Summary Medical Liability/Malpractice ADR and Screening Panels Statutes

State Medical Liability Statutes—Alternative Dispute Resolution and Screening Panels

Alabama

Ala. Code §6-5-485

(a) After a physician, dentist, medical institution, or other health care provider has rendered services, or failed to render services, to a patient out of which a claim has arisen, the parties thereto may agree to settle such dispute by arbitration. Such agreement must be in writing and signed by both parties. Any such agreement shall be valid, binding, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract.

(b) Pursuant to the provisions of this section, the claimant shall select one competent and disinterested arbitrator, and the party or parties against whom the claim is made shall select one competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or, if unable to agree thereon within 30 days, then, upon request of any party, such third arbitrator shall be selected by a judge of a court of record in the county in which the arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute in accordance with the procedural rules established by the American Arbitration Association. The decision in writing of any two arbitrators shall be binding upon all parties. Each party shall pay fees of his own arbitrator, and split the expenses of the third. Arbitration shall be conducted in the county in which the claim arose. A judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

Alaska

Alaska Stat. §09.55.535

(a) A patient and any health care provider may execute an agreement to submit to arbitration any dispute, controversy, or issue arising out of care or treatment by the health care provider during the period that the agreement is in force or that has already arisen between the parties. Execution of an agreement under this subsection by a patient may not be made a prerequisite to receipt of care or treatment by the health care provider.

Alaska Stat. §09.55.536

If the parties do not agree to arbitrate, the court shall appoint within 20 days after the filing of an answer to a summons and complaint a three-person expert advisory panel unless the court decides that an expert advisory opinion is not necessary for a decision in the case. Not more than 30 days after selection of the panel, the panel shall make a written report to the parties and to the court, answering the following questions and other questions submitted to the panel by the court in sufficient detail to explain the case and the reasons for the panel's answers: (1) Why did the claimant seek medical care? (2) Was a correct diagnosis made? If not, what was incorrect about the diagnosis? (3) Was the treatment or lack of treatment appropriate? If not, what was inappropriate about the treatment or lack of treatment? (4) Was the claimant injured during the course of evaluation or treatment or by failure to diagnose or treat? (5) If the answer to question 4 is "yes," what is the nature and extent of the medical injury? (6) What specifically caused the medical injury? (7) Was the medical injury caused by unskillful care? Explain. (8) If a medical injury had not occurred, what would have been the likely outcome of the medical case?

(e) The report of the panel with any dissenting or concurring opinion is admissible in evidence to the same extent as though its contents were orally testified to by the person or persons preparing it. The court shall delete any portion that would not be admissible because of lack of foundation for opinion testimony, or otherwise. Either party may submit testimony to support or refute the report. The jury shall be instructed in general terms that the report shall be considered and evaluated in the same manner as any other expert testimony. Any member of the panel may be called by any party and may be cross-examined as to the contents of the report or of that member's dissenting or concurring opinion.

Arizona

No statute provided specific to medical liability/malpractice cases.

Arkansas

No statute provided specific to medical liability/malpractice cases.

California

Cal. Code of Civil Procedure §1295

Allows health care providers and patients to contract for the arbitration of disputes. Entering contract is binding and removes option for trial.

Cal. Health and Safety Code §1363.1

Any health care service plan that requires binding arbitration to settle disputes must disclose whether the plan uses binding arbitration to settle disputes, including specifically whether the plan uses binding arbitration to settle claims of medical malpractice.

Cal. Insurance Code §10123.19

(b) Any disability insurance policy that includes a term that requires the parties to submit to binding arbitration in case of a medical malpractice claim or dispute shall, for those cases or disputes for which the total amount of damages claimed is $50,000 or less, provide for selection by the parties of a single neutral arbitrator who shall have no jurisdiction to award more than $50,000. If the parties are unable to agree on the selection of a single neutral arbitrator, the method provided in §1281.6 of the Code of Civil Procedure shall be utilized.

The provision shall not be subject to waiver by the policy.

Colorado

Colo. Rev. Stat. §10-3-1104

(1) The following are defined as unfair methods of competition and unfair or deceptive acts or practices in the business of insurance:

(n) Requiring or attempting to require or otherwise induce a health care provider, as defined in §13-64-403(12)(a), C.R.S., to utilize arbitration agreements with patients as a condition of providing medical malpractice insurance to such health care provider.

Colo. Rev. Stat. §13-64-403

(1) It is the intent of the general assembly that an arbitration agreement be a voluntary agreement between a patient and a health care provider and no medical malpractice insurer shall require a health care provider to utilize arbitration agreements as a condition of providing medical malpractice insurance to such health care provider. Making the use of arbitration agreements a condition to the provision of medical malpractice insurance shall constitute an unfair insurance practice and shall be subject to the provisions, remedies, and penalties prescribed in part 11 of article 3 of title 10, C.R.S.

(1.5) Exemplary damages may be awarded in any arbitration proceeding held pursuant to this section in accordance with §13-21-102(1) to (3) and (6). Any award of exemplary damages in a proceeding held pursuant to this section may be modified by the district court upon petition to the district court alleging that the award of such damages was either excessive or inadequate.

(2) Any agreement for the provision of medical services which contains a provision for binding arbitration of any dispute as to professional negligence of a health care provider that conforms to the provisions of this section shall not be deemed contrary to the public policy of this state, except as provided in subsection (10) of this section.

Connecticut

Conn. Gen. Stat. §52-190c

Requires a mandatory mediation for all civil actions brought to recover damages resulting from personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider. If such mediation does not settle or conclude the civil action, and if all parties in attendance at such mediation agree, the mediator and all such parties may file a stipulation with the court setting forth any matter or conclusion that the parties and the mediator believe may be useful or relevant to narrow the issues, expedite discovery or assist the parties in preparing the civil action for trial.

Delaware

Del. Code Ann. tit. 18, §6803 et seq.

Medical Negligence Review Panels shall be composed of five voting members and shall include two health care provider members, at least one of whom shall be a physician, and the other one of whom shall be, if available, from one of the health care disciplines involved in such action, one attorney and two lay persons who are not health care providers nor licensed to practice law nor associated with the insurance industry.

Del. Code Ann. tit. 18, §6811

The panel shall, within 30 days, render to the Court a written opinion, including any minority opinion or opinions, signed by the chairperson expressing one or more of the following findings: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care; (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care; (3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the Court or jury, which issue of fact shall be identified in the opinion; or (4) The conduct complained of was or was not a factor in the resultant damages, and if so, whether the plaintiff suffered: a. Any disability and the extent and duration of the disability; and b. Any permanent impairment and the percentage of the impairment.

Del. Code Ann. tit. 18, §6812

The opinion reached by the medical negligence review panel shall be admissible as prima facie evidence in the pending Superior Court action brought by the claimant, but such opinion shall not be conclusive and any party shall have the right to call, at said party's cost, any witness who appeared before or submitted reports to the medical negligence review panel as a witness. If called, the witness shall be required to appear and testify. Members of a medical negligence review panel shall have immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of their duties prescribed by this chapter.

District of Columbia

D.C. Code Ann. §16-2821 et seq.

After an action is filed in the court against a healthcare provider alleging medical malpractice, the court shall require the parties to enter into mediation, without discovery or, if all parties agree with only limited discovery that will not interfere with the completion of mediation within 30 days of the Initial Scheduling and Settlement Conference ("ISSC"), prior to any further litigation in an effort to reach a settlement agreement. The mediation schedule shall be included in the scheduling conference order following the ISSC. Unless all parties agree, the stay of discovery shall not be more than 30 days after the ISSC.

D.C. Code Ann. §16-2825

Each party shall submit a confidential mediation statement to the mediator no later than 10 days prior to the initial mediation session. Unless not already stated in the complaint and answer, the mediation statement shall: (1) Include a brief summary of facts; (2) Identify the issues of law and fact in dispute and summarize the party's position on those issues; (3) Discuss whether there are issues of law or fact the early resolution of which could facilitate early settlement or narrow the scope of the dispute; (4) Identify the attorney who will represent the party at the mediation session and the person with settlement authority who will attend the mediation session; (5) Include any documents or materials relevant to the case which may assist the mediator and advance the purposes of the mediation session; and (6) Present any other matters that may assist the mediator and facilitate the mediation.

