to expedite the panel's review of the complaint. The chairman shall establish a reasonable schedule for submission of evidence to the state medical review panel but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities within ninety days following selection of the panel.
(3)(a) The claimant shall notify the attorney chairman and the named defendants of his choice of a health care provider member of the state medical review panel within thirty days of the date of certification of his filing by the commissioner.
(b) The named defendant shall then have fifteen days after notification by the claimant of the claimant's choice of his health care provider panelist to name the defendant's health care provider panelist.
(c) If either party fails to make a selection of health care provider panelist within the time provided, the attorney chairman shall notify by certified mail the failing party to make such selection within five days of the receipt of the notice.
(d) If no selection is made within the five day period, then the chairman shall make the selection on behalf of the failing party. The two health care provider panel members selected by the parties, or on their behalf, shall be notified by the chairman to select the third health care provider panel member within fifteen days of their receipt of such notice.
(e) If the two health care provider panel members fail to make such selection within the fifteen day period allowed, the chairman shall then make the selection of the third panel member and thereby complete the panel.
(f) The qualification and selection of physician members of the state medical review panel shall be as follows:
(i) All physicians who hold a license to practice medicine in the state of Louisiana and who are engaged in the active practice of medicine in this state, whether in the teaching profession or otherwise, shall be available for selection.
(ii) Each party to the claim may select one physician and upon selection the physician shall serve.
(iii) When there are multiple claimants or defendants, there shall be only one physician selected per side. The claimant, whether single or multiple, may select one physician, and the defendant, whether single or multiple, may select one physician.
(iv) A panelist so selected and the attorney member selected in accordance with this Subsection shall serve unless for good cause shown he is excused. To show good cause for relief from serving, the panelist shall present an affidavit to a judge of a court of competent jurisdiction and proper venue which shall set out the facts showing that service would constitute an unreasonable burden or undue hardship. A health care provider panelist may also be excused from serving by the attorney chairman if during the previous twelve month period he has been appointed to four other medical review panels. In either event, a replacement panelist shall be selected within fifteen days in the same manner as the excused panelist.
(v) If there is only one party defendant or person charged with malpractice other than a hospital, all panelists except the attorney shall be from the same class and speciality of practice of health care provider as the defendant or person. If there is only one party defendant which is a hospital, all panelists except the attorney shall be physicians whose specialty shall be the same as the specialty of the hospital department wherein the alleged malpractice occurred. If there are claims against multiple defendants, one or more of whom are health care providers other than a hospital, the panelists selected in accordance with this Subsection shall be selected from health care providers who are from the same class and speciality of practice of health care providers as are any of the defendants other than a hospital, except that when one of such defendants is a physician, the panelists shall have the minimum qualifications of also being physicians and when none of such defendants are a physician or a hospital but at least one of such defendants is a registered nurse, the panelists shall have the minimum qualifications of also being registered nurses.
(4) When the state medical review panel is formed, the chairman shall within five days notify the commissioner and the parties by registered or certified mail of the names and addresses of the panel members and the date on which the last member was selected.
(5)(a) Before entering upon their duties, each voting panelist shall subscribe before a notary public the following oath:
"I, (name), do solemnly swear (or affirm) that I will faithfully perform the duties of state medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with law and the evidence."
(b) The attorney panel member shall subscribe to the same oath except that in lieu of the last sentence thereof the attorney's oath shall state:
"I acknowledge that I represent neither side and that it is my lawful duty to advise the panel members concerning matters of law and procedure and to serve as chairman."
(c) The original of each oath shall be attached to the opinion rendered by the panel.
(6) Any party aggrieved by the alleged failure or refusal of another to perform according to the provisions of this Section may petition any district court of proper venue as to the party for an order directing that the party comply with the state medical review panel provisions.
