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Legally Speaking

 

Issue: August, 2009
Author: Eric A. Easton

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Wyoming Medical Review Panel

The Wyoming Legislature has debated medical malpractice tort reform for many years. Following approval of Constitutional Amendment, Article 10, § 4 (b)(i) on November 2, 2004, authorizing the Legislature to enact laws requiring alternative dispute resolution or medical panel review before a person files a lawsuit against a health care provider for injury or death, the Legislature enacted the Wyoming Medical Review Panel Act of 2005 as a malpractice pre-screening mechanism. As a result, Wyoming joined eight other states using voluntary or mandatory medical review panels.

The Wyoming Medical Review Panel Act of 2005, W.S. § 9-2-1513 through W.S. §9-2-1523, effective date of July 1, 2005, requires a malpractice claim against a health care provider be filed with the panel before the complaint can be filed in any court. The purpose of the act is to prevent the filing of frivolous lawsuits and to encourage the settlement of well founded malpractice claims.

The 1986 version of the medical review panel, W.S. § 9-2-1501 through 1512, differed in significant ways from the 1986 act. The 1986 act did not require the claimant to provide a statement of an expert witness that the facts complained of constitute malpractice. The health care provider was required to file an answer and the decision of the panel was sent to the health care provider’s licensing board. The decision was not admissible in any action. The 1986 act was held unconstitutional by the Wyoming Supreme Court in Hoem v. State, 756 P.2d 780 (Wyo. 1988), as a violation of the equal protection clause of the state constitution.


Procedure
The Attorney General has appointed a director to administer and implement the Act. Rules implementing the Act have been adopted and are available on the Wyoming Attorney General’s website and/or the Secretary of State’s website.

A Claimant files a medical malpractice claim and a medical information release form with the director. The Claimant is required to file within 60 days a statement prepared and signed by an expert in the specialty of medical practice at issue setting out the basis for the expert’s belief that the conduct constitutes malpractice. Filing a claim tolls running of the statute of limitation for malpractice cases until 30 days after the panel’s final decision, or 75 days after the panel’s last hearing, whichever occurs earlier.

The Director serves the claim on the Health Care Provider. Health Care Provider (HCP) is defined as a person or facility licensed, certified or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession. Specifically excluded are persons who provide health care solely through the sale or dispensing of drugs or medical devices. The Health Care Provider has 60 days to file an answer.

After the claim is filed, the Director requests health records from the HCP and other relevant health care providers. Copies of medical records are provided to the parties. Obtaining all relevant medical records can be a time consuming and often frustrating process which needs to be completed before a claim is set for hearing. No other discovery is provided by statute. At the same time, a request is sent to the Wyoming State Bar and the Health Care Provider’s licensing authority for a list of 12 potential panel members.

There are three possible outcomes: (1) If the Health Care Provider fails to answer or waives proceeding before the panel, the director issues an order of dismissal, authorizing the claimant to pursue the claim in court; (2) the parties can jointly agree to waive hearing before panel, and the director issues an order of dismissal, authorizing the claimant to pursue the claim in court; or (3) the claim goes to a panel for hearing.

In cases going before the Medical Review Panel, a scheduling conference is conducted with the parties to set a hearing date and location. Hearings are set in the county where the claim arose. An order is issued setting the time and date of the hearing, requiring submission of disclosure statements and expert reports from the parties, and a pretrial hearing is scheduled. Due to the difficulty of coordinating the schedules of attorneys, health care providers and other witnesses, hearings are scheduled to be completed within one day.

The Director selects two health care providers and two attorneys for each panel. Those four panel members choose a lay panelist. To the extent possible, the panel members are selected from the same medical specialty as the named HCP. If multiple professions are named in the claim, for instance a physician and a nurse, we will attempt to appoint both a physician and a nurse to the panel. Panelists are paid for mileage, per diem, preparation time and hearing time (not to exceed $2,000 per claim).

Medical Review Panel (MRP) hearings are informal; Wyoming Rules of Evidence and Wyoming Administrative Procedure Act specifically do not apply. Examiners from the Office of Administrative Hearings conduct the hearings. Prior to the hearing, the Panel is given copies of the claim as well as the answer, medical records, expert reports and other documentation provided by the parties. During the hearing, the panel hears from witnesses and reviews the evidence. Following the hearing, the panel deliberates and prepares a written decision.