D.C. Code Ann. §16-2826

A mediator's report shall be filed with the court no later than 10 days after the mediation has terminated, informing the court regarding: (1) Attendance; (2) Whether a settlement was reached; or (3) If a settlement was not reached, any agreements to narrow the scope of the dispute, limit discovery, facilitate future settlement, hold another mediation session, or otherwise reduce the cost and time of trial preparation.

D.C. Code Ann. §16-2827

The mediation session shall be confidential. All proceedings at the mediation, including any statement made by any party, attorney, or other participant, shall be privileged and shall not be construed as an admission against interest. Any statement at such proceedings shall not be used in court in connection with the case or any other litigation. A party shall not be bound by anything said or done at the mediation unless a settlement is reached.

Florida

Fla. Stat. §766.108

Within 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person mandatory mediation in accordance with §44.102 if binding arbitration under §766.207 has not been agreed to by the parties. In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, the court shall require a settlement conference at least three weeks before the date set for trial.

Fla. Stat. §766.207 et seq.

Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law, including the Wrongful Death Act, subject to the following limitations: (a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80% of wage loss and loss of earning capacity, offset by any collateral source payments. (b) Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant's injuries resulted in a 50% reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages. (c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to §766.202(9) and shall be offset by future collateral source payments. (d) Punitive damages shall not be awarded.

Fla. Stat. §766.208

Within 20 days after the determination of damages by the arbitration panel in the first arbitration proceeding, those defendants who have agreed to voluntary binding arbitration shall submit any dispute among them regarding the apportionment of financial responsibility to a separate binding arbitration proceeding.

Fla. Stat. §766.209

(1) A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial.

(2) If neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under §768.79 or offer of settlement under §45.061.

(3) If the defendant refuses a claimant's offer of voluntary binding arbitration: (a) The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in §766.118, prejudgment interest, and reasonable attorney's fees up to 25% of the award reduced to present value. (b) The claimant's award at trial shall be reduced by any damages recovered by the claimant from arbitrating codefendants following arbitration.

(4) If the claimant rejects a defendant's offer to enter voluntary binding arbitration: (a) The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. The Legislature expressly finds that such conditional limit on noneconomic damages is warranted by the claimant's refusal to accept arbitration, and represents an appropriate balance between the interests of all patients who ultimately pay for medical negligence losses and the interests of those patients who are injured as a result of medical negligence. (b) Net economic damages reduced to present value shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments. (c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to §766.202(9), and shall be offset by future collateral source payments.

(5) Jury trial shall proceed in accordance with existing principles of law.

Georgia

Ga. Code §9-9-60 et seq.

In addition to any other legal procedure for the resolution of medical malpractice claims, the parties to a medical malpractice claim may submit the claim for arbitration in accordance with this article.

Ga. Code §9-9-78

The arbitrators shall make a written finding on each of the matters in controversy contained in the submission. If the arbitrators shall fail to agree on any finding, then any two of them may make the finding, which shall have the same force and effect as if made by all.

Ga. Code §9-9-79

After the arbitrators have made their findings, the referee shall furnish each of the parties with a copy thereof. The original shall be entered on the minutes of the court authorizing the arbitration; it shall have all the force and effect of a judgment or decree of the court and may be enforced in the same manner at any time after the adjournment of the court.

Guam

Guam Code Ann. tit. 10, §10100 et seq.

Any claim that accrues or is being pursued in the territory of Guam, whether in tort, contract, or otherwise, shall be submitted to mandatory arbitration pursuant to the terms of this Chapter if it is a controversy between the patient, his relatives, his heirs-at-law or personal representative or any third party or other party, and the health professional or health care institution, or their employees or agents, and is based on malpractice, tort, contract, strict liability, or any other alleged violation of a legal duty incident to the acts of the health professional or health care institution, or incident to services rendered or to be rendered by the health professional or health care institution.

Guam Code Ann. tit. 10, §10133

A majority of the panel of arbitrators may grant monetary damages only deemed equitable and just.

(a) The award in the arbitration proceeding shall be in writing and shall be signed by the arbitrators or a majority of the panel of arbitrators. An award cannot be rendered unless it is signed by a majority of the arbitrators. The award shall include a determination of all the questions submitted to arbitration by each party, the resolution of which is necessary to determine the dispute, controversy, or issue.

(b) The panel shall determine the degree to which each respondent party, if more than one, was at fault for the total damages accruing to any other party to the arbitration, considering all sources of damage involving parties to the arbitration, but excluding the damages attributable to persons not parties to the arbitration.

(c) The panel shall prepare a schedule of contributions according to the relative fault of each party which schedule shall be binding on those parties, but such determination shall not affect a claimant's right to recover jointly and severally from all parties where such right otherwise exists in the law.

Hawaii

Hawaii Rev. Stat. §671-11 et seq.

(b) A medical inquiry and conciliation panel shall be formed for each inquiry filed pursuant to §671-12 and shall be disbanded after an inquiry is resolved, a notice of termination is filed, or a suit based on the circumstances of the injury is filed in a court of competent jurisdiction. Each medical inquiry and conciliation panel shall consist of one chairperson who shall be an attorney licensed to practice in the courts of the state and experienced in trial practice and the personal injury claims settlement process and one physician, osteopathic physician, or surgeon licensed to practice under chapter 453. The chairperson shall be appointed by the director of Commerce and Consumer Affairs from a list of eligible persons approved by the chief justice of the supreme court of Hawaii. The physician, osteopathic physician, or surgeon shall be appointed by the chairperson and shall be licensed and in good standing under chapter 453.

Hawaii Rev. Stat. §671-12

(a) Any person or the person's representative having concerns regarding the existence of a medical tort shall submit an inquiry to the medical inquiry and conciliation panel before a suit based on the circumstances of the inquiry may be commenced in any court of this state. Inquiries shall be submitted to the medical inquiry and conciliation panel in writing and shall include the facts upon which the inquiry is based and the names of all parties against whom the inquiry is or may be made who are then known to the person or the person's representative.

Hawaii Rev. Stat. §671-13

Every inquiry regarding a medical tort shall be processed by the medical inquiry and conciliation panel within 30 days after the last date for filing a response. The proceedings shall be informal. During the proceedings or at any time before termination, the panel may encourage the parties to settle or otherwise dispose of the inquiry voluntarily.

Hawaii Rev. Stat. §671-16

(a) The party initiating the inquiry may institute litigation based upon the circumstances of the inquiry in an appropriate court only after the medical inquiry and conciliation panel proceedings were terminated pursuant to §671-15; a party has participated in alternative dispute resolution pursuant to § 671-16.6; or the twelve-month period under §671-18 has expired.

(b) No statement made in the course of the proceedings of the medical inquiry and conciliation panel shall be admissible in evidence either as an admission, to impeach the credibility of a witness, or for any other purpose in any trial of the action; provided that the statements may be admissible for the purpose of §671-19. No decision, conclusion, finding, statement, or recommendation of the medical inquiry and conciliation panel on the issue of liability or on the issue of damages shall be admitted into evidence in any subsequent trial, nor shall any party to the medical inquiry and conciliation panel proceeding, or the counsel or other representative of a party, refer or comment thereon in an opening statement, an argument, or at any other time, to the court or jury; provided that the decision, conclusion, finding, or recommendation may be admissible for the purpose of §671-19.

Hawaii Rev. Stat. §671-16.5

(c) Notwithstanding §671-12, any inquiry may be submitted directly to an alternative dispute resolution process upon the written agreement of all parties without first submitting the inquiry to a medical inquiry and conciliation panel. A written agreement shall be effective as of the date of its execution by the parties. Any inquiry submitted directly to alternative dispute resolution need not be subsequently submitted to a medical inquiry and conciliation panel and shall not be subject to filing fees assessed by the director for the medical inquiry and conciliation panel.

(d) Within 30 days after the completion of the alternative dispute resolution process, the alternative dispute resolution provider shall notify all parties concerned, their counsel, and the representative of each health care provider's liability insurance carrier authorized to act for the carrier, as appropriate, that the alternative dispute resolution process has been completed.

(e) The party submitting the inquiry may institute litigation based upon the inquiry in an appropriate court only if: (1) The parties were not able to resolve the entire matter through the alternative dispute resolution process and the matter has not been resubmitted to the medical inquiry and conciliation panel pursuant to subsection (b) of this section; or (2) The matter has not been resolved through the alternative dispute resolution process after twelve months from the date the matter was filed with the approved or agreed upon alternative dispute resolution provider.

