Medical Liability/Malpractice ADR and Screening Panels Statutes

Heather Morton 5/20/2014

Under state law, a patient may pursue a civil claim called medical liability or medical malpractice against physicians or other health care providers if the health care provider causes injury or death to the patient through a negligent act or omission. To recover damages, the patient must establish:

  1. The physician owed a duty to the patient.
  2. The standard of care and that the physician violated that standard.
  3. A compensable injury.
  4. The violation of the standard of care caused the harm suffered by the patient.

This page summarizes the state laws that require an affidavit or certificate of merit from a medical expert for a medical liability or malpractice case to move forward and proceed through the judicial system and whether states have set any standards for who can qualify as a medical expert.  

Twenty-seven states, the District of Columbia, Guam and Puerto Rico have specific provisions providing for alternative dispute resolution (arbitration, mediation or settlement conferences) in medical liability or malpractice cases. Seventeen jurisdictions—Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia, the Virgin Islands and Wyoming—have requirements that medical liability or malpractice cases be heard by a screening panel before trial.

The box allows you to conduct a full text search or use the dropdown menu option to select a state.

State Statute Summary
State: Statutory Citation: Statutory Provision:
Alabama Ala. Code §6-5-485 The parties 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.
Alaska

Alaska Stat. §09.55.535

 


Alaska Stat. §09.55.536

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.


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?

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


Cal. Health and Safety Code §1363.1

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

 


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.

Colorado Colo. Rev. Stat. §13-64-403 An arbitration agreement shall 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 remedies and penalties.
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.

 


Del. Code Ann. tit. 18, §6811

 

 

 

 


Del. Code Ann. tit. 18, §6812

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.


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.


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.

District of Columbia

D.C. Code Ann. §16-2821 et seq.

 

 


D.C. Code Ann. §16-2825

 

 

 

 


D.C. Code Ann. §16-2827

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.


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.


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. §766.107

 

 

 

 

 

 

 


Fla. Stat. §766.108

 

 

 


Fla. Stat. §766.207 et seq.

 

 

 

 

 

 

 


Fla. Stat. §766.208

The court may require, upon motion by either party, that the claim be submitted to nonbinding arbitration. The panel shall consider all relevant evidence and decide the issues of liability, amount of damages, and apportionment of responsibility among the parties. Punitive damages may not be awarded by the arbitration panel. The decision of the arbitration panel shall not be binding. If all parties accept the decision of the arbitration panel, that decision shall be deemed a settlement of the case and it shall be dismissed with prejudice. After the arbitration award is rendered, any party may demand a trial de novo in the circuit court by filing with the clerk of the circuit court and all parties such notice as is required by rules adopted by the Supreme Court. At the trial de novo, the court shall not admit evidence that there has been an arbitration proceeding, the nature or the amount of the award, or any other matter concerning the conduct of the arbitration proceeding, except that testimony given at an arbitration hearing may be used for the purposes otherwise permitted by the Florida Rules of Evidence or the Florida Rules of Civil Procedure.


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.


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 percent 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 percent 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.


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.

Georgia

Ga. Code §9-9-60 et seq.


Ga. Code §9-9-78

 


Ga. Code §9-9-79

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.


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.


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.


Guam Code Ann. tit. 10, §10133

Any claim for medical malpractice must be submitted to arbitration.

 


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

Hawaii

Hawaii Rev. Stat. §671-11 et seq.

 

 

 

 


Hawaii Rev. Stat. §671-12

 

 


Hawaii Rev. Stat. §671-13

 


Hawaii Rev. Stat. §671-16

 

 

 

 


Hawaii Rev. Stat. §671-16.5

 

 

 


Hawaii Rev. Stat. §671-16.6

(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.


(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.


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.


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.


Any person or the person's representative claiming that a medical tort has been committed or any health care provider against whom an inquiry has been made may elect to bypass the court annexed arbitration program under §601-20 after the inquiry has been submitted to the medical inquiry and conciliation panel and the panel has been terminated pursuant to §671-15 if the party meaningfully participated in panel proceedings, an alternative dispute resolution process has been terminated pursuant to §671-16.6, or the panel or alternative dispute resolution process has not completed proceedings within the tolling period of the statute of limitations under §671-18.


Any inquiry initially filed with the medical inquiry and conciliation panel may be subsequently submitted to an alternative dispute resolution provider upon the written agreement of all of the parties and with the written approval of the director of Commerce and Consumer Affairs. 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. 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.

 

 

 


Idaho Code §6-1002

 

 

 


Idaho Code §6-1004

 

 


Idaho Code §6-2301

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.


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.


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.


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 3, title 9, 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.


Ill. Rev. Stat. ch. 710, §15/2

 


Ill. Rev. Stat. ch. 710, §15/8

The Health Care Arbitration Act.

 


(d) "Health care arbitration agreement" or "agreement" means a written 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.


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.

Indiana

Ind. Code §34-18-8-4 et seq.


Ind. Code §34-18-8-6


Ind. Code §34-18-10-1 et seq.


