In certain states, the law requires an expert medical panel to review malpractice claims. In Louisiana, after the malpractice claim is filed, a medical review panel gathers. The plaintiff and the defense name one physician expert each. Together, the two experts name a third panel member.
“Most of the time, they find no deviation from the standard of care,” says Maryann G. Hoskins, JD, an associate at Degan, Blanchard & Nash in New Orleans. The plaintiff still can file a lawsuit. “But it is enough to discourage many claims,” Hoskins notes. Either side can introduce the panel’s opinion as evidence at trial. If the panel finds nothing wrong with the care, says Hoskins, “the defense attorney can say, ‘Three doctors looked at this and said there was no deviation from the standard of care.’”
The medical review panel process is a relatively inexpensive way for claimants to determine whether the case has merit. “Medical malpractice claims are notoriously expensive because you have to get experts,” Hoskins explains.
If a plaintiff attorney realizes he or she needs to invest $10,000 to $15,000 on experts and depositions in a likely unwinnable case, “that changes a whole lot of things,” Hoskins notes. “Just because it was a bad result doesn’t mean it was malpractice.”
If the panel finds the EP deviated from the standard of care, a malpractice lawsuit is likely. On the other hand, if the panel finds the ED care was reasonable, “there is a fair chance that the claimant will not file suit against the EP,” Hoskins observes.
Sometimes, the plaintiff attorney declines to pursue the claim, will do so only if the plaintiff pays on an hourly basis, or will agree to file suit to protect the statute of limitations on the condition the attorney will be permitted to withdraw as counsel of record thereafter. Hoskins has represented many EPs during the medical panel review process. Often, the EP’s own testimony resonates most.
“The EP’s explanation of why there was no malpractice is more compelling than an explanation filtered through an attorney. It’s more credible coming from the emergency physician as opposed to the attorney,” Hoskins explains.
One claimant alleged an EP committed malpractice by failing to diagnose septicemia, resulting in septic shock and a 30-day hospitalization. The patient presented to the ED with severe neck pain radiating down to the left shoulder and arm, along with chills, vomiting, and diarrhea. The EP discharged the patient home with gastroenteritis and cervical radiculopathy. The claimant returned to the ED later that day with severe symptoms, and was hospitalized. At one point during his hospital stay, the claimant told a physician he had used a pocket knife to scrape a corn off his foot.
In his affidavit, the EP stated he was not given that information during the ED visit. Therefore, infection was not included on the differential diagnosis.
The expert panel stated the ED diagnosis was reasonable based on the medical facts and history related by the patient.
“In this case, the statement from the EP bore significantly more weight than any such assertion filtered through his counsel,” Hoskins says.
After the panel issued an opinion of no malpractice, the plaintiff did not file suit.