(f) No statement made in the course of the approved or agreed upon alternative dispute resolution process shall be admissible in evidence as an admission, to impeach the credibility of a witness, or for any other purpose in any trial of the action. No decision, conclusion, finding, or recommendation of the approved or agreed upon alternative dispute resolution provider on the issue of liability or on the issue of damages shall be admitted into evidence in any subsequent trial, nor shall any party to the approved or agreed upon alternative dispute resolution hearing, their counsel, or other representative of the party, refer or comment thereon in an opening statement, in an argument, or at any time, to the court or jury.

Idaho

Idaho Code §6-1001 et seq.

The Idaho state board of medicine, in alleged malpractice cases involving claims for damages against physicians and surgeons practicing in the state of Idaho or against licensed acute care general hospitals operating in the state of Idaho, is directed to cooperate in providing a hearing panel in the nature of a special civil grand jury and procedure for prelitigation consideration of personal injury and wrongful death claims for damages arising out of the provision of or alleged failure to provide hospital or medical care in the state of Idaho, which proceedings shall be informal and nonbinding, but nonetheless compulsory as a condition precedent to litigation. Proceedings conducted or maintained under the authority of this act shall at all times be subject to disclosure according to chapter 1, title 74, Idaho Code. Formal rules of evidence shall not apply and all such proceedings shall be expeditious and informal.

Idaho Code §6-1002

The board of medicine shall provide for and appoint an appropriate panel or panels to accept and hear complaints of such negligence and damages, made by or on behalf of any patient who is an alleged victim of such negligence. Said panels, shall include one person who is licensed to practice medicine in the state of Idaho. In cases involving claims against hospitals, one additional member shall be a then serving administrator of a licensed acute care general hospital in the state of Idaho. One additional member of each such panel shall be appointed by the commissioners of the Idaho state bar, which person shall be a resident lawyer licensed to practice law in the state of Idaho, and shall serve as chairman of the panel. The panelists so appointed shall select by unanimous decision a layman panelist who shall not be a lawyer, doctor or hospital employee but who shall be a responsible adult citizen of Idaho. All panelists shall serve under oath that they are without bias or conflict of interest as respects any matter under consideration.

Idaho Code §6-1004

At the close of proceedings the panel, by majority and minority reports or by unanimous report, as the case may be, shall provide the parties its comments and observations with respect to the dispute, indicating whether the matter appears to be frivolous, meritorious or of any other particular description. If the panel is unanimous with respect to an amount of money in damages that in its opinion should fairly be offered or accepted in settlement, it may so advise the parties and affected insurers or third-party payors having subrogation, indemnity or other interest in the matter.

Idaho Code §6-2301

In the event of an alleged negligence or wrongful death case involving a claim for damages against a licensed nursing facility operating in the state of Idaho, the Idaho state board of examiners of nursing home administrators is directed to cooperate in providing a prelitigation hearing panel. The panel shall operate in the nature of a special civil grand jury and procedure for prelitigation consideration of personal injury and wrongful death claims for damages arising out of the provision of or alleged failure to provide medical, nursing, or health care services in the state of Idaho. The proceedings shall be informal and nonbinding, but shall be compulsory as a condition precedent to litigation. Proceedings conducted or maintained under the authority of this chapter shall at all times be subject to disclosure according to chapter 1, title 74, Idaho Code. Formal rules of evidence shall not apply and all proceedings shall be expeditious and informal.

Illinois

Ill. Rev. Stat. ch. 710, §15/1 et seq.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract, including failure to comply with the terms of the Workplace Transparency Act, except that any agreement between a patient and a hospital or health care provider to submit to binding arbitration a claim for damages arising out of (1) injuries alleged to have been received by a patient, or (2) death of a patient, due to hospital or health care provider negligence or other wrongful act, but not including intentional torts, is also subject to the Health Care Arbitration Act.

Ill. Rev. Stat. ch. 710, §15/8

Every health care arbitration agreement shall be subject to the following conditions:

(a) The agreement is not a condition to the rendering of health care services by any party and the agreement has been executed by the recipient of health care services at the inception of or during the term of provision of services for a specific cause by either a health care provider or a hospital; and

(b) The agreement is a separate instrument complete in itself and not a part of any other contract or instrument; and

(c) The agreement may not limit, impair, or waive any substantive rights or defenses of any party, including the statute of limitations; and

(d) The agreement shall not limit, impair, or waive the procedural rights to be heard, to present material evidence, to cross-examine witnesses, and to be represented by an attorney, or other procedural rights of due process of any party.

(e) As a part of the discharge planning process the patient or, if appropriate, members of his family must be given a copy of the health care arbitration agreement previously executed by or for the patient and shall re-affirm it. Failure to comply with this provision during the discharge planning process shall void the health care arbitration agreement.

Indiana

Ind. Code §34-18-8-4 et seq.

Except as provided, an action against a health care provider may not be commenced in a court in Indiana before: (1) the claimant's proposed complaint has been presented to a medical review panel established under IC 34-18-10; and (2) an opinion is given by the panel.

Ind. Code §34-18-8-6

Notwithstanding section 4 of this chapter, a claimant may commence an action in court for malpractice without the presentation of the claim to a medical review panel if the claimant and all parties named as defendants in the action agree that the claim is not to be presented to a medical review panel. The agreement must be in writing and must be signed by each party or an authorized agent of the party. The claimant must attach a copy of the agreement to the complaint filed with the court in which the action is commenced.

Ind. Code §34-18-10-1 et seq.

This chapter provides for the establishment of medical review panels to review proposed malpractice complaints against health care providers covered by this article.

Ind. Code §34-18-10-22

(a) The panel has the sole duty to express the panel's expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint.

(b) After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within 30 days, give one or more of the following expert opinions, which must be in writing and signed by the panelists: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. (3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury. (4) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered: (A) any disability and the extent and duration of the disability; and (B) any permanent impairment and the percentage of the impairment.

Ind. Code §34-18-10-23

A report of the expert opinion reached by the medical review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law. However, the expert opinion is not conclusive, and either party, at the party's cost, has the right to call any member of the medical review panel as a witness. If called, a witness shall appear and testify.

Iowa

No statute provided specific to medical liability/malpractice cases.

Kansas

Kan. Stat. Ann. §65-4901 et seq.

(a) If a petition is filed in a district court of this state claiming damages for personal injury or death on account of alleged medical malpractice of a health care provider and one of the parties to the action requests, by filing a memorandum with the court, that a medical malpractice screening panel be convened, the judge of the district court shall convene a medical malpractice screening panel, hereafter referred to as the “screening panel.” If a petition is filed in a district court of this state claiming damages for personal injury or death on account of alleged medical malpractice of a health care provider and none of the parties to the action requests that a screening panel be convened, the judge may convene a screening panel upon the judge's own motion. If a claim for damages for personal injury or death on account of alleged medical malpractice of a health care provider has not been formalized by the filing of a petition, any party affected by such claim may request, by filing a memorandum with the court, that a screening panel be convened, and if such request is made the judge of the district court shall convene a screening panel. If a petition or claim is filed naming more than one defendant or more than one person against whom a claim is being made, each defendant or person is entitled to request a screening panel.

(b) The membership of the screening panel shall be selected as follows: (1) A health care provider designated by the defendant or by the person against whom the claim is made if no petition has been filed; (2) a health care provider designated by the plaintiff or by the claimant if no petition has been filed; (3) a health care provider selected jointly by the plaintiff and the defendant or by the claimant and the person against whom the claim is made if no petition has been filed; and (4) an attorney selected by the judge of the district court from a list of attorneys maintained by the judge of the district court for such purpose. Such attorney shall be a nonvoting member of the screening panel but shall act as chairperson of the screening panel.

Kan. Stat. Ann. §65-4903

The screening panel shall convene with notice in writing to all parties and their counsel and shall decide, after consideration of medical records and medical care facility records, contentions of the parties, examination of x-rays, test results and treatises, whether there was a departure from the standard practice of the health care provider specialty involved and whether a causal relationship existed between the damages suffered by the claimant and any such departure. The screening panel shall give notice, organize and conduct its meetings in accordance with rules of procedure adopted by the supreme court of Kansas to govern notice, organization and conduct of such meetings, except strict adherence of the rules of procedure and evidence applicable in civil cases shall not be required. All meetings of the screening panel shall be held in camera.