Ind. Code §34-18-10-22

 

 

 

 


Ind. Code §34-18-10-23

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.


A patient may commence an action against a health care provider for malpractice without submitting a proposed complaint to a medical review panel if the patient's pleadings include a declaration that the patient seeks damages from the health care provider in an amount not greater than $15,000.


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


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.


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. §60-3413

 

 

 


Kan. Stat. Ann. §65-4901 et seq.

 

 

 

 

 

 

 


Kan. Stat. Ann. §65-4903


Kan. Stat. Ann. §65-4904

In any medical malpractice liability action, as defined by K.S.A. 60-3401 and amendments thereto, the court shall require a settlement conference to be held not less than 30 days before trial. (b) The settlement conference shall be conducted by the trial judge or the trial judge's designee. The attorneys who will conduct the trial, all parties and all persons with authority to settle the claim shall attend the settlement conference unless excused by the court for good cause. (c) Offers, admissions and statements made in conjunction with or during the settlement conference shall not be admissible at trial or in any subsequent action.


Upon a party’s or the court’s request, a judge shall convene a medical malpractice screening panel. 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.

(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.


The screening panel shall determine 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.


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. 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.

Kentucky   No statute provided specific to medical liability/malpractice cases.
Louisiana

La. Rev. Stat. Ann. §9:4230 et seq.

 


La. Rev. Stat. Ann. §40:1299.39 et seq.

 

 

 

 

 

 

 

 

 

 

 


La. Rev. Stat. Ann. §40:1299.47 et seq.

 

 

 

 

 

 

 

 

 

 


La. Rev. Stat. Ann. §40:1299.57

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.


All malpractice claims against the state, its agencies, or other persons covered by this Part shall be reviewed by a state medical review panel. 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. By agreement of both parties, the use of the state medical review panel may be waived. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within 30 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. 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.


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. 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. By agreement of all parties, the use of the medical review panel may be waived. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within 30 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. 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.


The persons authorized and empowered in R.S. 40:1299.53(a) and (b) to consent to surgical or medical treatment or procedures for others as provided therein are also authorized and empowered, for and on behalf of such others, and without court approval, to enter into binding medical arbitration agreements.

Maine

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


Me. Rev. Stat. Ann. tit. 24, §2853

 

 

 

 


Me. Rev. Stat. Ann. tit. 24, §2855

 

 


Me. Rev. Stat. Ann. tit. 24, §2857

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.


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.


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.


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.


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


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


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

Arbitration of claims is generally required.

 

 

 

 


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.

 

 

 


Waiver of arbitration after filing certificate of qualified expert.

 

 

 

 


The court may order the parties to engage in alternative dispute resolution.

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


Mich. Comp. Laws §600.4901 et seq.


Mich. Comp. Laws §600.4919

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.


Actions alleging medical malpractice shall be mediated.

 

 


If all or part of the evaluation of the mediation panel is rejected, the action shall proceed to trial.

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.


Mont. Code Ann. §27-6-602


Mont. Code Ann. §27-6-606

 

 


Mont. Code Ann. §27-6-704

 


Mont. Code Ann. §27-12-101 et seq.

Claimants shall submit a case for the consideration of the medical legal panel prior to filing a complaint in any district court or other court sitting in Montana.

 


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.


(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.


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


Montana Chiropractic Legal Panel Act.

Nebraska

Neb. Rev. Stat. §44-2840 et seq.

 


Neb. Rev. Stat. §44-2843

 

 


Neb. Rev. Stat. §44-2844

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.


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.


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.

Nevada Nev. Rev. Stat. §41A.081 In an action for medical malpractice or dental malpractice, 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.
New Hampshire

N.H. Rev. Stat. Ann. §519-B:1 et seq.


N.H. Rev. Stat. Ann. §519-B:4

 


N.H. Rev. Stat. Ann. §519-B:6

 

 


N.H. Rev. Stat. Ann. §519-B:8

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.


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.


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.


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.


N.J. Rev. Stat. §2A:23A-28

 


N.J. Rev. Stat. §2A:53A-39

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.

 


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.


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.


N.M. Stat. Ann. §41-5-20

The New Mexico medical review commission is to provide panels to review all malpractice claims against health care providers covered by the Medical Malpractice Act.


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


N.Y. Civil Practice Law and Rules §3409

 

 

 


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


N.Y. Civil Practice Law and Rules §7565


N.Y. Public Health Law §4406-a

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.


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.


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.

 


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.

 

 


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.


N.C. Gen. Stat. §90-21.65

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

 


(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.

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.

 


Ohio Rev. Code Ann. §2711.22

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. 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.


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.

Oklahoma   No statute provided specific to medical liability/malpractice cases.
Oregon Or. Rev. Stat. §31.250 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.
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.
Rhode Island   No statute provided specific to medical liability/malpractice cases.
South Carolina

S.C. Code Ann. §15-79-120

 


S.C. Code Ann. §15-79-125

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.


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.

 


S.D. Codified Laws Ann. §21-25B-3


S.D. Codified Laws Ann. §21-25B-21

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.


