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 medicalreview panels to review proposed malpractice complaints againsthealth 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 aproposed complaint, either party may request the formation of amedical review panel by serving a request by registered or certifiedmail 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 andthree (3) health care providers.
(b) The attorney member of the medical review panel shall act aschairman of the panel and in an advisory capacity but may not vote.
(c) The chairman of the medical review panel shall expedite theselection of the other panel members, convene the panel, andexpedite the panel's review of the proposed complaint. The chairmanmay establish a reasonable schedule for submission of evidence tothe medical review panel but must allow sufficient time for theparties to make full and adequate presentation of related facts andauthorities.
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 followingmanner:
(1) Within fifteen (15) days after the filing of a request forformation of a medical review panel under section 2 of thischapter, the parties shall select a panel chairman by agreement.If no agreement on a panel chairman can be reached, eitherparty may request the clerk of the supreme court to draw atrandom 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 theproposed complaint or in a contiguous county.
(2) Before selecting the random list, the clerk shall collect atwenty-five dollar ($25) medical review panel selection feefrom the party making the request for the formation of the
random list.
(3) The clerk shall notify the parties, and the parties shall thenstrike names alternately with the plaintiff striking first until one(1) name remains. The remaining attorney shall be the chairmanof the panel.
(4) After the striking, the plaintiff shall notify the chairman andall other parties of the name of the chairman.
(5) If a party does not strike a name within five (5) days afterreceiving notice from the clerk:
(A) the opposing party shall, in writing, request the clerk tostrike 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 thechairman.
(7) Within fifteen (15) days after being notified by the clerk ofbeing selected as chairman, the chairman shall:
(A) send a written acknowledgment of appointment to theclerk; or
(B) show good cause for relief from serving as provided insection 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 facilityadministrators, all health care providers in Indiana, whether in theteaching profession or otherwise, who hold a license to practice intheir profession shall be available for selection as members of themedical review panel. Health facility administrators may not bemembers 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 careproviders 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, whethersingle or multiple, has the right to select one (1) health care providerand the defendant, whether single or multiple, has the right to selectone (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 anindividual, two (2) of the panelists selected must be members of theprofession identified in IC 34-18-2-14(1) of which the defendant isa member. If the individual defendant is a health care professionalwho specializes in a limited area, two (2) of the panelists selectedmust be health care professionals who specialize in the same area asthe 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 shallnotify the other party and the chairman of their selection. If a partyfails to make a selection within the time provided, the chairman shallmake the selection and notify both parties. Within fifteen (15) daysafter their selection, the health care provider members shall select thethird member within the time provided and notify the chairman andthe parties. If the providers fail to make a selection, the chairmanshall 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 panelmember, written challenge without cause may be made to the panelmember. Upon challenge or excuse, the party whose appointee waschallenged or dismissed shall select another panelist. If thechallenged 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 chairmanshall within ten (10) days appoint a panel consisting of three (3)qualified panelists and each side shall, within ten (10) days after theappointment, strike one (1) panelist. The party whose appointmentwas challenged shall strike last, and the remaining member shallserve.
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 chairmanshall within five (5) days notify the commissioner and the parties byregistered 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 selectedunder 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 goodcause shown.
(b) To show good cause for relief from serving, the attorneyselected as chairman of a medical review panel must serve anaffidavit upon the clerk of the supreme court. The affidavit must setout the facts showing that service would constitute an unreasonableburden or undue hardship. The clerk may excuse the attorney fromserving. The attorney shall notify all parties, who shall then select anew chairman as provided in section 4 of this chapter.
(c) To show good cause for relief from serving, a health careprovider member of a medical review panel must serve an affidavitupon the panel chairman. The affidavit must set out the factsshowing that service would constitute an unreasonable burden orundue hardship. The chairman may excuse the member from servingand 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 onehundred eighty (180) days after the selection of the last member ofthe initial panel. However, if:
(1) the chairman of the panel is removed under section 15 ofthis chapter, another member of the panel is removed undersection 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 membermore than ninety (90) days after the last member of the initialpanel is selected;
the panel has ninety (90) days after the selection of the new memberto give an expert opinion.