Kan. Stat. Ann. §65-4904

(a) Within 180 days after the screening panel is commenced, such panel shall make written recommendations on the issue of whether the health care provider departed from the standard of care in a way which caused the plaintiff or claimant damage. A concurring or dissenting member of the screening panel may file a written concurring or dissenting opinion. All written opinions shall be supported by corroborating references to published literature and other relevant documents.

(b) The screening panel shall notify all parties when its determination is to be handed down, and, within seven days of its decision, shall provide a copy of its opinion and any concurring or dissenting opinion to each party and each attorney of record and to the judge of the district court.

(c) The written report of the screening panel shall be admissible in any subsequent legal proceeding, and either party may subpoena any and all members of the panel as witnesses for examination relating to the issues at trial, provided the panel member or members otherwise meet the qualifications of K.S.A. 60-3412, and amendments thereto.

Kan. Stat. Ann. §65-4905

In the event that one or more of the parties rejects the final determination of the screening panel, the plaintiff may proceed with the action in the district court.

Kentucky

No statute provided specific to medical liability/malpractice cases.

Louisiana

La. Rev. Stat. Ann. §9:4230 et seq.

A provision in any medical contract between a patient and medical institution, under which the parties agree to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or a provision to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

La. Rev. Stat. Ann. §40:1231.8 et seq.

A. (1)(a) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this section. The filing of a request for review by a medical review panel as provided for in this section shall not be reportable by any health care provider, the Louisiana Patient's Compensation Fund, or any other entity to the Louisiana State Board of Medical Examiners, to any licensing authority, committee, or board of any other state, or to any credentialing or similar agency, committee, or board of any clinic, hospital, health insurer, or managed care company.

B. (1)(a)(i) No action against a health care provider covered by this part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this section. (ii) A certificate of enrollment issued by the board shall be admitted in evidence.

C. The medical review panel shall consist of three health care providers who hold unlimited licenses to practice their profession in Louisiana and one attorney. . . .

G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. (3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court. (4) When Paragraph (1) of this subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

H. Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.

La. Rev. Stat. Ann. §40-1237.2 et seq.

A. (1)(a) All malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims subject to administrative review in a correctional facility in accordance with R.S. 40:1237.1(E) and claims compromised or settled by the claimant and the division of administration with the concurrence of designated legal counsel for the state, shall be reviewed by a state medical review panel established as provided in this section, to be administered by the commissioner of administration, hereinafter referred to as commissioner. The filing of a request for review by a state medical review panel as provided for in this section shall not be reportable by any health care provider or any other entity to the Louisiana State Board of Medical Examiners, to any licensing authority, committee, or board of any other state, or to any credentialing or similar agency, committee, or board of any clinic, hospital, health insurer, or managed care company.

B. (1)(a)(i) No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before the claimant's complaint has been presented to a state medical review panel established pursuant to this section.

C. (1) The state medical review panel shall consist of one attorney and three health care providers who hold unlimited licenses to practice their profession in Louisiana. . . .

G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions which shall be in writing and signed by the panelists, together with written reasons supporting each opinion, which shall constitute part of the report: (1) The evidence does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. (2) The evidence does support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. If such opinion is rendered, then an opinion on whether the conduct complained of was or was not, in fact, a medical cause of the resultant damages shall also be rendered. If an opinion is rendered that such conduct was, in fact, a medical cause of the resultant damages, then an opinion shall be rendered on whether the plaintiff suffered: (a) Any disability and the extent and duration of the disability. (b) Any permanent impairment and the percentage of the impairment. (3) There is a material issue of fact, not requiring medical or health care expert opinion, bearing on liability for consideration by the court.

H. Any report of the expert opinion reached by the state medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party may call, at his cost, any member of the state medical review panel as a witness. If called, the witness shall appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed by this Part.

Maine

Me. Rev. Stat. Ann. tit. 24, §2851 et seq.

The purpose of mandatory prelitigation screening and mediation panels is: (A) To identify claims of professional negligence which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and (B) To identify claims of professional negligence and to encourage early withdrawal or dismissal of non-meritorious claims.

Me. Rev. Stat. Ann. tit. 24, §2853

The pretrial screening may be bypassed if all parties agree upon a resolution of the claim by lawsuit. All parties to a claim may, by written agreement, submit a claim to the binding determination of the panel, either prior to or after the commencement of a lawsuit. Both parties may agree to bypass the panel and commence a lawsuit for any reason, or may request that certain preliminary legal affirmative defenses or issues be litigated prior to submission of the case to the panel. The panel has no jurisdiction to hear or decide, absent the agreement of the parties, dispositive legal affirmative defenses, and comparative negligence. The panel chair may require the parties to litigate, by motion, dispositive legal affirmative defenses in the Superior Court prior to submission of the case to the panel. Any such defense, as well as any motion relating to discovery that the panel chair has chosen not to rule on may be presented, by motion, in Superior Court without the necessity of a complaint having first been filed.

Me. Rev. Stat. Ann. tit. 24, §2855

At the conclusion of the presentations, the panel shall make its findings in writing within 30 days by answering the following questions: (A) Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care; (B) Whether the acts or omissions complained of proximately caused the injury complained of; and (C) If negligence on the part of the health care practitioner or health care provider is found, whether any negligence on the part of the patient was equal to or greater than the negligence on the part of the practitioner or provider.

Me. Rev. Stat. Ann. tit. 24, §2857

The findings and other writings of the panel and any evidence and statements made by a party or a party's representative during a panel hearing are not admissible and may not otherwise be submitted or used for any purpose in a subsequent court action and may not be publicly disclosed except as provided.

Maryland

Md. Courts and Judicial Proceedings Code Ann. §3-2A-01 et seq.

Arbitration of claims is generally required.

Md. Courts and Judicial Proceedings Code Ann. §3-2A-06A

(a) At any time before the hearing of a claim with the Health Care Alternative Dispute Resolution Office, the parties may agree mutually to waive arbitration of the claim, and the provisions of this section then shall govern all further proceedings on the claim.

Md. Courts and Judicial Proceedings Code Ann. §3-2A-06B

(a) Arbitration of a claim with the Health Care Alternative Dispute Resolution Office may be waived by the claimant or any defendant in accordance with this section, and the provisions of this section shall govern all further proceedings on any claim for which arbitration has been waived under this section.

Md. Courts and Judicial Proceedings Code Ann. §3-2A-06C

(d) Within 30 days of the later of the filing of the defendant's answer to the complaint or the defendant's certificate of a qualified expert under § 3-2A-04 of this subtitle, the court shall order the parties to engage in alternative dispute resolution at the earliest possible date.

(e)(1) Within 30 days of the later of the filing of the defendant's answer to the complaint or the defendant's certificate of a qualified expert under §3-2A-04 of this subtitle, the parties may choose a mediator, neutral provider, or individual to conduct a settlement conference. (2) If the parties choose a mediator, neutral provider, or individual to conduct a settlement conference, the parties shall notify the court of the name of the individual.

(k) In accordance with Maryland Rule 17-109, the outline described in subsection (h) of this section and any written or oral communication made in the course of a conference under this section: (1) Are confidential; (2) Do not constitute an admission; and (3) Are not discoverable.

Massachusetts

Mass. Gen. Laws Ann. ch. 231, §60B

Every action for malpractice, error or mistake against a health care provider shall be heard by a tribunal consisting of a single justice of the superior court, a licensed physician and a licensed attorney. The tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result. The testimony of witnesses and the decision of the tribunal shall be admissible as evidence at a trial.

Michigan

Mich. Comp. Laws §600.2912g

If the total amount of damages claimed is $75,000 or less, including interest and costs, all claimants and all health professionals or health facilities notified under §2912b may agree in writing to submit the claim stated in the notice to binding arbitration. An arbitration award under this section is not subject to appeal.

Mich. Comp. Laws §600.4901 et seq.

(1) An action alleging medical malpractice shall be mediated pursuant to this chapter.

Mich. Comp. Laws §600.4915

(1) Except as otherwise provided in subsection (2), within 14 days after the mediation hearing, the panel shall make an evaluation and notify the attorney for each party of its evaluation in writing. The evaluation shall include a specific finding on the applicable standard of care. If an award is not unanimous, the evaluation shall so indicate.

