Sec. 508. Mandatory review by independent medical panel
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If, in any health care liability action removed to Federal court pursuant to section 1441(g) of title 28, United States Code, against an applicable eligible professional, health care provider, or health care organization, the applicable eligible professional, health care provider, or health care organization alleges, in response to a filing of the claimant, that the applicable eligible professional, health care provider, or health care organization adhered to an applicable clinical practice guideline in the provision of health care goods or services to the claimant, then the court shall suspend further proceedings on the health care liability action prior to discovery proceedings, until the completion of a review of the action by an independent medical review panel.
An independent medical review panel under this section shall be composed of 3 members who are experts in the relevant field of clinical practice, appointed in accordance with paragraph (5). To be eligible to serve on an independent medical review panel, a member shall— be an experienced physician certified by a board recognized by the American Board of Medical Specialties; not earlier than 2 years prior to the date of selection to the board, have been in active medical practice or devoted a substantial portion of his or her time to teaching at an accredited medical school, or have been engaged in university-based research in relation to the medical care and type of treatment at issue; and be approved by his or her specialty society.
When possible, members should be from the region where the case in question originates to account for geographical practice variation. No civil action shall be brought in any court against any member for any act, failure to act, or statement or opinion made, within the scope of his or her duties as a member of the independent medical review panel. The members of the independent medical review panel shall acknowledge that, under certain circumstances, it may be appropriate for a physician to depart from the recommendations in clinical practice guidelines in the care of individual patients.
Each member of the independent medical review panel shall be jointly selected by the parties. A member whose selection one party does not concur in may not serve on the panel, except that, if, not later than 30 days after a response to the health care liability action is filed, 3 members have not been selected by the parties, the court shall appoint any remaining members. The costs of compensation to the members of the independent medical review panel shall be shared between the parties equally, unless otherwise agreed to by the parties.
A review by an independent medical review panel under this section shall comply with the following: The mandatory independent medical review panel that is charged with the responsibility of making a preliminary finding as to liability of the defendant applicable eligible professional shall deem the prescribed clinical practice guidelines as the standard of conduct, care, and skill expected of members of the medical profession engaged in the defendant’s field of practice under the same or similar circumstances, subject to the provisions of subsection (b)(4).
The independent medical review panel shall make a preliminary finding based solely upon the pre-discovery evidence submitted to it pursuant to Rule 26 of the Federal Rules of Civil Procedure, any medical records that would be discoverable if the lawsuit advances to trial, and the applicable prescribed clinical practice guidelines. The independent medical review panel shall not make a finding of negligence from the mere fact that a treatment or procedure was unsuccessful or failed to bring the best result, or that the patient died.
No preliminary finding by the independent medical review panel that the defendant applicable eligible professional breached the standard of care as set forth under the prescribed clinical practice guidelines shall constitute negligence per se or conclusive evidence of liability, but findings, opinions, and conclusions of the review panel shall be admissible as evidence in any and all subsequent proceedings before the court, including for purposes of motions for summary judgment and at trial.
Not later than 60 days after all members of the independent medical review panel have been selected, the panel shall complete a review of the record of the liability action and shall make a finding under this subsection. A finding under this subsection shall include the following: A determination of whether there are any applicable clinical practice guidelines to the health care liability action that substantively pertains to the injury suffered by the claimant. Whether the applicable eligible professional has alleged adherence to any such guideline.
Whether the applicable eligible professional adhered to any such guideline. Whether there is a reasonable probability that— the applicable eligible professional violated the applicable clinical practice guideline; that violation proximately caused the claimant’s alleged injury; and the claimant suffered damages as a result of the injury. The finding under this subsection may be received into evidence by the court. If the independent medical review panel made any finding under paragraph (2)(D) that there was no reasonable probability of the matters described in clauses
(i)through (iii), the court may issue a summary judgment in favor of the applicable eligible professional unless the claimant is able to show otherwise by clear and convincing evidence. If the panel made a finding under subparagraphs
(A)through
(C)of paragraph
(2)that there was an applicable clinical practice guideline that the defendant adhered to, the court shall issue summary judgment in favor of the applicable eligible professional unless the claimant is able to show otherwise by clear and convincing evidence. Any preliminary finding that the defendant applicable eligible professional did not breach the standard of care as set forth under the prescribed medical practice guidelines or that the defendant applicable eligible professional's nonadherence to the applicable standard was neither the cause in fact nor the proximate cause of the plaintiff's injury or that the plaintiff did not incur any damages as a result shall be given deference by the court and shall entitle the defendant applicable eligible professional to summary judgment unless the plaintiff is able to show by clear and convincing evidence that the independent medical review panel was in error and that there is a genuine issue as to a material fact in the case.