CHAPTER 10. MEDICAL REVIEW PANEL
IC 34-18-10
Chapter 10. Medical Review Panel
IC 34-18-10-1
Establishment of medical review panels
Sec. 1. This chapter provides for the establishment of medical
review panels to review proposed malpractice complaints against
health care providers covered by this article.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-2
Request for formation of panels
Sec. 2. Not earlier than twenty (20) days after the filing of a
proposed complaint, either party may request the formation of a
medical review panel by serving a request by registered or certified
mail upon all parties and the commissioner.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-3
Members; chairman; powers and duties
Sec. 3. (a) A medical review panel consists of one (1) attorney and
three (3) health care providers.
(b) The attorney member of the medical review panel shall act as
chairman of the panel and in an advisory capacity but may not vote.
(c) The chairman of the medical review panel shall expedite the
selection of the other panel members, convene the panel, and
expedite the panel's review of the proposed complaint. The chairman
may establish a reasonable schedule for submission of evidence to
the medical review panel but must allow sufficient time for the
parties to make full and adequate presentation of related facts and
authorities.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-4
Selection of panel members
Sec. 4. A medical review panel shall be selected in the following
manner:
(1) Within fifteen (15) days after the filing of a request for
formation of a medical review panel under section 2 of this
chapter, the parties shall select a panel chairman by agreement.
If no agreement on a panel chairman can be reached, either
party may request the clerk of the supreme court to draw at
random a list of five (5) names of attorneys who:
(A) are qualified to practice;
(B) are presently on the rolls of the supreme court; and
(C) maintain offices in the county of venue designated in the
proposed complaint or in a contiguous county.
(2) Before selecting the random list, the clerk shall collect a
twenty-five dollar ($25) medical review panel selection fee
from the party making the request for the formation of the
random list.
(3) The clerk shall notify the parties, and the parties shall then
strike names alternately with the plaintiff striking first until one
(1) name remains. The remaining attorney shall be the chairman
of the panel.
(4) After the striking, the plaintiff shall notify the chairman and
all other parties of the name of the chairman.
(5) If a party does not strike a name within five (5) days after
receiving notice from the clerk:
(A) the opposing party shall, in writing, request the clerk to
strike for the party; and
(B) the clerk shall strike for that party.
(6) When one (1) name remains, the clerk shall within five (5)
days notify the chairman and all other parties of the name of the
chairman.
(7) Within fifteen (15) days after being notified by the clerk of
being selected as chairman, the chairman shall:
(A) send a written acknowledgment of appointment to the
clerk; or
(B) show good cause for relief from serving as provided in
section 12 of this chapter.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-5
Eligibility for panel membership
Sec. 5. Except for health care providers who are health facility
administrators, all health care providers in Indiana, whether in the
teaching profession or otherwise, who hold a license to practice in
their profession shall be available for selection as members of the
medical review panel. Health facility administrators may not be
members of the medical review panel.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-6
Selection of members by parties
Sec. 6. Each party to the action has the right to select one (1)
health care provider, and upon selection, the two (2) health care
providers thus selected shall select the third panelist.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-7
Selection of panel members by multiple parties
Sec. 7. If there are multiple plaintiffs or defendants, only one (1)
health care provider shall be selected per side. 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.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-8
Panelists to be members of defendant's profession
Sec. 8. If there is only one (1) party defendant who is an
individual, two (2) of the panelists selected must be members of the
profession identified in IC 34-18-2-14(1) of which the defendant is
a member. If the individual defendant is a health care professional
who specializes in a limited area, two (2) of the panelists selected
must be health care professionals who specialize in the same area as
the defendant.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-9
Selection periods; notification; selections by chairman
Sec. 9. Within fifteen (15) days after the chairman is selected,
both parties shall select a health care provider and the parties shall
notify the other party and the chairman of their selection. If a party
fails to make a selection within the time provided, the chairman shall
make the selection and notify both parties. Within fifteen (15) days
after their selection, the health care provider members shall select the
third member within the time provided and notify the chairman and
the parties. If the providers fail to make a selection, the chairman
shall make the selection and notify both parties.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-10
Challenges to panel member selections
Sec. 10. Within ten (10) days after the selection of a panel
member, written challenge without cause may be made to the panel
member. Upon challenge or excuse, the party whose appointee was
challenged or dismissed shall select another panelist. If the
challenged or dismissed panel member was selected by the other two
(2) panel members, the panel members shall make a new selection.
