Malpractice Review Panel Examined

Although the medical malpractice statute is unprecedented and varies from the spirit of the common law in numerous significant ways, nothing is so likely to strike counsel, both for plaintiff and defendant, as foreign and bizarre as the review panel and its operation.

To describe the procedure generally, the legislature has, by the adoption of section 2-1012 through 2-1020, adopted a scheme of devices whereby before a party can try a case to judgment before a jury of his peers, he must first try it before a three-member panel.

This panel will decide the case, and if its decision is unanimous, a dissatisfied party may proceed further only under heavy burden and at great peril, as is discussed more fully in the next section. The necessity of referral to the panel is set out in Section 2-1012. A review panel must be convened in all malpractice cases, unless unanimously waived by all the parties. The mechanics for selecting and convening the panel are set out in section 2-1013 and 2-1015. Importantly, the panel procedure commences after the filing of the complaint. Then the trial court must enter an order to convene a panel no later than 90 days after the parties are at issue.

The order is issued to the clerk of the circuit court and the clerk prepares three lists, one naming three judges of the circuit court, a second naming three appropriate health care professionals and a third naming three practicing attorneys. The clerk obtains these names by reference to a roster for each category, taking the next three names.

The clerk then gives notice of the order to convene on the attorneys of record and the person selected for the lists. At the same time he provides the attorneys of record with a copy of the three lists and the prospective panel members with the names, the parties and their attorneys.

Thereafter, a two-fold process commences in which (1) the prospective panel members are qualified for selection, and (2) selected by the parties. The qualification process is really one more concerned with disqualification or deselecting - proposed panel members being subject to disqualification by the parties, or by their own initiative.

To disqualify himself, a person listed by the clerk must, within seven days of the receipt of notice from the clerk, give notice of his intention to seek to be disqualified; he must serve this notice on the attorneys for all parties. A person must be disqualified if he is "materially" associated with any party, attorney, or health care professional involved in the case.

Each listed person, within the same seven days, must disclose to the clerk and the parties any facts which might indicate such conflict as to require disqualification; this disclosure appears to be necessary whether he intends to seek his own disqualification or not. The act seems to indicate that an order of court is required to disqualify a prospective panelist, not only where the question of disqualification is raised on motion by a party, but also when sought by the proposed panel member himself. If the motion to disqualify is granted, a new name is added to the affected list to replace such person and the name of the disqualified person is returned to the roster.

As for selecting the panel by the parties, this determination is made by an eliminating process. The act states that, from each of the three lists, both plaintiff and defendant, shall strike off one name. Ideally, this will leave one name remaining on each list and the three will constitute the panel for the case. Within seven days after striking a name from each list, both plaintiff and defendant are required to serve on the clerk and counsel a certificate of his selections.

The clerk will constitute the panel automatically from these certificates. If the certificates, on their face, reveal that any question remains as to the proper constitution of the panel, any party, within seven days of the time the certificates are to be filed, may file a motion to have such questions resolved by the court. If no such motion is filed, the panel may be constituted by selecting the highest listed name not stricken; that person then becomes the panel member.

A special rule is made when there are multiple parties plaintiff or defendant. The act, evidently, contemplates that one exclusion will be exercised by each "side," not by each party; accordingly, the multiple plaintiffs and defendants must collectively exercise their veto for it to be effective. If they are unable to agree upon which name to strike, "the question shall be determined by lot."

Through the foregoing process a panel of three members, one judge, one health care professional, and one attorney, will be selected to constitute the review panel for the case. The statute, in this area, is very weak in leaving wholly unanswered numerous significant questions. While the act provides for disqualifying the health care professional and attorney, no provision whatsoever is made for the disqualification of judges. The scheme for selection of panel members, while allowing for problems arising from multiple plaintiffs and defendants, makes no provision for third party defendants or other party arrangements which would make the election process unmanageable.

Importantly, the entire process of selection and certification can be shortened by agreement of the parties. The statute allows a panel to be constituted by the unanimous agreement of all the parties, by their selection of a qualifying judge, health professional and practicing attorney. The panel selected by such an agreement need not be comprised of persons listed by the clerk, nor even from the clerk's roster. Presumably, they would have to be such persons who would qualify to be on the roster, e.g. it seems unlikely that, even by agreement, the legislature intended to allow a podiatrist to be impanelled in a claim based on dental malpractice.

The panel is required to conduct its hearing within 120 days of the order constituting it. At the risk of being sarcastic, it should be amusing to see how this timetable will be complied with given the difficulties of already overburdened court dockets.

The review panel procedure is frequently likened to judicially enforced arbitrations. In reality, it is much closer to an inquisition, for although the statute characterizes the proceedings before the panel as adversarial, the panel members themselves are granted the power to go beyond the evidence presented by the parties. Therefore, they cannot, in anyway, be considered merely neutral judges of the case.

Section 2-1016 states that insofar as it is practicable, the Code of Civil Procedure and the rules of evidence shall be followed. The judge on the panel presides at the panel's proceedings and is solely responsible for making all determinations of law, including questions of evidence. The panel is to determine all factual issues, both questions of liability and damages. While the parties may call, examine, and cross-examine witnesses, and introduce evidence, the panel itself may do likewise, being specifically given a subpoena power, and is authorized to examine not only its own witnesses, but those called by the parties as well. Also, and this is a significant blow to the notion that this hearing is an adversary one, the panel is empowered to examine the court file and consider matters found therein; pleadings, medical records, and other discovery.

