Image CAPTCHA
Enter the characters shown in the image.
mast-image

Medical Malpractice: Procedural Technicalities: Filing Suit and Discovery

By:  Jeffrey A. Mitchell

 

A.        The Statutes and Case Law

            Louisiana medical malpractice claims are divided into two categories:  (i) claims against private healthcare providers and (ii) claims against public or state healthcare providers.  Claims against private healthcare providers are governed by the Medical Malpractice Act, (the “MMA”), La. R.S. 40:1299.41 et. seq, while claims against public or state healthcare providers are governed by the Malpractice Liability for State Services Act, (the “MLSSA”),  which is found in La. R.S. 40:1299.37 et. seq.    La. R.S. 40:122.39.1 of the MLSSA specifically addresses the procedural requirements for filing a claim of malpractice against a state healthcare provider. The provision of the MMA governing that procedure is found at La. R.S. 40:1299.47.

            1.         Filing A Request to Convene a Medical Review Panel

            The MLSSA statute requires that “all malpractice claims against the state, its agencies, or other persons covered by this Part, …, shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, ….”  Subsection (b) of that part states:

The request for review of the claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the commissioner, or on the date of mailing of the complaint if mailed to the commissioner by certified or registered mail.

 

            Prior to August 17, 1997, the request to convene a medical review panel against a private healthcare provider was required to be filed with the Louisiana Patient’s Compensation Fund, (the “PCF”).  However, by Act 664 of 1997, the legislature amended part of the MMA, La. R.S. 40:1299.47 A(2)(a), to state in pertinent part:

“Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription”

 

Unfortunately, under section 40:1299.47 A(2)(b), the language continued to provide:

“The request for review of the claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the board or on the date of mailing of the complaint if mailed to the board by certified or registered mail.”

 

The reference to the “board” in A(2)(b) is a reference to the PCF.  Thus, an inconsistency existed in that one part of the MMA required the filing of a request for review with the PCF and another part of the same act provided that prescription would only be interrupted by filing the claim with the Division of Administration.  This forced prudent attorneys to utilize a dual filing procedure and file a request for review with both agencies.

In 2002, HB 69 of the 2002 1st Extraordinary Session (Act 86), the legislature fixed this inconsistency by amending R.S. 1299.47 A(2)(b) to now provide:

The request for review of a malpractice claim under this Section shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail.  Upon receipt of the request, the division of administration shall forward a copy of the request to the board within five days of receipt.

 

Accordingly,  both Acts now require that a request for review of a medical malpractice claim  be filed with  the Division of Administration.

            One other point is worth mentioning about the procedural requirement of filing a request for review.  The request for review is deemed “filed” on the date it is mailed, not received, if it is mailed by certified or registered mail.  A request filed by any other method (including Federal Express Mail), is not deemed filed until received by the Division of Administration.  This can be a very significant provision when battling a prescription deadline.  If filed by certified or registered mail, the attorney should obtain a certificate of mailing from the post office or have the post office physically post mark the date on the receipt. (This will require that the request for review be hand delivered to the post office).   This is the only conclusive proof of the date of mailing, and thus, the date of filing, should a dispute arise.

a.         Where to File the Request For Review

As of June 16, 2002, the proper address to file a claim with the Division of Administration is:

            Louisiana Commissioner of Administration

            Attention:  Medical Review Panel

            P.O. Box 44336

            Baton Rouge, Louisiana 70804-4336

 

Their new physical address (as of January 2003), is:

 

            1201 N. 3rd Street

            7th Floor, Suite 7-210

            Baton Rouge,  Louisiana 70802

 

The phone number is (225) 342-7000.

 

b.         What Format or Allegations Should the Request For Review Contain

 

            The statutes do not specifically set forth the format or content of a legally valid request for review.  There is also a divergence of opinion among practitioners regarding the degree of specificity which should be included in a request for review.  Courts which have considered this issue have provided minimal guidance on the contents of a legally valid request for review.  See for example:  In re Medical Review Panel for claim of Juanita Leday, 1997-3068 (La. 2/13/98), 706 So.2d 985; Coleman v. A.C. Dickerson, D.D.S., 94-25 (La. App. 5th Cir. 5/31/94), 638 So.2d 420; and Apande v. Kudla, 560 So.2d 668 (La. App. 3rd Cir. 1990).  These cases allow the request for review to be made in the form of a letter.  The Apande court stated that the letter should contain: (i) a brief recitation of the facts surrounding the alleged negligence; (ii) list specific allegations of negligence on the part of defendants (iii) provide the full names and addresses of the defendants; and (iv) contain a prayer for damages.  The Coleman court held that although a letter can form a proper request for review, a letter merely requesting information as to whether an individual healthcare provider is qualified is not sufficient to suspend prescription.  In Leday, the subject letter set forth the name of the patient and involved healthcare providers, the dates of treatment, the allegations of negligence and the problems resulting from that alleged negligence.  However, rather than requesting the formation of a medical review panel, the letter stated:

“Please advise whether or not Dr. Darbonne and Dr. Humphrey or Humphries are qualified under the Medical Malpractice Act.  I do not know these physicians first names, but they were employed at University Medical Center on August 5, 1993.  I also need to know if the University Medical Center is qualified under the Medical Malpractice Act.”

 

The lower court and appellate court (1st Circuit), held that this letter did not interrupt prescription because “Nowhere in the letter is there even a hint of a ‘request for review of a claim’ under LSA-R.S. 40:1299.39.1 or 40:122.47 (A).”  The Louisiana Supreme Court reversed this decision stating:

We interpret the August 1, 1994 letter which outlined the complaints of medical malpractice as a timely request for review.  Exception of prescription overruled.

 

Thus, it appears that the magic language specifically requesting the formation of a medical review panel is not legally necessary to file a valid request for review.  However, it is strongly suggested that any letter request specifically request the formation of a medical review panel along with the other elements outlined by the courts in the cases noted above.

            2.         Formation of The Medical Review Panel

            Once a timely request for review is received by the Division of Administration, it is forwarded to the PCF (in private cases) within 5 days.  The PCF then has 15 days to confirm that filing has been received and to confirm whether the defendant is qualified or not.  The PCF also notifies all defendants of the complaint and forwards a copy of the complaint to the Louisiana Supreme Court. [1299.47(A)(3)]  The medical review panel is made up of three physicians and an attorney chairman.  The attorney chairman is selected by the parties.  Two physician members are selected by the parties (one each) and the third physician member is selected by the first two members.

            In the letter acknowledging receipt of the filing of the request and acknowledgment of the qualification under the MMA, the PCF also requests that the parties coordinate their efforts to select an attorney chairman.  Although there is no specific statutory deadline by which the attorney chairman must be selected, Section 1299.47A(2)(c), provides that the board shall dismiss a claim ninety days after giving notice by certified mail to the claimant that action has not been taken be the claimant to secure appointment of an attorney chairman within two years from the date the request for review was filed.

            The attorney chairman is usually selected by mutual agreement of the parties.  However, if the parties cannot agree on the attorney chairman, then a striking process is to be utilized.  [1299.47C].  Once the attorney chairman is selected, he will contact the parties acknowledging his appointment and request that the claimant furnish the name of a physician (in the same specialty as the defendant), to serve as the claimant’s medical review panel member.  The plaintiff has 30 days to make this selection from the date of certification of his filing by the board. [1299.47C(3)(a)].  Defendant has fifteen days thereafter to make his choice of the second physician member of the medical review panel [1299.47C(3)(b)].  If plaintiff or defendant fail to make their selection timely, the attorney chairman shall notify them to make the selection within 5 days and if no selection is forthcoming, he shall make the selection himself.[1299.47C(3)(c) and (d)]

            Once the two panel members have been selected, they have 15 days within which to select the third and final physician member of the medical review panel.  Again, if no selection is forthcoming from the two physicians, the attorney chairman makes the selection [1299.47(c)(3)(d) and (e)].  Once the panel is formed, the attorney chairman notifies the parties within five days by certified mail.  The panel remains in effect until they render an opinion.  However, if the review panel fails to render an opinion within twelve months after its formation, and no order is obtained from the district court extending the life of the panel, the claimant may institute a lawsuit in district court. [1299.47(B)(1)(b)].  However, once the life of the panel has expired without an order extending it, the panel is dissolved as a matter of law and cannot be revived.  See e.g. LeBlanc v. Lakeside Hospital, 98-909 (La. App. 5th Cir. 3/10/99), 732 So.2d 576.