(7) A panelist or a representative or an attorney for any interested party shall not discuss with other members of a state medical review panel on which he serves a claim which is to be reviewed by the panel until all evidence to be considered by the panel has been submitted. A panelist or a representative or an attorney for any interested party shall not discuss the pending claim with the claimant or his attorney asserting the claim or with a state health care provider or his attorney against whom a claim has been asserted under this Section. A panelist or the attorney chairman shall disclose in writing to the parties prior to the hearing any employment relationship or financial relationship with the claimant, the state health care provider against whom a claim is asserted, or the attorneys representing the claimant or state health care provider, or any other relationship that might give rise to a conflict of interest for the panelists.
D.(1) The evidence to be considered by the state medical review panel shall be promptly submitted by the respective parties in written form only.
(2) The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, interrogatories, affidavits and reports of medical experts, and any other form of evidence allowable by the state medical review panel.
(3) Depositions of the parties and witnesses may be taken prior to the convening of the panel.
(4) Upon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection or copying, or both.
(5) The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in Subsection G of this Section.
(6) A copy of the evidence shall be sent to each member of the panel.
E. Either party, after submission of all evidence and upon ten days notice to the other side, may convene the panel at a time and place agreeable to the members of the panel. Either party may question the panel concerning any matters relevant to issues to be decided by the panel before the issuance of their report. The chairman of the panel shall preside at all meetings. Meetings shall be informal.
F. The panel shall request and procure all necessary information. The panel may consult with medical authorities, provided the names of such authorities are submitted to the parties with a synopsis of their opinions and provided further that the parties may then obtain their testimony by deposition. The panel may examine reports of such other health care providers necessary to fully inform itself regarding the issue to be decided. Both parties shall have full access to any material submitted to the panel.
G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions which shall be in writing and signed by the panelists, together with written reasons supporting each opinion, which shall constitute part of the report:
(1) The evidence does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. If such opinion is rendered, then an opinion on whether the conduct complained of was or was not, in fact, a medical cause of the resultant damages shall also be rendered. If an opinion is rendered that such conduct was, in fact, a medical cause of the resultant damages, then an opinion shall be rendered on whether the plaintiff suffered:
(a) Any disability and the extent and duration of the disability.
(b) Any permanent impairment and the percentage of the impairment.
(3) There is a material issue of fact, not requiring medical or health care expert opinion, bearing on liability for consideration by the court.
H. Any report of the expert opinion reached by the state medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party may call, at his cost, any member of the state medical review panel as a witness. If called, the witness shall appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed by this Part.
I.(1) Each physician member of the state medical review panel shall be paid at the same compensation rate as that paid physician members of private sector medical review panels for all work performed as a member of the panel, exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in the course and scope of duties as a member of the state medical review panel, and in addition thereto, reasonable travel expenses.
(2) The attorney chairman of the state medical review panel shall be paid at the same compensation rate as the paid attorney chairmen of private sector medical review panels for all work performed as a member of the panel, exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in the course and scope of duties as a member of the state medical review panel, and in addition thereto, reasonable travel expenses.
(3)(a) The costs of the state medical review panel shall be paid by the division of administration if the opinion of the medical review panel is in favor of the defendant state or person covered by this Part.
(b) In a medical malpractice suit filed by the claimant in which a unanimous opinion was rendered in favor of the defendant state or person covered by this Part as provided in the expert opinion stated in Paragraph (G)(1) of this Section, the claimant who proceeds to file such a suit shall be required to post a cash or surety bond, approved by the court, in the amount of all costs of the state medical review panel. Upon the conclusion of the medical malpractice suit, the court shall order that the cash or surety bond be forfeited to the division of administration for reimbursement of the costs of the state medical review panel, unless a final judgment is rendered finding the defendant state or person covered by this Part liable to the claimant for any damages. If a final judgment is rendered finding the defendant state or person covered by this Part liable to the claimant for any damages, the court shall order that the defendant state or person covered by this Part reimburse the claimant an amount equal to the cost of obtaining the cash or surety bond posted by the claimant.
