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AANS Neurosurgeon | Volume 28, Number 2, 2019

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The Impact of Medical Review Panels

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An extremely unfortunate aspect of the neurosurgical mind is dealing with the constant threat of malpractice suits. Neurosurgeons claim the dubious honor of being sued the most. On average, a neurosurgeon is involved in a case every  two years – so, clearly, this is not about being bad doctors, it is inherent in the work we do. Anything that helps to ameliorate this anguish while still affording patients the protection they deserve is desirable.

Medical Review Panels

Between 1990 and 2010, the National Practitioner Data Bank estimated malpractice and liability claims from adverse surgical events to be over $1.3 billion.1 In 2015, 44 malpractice claims were filed per 100,000 residents in Louisiana, accounting for the highest claim filing rate in the country.2 Despite this, the average payout per claim filed was only $28,465, ranking 40th.2 Medical malpractice cost containment in this highly litigious environment may be attributed to damage caps and the institution of a pre-trial Medical Review Panel (MRP), detailed in our recent article, “The medical review panel in Louisiana neurosurgery and beyond,” published in Neurosurgery.3

In 1975, the Louisiana legislature established MRP and a $500,000 total damage cap as part of the Louisiana Patient’s Compensation Fund (PCF) through Louisiana Medical Malpractice Act 817.4 Nationwide, thirteen other states require medical liability cases be heard by a screening panel prior to initiation of litigation for all claims exceeding a minimal amount.5

Before a patient can file a medical malpractice lawsuit against a health care provider (HCP) in Louisiana, the claim must be first submitted to the Division of Administration, which then forwards it to the PCF and an MRP is created.6 In 2003, a $100 filing fee was instituted for each claim, resulting in a near halving of the yearly claims burden (most recently 1,377 in 2018).7 It generally takes two years for a claim to complete the MRP process and an additional two to three years for a final conclusion.  

How MRPs Work

The MRP and PCF are completely self-funded by physician participants, filing fees and investment income. Individual HCPs or provider groups joining the fund must establish and maintain a deposit of $125,000 to cover malpractice claims in addition to recurring surcharges based on provider type and years enrolled in the fund. In 2018, this was estimated as $20,314 per year for general surgery.

A Louisiana MRP is composed of three licensed HCPs of the same specialty as the defendant and one attorney chairman.4 Both parties choose the attorney chair and each side chooses one HCP. The third HCP is chosen by the first two.8 Once initiated, the panel has a 180-day period to render a decision with three possible outcomes:

1. Evidence demonstrates breach of the standard of care;

2. Evidence does not demonstrate breach of the standard of care; or

3. A question of fact exists bearing on the issue of liability which does not require expert
    opinion and therefore the MRP cannot render a decision.9

The costs of the MRP, not to exceed $2,300, are generally paid by the prevailing party.6

The Louisiana Experience

Statistically, the MRP finds in favor of the plaintiff in 3-5% of cases.9 Because the MRP finding is admissible in court, the majority of filed malpractice suits in Louisiana are either dropped or settled. Over the past decade, there have been no malpractice trial judgements against a neurosurgeon.10 On average, 67 neurosurgical cases are submitted before the panel annually. Of those, a mean of 29 are found in favor of the physician, four against the physician and 23 were dismissed before a decision was rendered by the MRP. The average payout for a neurosurgical malpractice case is $313,028.79 per settlement, lower than the average $344,811.00 for neurosurgeons nationally.11

A National Solution?

Although the MRP has largely been beneficial for Louisiana, not all states have had similar experiences. The constitutionality of the MRP has often been contested as a barrier to due process. In Arizona, implementation of an MRP increased the number of filed disputes, because it was associated with a lower financial burden to entry.12 Additional claims combined with a longer time needed to process each claim often results in the creation of a backlog of cases.13 MRPs comprised solely of physicians may be biased in favor of the defendant. Finally, several studies have failed to find a relationship between mandatory MRPs and lower malpractice premiums.14

MRPs and other forms of pre-trial screening processes can be an effective mechanism to reduce the number of non-negligent malpractice claims that proceed to full litigation, as occurred in Louisiana. In other places though, the jury is still out.

References

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1. Landro, L. (2012, December 19). Surgeons make thousands of errors. Wall Street Journal.

2. Dyrda, L. (2017). A state-by-state breakdown of medical malpractice suits: A state-by-state breakdown of medical malpractice suits.

3. Kosty, J., Jiang, B., Lefever, D. C., Brougham, J. R., White, F., Orrico, K., & Guthikonda, B. (2019). The Medical Review Panel in Louisiana Neurosurgery and Beyond. Neurosurgery85(6). doi: 10.1093/neuros/nyz319

4. 2011 Louisiana Laws :: Revised Statutes :: TITLE 40 – Public health and safety. (n.d.). Retrieved from https://law.justia.com/codes/louisiana/2011/rs/title40/.

5. National Conference of State Legislatures. (2014). Medical liability/malpractice adr and screening panels statutes.

6. Title 40 – Public Health and Safety In: Louisiana, ed. (2015). RS 40:12311.

7. Louisiana Public Service Commission. (2017). Annual Report per SCR 111 of 2007 In: Fund LPsC, ed. Baton Rouge.

8. Insler, M. S. (1989). Louisianas medical review panel. Survey of Ophthalmology34(3), 204–208. doi: 10.1016/0039-6257(89)90104-5

9. Mitchell, J. A. (2010, July 19). Medical Malpractice Louisiana: A Guide Through Louisiana’s Medical Review Panel Process. Retrieved from https://www.avvo.com/legal-guides/ugc/a-guide-through-louisianas-medical-review-panel-process.

10. Ken Schnauder EDoLPsCF. 2018.

11. Jena, A. B., Seabury, S., Lakdawalla, D., & Chandra, A. (2011). Malpractice Risk According to Physician Specialty. New England Journal of Medicine365(7), 629–636. doi: 10.1056/nejmsa1012370

12. Shmanske, S., & Stevens, T. (1986). The Performance of Medical Malpractice Review Panels. Journal of Health Politics, Policy and Law11(3), 525–535. doi: 10.1215/03616878-11-3-525

13. Kaufman, N. L. (2007). The Demise of Medical Malpractice Screening Panels and Alternative Solutions Based on Trust and Honesty. Journal of Legal Medicine28(2), 247–262. doi: 10.1080/01947640701357789

14. Rasor D. (1993). Mandatory medical malpractice screening panels: a need to reevaluate. Ohio State Journal on Dispute Resolution. 9, 115-44.

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