            In LeBlanc, plaintiff sought review of her claim on May 3, 1996.  The attorney chairman was selected on July 3, 1996.  The medical review panel was formed on September 9, 1996.  On June 9, 1997, one defendant obtained an order from the court extending the life of the review panel to January 3, 1998.  No decision was rendered by the January 3, 1998, deadline and no extension was filed before that date.  On January 20, 1998, seventeen days after the January 3 deadline, another defendant obtained an order from the district court extending the life of the review panel.  Plaintiff filed suit alleging that the review panel had dissolved as a matter of law, which would allow her to proceed in state district court. The defendants filed an exception of prematurity arguing that the panel had been extended by the Judge on January 20, 1998.

            The court held:

“upon dissolution of the panel, there is no longer a procedural bar preventing the claimant from filing suit in district court; indeed, it is incumbent upon the claimant to take such action to preserve her rights against the defendants because dissolution of the panel after expiration of the court-ordered extension of time affects the suspension of prescription with respect to the defendants.”

 

            Accordingly, the court found that the January 3, 1998, date passed without application for an additional extension and thus, it dissolved automatically by operation of law.  It concluded that the trial court did not have the power to extend the life of the review panel, which had already been dissolved by operation of law.  Id. at 578.

            The attorney chairman sets a reasonable schedule for submission of evidence, but must allow sufficient time for the parties to make full and adequate presentations of related facts and authorities within ninety days following the selection of the panel.[1299.47C(2)].  The Panel must render a decision within 180 days of the selection of the last panel member and within 30 days of “reviewing all evidence”.[1299.47G].  Once the parties have received notification by certified mail of the issuance of the opinion of the medical review panel, the claimant has 90 days to file suit in district court. [1299.47A(2)(a)].  Courts interpreting this provision have held that in addition to the 90 days, the claimant is entitled to the remainder of the one-year prescriptive period that was unused at the time their request for review was filed.  See e.g. Guitreau v. Kucharchuk, 1999-2570 (La. 5/16/00), 763 So.2d 575.

            3.         Prescription

            La. R.S. 9:5628 specifically sets forth the prescriptive period applicable to actions for medical malpractice:

A.                No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

 

B.                 The provisions of the Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

 

C.                 The provision of this Section shall apply to all healthcare providers listed herein or defined in R.S. 40:1299.41 regardless of whether the healthcare provider avails itself of the protections and provisions of R.S. 40:1299.41 et. seq. by fulfilling the requirements necessary to qualify as listed in R.S. 40:1299.42 and 1299.44.

 

Courts interpreting this provision have uniformly held that the one year prescriptive period commences to run on the date that the injured party either knew, or should have known of the facts on which to base a cause of action.  Cruse v. Louisiana State University Medical Center, 34,779 (La. App. 2nd Cir. 6/20/01), 792 So.2d 798; Triss v. Carey, 2000-0608 (La. App. 4th Cir. 2/07/01), 781 So.2d 613.  This is the “discovery” rule of Contra Non Valentem. The Louisiana Supreme Court recently further refined this rule and determined that “Mere notice of a wrongful act will not suffice to commence the running of  the prescriptive period; rather, in order for the prescriptive period to commence, the plaintiff must be able to state a cause of action, including both a wrongful act and resultant damages.”  Guitreau v. Kucharchuk, 2000, 99-2570 (La. 5/16/00), 763 So.2d 575.

            With respect to the three year limitation,  the Louisiana Supreme Court has repeatedly determined that R.S. 9:5628 is a prescriptive statute with one qualification, that is, that the Contra Non Valentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.  See Whitnell v. Silverman, 95-0112 (La. 12/06/96), 686 So.2d 23; In re Medical Review Panel of Moses, 2000-2643 (La. 5/25/01), 788 So.2d 1173.  In fact, in In re Medical Review Panel of Moses, the supreme court determined that the failure to remove sutures, which was not discovered until after three years, could not form the basis of a valid claim because it was prescribed.  In so doing, the court noted that the failure to remove the stitches was a single breach of duty and not a continuing tort.  However, the court left open the question as to whether  the continuing tort doctrine could ever be invoked to enlarge the three year repose period of 5628.

B.        Development of Existing Defendants/Theories/Causes of Action

The defendants, theories and causes of action should be defined initially when the case is screened for merit.  Medical malpractice cases are too difficult and expensive to file claims without knowing whether a breach of the standard of care is involved. Moreover, given the tremendous volume of any given medical record and the materials submitted to the medical review panel, your best chance at winning the panel is to consult an expert, develop a theory, and present it to the review panel.  However, there is a divergence of opinion in the community with respect to participating in the medical review panel process.

