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Legally Speaking

 

Issue: February, 2005
Author: Amanda Hunkins Newton

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Medical Review Panel Brought Back to Life

Following the voters’ approval of Amendment C in November, a practice once rejected by the Wyoming Supreme Court has been resurrected. Amendment C amends the Wyoming Constitution to allow the Legislature to enact one of two mandatory pre-filing procedures in a suit alleging malpractice against a health care provider.

The ballot language of Amendment C reads as follows:
“This amendment would allow the Wyoming 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 medical review panel is not a new concept to Wyoming lawyers. The Wyoming Medical Review Panel Act, Wyo. Stat. § 9-2-1501 et seq., was passed by the Wyoming Legislature in 1986. The panel was operational in Wyoming until 1988 when the Wyoming Supreme Court struck it down as unconstitutional in Hoem v. State, 756 P.2d 780 (Wyo. 1988). In Hoem, it was argued that the screening panel process mandated before a lawsuit could be filed against a health care provider violated equal protection by imposing an additional burden for alleged victims of malpractice, i.e., the medical review panel. The Wyoming Supreme Court agreed. In Hoem, the Court found that the “additional hurdle in the path of medical malpractice victims” was a denial of equal protection. Id. at 783.

In 2004, the Wyoming legislature turned its attention once again to the review panel concept. This time, however, they passed a resolution proposing an amendment to the Wyoming Constitution. Amendment C allowed for the enactment of mandatory alternative dispute resolution or screening by a medical review panel before any person could file suit against a health care provider for injury or death. The voters of Wyoming passed Amendment C last November and by doing so allowed the legislature to enact either option.

The Fifty-Eighth Wyoming Legislature is now in session. While the voters gave the go-ahead to the legislature to enact either pre-filing procedural option, i.e., mandating alternative dispute resolution or a medical review panel, it is up to the legislature to determine several critical issues that will impact future medical malpractice litigation in Wyoming.

As of the first week of the legislative session, three different bills were proposed on the subject of the medical review panel. The Senate Labor, Health and Social Services Committee, the Joint Judiciary Committee, and Senator Kit Jennings all sponsored bills dealing with the medical review panel. The Joint Judiciary Committee’s bill merely reinstates the existing language in the Wyoming statutes. These three bills vary in their approach to several critical issues.

ADR OR SCREENING PANEL
Although the voters allowed the legislature to enact either mandatory alternative dispute resolution or screening by the medical review panel, as of the first week of the legislative session, the only bills filed were those dealing with the medical review panel option. Alternative dispute resolution (presumably non-binding) is still a choice available to the legislature.

EVIDENTIARY STANDARD
The legislature must decide what the standard of proof will be for the panel’s decision as to whether malpractice occurred.
The Senate Labor Committee’s bill sets the standard of proof as a “preponderance of the evidence that the acts or omissions complained of occurred and that the acts deviated from the applicable standard of care.” The bill also sets the standard for causation as a “preponderance of evidence that the acts of omissions constituted the proximate cause of the injury.”

Both the Joint Judiciary Committee’s bill and Senator Jennings’ bill set the standard as “substantial evidence” that the acts complained of occurred and that they constitute malpractice. These same bills set a different standard for causation, i.e., a “reasonable probability” that the patient was injured as a result of the alleged malpractice. The evidentiary standards set forth in the Judiciary Committee’s bill as well as Senator Jennings’ bill are the same as when the panel was operational for a time in the 1980s.

COMPOSITION OF THE PANEL
The number of panelists and what professions and/or constituencies they are drawn from will also be a critical issue. The Senate Labor Committee bill provides for a panel of five members – at least three of whom are to be drawn from the ranks of health care professionals or their employees, i.e., physicians, nurses, hospital employees, etc. The bill provides for lay people to make up the remainder of the panel, but sets a minimum level of education, a bachelor’s degree, for the lay panelists. The bill does not call for an attorney to be part of the panel.

The Joint Judiciary Committee bill merely reinstates the medical review panel as it existed in the 1980s. It also provides for a five member panel – two health care providers licensed in Wyoming, two members of the state bar, and one lay person who is not a lawyer, health care provider, or employee of a health care provider. Senator Jennings’ bill provides for a three member panel --- two health care providers licensed in Wyoming, and one licensed Wyoming attorney.

In all of the bills, the state licensing agencies for the various health care professions and state bar assemble a list of prospective panelists and forward the names to the director of the medical review panel for selection.

WHO PAYS THE ADMINISTRATIVE COSTS?
Another issue for the legislature to address is funding for the administrative costs of the medical review panel. Senator Jennings’ bill provides for an assessment to be levied against each health care provider licensed in the state. The Joint Judiciary Committee’s bill also levies an assessment against health care providers in the state, but it is prorated by the category of defendants for which cases were heard by the panel in the preceding year.

Of interest to the members of the state bar is the Senate Labor Committee version of the bill that mandates that fifty percent of the assessment necessary to fund the administrative costs of the panel be born by an assessment on all attorneys admitted to the state bar. Under the Labor Committee’s bill, physicians bear twenty-five percent of the costs, and malpractice insurance companies bear the other twenty-five percent.

ADMISSIBILITY
Likely the most contentious issue facing the legislature with respect to implementing the medical review panel will be whether or not the decision of the panel is admissible in court. Senator Jennings’ bill and the Senate Labor Committee’s bill both provide for admissibility. The Joint Judiciary Committee’s bill states that the panel’s decision is inadmissible at trial. Inadmissibility was also a feature of the previous panel before it was ruled unconstitutional. Governor Freudenthal has been quoted as favoring admissibility.

OTHER ISSUES
Other miscellaneous issues will also be debated when the legislature turns its attention to the medical review panel this session. The Senate Labor Committee bill mandates arbitration as an additional step in the event malpractice is found by the panel. This bill also provides that if the panel answers in the negative as to either issue, liability and/or damages, and the claimant files suit in spite of that decision and loses at trial, the claimant shall be liable for reasonable costs, including attorneys’ fees. Senator Jennings’ bill also has a provision of interest in that it prohibits the same expert witness used during the panel proceedings from testifying at the trial.

The legislature has many issues to consider as it shapes the medical review panel process in Wyoming. One thing is for certain, with the passage of this constitutional amendment, the medical review panel has found new life.


Amanda Hunkins Newton practices law in Cheyenne and Wheatland with the firm of Jones, Jones, Vines and Hunkins.

     

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