(4)(a) The claimant shall pay the costs of the state medical review panel if the opinion of the state medical review panel is in favor of the claimant. However, if the claimant is unable to pay, the claimant shall submit to the attorney chairman prior to the convening of the state medical review panel an in forma pauperis ruling issued in accordance with Code of Civil Procedure Article 5181 et seq. by a district court in a venue in which the malpractice claim could properly be brought upon the conclusion of the state medical review panel process. Upon timely receipt of the in forma pauperis ruling, the costs of the state medical review panel shall be paid by the division of administration, with the proviso that if the claimant subsequently receives a settlement or receives a judgment, the advance payment of the state medical review panel costs shall be reimbursed by him to the state.
(b) In the event a state medical review panel renders a unanimous opinion in favor of the claimant as provided in the expert opinions stated in Paragraph (G)(1) of this Section, and the claimant has not timely submitted an in forma pauperis ruling to the panel's attorney chairman, and thereafter the defendant state or person covered by this Part failed to settle the claim with the claimant resulting in the claimant filing a malpractice suit in a court of competent jurisdiction and proper venue against the defendant state or person covered by this Part based on the same claim which was the subject of the unanimously adverse medical review panel opinion against the defendant state or person covered by this Part, the defendant state or person covered by this Part shall not be required to post a cash or surety bond in the amount of all costs of the state medical review panel. However, upon the conclusion of the medical malpractice suit, the court shall order that the defendant state or person covered by this Part reimburse to the claimant the costs of the state medical review panel unless a final judgment is rendered finding that the defendant state or person covered by this Part has no liability for damages to the claimant.
(5) If the state medical review panel decides that there is a material issue of fact bearing on liability for consideration by the court, the claimant and the state shall split the costs of the state medical review panel. However, in those instances in which the claimant is unable to pay his share of the costs of the state medical review panel, the claimant shall submit to the attorney chairman prior to the convening of the state medical review panel an in forma pauperis ruling issued in accordance with Code of Civil Procedure Article 5181 et seq. by a district court in a venue in which the malpractice claim could properly be brought upon the conclusion of the state medical review panel process. Upon timely receipt of the in forma pauperis ruling, the costs of the state medical review panel shall be paid by the state with the proviso that if the claimant subsequently receives a settlement or receives a judgment, the advance payment of the claimant's share of the costs of the state medical review panel shall be reimbursed by him to the state.
(6) Upon rendering of the written panel opinion, if any one of the panelists finds that the evidence supports the conclusion that a defendant state health care provider failed to comply with the appropriate standard of care as charged in the complaint, the division of administration on behalf of each defendant state health care provider as to whom such a determination was made shall reimburse to the claimant that portion of the filing fee applicable to the claim against such defendant state health care provider or if any one of the panelists finds that the evidence supports the conclusion that there is a material issue of fact, not requiring expert opinion, bearing on liability of such defendant state health care provider for consideration by the court, the division of administration on behalf of each such defendant state health care provider as to whom such a determination was made shall reimburse to the claimant fifty percent of that portion of the filing fee applicable to the claims against such defendant state health care provider.
J. The chairman shall submit a copy of the panel's report to the commissioner and all parties and attorneys by registered or certified mail within five days after the panel renders its opinion.
K. Legal interest on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part will accrue as determined by R.S. 13:5112(C). For the purpose of the determination of interest, the medical malpractice panel procedure shall be considered equivalent to court procedures.
Acts 1986, No. 965, §1, eff. July 14, 1986; Acts 1988, No. 786, §1; Acts 1991, No. 661, §1; Acts 1992, No. 107, §1; Acts 1997, No. 664, §1; Acts 1999, No. 610, §1; Acts 2003, No. 644, §1; Acts 2003, No. 961, §1; Acts 2003, No. 1263, §1, eff. July 7, 2003; Acts 2004, No. 306, §1; Acts 2004, No. 311, §1; Acts 2005, No. 127, §1; Acts 2010, No. 398, §1; Acts 2012, No. 802, §1; Redesignated from R.S. 40:1299.39.1 by HCR 84 of 2015 R.S.; Acts 2016, No. 275, §1; Acts 2017, No. 294, §1.