Many plaintiff’s attorneys believe that it is futile to participate in the panel process since over 95% of panels are lost by the patient.  The theory behind this approach is why show the other side what the theory is so that they can be better prepared at trial?   Most medical malpractice attorneys do participate in the panel process to varying degrees.  The theory behind active participation is to conduct discovery and support your theory of the case to the medical review panel.  If you lose, you can then shore up the weaknesses in that theory before trial or determine that you do not have a winnable theory on which to pursue a case.  In either event, valuable information has been gained.  And, if you lose the panel despite a winning theory, the panel can easily be exposed at trial for what it was — a blatant attempt to protect the defendant.

C.        Development of New/Additional Defendants/Theories/Causes of Action

 

            Following the medical review panel opinion, additional theories may be developed  based on the testimony of the review panel members.   For instance, the review panel may have focused on one aspect of the patient’s care without delving into all of the care.  Taking the panel members’ depositions can expose this “limited” review.  Moreover, your own expert can help expose a poorly reasoned panel opinion by a review of the transcript of the members’ depositions. 

If new defendants are sought to be added to a lawsuit after the panel has ruled, several potential problems arise.  First, unless the new defendant is considered jointly liable for the malpractice with an existing defendant, a problem of prescription could occur.  Second, if a new defendant is added, that defendant will certainly file an exception of prematurity arguing that any claim against him must first go through the panel process.  Third, if the trier of fact fails to find any negligence on a co defendant and finds that the newly added defendant is solely responsible, the claim against the new defendant could very well be prescribed since it was not interrupted by a joint tortfeasor.

D.        Scope/Course/Extent and Direction of Discovery in Malpractice Actions

            Like any other civil action, depositions, requests for production, requests for admission, and interrogatories are all available as discovery tools once the case is filed in district court after the medical review panel has convened.  However, the MMA, MCSSA, and the case law do not expressly afford the parties the same rights to discovery before the medical review panel.

            La. R.S. 40:1299.47 D addresses the scope of the evidence to be presented to the Medical Review Panel under the MMA. (Section 1299.39.1(D) for the MLSSA).  Under section D(1), the evidence must be in written form.  Section D(2) states that the evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel. Section D(3) allows for the taking of depositions prior to convening the panel and D(4) allows for the issuance of subpoenas and subpoenas duces tecum in aid of taking depositions and production of documents.       Noticeably absent from this listing are interrogatories.  There is a split of authority on the issue of whether a party may employ the use of interrogatories during the panel stage of a medical malpractice action. In Solomon v. Medical Center of Louisiana at New Orleans, 97-0783 (La. App. 4th Cir. 5/14/97), 694 So.2d 1229, the court determined that under the MLSSA, a party may propound interrogatories to another party during the panel process.  Recently, in Perritt v. Dona, 35,628 (La. App. 2nd Cir. 9/20/02), 827 So.2d 1222, the court determined under the MMA that a party may not propound interrogatories to another party during the panel process.  As of this writing, the supreme court has not resolved this conflict.

E.        Avoiding the “Shotgun” and Focusing Issues

            In the past, most medical malpractice attorneys sought to avoid naming every healthcare provider contained in the chart of a patient allegedly aggrieved by malpractice.  The only time this was done was when a client presented to their office at the “eleventh hour” and there was not enough time to have an expert carefully review the chart to determine the culpable parties.  However, once discovery progressed in these cases and prescription was interrupted, unnecessary defendants could be dismissed to pare down the parties.

            However, the supreme court recently handed down a decision which will have a huge impact on the decision to name some, but not all of the healthcare providers contained in the chart.  In Dumas v. State, through the Department of Culture, recreation & Tourism, 2002-0563 ( La. 10/15/02), 2002 WL 31303016,  the court held that Article 2323 of the Louisiana Civil Code requires the quantification of the fault of every person responsible for plaintiff’s injuries, whether or not they are parties, and regardless of the legal theory of liability asserted against each person.  Prior to this ruling, if a person was injured in an automobile accident, and as a result, was taken to a hospital for medical care where medical malpractice was committed upon him, the tortfeasor in the automobile accident would be responsible for all consequences of his injuries, including the medical malpractice.  Weber v. Charity Hosp. of  La., 475 So.2d 1047 (La. 1985).  The reasoning of Weber was that under Louisiana’s duty/risk analysis of tort law, it was foreseeable that if a person caused injury to another which caused him to seek medical care, medical malpractice might be committed upon that person.  If the original tortfeasor had not committed negligence in the first place, then there would have been no need for the ensuing medical treatment and thus no medical malpractice would have occurred.

