Admissibility of the Medical Review Panel Opinion Based On Relationships Between Panelist and a Party

July 8 2019 | Committees




 

Neighbor. Acquaintance. Friend of a friend. Fellow parishioner. Tennis partner. Good friend. Close friend. Best friend.

It is a timeless question – how friendly with a party is too friendly for a Panelist to serve on a Medical Review Panel? How much will a relationship need to be scrutinized to detect even an iota of familiarity between a Panelist and a party?

It is obvious today it is more challenging to select Panelists than in the past. With the rapid expansion of large hospital systems which are either managing or purchasing smaller facilities, the struggle to appoint Panelists is evident, especially physicians with rare specialties. It is becoming commonplace to witness a Panel process reject five to ten possible nominees before finding a non-objectionable candidate.

In addition to perceived professional conflicts, potential personal conflicts also remain a source of inquiry in the Courts, as they have been for years and most likely will be for decades to come.

In Elledge v. Williamson, 48,644 (La. App. 2 Cir. 1/15/14), 132 So.3d 432, the Second Circuit examined the trial court’s decision to not vacate the Medical Review Panel opinion when two Panelists did not disclose connections with one defendant physician. Specifically, one Panelist taught the defendant during her residency and both the Panelist and defendant were staff physicians at the same hospital and received a stipend from said hospital for on-call duties. The Panelist referred to the defendant as a “good friend” but not a “close friend.” The second Panelist was challenged for failing to disclose she was an acquaintance with defendant, and plaintiff noted the Panelist was uncooperative during her deposition. The Panelist testified she began her residency two or three years after the defendant and recalled minimal contact with the defendant. After investigating, the trial court found no disqualifying conflict existed with either Panelist and the Second Circuit found no error in this decision and the Medical Review Panel opinion remained admissible.

In the more recent case of Sanderson v. Tulane University Hospital & Clinic, 18-0588 (La. 6/15/18), 245 So.3d 1043, plaintiff moved post-panel to strike the Medical Review Panel opinion based on the contention that one of the Panelists failed to disclose his relationship with one of the defendant physician. Plaintiff also requested said Panelist be prohibited from testifying as a witness at trial. The disclosure allegedly did not occur until the Panelist’s deposition was taken on August 26, 2017, when the Panel had rendered the opinion on February 25, 2013. During the deposition, testimony showed the Panelist knew the defendant’s family since grammar school as he was in first through fourth grade with one of defendant’s sisters, and they lived in the same neighborhood; however, the defendant was older than the Panelist and the Panelist believed they went to the same high school. Plaintiff argued none of that information was revealed during the Medical Review Panel process, preventing plaintiff the opportunity to object to this individual serving as a Panelist, and as a result, the Panel opinion should be stricken. The defendant argued the decades-ago acquaintance with the defendants’ family and younger sister described during the deposition was insufficient to rise to bias or conflict of interest.

In its Judgment, the trial court did strike the Medical Review Panel opinion; however the court allowed the Panelist to be called as a witness. The Louisiana Supreme Court reversed the trial court’s decision, and remanded the matter back to the trial court for further proceedings. The Supreme Court found the mere fact a Panelist may not have disclosed a potential conflict of interest is not ground for automatic exclusion of the Panel’s Opinion and noted plaintiff would have an adequate opportunity to explore any potential bias through cross examination and the trier of fact could assign any appropriate weight to the Medical Review Panel opinion in light of the testimony.

Courts have consistently held the existence of an employment, financial or other relationship giving rise to a conflict of interest does not require an automatic disqualification of a Panelist’s service; rather the court has discretionary power in determining whether a Panelist should be disqualified. This issue will likely continue to present itself as more tenuous, and possibly unknown, relationships present themselves with the increased connections between facilities, popularity of social media, and the close-knit community which is the Greater New Orleans area.

 

Authored by Brittany Sloan, Frilot LLC 
on behalf of the Healthcare Law Committee

 



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