Standard of Review- W.S. § 9-2-1522

  1. Was there substantial evidence that the acts complained of occurred and that they constitute malpractice?
    “Substantial evidence” means evidence that a reasonable mind might accept as adequate to make a finding of fact. It may be less than the weight of the evidence, but it shall not be clearly contrary to the overwhelming weight of the evidence. More is required to meet the burden than a mere scintilla of evidence or suspicion of the existence of a fact to be established. (W.S. § 9-2-1515(v))

  2. Was there a reasonable probability that the patient was injured as a result of the acts complained of?
    “Reasonable Probability” means a factual basis which might lead a reasonable mind to the conclusion. Where there is evidence in the record and room for more than two (2) opinions, the conclusion shall be reached honestly and upon due consideration. (W.S. § 9-2-1515(iv))


The Panel issues a written decision within 45 days. The decision is not binding on either party and does not prevent the case from being filed in District Court. The decisions may be admissible at trial, at the discretion of the district judge.


The Numbers
Since the MRP began in July 1, 2005, through May 26, 2009, 148 claims have been filed—an average of 40 cases per year. A total of 313 health care providers have been named. All types of health care providers have been named. As might be expected, acute care hospitals and medical clinics top the list, followed by OB/GYN, orthopedics and general surgeons, dentists, chiropractors and nurses.

Cases have been filed in every county in the state. As might be expected, population/health care centers in Cheyenne, Casper, Riverton/Lander and Jackson top the list.


Disposition of Claims
More than 60% of the claims filed with the MRP are concluded by joint waivers of the panel by the parties, or non-answer/waiver by the HCP. In addition, a significant number of claims are dismissed; this may be due to the claimant’s inability to find a supporting expert witness, settlement of the matter or determination to not continue the claim after filing with the panel.

A significant recent trend is the dismissal of some, but not all, of the named HCP’s. The extent of involvement of a HCP may not be clear until the records are reviewed, the employment status is clarified, or responsibility of employees is determined. A HCP dismissed from a claim cannot later be named in a district court lawsuit.

Twenty cases have been set for Medical Review Panel hearings, including two set in July 2009. Nine medical review panel hearings have been conducted. Nine other cases set for hearings settled after the hearing was scheduled and the panel members were appointed, but before the hearing was conducted.

Of the nine going to hearing, the panel found for the Claimant in four cases and for the HCP in five cases. Following the MRP review, in eight of the nine cases a lawsuit was filed; of those, five cases settled after a lawsuit was filed in district court, but before the trial date, one went to trial and two cases still have lawsuits pending or ongoing.

Impact of the Wyoming Medical Review Panel
It is difficult to measure the impact of the Medical Review Panel on medical malpractice cases. According to the Wyoming Medical Society, Wyoming medical malpractice insurance premiums have not decreased since 2005 and remain the highest in the region. The Wyoming Insurance Department “Summary of Claims against Wyoming Health Care Providers as Required by W.S. § 26-3-124,” has not yet shown a trend in the number or severity of medical malpractice claims. The office feels that the MRP process impacts 31% of the cases filed (i.e. settlement of the claim, dismissal of some or all of the named HCP, and/or the claim is dismissed during the MRP process). One aspect that cannot be measured is cases that are not filed at all because the requirement for filing a report of an expert supporting the claim within 60 days inhibits some claims.

Attorneys for both claimants and health care providers have expressed concerns about the proper balance between a quick, inexpensive process versus a more formal process with additional discovery and related additional costs and time. Both sides struggle with the question of whether there is a benefit to participating in a panel review, and the admissibility of the decision of the review panel in the courts. A legislative committee is considering a statutory amendment regarding the admissibility of MRP decisions.


Conclusion
It is probably too soon to assess the impact of the Wyoming Medical Review Panel on medical malpractice claims in Wyoming. Four years is a short time to have a critical impact on a complex, multifaceted issue like medical malpractice. However, baseline numbers and types of malpractice cases filed on an annual basis are now well documented. It is also clear that the MRP procedure initiates contact between the opposing parties earlier in the process, in many cases resulting in settlement or dismissal of claims and named parties. It will be interesting to see the impact on the number and severity of claims over time, and the impact on malpractice premiums.

Eric A. Easton is the Director of the Wyoming Medical Review Panel.


Copyright © 2009 – Wyoming State Bar

     

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