If two (2) such challenges are made and submitted, the chairman
shall within ten (10) days appoint a panel consisting of three (3)
qualified panelists and each side shall, within ten (10) days after the
appointment, strike one (1) panelist. The party whose appointment
was challenged shall strike last, and the remaining member shall
serve.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-11
Formation of panel; notice to commissioner and parties
Sec. 11. When a medical review panel is formed, the chairman
shall within five (5) days notify the commissioner and the parties by
registered or certified mail of the following:
(1) The names and addresses of the panel members.
(2) The date on which the last member was selected.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-12
Excusing members from service
Sec. 12. (a) A member of a medical review panel who is selected
under this chapter shall serve unless:
(1) the parties by agreement excuse the panelist; or
(2) the panelist is excused as provided in this section for good
cause shown.
(b) To show good cause for relief from serving, the attorney
selected as chairman of a medical review panel must serve an
affidavit upon the clerk of the supreme court. The affidavit must set
out the facts showing that service would constitute an unreasonable
burden or undue hardship. The clerk may excuse the attorney from
serving. The attorney shall notify all parties, who shall then select a
new chairman as provided in section 4 of this chapter.
(c) To show good cause for relief from serving, a health care
provider member of a medical review panel must serve an affidavit
upon the panel chairman. The affidavit must set out the facts
showing that service would constitute an unreasonable burden or
undue hardship. The chairman may excuse the member from serving
and notify all parties.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-13
Panel expert opinion; time for issuance
Sec. 13. (a) The panel shall give its expert opinion within one
hundred eighty (180) days after the selection of the last member of
the initial panel. However, if:
(1) the chairman of the panel is removed under section 15 of
this chapter, another member of the panel is removed under
section 16 of this chapter, or any member of the panel,
including the chairman, is removed by a court order; and
(2) a new member is selected to replace the removed member
more than ninety (90) days after the last member of the initial
panel is selected;
the panel has ninety (90) days after the selection of the new member
to give an expert opinion.
(b) If the panel has not given an opinion within the time allowed
under subsection (a), the panel shall submit a report to the
commissioner, stating the reasons for the delay.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-14
Sanction for failure to act as required by chapter
Sec. 14. A party, attorney, or panelist who fails to act as required
by this chapter without good cause shown is subject to mandate or
appropriate sanctions upon application to the court designated in the
proposed complaint as having jurisdiction.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-15
Removal of chairman
Sec. 15. (a) The commissioner may remove the chairman of the
panel if the commissioner determines that the chairman is not
fulfilling the duties imposed upon the chairman by this chapter.
(b) If the chairman is removed under this section, a new chairman
shall be selected under this chapter.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-16
Removal of panel member
Sec. 16. (a) The chairman may remove a member of the panel if
the chairman determines that the member is not fulfilling the duties
imposed upon the panel members by this chapter.
(b) If a member is removed under this section, a new member
shall be selected under this chapter.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-17
Evidence; oath
Sec. 17. (a) The evidence in written form to be considered by the
medical review panel shall be promptly submitted by the respective
parties.
(b) The evidence may consist of medical charts, x-rays, lab tests,
excerpts of treatises, depositions of witnesses including parties, and
any other form of evidence allowable by the medical review panel.
(c) Depositions of parties and witnesses may be taken before the
convening of the panel.
(d) The chairman shall ensure that before the panel gives its
expert opinion under section 22 of this chapter, each panel member
has the opportunity to review every item of evidence submitted by
the parties.
