Medical Review Panel
Legislation Introduced
State Representative Jean Schmidt
(R–Loveland) has introduced House Bill 215, which will require medical claims
against healthcare providers to be reviewed by a medical review panel prior to
the claim proceeding in court. The bill
was referred to the House Insurance Committee and is patterned after Indiana’s
law.
This legislation would apply when
a medical claim is asserted against a provider, unless the plaintiff and
provider have entered into a valid enforceable contract requiring binding
arbitration of medical claims or have agreed to submit to nonbinding
arbitration. A medical review panel is
to review medical claims against providers and the provider is to notify the Superintendent
of the Ohio Department of Insurance (ODI) when a civil action asserting a
medical claim against the provider is commenced. The medical review panel is to review the claim and render its
expert opinion prior to the civil action proceeding on the claim.
Not earlier than 20 days after a provider notifies the Ohio Department of Insurance of the commencement of a medical claim against the provider either party to the claim may request the formation of a medical review panel by serving notice by certified mail upon all parties and the Superintendent of the ODI. The medical review panel is to consist of one attorney and three providers. The attorney member of the medical review panel is to act as the chairperson of the panel and in an advisory capacity, but does not vote. Provisions allow for the appointment and removal of panel members.
The bill establishes that the sole duty of the medical review panel is to express the panel’s expert opinion as to whether or not the evidence supports a conclusion that the defendant or defendants failed to act within the appropriate standards of medical care as claimed by the plaintiff. The opinion is not a ruling of law; the opinion may be a consideration to parties negotiating a settlement.
Within 30 days after all evidence is submitted by the parties, the panel is to review the evidence and give one or more of the following expert opinions:
1. The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as claimed by the plaintiff.
2. The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as claimed by the plaintiff.
3. There is a material question of fact bearing on the defendant's or defendants' liability.
4. The conduct complained of was or was not a factor in the resultant damages. If the panel concludes the conduct was a factor, the panel is to state whether the plaintiff suffered any disability and the extent and duration of the disability, or suffered any permanent impairment and the percentage of the impairment.
Upon issuing its opinion, the panel is to cease to exist.
The expert opinion reached by the medical review panel is admissible as evidence in any civil action brought by the plaintiff. The expert opinion is not conclusive. Either party to the civil action, at the party’s cost, may call any member of the medical review panel as a witness. If called, the member is to appear and testify. Members of the medical review panel have absolute immunity from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of the duties assigned to them. Panel members will be compensated for time and expenses. The prevailing party is to pay the panel’s expenses, including travel expenses and other expenses of the review. If there is no majority opinion, each side is to pay 50% of the panel’s expenses.
If all parties to a medical claim agree to submit the claim to nonbinding arbitration, the medical review panel is to end its review of the medical claim and the claim is to proceed to nonbinding arbitration and these sections of law would not apply to a medical claim after the parties have agreed to submit the claim to nonbinding arbitration.
HB 215 also removes language from the section of Ohio law pertaining to the Ohio Fair Plan Underwriting Association language authorizing the Ohio Fair Plan Underwriting Association to enter into a contract with any association formed under a medical professional liability insurance plan for the Ohio Fair Plan Underwriting Association to perform administrative services necessary or incidental to the operation of the medical professional liability insurance plan.
The recently enacted medical liability reform legislation – SB 281 – included arbitration language that can be utilized in the State of Ohio. Ohio Revised Code § 2711.21-24 authorizes health care providers to enter into an agreement to resolve future medical malpractice claims through binding arbitration. However, it is important to note that there are specific points to be followed when utilizing the arbitration agreement. Physicians are encouraged to use The AMC/NOMA’s Model Arbitration Agreement form in its entirety for their practice.
Meanwhile, The AMC/NOMA will continue to pursue mandatory arbitration language as one of its legislative initiatives.
Copies of the AMC/NOMA Model Arbitration Agreement were sent to all members in April 2003. An additional copy of the agreement is included as a pullout in this issue of the Cleveland Physician. This Model Arbitration Agreement is just one of the many services provided to our members.