In Montana, as in most states, a medical malpractice lawsuit can be complicated, especially compared with other types of civil lawsuits. The medical and legal issues common to these kinds of cases are complex, for one thing. Most claims include the detailed (and often conflicting) testimony of multiple medical experts, and the introduction of extensive treatment records. What's more, most Montana medical malpractice claims will need to be considered by the state's Medical Legal Panel before the lawsuit can be filed. In this article, we'll summarize this important procedural step.
Montana Medical Legal Panel Review
In the vast majority of instances, before you can file a medical malpractice lawsuit in Montana, your claim must be submitted to the Montana Medical Legal Panel. This procedure is basically a prerequisite to the filing of most medical malpractice lawsuits in Montana's courts.
The rationale for this requirement is declared at Montana Code Annotated section 27-6-102:"to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well founded."
In other words, in requiring this kind of screening, Montana joins a majority of states that have placed procedural safeguards (some would call them "roadblocks") in the path of medical malpractice plaintiffs, as part of tort reform efforts, which seek to discourage the filing of frivolous injury-related lawsuits.
The first step is the injured patient's sending an application, in writing, signed by the patient (or the patient's attorney) to the director of the panel. (Note: The director of the Montana medical legal panel is appointed by the executive director of the Montana medical association, subject to the approval of the chief justice of the Montana supreme court.)
According to Montana Code Annotated section 27-6-302, the application must include:
- a detailed statement of the health care provider's action (or inaction) that is believed to constitute malpractice, including the dates on which the conduct occurred, the names and addresses of all health care providers who treated the patient, and the names and contact information for all witnesses, and
- a statement authorizing the panel to obtain all of the patient's medical records pertaining to the claim.
See an Application for Review of Claim.
The application is then served on all health care providers who are alleged to have committed malpractice, and each provider will "answer" the application and provide its own authorization for the release of relevant records.
A hearing will then be scheduled, and at least 10 days beforehand, the panel will be given all relevant documents. The panel usually consists of six members, chosen from a pool of Montana-licensed physicians and members of the Montana bar (licensed attorneys).
At the hearing, introductory statements are made by both sides, witnesses are called to testify before the panel, documents and sources of authority can be introduced into evidence, as can health care providers' records. The panel then deliberates, and then answers two questions by "secret ballot":
- whether there is "substantial evidence that the acts complained of occurred and that they constitute malpractice," and
- whether there is "a reasonable medical probability that the patient was injured" by the acts complained of.
The majority decision of the panel is then communicated to the parties. The panel's decision is not binding, but the panel may recommend a financial award for the patient. The panel may also discuss and approve a settlement agreement, and any approved agreement will be binding on the parties. Finally, if the panel finds substantial evidence that malpractice was committed and that the patient was harmed by it, and a lawsuit is filed in court, the court must order the parties to participate in mediation if any party requests it. (Montana Code Annotated section 27-6-606.)
Exceptions to the "Medical Legal Panel" Requirement
According to Montana Code Annotated section 27-6-105, the only medical malpractice claims that don't need to be considered by the Montana Medical Legal Panel are:
- those that are subject to a valid arbitration agreement (meaning the patient and health care provider have agreed to submit the dispute to binding arbitration rather than filing a lawsuit in court)
- those based on a medical malpractice lawsuit filed before April 19, 1977, or
- those brought by an inmate of a correctional facility, arising from a health care service provided within that facility.
Besides the procedural requirements we've discussed in this article, it's important to pay attention to (and comply with) the Montana medical malpractice statute of limitations. And of course, for legal advice that's tailored to your specific situation -- it may be time to talk with an experienced medical malpractice lawyer.