(2) If the panel unanimously determines that a complete action or defense is frivolous as to any party, the panel shall so state as to that party. If the action proceeds to trial, the party who has been determined to have a frivolous action or defense shall post a cash or surety bond, approved by the court, in the amount of $5,000 for each party against whom the action or defense was determined to be frivolous. If judgment is entered against the party who posted the bond, the bond shall be used to pay all reasonable costs incurred by the other parties and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.

(3) The evaluation shall include a separate award as to each cross-claim, counterclaim, or third-party claim that has been filed in the action. For the purpose of this subsection, all such claims filed by any 1 party against any other party shall be treated as a single claim.

Mich. Comp. Laws §600.4919

(1) If all the parties accept the mediation panel's evaluation, judgment shall be entered in that amount, which shall include all fees, costs, and interest to the date of judgment.

(2) In a case involving multiple parties, judgment shall be entered as to those opposing parties who have accepted the portions of the evaluation that apply to them.

(3) Except as otherwise provided in this chapter for multiple parties, if all or part of the evaluation of the mediation panel is rejected, the action shall proceed to trial.

(4) The mediation clerk shall place a copy of the mediation evaluation and the parties' acceptances and rejections in a sealed envelope for filing with the clerk of the court. In a nonjury action, the envelope shall not be opened and the parties shall not reveal the amount of the evaluation until the judge has rendered judgment.

(5) If the mediation evaluation of an action pending in the circuit court does not exceed the jurisdictional limitation of the district court, the mediation clerk shall so inform the trial judge.

Mich. Comp. Laws §600.4921

(1) If a party has rejected an evaluation and the action proceeds to trial, that party shall pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, that party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.

(2) For the purpose of subsection (1), a verdict shall be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the mediation evaluation. After this adjustment, the verdict is considered more favorable to a defendant if it is more than 10% below the evaluation, and is considered more favorable to the plaintiff if it is more than 10% above the evaluation.

(3) For the purpose of this section, actual costs include those costs taxable in any civil action and a reasonable attorney fee as determined by the trial judge for services necessitated by the rejection of the mediation evaluation.

(4) Costs shall not be awarded if the mediation award was not unanimous.

Minnesota

No statute provided specific to medical liability/malpractice cases.

Mississippi

No statute provided specific to medical liability/malpractice cases.

Missouri

No statute provided specific to medical liability/malpractice cases.

Montana

Mont. Code Ann. §27-6-101 et seq.

The panel shall review all malpractice claims or potential claims against health care providers covered by this chapter except: (1) those claims subject to a valid arbitration agreement allowed by law or upon which suit has been filed prior to April 19, 1977; and (2) a claim brought by an inmate of a correctional facility against a health care provider arising from a health care service provided by the health care provider within the facility.

Mont. Code Ann. §27-6-602

Upon consideration of all the relevant material, the panel shall decide whether there is: (1) substantial evidence that the acts complained of occurred and that they constitute malpractice; and (2) a reasonable medical probability that the patient was injured thereby.

Mont. Code Ann. §27-6-606

(1) The panel's decision is without administrative or judicial authority and is not binding upon any party.

(2) The panel may recommend an award, approve settlement agreements, and discuss the settlement agreements, all in a manner consistent with this part. All approved settlement agreements are binding on the parties.

(3) If the panel decides both questions required by §27-6-602 in the affirmative, the court in which the complaint is filed shall, at the request of a party, require the parties to participate in court-supervised, nonbinding mediation prior to proceeding.

Mont. Code Ann. §27-6-704

(1) A panel member may not be called to testify in a proceeding concerning the deliberations, discussions, decisions, and internal proceedings of the panel.

(2) The decision and the reasoning and basis for the decision of the panel are not admissible as evidence in an action subsequently brought in a court of law and are not evidence for any purpose in an action brought under §33-18-201, 33-18-242, or common law.

Mont. Code Ann. §27-12-101 et seq.

The panel shall review all malpractice claims or potential claims against chiropractic physicians covered by this chapter, except claims subject to a valid arbitration agreement allowed by law.

Mont. Code Ann. §27-12-703

(1) A panel member must not be called to testify in any proceeding concerning the deliberations, discussions, decisions, and internal proceedings of the panel.

(2) A decision of the panel is not admissible as evidence in an action subsequently brought in a court of law.

Nebraska

Neb. Rev. Stat. §44-2840 et seq.

Medical review panels shall review all malpractice claims against health care providers covered by the Nebraska Hospital-Medical Liability Act in advance of filing such actions. The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court.

Neb. Rev. Stat. §44-2843

The panel shall, within 30 days, render one or more of the following expert opinions which shall be in writing and mailed to each of the parties: (a) The evidence supports the conclusion that the defendant failed to comply with the appropriate standard of care as charged in the complaint in specified particulars; (b) The evidence supports the conclusion that the defendant involved met the applicable standard of care required under the circumstances; or (c) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury in specified particulars.

Neb. Rev. Stat. §44-2844

The report or any minority report of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such report shall not be conclusive and either party shall have the right to call any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify.

Neb. Rev. Stat. §44-2847

(1) Medical review panels shall be concerned only with the determination of the questions set forth in §44-2843. Such panels shall not consider or report on disputed questions of law.

(2) To provide for uniformity of procedure, the Department of Health and Human Services may appoint a doctor of medicine from the members of the Board of Medicine and Surgery who may sit with each panel as an observer and as an adviser on procedure but without a vote.

Nevada

Nev. Rev. Stat. §41A.081

1. In an action for professional negligence, all the parties to the action, the insurers of the respective parties and the attorneys of the respective parties shall attend and participate in a settlement conference before a district judge, other than the judge assigned to the action, to ascertain whether the action may be settled by the parties before trial.

4. The failure of any party, the party's insurer or the party's attorney to participate in good faith in the settlement conference is grounds for sanctions, including, without limitation, monetary sanctions, against the party or the party's attorney, or both. The judges of the district courts shall liberally construe the provisions of this subsection in favor of imposing sanctions in all appropriate situations. It is the intent of the Legislature that the judges of the district courts impose sanctions pursuant to this subsection in all appropriate situations to punish for and deter conduct which is not undertaken in good faith because such conduct overburdens limited judicial resources, hinders the timely resolution of meritorious claims and increases the costs of engaging in business and providing professional services to the public.

New Hampshire

N.H. Rev. Stat. Ann. §519-B:1 et seq.

The purposes of pretrial screening panels are: (a) To identify claims of professional negligence which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and (b) To identify claims of professional negligence and to encourage early withdrawal or dismissal of non-meritorious claims.

N.H. Rev. Stat. Ann. §519-B:4

All parties to a claim may, by written agreement, submit a claim to the binding determination of the panel. Both parties may agree to bypass the panel for any reason, or may request that certain preliminary legal affirmative defenses or issues be litigated prior to submission of the case to the panel. The panel shall have no jurisdiction to hear or decide, absent agreement of the parties, dispositive legal affirmative defenses, other than comparative negligence.

N.H. Rev. Stat. Ann. §519-B:6

The panel shall make its findings regarding negligence and causation in writing within 30 days by answering the following questions: (a) Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the medical care provider charged with that care; (b) Whether the acts or omissions complained of proximately caused the injury complained of; and (c) If fault on the part of the medical care provider is found, whether any fault on the part of the patient was equal to or greater than the fault on the part of the provider.

N.H. Rev. Stat. Ann. §519-B:8

Confidentiality and admissibility provisions declared unconstitutional by state Supreme Court (see In re Southern New Hampshire Medical Center, 55 A.3d 988 (N.H. 2012)).

New Jersey

N.J. Rev. Stat. §2A:23A-20 et seq.

Any civil action brought for personal injury, except for actions brought pursuant to the provisions of C. 39:6A-1 et seq., shall be submitted, except as hereinafter provided, to arbitration if the court determines that the amount in controversy is $20,000 or less, exclusive of costs.

N.J. Rev. Stat. §2A:23A-28

No statements, admissions or testimony made at the arbitration proceedings, nor the arbitration decision, as confirmed or modified by the court, shall be used or referred to at the trial de novo by any of the parties, except that the court may consider any of those matters in determining the amount of any reduction in assessments made pursuant to §10 of this act.

