Wyo. Doctors Dislike Medical Review Panel Bill

The proposal being considered by Wyoming lawmakers to create a medical review panel to help weed out frivolous medical malpractice lawsuits might do more harm than good, according to an official with a doctors’ trade association.

The Wyoming Medical Society has long supported forming a medical review panel in Wyoming in an effort to hold down health care providers’ malpractice insurance costs.

But association President Robert Monger said his group does not support the bill in its current form and will not support it unless lawmakers change three key elements.

On the other hand, representatives of a group backed by trial attorneys favor keeping the bill the way it is. Shauna Roberts and Dan Neal, both of Citizens for Real Insurance Reform, said one of those provisions is actually skewed in favor of doctors at the expense of patients trying to recover damages.

A Senate committee plans to work on the bill after a hearing now scheduled for Wednesday morning. The bill has already passed the House.

Monger said if the Senate doesn’t make some significant changes in the bill he would prefer that lawmakers start over after the legislative session ends and craft a new bill over the next year.

Monger’s complaints are over whether the panel will be mandatory, the standard of evidence the panel will use, and what parts of the proceedings will be admissible in court.

First, Monger favors a panel hearing to be mandatory in all cases of alleged malpractice. The legislation as it now stands would allow the prospective plaintiff and defendant to jointly waive appearing before the panel.

If the panel hearing is mandatory in all cases, that would yield better data for people to see the incidence of frivolous lawsuits in Wyoming, he said.

If both parties can jointly waive a panel hearing, Monger said, it could set up a situation where someone threatens to sue a doctor for $1 million but then offers to waive the hearing if the doctor could be convinced to settle a claim for a much smaller amount.

However, Roberts and Neal say the joint waiver provision would save both patients and their doctors money in the event of a possible malpractice lawsuit.

They are more concerned with a part of the bill that allows a health care provider to opt out of a panel hearing by simply failing to respond to a patient’s claim. The patients, however, would be banned from bringing a malpractice lawsuit without first preparing a case for the review panel.

“What this does is it makes it unbalanced and unfair to the people,” Roberts said.

On the doctor-opting-out provision, Monger agrees with Roberts and Neal.

The two sides do not agree when it comes to the standard by which the panel should judge the evidence it sees in a hearing.

Roberts and Neal support the House’s position that the panel should search the plaintiff’s case for any “substantial evidence” that the acts in question occurred and that the acts constitute malpractice. That means the panel could find in favor of a plaintiff regardless of the evidence on the other side, as long as there is enough evidence on the plaintiff’s side to show that malpractice occurred.

Monger favors a “preponderance of evidence” standard, which basically means that the panel would have to conclude that it was “more likely than not” that the prospective plaintiff would win were the case to go to trial. He likened that standard to the odds of a coin flip but argued that the “substantial evidence” standard sets the bar even lower than that.

Citizens for Real Insurance Reform favors the lower standard because the review panel hearing is not meant to be a trial, it’s simply a tool to weed out potential lawsuits that have no merit, according to Roberts.

Finally, under the bill, the trial judge would have final discretion, using existing trial rules, to determine what parts of the panel proceedings, including its ultimate decision, would be admissible at trial.

Monger said the trial jury should be able to at least learn of a panel’s ultimate decision in every case.

“If it’s not admissible, the panel doesn’t have any teeth,” Monger said.

Roberts and Neal contend medical malpractice cases should be no different than any other case that goes to trial.

The bill is House Bill 83

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