            The Dumas court rejected this reasoning in light of the 1996 amendment to article 2323 of the Louisiana Civil Code.  That amendment changed the basic tort law to abolish solidary liability among non-intentional tortfeasors and to place Louisiana in a pure comparative fault system.  However, prior to Dumas, it had not been applied to a medical malpractice claim.  The court reasoned that the language of Articles 2323 and 2324 is clear and unambiguous. “It makes no exceptions for liability based on medical malpractice; on the contrary, it clearly applies to any claim asserted under any theory of liability, regardless of the basis of liability.”

            This ruling will now cause a huge increase in medical malpractice claims.  Tortfeasors will question the medical care rendered to their victims as a routine part of their defense.  Since the proven fault of a person gets quantified by the jury, a plaintiff will have to sue everyone potentially involved.  Otherwise, any fault attributed to a non party will reduce the recovery of the plaintiff.  The plaintiff’s attorney will then potentially face a legal malpractice claim for failing to timely join all negligent defendants.  Thus, out of an abundance of caution, all healthcare providers will likely get sued.

F.         The “Too Many Defendants” Problem

In addition to the Dumas decision above, several other recent decisions militate against dismissing defendants.  Is it safe to dismiss defendants once one of the defendants pays $100,000 in settlement which carries with it the statutory admission of fault?  The issue involving the quantification of third party fault  will directly impact the number of named defendants.

The starting point in analyzing the quantification of fault of the defendant must begin with a survey of the statutory and jurisprudential rules established when the defendant is a qualified health care provider pursuant to the Louisiana Medical Malpractice Act (referred to herein as the “Act”).

            La.R.S. 40:1299.44 C provides in part:

In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.

 

In Graham v. Willis-Knighton Medical Center, 97-0188, (La. 9/9/97), 699 So.2d 365, 372, the supreme court explained:

[T]he legislative intent of “liability” in Section 1299.44 C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim.  However, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.

 

            In Conner v. Stelly, 2002-CC-0280, (La. 1/30/02), 2002 WL 172018, the Louisiana Supreme Court held that the fault of a non defendant healthcare provider should be quantified in a medical malpractice suit. In Conner, a per curium decision, the supreme court reversed the trial court’s ruling prohibiting the PCF from arguing or presenting evidence that victim or third party fault caused any of the damages.  The court cited Graham, and reasoned that although payment of $100,000 establishes proof of liability “for the malpractice and for damages of at least $100,000 resulting from the malpractice,” a plaintiff has the burden of proving at trial that the negligence caused damages in excess of $100,000.  Thus, the PCF was allowed to present evidence of victim and/or third party fault insofar as that fault may have caused any of the damages in the case.

            In the summer of 2002, the Louisiana Third Circuit Court of Appeal decided the case of   Caesar v. Barry, 2002-52 (La. App. 3rd Cir. 7/17/02), 823 So2d 998.  In Caesar, plaintiffs instituted a medical malpractice action against Dr. Richard Barry and Lake Charles Memorial Hospital following the birth of their baby who suffered from Erb’s Palsy, dystocia and a learning disability.

Dr. Barry’s bankrupt insurer entered into a settlement agreement for payment of the underlying $100,000 (even though payment of the whole amount was doubtful, the continuing obligation to pay it was deemed enough to trigger the statutory admission of liability). The plaintiffs then moved for and the trial court granted summary judgment awarding the statutory cap of $500,000. The PCF then appealed arguing that the trial court erred in implicitly ruling that the statutory admission of liability included an admission that defendant Dr. Barry was 100 percent responsible for the damages incurred by the plaintiff.  Further, the PCF argued that summary judgment was inappropriate where genuine issues of fact existed with respect to causation of damages above the $100,000 threshold.

            The court began its analysis by pointing out that the plaintiffs were still pursing their claims against the hospital, a co defendant, following the settlement by Dr. Barry’s insurer. It then cited Griggs v. Riverland Medical Center, 98-256 (La. App. 3rd Cir. 10/14/98); 722 So.2d 15, for the proposition that when a claim still exists against the hospital,  a trial court should allow the PCF to present evidence of comparative fault of a third party in order to gain a proportionate reduction of damages.  The court then took note of the Conner v. Stelly decision and found that, as a matter of law, the plaintiffs were not entitled to summary judgment against the PCF based on the sole liability of Dr. Barry.