N.J. Rev. Stat. §2A:53A-39

The judge presiding over a medical malpractice action, or the judge's designee, shall, within 30 days after the discovery end date, determine whether referral to a complementary dispute resolution mechanism may encourage early disposition or settlement of the action. If the judge makes such a determination, the matter shall be referred to complementary dispute resolution pursuant to Rule 1:40 of the Rules Governing the Courts of the State of New Jersey. Nothing in this section shall be construed to limit the authority of the judge to refer an action to complementary dispute resolution prior to the discovery end date.

New Mexico

N.M. Stat. Ann. §41-5-14 et seq.

A. The “New Mexico medical review commission” is created. The function of the New Mexico medical review commission is to provide panels to review all malpractice claims against independent providers who are natural persons covered by the Medical Malpractice Act.

B. Those eligible to sit on a panel shall consist of health care providers licensed pursuant to New Mexico law and residing in New Mexico and members of the state bar.

C. The only cases that a panel will consider are cases involving an alleged act of malpractice occurring in New Mexico by an independent provider qualified under the Medical Malpractice Act. Beginning July 1, 2021, cases involving an alleged act of malpractice by a hospital or outpatient health care facility shall not be considered and such claims shall not be filed with the New Mexico medical review commission.

N.M. Stat. Ann. §41-5-20

Upon consideration of all the relevant material, the panel shall decide only two questions: (1) whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and (2) whether there is a reasonable medical probability that the patient was injured thereby. The report of the medical review panel shall not be admissible as evidence in any action subsequently brought in a court of law. The panel's decisions shall be without administrative or judicial authority and shall not be binding on any party. The panel shall make no effort to settle or compromise any claim nor express any opinion on the monetary value of any claim.

New York

N.Y. Civil Practice Law and Rules §3045

Any defendant may demand that the plaintiff elect whether to consent to the arbitration of damages upon a concession of liability. Within 20 days after receipt of such a demand, the plaintiff shall elect whether to arbitrate damages in such an action pursuant to such a concession of liability by the defendant or defendants in the action.

N.Y. Civil Practice Law and Rules §3409

In every dental, podiatric or medical malpractice action, the court shall hold a mandatory settlement conference within 45 days after the filing of the note of issue and certificate of readiness or, if a party moves to vacate the note of issue and certificate of readiness, within 45 days after the denial of such motion. Where parties are represented by counsel, only attorneys fully familiar with the action and authorized to dispose of the case, or accompanied by a person empowered to act on behalf of the party represented, will be permitted to appear at the conference. Where appropriate, the court may order parties, representatives of parties, representatives of insurance carriers or persons having an interest in any settlement to also attend in person or telephonically at the settlement conference. The chief administrative judge shall by rule adopt procedures to implement such settlement conference.

N.Y. Civil Practice Law and Rules §7550 et seq.

Applies to all claims for damages because of injury or death resulting from health care or treatment rendered or failed to be rendered to enrollees and other covered family members of health maintenance organizations.

N.Y. Civil Practice Law and Rules §7565

A decision of a panel of arbitrators shall be binding on all parties, unless modified or vacated pursuant to §7509 or §7511 of this chapter.

N.Y. Public Health Law §4406-a

The enrollee contract of a health maintenance organization may permit enrollees and adult members of the enrollee's family who are covered by such contract to elect to have all claims for damages subject to binding arbitration.

North Carolina

N.C. Gen. Stat. §90-21.60 et seq.

The parties may agree to submit the dispute to arbitration before or after the action has been filed.

N.C. Gen. Stat. §90-21.61

(c) Declaration Not to Arbitrate.--In the event that the parties do not unanimously agree to submit a dispute to arbitration under subsection (b) of this section, the parties shall file a declaration with the court prior to the discovery scheduling conference required by G.S. 1A-1, Rule 26(f1).

The declaration shall state that the attorney representing the party has presented the party with a copy of the provisions of this Article, that the attorneys representing the parties have discussed the provisions of this Article with the parties and with each other, and that the parties do not unanimously agree to submit the dispute to arbitration under this Article. The declaration is without prejudice to the parties' subsequent agreement to submit the dispute to arbitration.

N.C. Gen. Stat. §90-21.65

(a) Issuing the Decision.--The arbitrator shall issue a decision in writing and signed by the arbitrator within 14 days after the completion of the arbitration hearing and shall promptly deliver a copy of the decision to each party or the party's attorneys.

(b) Limit on Damages.--The arbitrator shall not make an award of damages that exceeds a total of $1 million for any dispute submitted to arbitration under this Article, regardless of the number of claimants or defendants that are parties to the dispute.

(c) Finding if Damages Awarded.--If the arbitrator makes an award of damages to the claimant, the arbitrator shall make a finding as to whether the injury or death was caused by the negligence of the defendant.

(d) Paying the Arbitrator.--The fees and expenses of the arbitrator shall be paid equally by the parties.

(e) Attorneys' Fees and Costs.--Each party shall bear its own attorneys' fees and costs.

North Dakota

N.D. Cent. Code §32-42-01 et seq.

The claimant and health care provider shall make a good-faith effort to resolve part or all of the health care malpractice claim through alternative dispute resolution before the claimant initiates a health care malpractice action.

N. Mariana Islands

Statutes unavailable

Ohio

Ohio Rev. Code Ann. §2711.21 et seq.

(A) Upon the filing of any medical, dental, optometric, or chiropractic claim as defined in §2305.113 of the Revised Code, if all of the parties to the medical, dental, optometric, or chiropractic claim agree to submit it to nonbinding arbitration, the controversy shall be submitted to an arbitration board consisting of three arbitrators to be named by the court. The arbitration board shall consist of one person designated by the plaintiff or plaintiffs, one person designated by the defendant or defendants, and a person designated by the court. The person designated by the court shall serve as the chairperson of the board. Each member of the board shall receive a reasonable compensation based on the extent and duration of actual service rendered, and shall be paid in equal proportions by the parties in interest. In a claim accompanied by a poverty affidavit, the cost of the arbitration shall be borne by the court.

(C) If the decision of the arbitration board is not accepted by all parties to the medical, dental, optometric, or chiropractic claim, the claim shall proceed as if it had not been submitted to nonbinding arbitration pursuant to this section. The decision of the arbitration board and any dissenting opinion written by any board member are not admissible into evidence at the trial.

(D) Nothing in this section shall be construed to limit the right of any person to enter into an agreement to submit a controversy underlying a medical, dental, optometric, or chiropractic claim to binding arbitration.

Ohio Rev. Code Ann. §2711.22

(A) Except as otherwise provided in this section, a written contract between a patient and a hospital or healthcare provider to settle by binding arbitration any dispute or controversy arising out of the diagnosis, treatment, or care of the patient rendered by a hospital or healthcare provider, that is entered into prior to the diagnosis, treatment, or care of the patient is valid, irrevocable, and enforceable once the contract is signed by all parties. The contract remains valid, irrevocable, and enforceable until or unless the patient or the patient's legal representative rescinds the contract by written notice within thirty days of the signing of the contract. A guardian or other legal representative of the patient may give written notice of the rescission of the contract if the patient is incapacitated or a minor.

Oklahoma

No statute provided specific to medical liability/malpractice cases.

Oregon

Or. Rev. Stat. §31.250

(1) In any action described in subsection (6) of this section, all parties to the action and their attorneys must participate in some form of dispute resolution within 270 days after the action is filed unless: (a) The action is settled or otherwise resolved within 270 days after the action is filed; or (b) All parties to the action agree in writing to waive dispute resolution under this section.

(2) Dispute resolution under this section may consist of arbitration, mediation or a judicial settlement conference.

(3) Within 270 days after filing an action described in subsection (6) of this section, the parties or their attorneys must file a certificate indicating that the parties and attorneys have complied with the requirements of this section.

(4) The court may impose appropriate sanctions against any party or attorney who: (a) Fails to attend an arbitration hearing, mediation session or judicial settlement conference conducted for the purposes of the requirements of this section; (b) Fails to act in good faith in any arbitration, mediation or judicial settlement conference conducted for the purposes of the requirements of this section; (c) Fails to timely submit any documents required for an arbitration, mediation or judicial settlement conference conducted for the purposes of the requirements of this section; or (d) Fails to have a person with authority to approve a resolution of the action available at the time of any arbitration hearing, mediation session or judicial settlement conference conducted for the purposes of the requirements of this section, unless the party or attorney receives from the court, before the hearing, session or conference commences, an exemption from the requirements of this paragraph.