(e) Before considering any evidence or deliberating with other
panel members, each member of the medical review panel shall take
an oath in writing on a form provided by the panel chairman, which
must read as follows:
"I (swear) (affirm) under penalties of perjury that I will well
and truly consider the evidence submitted by the parties; that I
will render my opinion without bias, based upon the evidence
submitted by the parties, and that I have not and will not
communicate with any party or representative of a party before
rendering my opinion, except as authorized by law.".
As added by P.L.1-1998, SEC.13.
IC 34-18-10-18
Communication with panel by parties or their agents prohibited
Sec. 18. Neither a party, a party's agent, a party's attorney, nor a
party's insurance carrier may communicate with any member of the
panel, except as authorized by law, before the giving of the panel's
expert opinion under section 22 of this chapter.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-19
Preparation of opinion by chairman
Sec. 19. 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 section 22 of this
chapter.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-20
Convening and questioning of panel
Sec. 20. (a) Either party, after submission of all evidence and
upon ten (10) days notice to the other side, has the right to 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 the panel's
report.
(b) The chairman of the panel shall preside at all meetings.
Meetings shall be informal.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-21
Duties of panel in conduct of inquiry; access to information
Sec. 21. (a) The panel has the right and duty to request all
necessary information.
(b) The panel may consult with medical authorities.
(c) The panel may examine reports of other health care providers
necessary to fully inform the panel regarding the issue to be decided.
(d) Both parties shall have full access to any material submitted
to the panel.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-22
Expert opinions
Sec. 22. (a) The panel has the sole duty to express the panel's
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.
(b) After reviewing all evidence and after any examination of the
panel by counsel representing either party, the panel shall, within
thirty (30) days, give one (1) or more of the following expert
opinions, which must be in writing and signed by the panelists:
(1) The evidence supports 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 not support the conclusion that the
defendant or defendants failed to meet the applicable standard
of care as charged in the complaint.
(3) There is a material issue of fact, not requiring expert
opinion, bearing on liability for consideration by the court or
jury.
(4) The conduct complained of was or was not a factor of the
resultant damages. If so, whether the plaintiff suffered:
(A) any disability and the extent and duration of the
disability; and
(B) any permanent impairment and the percentage of the
impairment.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-23
Report of panel as evidence at trial; members as witnesses
Sec. 23. A report of the expert opinion reached by the medical
review panel is admissible as evidence in any action subsequently
brought by the claimant in a court of law. However, the expert
opinion is not conclusive, and either party, at the party's cost, has the
right to call any member of the medical review panel as a witness. If
called, a witness shall appear and testify.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-24
Immunity from civil liability
Sec. 24. A panelist has absolute immunity from civil liability for
all communications, findings, opinions, and conclusions made in the
course and scope of duties prescribed by this article.
As added by P.L.1-1998, SEC.13.
IC 34-18-10-25
Compensation of members
Sec. 25. (a) Each health care provider member of the medical
review panel is entitled to be paid:
(1) up to three hundred fifty dollars ($350) for all work
performed as a member of the panel, exclusive of time involved
if called as a witness to testify in court; and
(2) reasonable travel expense.
(b) The chairman of the panel is entitled to be paid:
(1) at the rate of two hundred fifty dollars ($250) per diem, not
to exceed two thousand dollars ($2,000); and
(2) reasonable travel expenses.
(c) The chairman shall keep an accurate record of the time and
expenses of all the members of the panel. The record shall be
submitted to the parties for payment with the panel's report.
(d) Fees of the panel, including travel expenses and other
expenses of the review, shall be paid by the side in whose favor the
majority opinion is written. If there is no majority opinion, each side
shall pay fifty percent (50%) of the cost.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998,
SEC.13.
IC 34-18-10-26
Copies of reports
Sec. 26. The chairman shall submit a copy of the panel's report to:
(1) the commissioner; and
(2) all parties and attorneys;
by registered or certified mail within five (5) days after the panel
gives its opinion.
As added by P.L.1-1998, SEC.13.