(b) If the panel has not given an opinion within the time allowedunder subsection (a), the panel shall submit a report to thecommissioner, 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 requiredby this chapter without good cause shown is subject to mandate orappropriate sanctions upon application to the court designated in theproposed 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 notfulfilling the duties imposed upon the chairman by this chapter.
(b) If the chairman is removed under this section, a new chairmanshall 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 ifthe chairman determines that the member is not fulfilling the dutiesimposed upon the panel members by this chapter.
(b) If a member is removed under this section, a new membershall 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 themedical review panel shall be promptly submitted by the respectiveparties.
(b) The evidence may consist of medical charts, x-rays, lab tests,excerpts of treatises, depositions of witnesses including parties, andany other form of evidence allowable by the medical review panel.
(c) Depositions of parties and witnesses may be taken before theconvening of the panel.
(d) The chairman shall ensure that before the panel gives itsexpert opinion under section 22 of this chapter, each panel memberhas the opportunity to review every item of evidence submitted bythe parties.
(e) Before considering any evidence or deliberating with otherpanel members, each member of the medical review panel shall takean oath in writing on a form provided by the panel chairman, whichmust read as follows:
"I (swear) (affirm) under penalties of perjury that I will welland truly consider the evidence submitted by the parties; that Iwill render my opinion without bias, based upon the evidencesubmitted by the parties, and that I have not and will notcommunicate with any party or representative of a party beforerendering 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 aparty's insurance carrier may communicate with any member of thepanel, except as authorized by law, before the giving of the panel'sexpert 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 relativeto any legal question involved in the review proceeding and shallprepare the opinion of the panel as provided in section 22 of thischapter.
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 andupon ten (10) days notice to the other side, has the right to convenethe panel at a time and place agreeable to the members of the panel.Either party may question the panel concerning any matters relevantto issues to be decided by the panel before the issuance of the panel'sreport.
(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 allnecessary information.
(b) The panel may consult with medical authorities.
(c) The panel may examine reports of other health care providersnecessary to fully inform the panel regarding the issue to be decided.
(d) Both parties shall have full access to any material submittedto 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'sexpert opinion as to whether or not the evidence supports theconclusion that the defendant or defendants acted or failed to actwithin the appropriate standards of care as charged in the complaint.
(b) After reviewing all evidence and after any examination of thepanel by counsel representing either party, the panel shall, withinthirty (30) days, give one (1) or more of the following expertopinions, which must be in writing and signed by the panelists:
(1) The evidence supports the conclusion that the defendant ordefendants failed to comply with the appropriate standard ofcare as charged in the complaint.
(2) The evidence does not support the conclusion that thedefendant or defendants failed to meet the applicable standardof care as charged in the complaint.
(3) There is a material issue of fact, not requiring expertopinion, bearing on liability for consideration by the court orjury.
(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 thedisability; and
(B) any permanent impairment and the percentage of theimpairment.
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 medicalreview panel is admissible as evidence in any action subsequentlybrought by the claimant in a court of law. However, the expertopinion is not conclusive, and either party, at the party's cost, has theright to call any member of the medical review panel as a witness. Ifcalled, 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 forall communications, findings, opinions, and conclusions made in thecourse 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 medicalreview panel is entitled to be paid:
(1) up to three hundred fifty dollars ($350) for all workperformed as a member of the panel, exclusive of time involvedif 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, notto exceed two thousand dollars ($2,000); and
(2) reasonable travel expenses.
(c) The chairman shall keep an accurate record of the time andexpenses of all the members of the panel. The record shall besubmitted to the parties for payment with the panel's report.
(d) Fees of the panel, including travel expenses and otherexpenses of the review, shall be paid by the side in whose favor themajority opinion is written. If there is no majority opinion, each sideshall 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 panelgives its opinion.
As added by P.L.1-1998, SEC.13.