(5) This section does not apply to parties to an action described in subsection (6) of this section that have participated in a discussion and mediation under sections 3 and 5, chapter 5, Oregon Laws 2013.

(6) The provisions of this section apply to any action in which a claim for damages is made against a health practitioner, as described in ORS 31.740, or against a health care facility, as defined in ORS 442.015, based on negligence, unauthorized rendering of health care or product liability under ORS 30.900 to 30.920.

Pennsylvania

Pa. Stat. tit. 40, §1303.714

Upon the request of a party to a medical professional liability claim within the fund coverage limits, the department may provide for a mediator in instances where multiple carriers disagree on the disposition or settlement of a case. Upon the consent of all parties, the mediation shall be binding. Proceedings conducted and information provided in accordance with this section shall be confidential and shall not be considered public information subject to disclosure under the Right-to-Know Law, or 65 Pa.C.S. Ch. 7 (relating to open meetings).

Puerto Rico

P.R. Code Ann. tit. 26, §4109

The judge of the Court of First Instance before whom a claim is filed for damages for fault or negligence for medico-hospital professional malpractice, may designate an arbitration panel 30 days after the answer to the complaint is filed, or at any other later time when he/she deems it convenient to expedite the procedures and to facilitate a better understanding of the medical controversies involved. The report of the arbitration panel shall be submitted before the judge who presides the part and shall have the effect that said judge attributes to it in the exercise of his discretion. The report shall be signed by all the members of the arbitration panel, but any of its members may issue a dissident or concurrent opinion in writing, stating the reason therefor. The report of the arbitration panel shall be submitted before the judge who presides the part and shall have the effect that said judge attributes to it in the exercise of his discretion.

Rhode Island

No statute provided specific to medical liability/malpractice cases.

A. Samoa

Statutes unavailable

South Carolina

S.C. Code Ann. §15-79-120

At any time before a medical malpractice action is brought to trial, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the state. Parties may also agree to participate in binding arbitration, nonbinding arbitration, early neutral evaluation, or other forms of alternative dispute resolution.

S.C. Code Ann. §15-79-125

Within 90 days and no later than 120 days from the service of the Notice of Intent to File Suit, the parties shall participate in a mediation conference unless an extension for no more than 60 days is granted by the court based upon a finding of good cause. Participation in the prelitigation mediation pursuant to this section does not alter or eliminate any obligation of the parties to participate in alternative dispute resolution after the civil action is initiated. However, there is no requirement for participation in more than one alternative dispute resolution forum following the filing of a summons and complaint to initiate a civil action in the matter.

South Dakota

S.D. Codified Laws Ann. §21-25B-1 et seq.

Voluntary agreements pursuant to §21-25A-1 between hospitals or physicians and patients relating to services provided to the patient may, by their terms, provide for past and future services by and between the parties to the agreement; provided, however, that any party to such an agreement may terminate it as to future services by giving written notice to all other parties thereto, and such termination shall in no way affect or alter the arbitration of controversies arising as to services rendered prior to the giving of such notice.

S.D. Codified Laws Ann. §21-25B-3

The arbitration agreement between hospitals or physicians and patients shall contain the following provision in 12-point boldface type immediately above the space for signature of the parties: The agreement to arbitrate is not a prerequisite to health care or treatment. By signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial.

S.D. Codified Laws Ann. §21-25B-21

Hearings before the health care services arbitration panel shall be in two stages. The first stage shall be a hearing to determine whether or not there is any liability on behalf of the defendant or defendants. If the panel does find liability, there shall be a 30-day waiting period during which the parties may agree as to damages. At the end of 30 days, if the damage question has not been settled, the panel shall reconvene to determine the amount of damages, if any, the claimant shall be awarded.

Tennessee

No statute provided specific to medical liability/malpractice cases.

Texas

Tex. Civil Practice and Remedies Code Ann. §74.451

Arbitration agreement provisions declared preempted by federal law by state Supreme Court (see Preempted Fredericksburg Care Company, L.P. v. Perez, 461 S.W.3d 513 (Tex. 2015)).

Utah

Utah Code Ann. §78B-3-416 et seq.

(1)(a) The division shall provide a hearing panel in alleged medical liability cases against health care providers as defined in §78B-3-403, except dentists. (b)(i) The division shall establish procedures for prelitigation consideration of medical liability claims for damages arising out of the provision of or alleged failure to provide health care. (ii) The division may establish rules necessary to administer the process and procedures related to prelitigation hearings and the conduct of prelitigation hearings in accordance with §§78B-3-416 through 78B-3-420. (c) The proceedings are informal, nonbinding, and are not subject to Title 63G, Chapter 4, Administrative Procedures Act, but are compulsory as a condition precedent to commencing litigation. (d) Proceedings conducted under authority of this section are confidential, privileged, and immune from civil process. (e) The division may not provide more than one hearing panel for each alleged medical liability case against a health care provider.

(2)(a) The party initiating a medical liability action shall file a request for prelitigation panel review with the division within 60 days after the service of a statutory notice of intent to commence action under §78B-3-412. (b) The request shall include a copy of the notice of intent to commence action. The request shall be mailed to all health care providers named in the notice and request.

Utah Code Ann. §78B-3-418

(1)(a) The panel shall issue an opinion and the division shall issue a certificate of compliance with the pre-litigation hearing requirements of this part in accordance with this section. (b) A certificate of compliance issued in accordance with this section is proof that the claimant has complied with all conditions precedent under this part prior to the commencement of litigation as required in §78B-3-412(1).

(2)(a) The panel shall render its opinion in writing not later than 30 days after the end of the proceedings, and determine on the basis of the evidence whether: (i) each claim against each health care provider has merit or has no merit; and (ii) if a claim is meritorious, whether the conduct complained of resulted in harm to the claimant. (b) There is no judicial or other review or appeal of the panel's decision or recommendations.

Utah Code Ann. §78B-3-419

(1) Evidence of the proceedings conducted by the medical review panel and its results, opinions, findings, and determinations are not admissible as evidence in any civil action or arbitration proceeding subsequently brought by the claimant against any respondent and are not reportable to any health care facility or health care insurance carrier as a part of any credentialing process.

(2) No panelist may be compelled to testify in a civil action subsequently filed with regard to the subject matter of the panel's review. A panelist has immunity from civil liability arising from participation as a panelist and for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed by this section.

(3) Nothing in this chapter may be interpreted to prohibit the division from considering any information contained in a statutory notice of intent to commence action, request for prelitigation panel review, or written findings of a panel with respect to the division's determining whether a licensee engaged in unprofessional or unlawful conduct.

Utah Code Ann. §78B-3-420

Upon written agreement by all parties, the proceeding may be considered a binding arbitration hearing and proceed under Title 78B, Chapter 11, Utah Uniform Arbitration Act, except for the selection of the panel, which is done as set forth in Subsection 78B-3-416(4). If the proceeding is considered an arbitration proceeding, the parties are equally responsible for compensation to the members of the panel for services rendered.

Vermont

No statute provided specific to medical liability/malpractice cases.

Virginia

Va. Code §8.01-581.1 et seq.

A. At any time within 30 days from the filing of the responsive pleading in any action brought for malpractice against a health care provider, the plaintiff or defendant may request a review by a medical malpractice review panel established as provided in §8.01-581.3. The request shall be forwarded by the party making the request to the Clerk of the Supreme Court of Virginia with a copy of the Motion for Judgment and a copy of all responsive pleadings. A copy of the request shall be filed with the clerk of the circuit court, and a copy shall be sent to all counsel of record. The request shall include the name of the judge to whom the case is assigned, if any. Upon receipt of such request, the Supreme Court shall select the panel members as provided in §8.01-581.3:1 and shall designate a panel within 60 days after receipt of the request. If a panel is requested, proceedings on the action based on the alleged malpractice shall be stayed during the period of review by the medical review panel, except that the judge may rule on any motions, demurrers, or pleas that can be disposed of as a matter of law, set the trial date after the panel has been designated and, prior to the designation of the panel, shall rule on any motions to transfer venue.

B. After the selection of the members of the review panel, the requesting party may rescind a request for review by the panel only with the consent of all parties or with leave of the judge presiding over the panel.