It will be noted that under the time frame suggested in these sections, this hearing could easily be held within six months of the time the complaint is filed. Hence, there will be very little time in some cases to take discovery or prepare for the trial before the panel.

Substitution of a panel member, easy during the selection process, becomes significantly less so once the hearing has been commenced. Where a panel member is unable to conclude the hearing, the parties may present a motion to dismiss the panel and to reassign the case. The granting of this motion is not one of right. The movant must show that the case cannot be fairly determined by use of a replacement member, supporting the motion with affidavits addressed to this issue. The motion to dismiss the panel is addressed to the circuit court, not the empaneled judge, and if denied, the vacancy is to be filled from the roster by the foregoing procedure.

Review panel decision and its effects

After the hearing is concluded, the panel renders a written opinion as to the liability and damages. The panel's determination is to be in conformity with the member judges determinations of substantive law. This sounds very much like instructions but no provision is made for the parties to participate in this process. Section 2-1017 states that in the written opinion, the judge shall state its conclusions of the law and the panel its finding of fact.

Although the language of the section is not entirely clear, it appears, because the whole panel is referred to, that the member judge may also participate in the fact-finding process. Any member may prepare a written dissent. Otherwise the panel's opinion is unanimous and such unanimity is of utmost importance in the statutory scheme.

The panel must render a decision in 180 days of convening unless that time period is extended by one period up to 180 days. Once a decision is made, the panel is required to give notice of its decision date to parties and, within seven days thereafter, serve it upon them and file a copy with the clerk. The parties, it is provided, may at any time agree to be bound by the panel's decision, in which case judgment will be entered thereon, unless they unanimously have agreed that a judgment shall not be entered. It is significant that such agreements may refer (indeed, the language of the statute assumes that they will refer) to a majority determination by the panel. It is only in the case of a unanimous determination that rejection has any importance because, absent an agreement between the parties, the rejection of mere majority determination does not have any consequential effect as discussed below.

If the panel's determination is unanimous, the terms of Section 2-1018 come into play. From the receipt of the opinion, each party has 28 days to file a written acceptance or rejection; failure to file will be deemed an acceptance. If the panel's opinion is not objected to by any party, the court may enter judgment in accordance with the panel finding. If the panel's opinion is not unanimously accepted by agreement or specific acceptance, the panel judge must hold a pretrial conference pursuant to Supreme Court rules whereafter the case is to proceed to trial "as in any other civil case."

The judge who served as the panel judge cannot, of course, preside over the subsequent trial. Numerous consequences follow upon the rejection of the panel's unanimous determination by one or more parties and its acceptance by the other.

First, an accepting party is entitled to the aid of any professional society providing names to the court's roster, to provide experts for consultation and testimony. This of course, raises the possibility of the non-accepting party battling the experts of his opponent and one from the medical society at the trial.

Next, if a rejecting party does not prevail on liability at trial, he is liable to accepting parties for costs, expenses and reasonable attorney fees for both the trial and the proceedings before the review panel. The act further states that, upon the motion of such an accepting party, such sums will be "summarily taxed."

Note that the rejecting party need only prevail on liability to avoid adverse consequences. If plaintiff wins on liability and gets less money from the jury than he got from the panel, he has still prevailed.

The panel decision is not admissible at the trial of the case, but is admissible in connection with the taxation of fees and costs or any hearing where the issue is the property of the prosecution or defense of the claim which the panel reviewed. This, of course, is where the panel determinations will be used in those malicious prosecution cases. Further, the statute is silent with respect to what use may be made at trial of transcripts of evidence taken before the panel, i.e., impeachment.

Electing periodic payments

In order for a periodic installment judgment to be possible, it is necessary that a proper election must first be made by any of the parties. This election must be made at least 60 days prior to the trial of a case involving future damages, unless leave is obtained to do so at some other time.

The reason that it must be made before trial, rather than waiting to see how large the judgment is before deciding, is because, as well as the character of the judgment, the requirements of trial will be affected by the choice. Evidentiary restrictions, unique instructions, itemized verdict and special findings are all required as precedents to the entry of a periodic installment judgment, but will not be part of the trial if such treatment is not properly elected.

If plaintiff is the one making the election, he need only show that there is a good faith claim that the future damages will exceed $250,000 in order for the election to be effective. A defendant, in order to elect must show three things: first that the claim for future damages exceeds $250,000; that he can provide security in the amount of $500,000 (or, if it is less, the claim for past and future damages); and finally, that the future damages are likely to accrue over more than one year.

Objections to the election must be filed within 30 days of its being filed, and must attack one or more of the elements discussed above. The intent of the statute seems to make a presumption in favor of such election and the burden of pleading appears to be on the objecting party to contest the electors' right, rather than the electing party to allege it. However, the burden of posturing the case into a periodic mode, so far as the statute indicates, is on the elector.

Once an election has been made, all the procedural sections of the act apply to the trial and judgment, not only for the plaintiff's claim, but all other actions; counterclaims; third party claims; and actions consolidated for trial. The court is, however, empowered not to apply the sections to claims which do not involve the election, or to order that they be separately tried, if the interests of justice so require.

An election can be effected by the agreement of all parties - hardly significant since it also becomes effective if no party filed a timely objection. Absent an objection, no hearing is required to make the election effective. Once effective, however, the election cannot be withdrawn without the consent of all parties to the relevant claim.