            This jurisprudence will make it difficult to limit or decrease the number of defendants prior to trial.  It also presents a problem in terms of judicial economy, and judicial efficiency.  Trials with more parties will last longer and cost more money.  Plaintiffs will be faced with more parties “shooting at them.”  It also affects credibility.  When too many defendants are involved it is inevitable that the claims against some are stronger than the claims against others.  When presenting all of these claims to a jury, the risk is that the jury may think that since some of the claims are weak, they must all be weak.  It interferes with the ability to present a streamline, efficient case focusing on the most important issues and the most culpable parties.

            One potential method to help reduce the number of potential parties at trial is through the use of the summary judgment procedure.  If a party is dismissed with prejudice, then they are not included on the jury verdict form and their fault cannot be quantified.  Thus, plaintiff’s attorneys who wish to pare down the roster must approach defense attorneys and encourage the use of the summary judgment procedure.  Assuming the co-defendant does not oppose the motion, that defendant should be able to get out of the case without the plaintiff’s fear of losing dollars because of the defendant’s fault.  The prior practice of dismissing a doctor without prejudice will now fall by the wayside in favor of using the summary judgment procedure.

G.        Summary Judgment/Affidavits and Their Role in Malpractice Cases

            In medical malpractice cases, the most common use of the summary judgment motion occurs after the medical review panel decision and shortly after the filing of the claim in district court.   Whichever side wins the medical review panel (usually the defense), files the motion to flush out the opposing side’s expert or to escape liability in the event no expert is forthcoming.  Up until recently, courts disagreed as to whether expert opinion in the form of an affidavit could be considered in support of a motion for summary judgment.  However, the Louisiana Supreme Court answered this question in Independent Fire Insurance Company v. Sunbeam Corporation, 99-2257 (La. 2/29/00), 755 So2d 226.  In Independent Fire, the court held that assuming that an expert’s opinion evidence would be admissible at trial (under Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993)), a judge must consider it for purposes of a motion for summary judgment.

            However, the courts of appeal have not uniformly interpreted Independent Fire in the same fashion.  For instance, in Simmons v. Berry, 1998-0660 (La. App. 1st Cir. 12/22/00), 779 So.2d 910, the court held that an uncertified copy of the opinion of the medical review panel was not admissible evidence which could be relied upon to support a motion for summary judgment.  The Simmons court  held that in order for the panel opinion to be admissible evidence for consideration in a motion for summary judgment, the opinion of the medical review panelist must be put in the form of an affidavit which meets the form of Daubert.  Other circuits have allowed the introduction of an “uncertified” copy of the medical review panel opinion.  See e.g. Hinson v. Glen Oak Retirement Home, 34,281 (La. App. 2nd Cir. 12/15/00) ( Defendant files MSJ, attaches panel opinion and his own affidavit; court deems evidence sufficient for grant of MSJ.); Venable v. Dr. “X” and Dr. “Y”, 95-1634 (La. App. 3rd Cir. 4/03/96), 671 So.2d 1249, ( (Defendant’s summary judgment evidence consisted of opinion of medical review panel and affidavit from one of its members and an unpublished opinion of court; held sufficient to support MSJ); Richoux v. Tulane Medical Center, 617 So.2d 13 (La. App. 4th Cir. 1993) (sworn testimony of one physician and uncertified opinion of medical review panel sufficient to support grant of summary judgment).

H.        “Tracking” the Law and Your Experts

            From the foregoing analysis, it is important to research the court opinions in your particular circuit.  Expert testimony in the form of an affidavit may or may not be admissible to support a motion for summary judgment depending on its form.  This makes the practice more difficult for the malpractice attorney who practices before some or all of the district courts in this state.  Moreover, every other legislative session (fiscal sessions are in between), the medical malpractice attorneys of this state are faced with new bills and legislation which usually attempt to answer questions or issues raised by the jurisprudence in the preceding year.  Thus, it is extremely important to carefully track the jurisprudence and legislative efforts in this area of practice.

            Use of the medical review panel members as experts is a much more frequent occurrence for the defense than for the plaintiff.  However, even if the panel is lost by the plaintiff, it is important to meet with and depose the panel members.  If the panel members do not support your side, you can obtain valuable cross examination information.  This is especially true if your previously retained expert is used to help in the preparation of their deposition and trial testimony.  This is yet another reason why it is important to obtain an expert before the case is presented to the medical review panel.