C. Any health care provider named as a defendant shall have the right to request a panel and, in that event, shall give notice of its request to the other health care providers named in the motion for judgment as well as to the plaintiff and his counsel of record. When a request for a medical review panel is made by any party, a single panel shall be designated and all health care providers against whom a claim is asserted shall be subject to the jurisdiction of such panel. The provisions of this subsection shall not prohibit the addition of parties pursuant to §8.01-581.2:1.

Va. Code §8.01-581.3

The medical review panel shall consist of (i) two impartial attorneys and two impartial health care providers, licensed and actively practicing their professions in the Commonwealth and (ii) the judge of a circuit court in which the action was filed, who shall preside over the panel. The judge shall have no vote and need not attend or participate in the deliberations. The medical review panel shall be selected by the Supreme Court from a list of health care providers submitted by the Board of Medicine and a list of attorneys submitted by the Virginia State Bar. In the selection of the health care provider members, the Court shall give due regard to the nature of the claim and the nature of the practice of the health care provider.

Va. Code §8.01-581.7

A. Within 30 days, after receiving all the evidence, the panel shall have the duty, after joint deliberation, to render one or more of the following opinions: 1. The evidence does not support a conclusion that the health care provider failed to comply with the appropriate standard of care; 2. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is a proximate cause in the alleged damages; 3. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is not a proximate cause in the alleged damages; or 4. The evidence indicates that there is a material issue of fact, not requiring an expert opinion, bearing on liability for consideration by a court or jury.

B. If the review panel's finding is that set forth in subdivision 2 of subsection A of this section, the panel may determine whether the plaintiff suffered any disability or impairment and the degree and extent thereof.

C. The opinion shall be in writing and shall be signed by all panelists who agree therewith. Any member of the panel may note his dissent. All such opinions shall be filed with the clerk of the court in which the action is pending and mailed to the plaintiff and the defendant within five days of the date of their rendering. However, this subsection shall not be construed to preclude the panel from announcing the opinion in the presence of the parties or their counsel, provided a signed written opinion is subsequently mailed as provided in this subsection.

Va. Code §8.01-581.8

An opinion of the medical review panel shall be admissible as evidence in the action brought by the plaintiff, but shall not be conclusive. Either party shall have the right to call, at his cost, any member of the panel, except the judge, as a witness. If called, each witness shall be required to appear and testify. The panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this chapter.

Va. Code §8.01-581.12

A. Persons desiring to enter into an agreement to arbitrate medical malpractice claims which have then arisen or may thereafter arise may submit such matters to arbitration under the provisions of Chapter 21 (§8.01-577 et seq.) of this title and an agreement to submit such matters shall be binding upon the parties if the patient or claimant or his guardian, conservator, committee or personal representative is allowed by the terms of the agreement to withdraw therefrom, and to decline to submit any matter then or thereafter in controversy, within a period of at least sixty days after the termination of health care or, if the patient is under disability by reason of age and at the time of termination without a guardian who could take such action for him, or if he is incapacitated and without a guardian or conservator who could take such action for him, or if such termination is by death or if death occurs within 60 days after termination, then within a period of at least 60 days after the appointment and qualification of the guardian, conservator or committee or personal representative.

U.S. Virgin Islands

V.I. Code Ann. tit. 27, §166i

No action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Medical Malpractice Action Review Committee, the purpose of which shall be to arrange for expert review of all malpractice claims before actions based upon such claims are commenced in court. An expert opinion obtained by the Committee pursuant to this section shall be available to either party in an action subsequently brought by the plaintiff in a court in this territory. However, if either party wishes to call the expert as a witness, the party must do so at his own cost.

Washington

Wash. Rev. Code §7.70.100 et seq.

All causes of action, whether based in tort, contract, or otherwise, for damages arising from injury occurring as a result of health care provided after July 1, 1993, shall be subject to mandatory mediation prior to trial, unless the parties have previously agreed to arbitration.

Wash. Rev. Code §7.70.130

A cause of action that has been mediated as provided in RCW 7.70.100 shall be exempt from any superior court civil rules mandating arbitration of civil actions or participation in settlement conferences prior to trial.

Wash. Rev. Code §7.70A.010 et seq.

This chapter applies to any cause of action for damages for personal injury or wrongful death based on alleged professional negligence in the provision of health care where all parties to the action have agreed to submit the dispute to arbitration under this chapter in accordance with the requirements of RCW 7.70A.020.

Wash. Rev. Code §7. 70A.060

The arbitrator shall issue a decision in writing and signed by the arbitrator within 14 days after the completion of the arbitration hearing. The arbitrator may not make an award of damages under this chapter that exceeds $1 million for both economic and noneconomic damages. The arbitrator may not make an award of damages under this chapter under a theory of ostensible agency liability.

Wash. Rev. Code §7. 70A.080

There is no right to a trial de novo on an appeal of the arbitrator's decision. An appeal of the arbitrator's decision is limited to the bases for appeal provided in RCW 7.04A.230(1) (a) through (d) and7.04A.240 , or equivalent provisions in a successor statute.

West Virginia

W. Va. Code §55-7B-6

(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.

(g) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section, the health care provider is entitled to prelitigation mediation before a qualified mediator upon written demand to the claimant.

(h) If the health care provider demands mediation pursuant to the provisions of subsection (g) of this section, the mediation shall be concluded within 45 days of the date of the written demand. The mediation shall otherwise be conducted pursuant to Rule 25 of the Trial Court Rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the Supreme Court of Appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.

(j) Notwithstanding any other provision of this code, a notice of claim, a health care provider’s response to any notice claim, a screening certificate of merit, and the results of any mediation conducted pursuant to the provisions of this section are confidential and are not admissible as evidence in any court proceeding unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.

Wisconsin

Wis. Stat. §655.42 et seq.

(1) Legislative intent. The legislature intends that the mediation system provide the persons under sub. (2) with an informal, inexpensive and expedient means for resolving disputes without litigation and intends that the director of state courts administer the mediation system accordingly.

(2) Mediation system. The director of state courts shall establish a mediation system complying with this subchapter not later than Sept. 1, 1986. The mediation system shall consist of mediation panels that assist in the resolution of disputes, regarding medical malpractice, between patients, their representatives, spouses, parents or children and health care providers.

Wis. Stat. §655.43

The claimant and all respondents named in a request for mediation filed under §655.44 or §655.445 shall participate in mediation under this subchapter.

Wis. Stat. §904.085

No oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding except as specified.

Wyoming

Wyo. Stat. §1-1-124

The supreme court may promulgate rules to provide a screening procedure to expedite the prelitigation resolution of claims arising from any alleged act, error or omission in the rendering of licensed or certified professional or health care services.

Wyo. Stat. §9-2-1513 et seq.

Repealed 2021, effective July 1, 2022

The panel shall review all malpractice claims against health care providers filed with the panel except those claims subject to a valid arbitration agreement allowed by law or upon which suit has been filed prior to July 1, 2005. Unless submission to the panel is waived in accordance with W.S. 9-2-1519(a), no complaint alleging malpractice shall be filed in any court against a health care provider before a claim is made to the panel and its decision is rendered.

Wyo. Stat. §9-2-1521

Repealed 2021, effective July 1, 2022

No decision of the director or the panel is subject to review in a court.

Wyo. Stat. §9-2-1522

Repealed 2021, effective July 1, 2022

Upon consideration of all the relevant material, the panel shall determine whether there is: (i) Substantial evidence that the acts complained of occurred and that they constitute malpractice; and (ii) A reasonable probability that the patient was injured as a result of the acts complained of. The final decision shall be by a majority vote of the panel. The final decision shall be in writing. The panel's decision is not binding upon any party. The decision of the panel and any testimony, documents or materials submitted thereto and incorporated into the decision of the panel shall be admissible in whole or in part solely for purposes of impeachment in any subsequent trial of the matter, subject to the discretion of the trial court and in accordance with the Wyoming Rules of Evidence.

Wyo. Stat. §9-2-1523

Repealed 2021, effective July 1, 2022

No panel member may be called to testify in any proceeding concerning the deliberations, discussions, decisions and internal proceedings of the panel. The claim, answer, decision and any other pleadings served under this act shall not be admissible in any subsequent civil action brought by the claimant against the health care provider for alleged malpractice.