When you file a lawsuit alleging medical malpractice, any party to the suit can ask the Virginia Supreme Court to appoint a medical malpractice review panel. But you must do so quickly. You have only 30 days from the filing of the defendant’s responsive pleading to request a review panel.
What to Include in the Request for a Medical Malpractice Review Panel
Rule 2(b) of Medical Malpractice Rules of Practice tells us what the request for a medical review panel must include:
- The name, address, and telephone number of the plaintiff.
- The name, address, and telephone number of the plaintiff’s attorney.
- The name, address, and telephone number of each of the defendant health care providers.
- The name, address, and telephone number of the attorneys for the defendant health care providers.
- A statement explaining the health care provider’s official classification. For physicians the statement should explain his or her specialty or subspecialty.
- A certification that a copy of the request for a panel has been mailed to all other parties and their attorneys, if known.
- The name of the judge presiding over the case.
Can I Rescind My Request for a Review Panel?
If the court has selected a review panel you can rescind your request. But the request to rescind will be denied unless you have the consent of all parties to the case or leave from the presiding judge.
Who is on the Medical Malpractice Review Panel?
The review panel consists of two impartial attorneys, two impartial health care providers licensed and practiced in Virginia, and a circuit court judge. The Virginia Supreme Court selects the review panel from a list of close to 1000 health care providers and more than 200 attorneys submitted by the Virginia Board of Medicine and the Virginia State Bar.
When selecting the panel the court will try to appoint health care providers that practice in the same medical specialty as the defendant. If the defendant practices in multiple specialities, there is no guarantee that all his or her specialties will be represented on the panel because there are only two health care providers on each review panel.
Though the judge is on the review panel, he or she has no vote. Nor is he or she required to attend or participate in panel discussions and deliberations.
Any party may object to the appointment of any member of the panel. If cause is found, the court will replace the panel member.
Should I Request a Medical Malpractice Review Panel in Virginia?
Whether you should request a medical malpractice review panel depends on the facts of your case. An experienced Richmond medical malpractice lawyer or medical negligence attorney Newport News VA can explain your options and make a recommendation.
Here are things to consider before requesting a medical malpractice review panel:
1. Cost: The judge assigned to your case will decide how to proportion expenses associated with the review panel. You will bear some of the costs.
2. Do you expect to receive a quick settlement?: In my opinion it makes more sense for the defendant health care provider to request a panel than it does for the medical negligence victim to request a panel. This is especially true if you suffered severe injuries and damages. In such cases it is unlikely that you will receive a settlement offer that comes close to your actual damages until the parties have gone through discovery. On the other hand, requesting a panel makes sense for individuals who suffered relatively minor damages since it is possible to receive a quick settlement offer if you get a favorable finding from the review panel.
3. Do you have an expert medical witness on board? The review panel will evaluate the evidence in your case. If you do not have a supportive opinion from an expert medical witness then there is an increased risk of receiving an unfavorable opinion from the review panel. Though it is not binding, an unfavorable opinion is admissible in court and can hurt your case. For this reason we always obtain a favorable opinion from an expert medical witness before filing suit in a medical malpractice action.
What Happens after a Medical Malpractice Review Panel is Requested?
Within 10 days of receiving the request for a panel, the presiding judge will set deadlines for the completion of discovery. Discovery must be completed within 120 days from the date the panel is requested.
Within 10 days of the completion of discovery the plaintiff must submit a written statement of the facts and all documentary evidence in support of his or her claim. The defendant health care provider then has 10 days to file a written response.
Any party may ask for an ore tenus hearing, provided the request is made within ten days after the review panel is designated. If the hearing is requested within the deadline, it will be held.
At the hearing before the medical malpractice review panel the parties may present evidence, cross-examine witnesses, and make oral arguments. The rules of evidence are relaxed, so evidence that is inadmissible at trial may be presented in the panel judge’s discretion. Usually deposition transcripts, medical charts, x-rays, lab tests, and medical treatises are presented at the review panel hearing.
The review panel issues a written opinion after the hearing. If no hearing is requested or held then the panel will deliberate in private and issue a written opinion. The panel opinion is admissible at trial but is not conclusive or binding on the parties. At trial the parties may subpoena any panel member except the judge to testify.
Medical Malpractice Review Panel Strategies for the Plaintiff
Usually we recommend that plaintiffs not participate in the panel process, or put forth a minimal effort. Why? Participating in the panel process is an additional litigation expense. Further, plaintiffs do not win at panel hearings often. So if the plaintiff does not put forth his or her strongest case at the panel hearing then he or she can argue at trial that the value of the panel opinion should be limited.
Your Medical Malpractice Attorney in Virginia
Call or e-mail Virginia med mal attorney Corey Pollard for a free consultation. These cases are complicated and you’ll want someone in your corner to fight back against the medical malpractice insurance company’s team of attorneys.