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.


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 No physician, professional association of physicians, or other health care provider shall request or require a patient or prospective patient to execute an agreement to arbitrate a health care liability claim unless the form of agreement delivered to the patient contains a written notice as specified.
Utah

Utah Code Ann. §78B-3-416 et seq.


Utah Code Ann. §78B-3-418

 

 

 

 

 

 

 


Utah Code Ann. §78B-3-419

 

 

 


Utah Code Ann. §78B-3-420

The party initiating a medical liability claim shall request a prelitigation panel review within 60 days after the service of a statutory notice of intent to commence action §78B-3-412. The proceedings are informal and nonbinding.

 


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.

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. There is no judicial or other review or appeal of the panel's decision or recommendations.

The division shall issue a certificate of compliance to the claimant, for each respondent named in the intent to file a claim under this part, if: (a) for a named respondent, the panel issues an opinion of merit under Subsections (2)(a)(i) and (ii); (b) for a named respondent, the claimant files an affidavit of merit in accordance with §78B-3-423 if the opinion under Subsection (1)(a) is non-meritorious under either Subsection (2)(a)(i) or (ii); (c) the claimant has complied with the provisions of §78B-3-416(3)(c) and (d); or (d) the parties submitted a stipulation under §78B-3-416(3)(e).


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. 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.


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 §78B-3-416(4).

Vermont

Vt. Stat. Ann. tit. 12, §7001 et seq.


Vt. Stat. Ann. tit. 12, §7004


Vt. Stat. Ann. tit. 12, §7005

 


Vt. Stat. Ann. tit. 12, §7011 et seq.

Repealed effective 2/1/2015


Vt. Stat. Ann. tit. 12, §7014

Repealed effective 2/1/2015

 

 

 

 

 

 


Vt. Stat. Ann. tit. 12, §7015

Repealed effective 2/1/2015

Parties may agree to arbitration proceedings.

 


The arbitration panel shall file a written decision with the court administrator. The decision shall be by at least a majority vote. Any member of said panel may file a written concurring or dissenting opinion giving his reasons therefor.


The superior court, upon application by any party, shall issue a judgment order in accordance with the decision of the arbitration panel and said judgment order shall have the same effect as any other judgment order issued by the superior court. Appeals from the judgment order issued pursuant to subsection (a) of this section shall be to the supreme court, in accordance with the Vermont Rules of Appellate Procedure.


A potential plaintiff may serve upon each known potential defendant a request to participate in pre-suit mediation prior to filing a civil action in tort or in contract alleging that an injury or death resulted from the negligence of a health care provider and to recover damages resulting from the personal injury or wrongful death.

 


The mediation shall take place within 60 days of the service of all potential defendants' acceptance of the request to participate in pre-suit mediation. The parties may agree to an extension of time. If in good faith the mediation cannot be scheduled within the 60-day time period, the potential plaintiff need not participate and may proceed to file suit.

If pre-suit mediation is not agreed to, the mediator certifies that mediation is not appropriate, or mediation is unsuccessful, the potential plaintiff may initiate a civil action as provided in the Vermont Rules of Civil Procedure. The action shall be filed: (1) within 90 days of the potential plaintiff's receipt of the potential defendant's letter refusing mediation, the failure of the potential defendant to file a responsive certificate of merit within the specified time period, or the mediator's signed letter certifying that mediation was not appropriate or that the process was complete; or (2) prior to the expiration of the applicable statute of limitations, whichever is later.

If pre-suit mediation is attempted unsuccessfully, the parties shall not be required to participate in mandatory mediation under Rule 16.3 of the Vermont Rules of Civil Procedure.


All written and oral communications made in connection with or during the mediation process set forth in this chapter shall be confidential. The mediation process shall be treated as a settlement negotiation under Rule 408 of the Vermont Rules of Evidence.

Virginia

Va. Code §8.01-581.01 et seq.


Va. Code §8.01-581.07

 

 

 

 


Va. Code §8.01-581.08


Va. Code §8.01-581.012

Any party may request a review by a medical malpractice review panel.

 

 


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. 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.


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 parties may agree to submit to binding arbitration.

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.


Wash. Rev. Code §7.70.130


Wash. Rev. Code §7.70A.010 et seq.


Wash. Rev. Code §7. 70A.060

 


Wash. Rev. Code §7. 70A.080

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.


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.


Parties may elect to submit the dispute to arbitration

 

 


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.


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 health care provider may make a written demand for pre-litigation mediation. Notwithstanding any other provision of this code, 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.


Wis. Stat. §904.085

The claimant may request mediation.

 


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


Wyo. Stat. §9-2-1513 et seq.

 


Wyo. Stat. §9-2-1521


Wyo. Stat. §9-2-1522

 

 

 


Wyo. Stat. §9-2-1523

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.


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.


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

 


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.


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.

 
Heather Morton is a program principal in Fiscal Affairs. She covers financial services, alcohol production and sales, and medical malpractice issues for NCSL.

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