David Beach: A closer look at the judicial view of medical review panels

Those of us who practice in the medical malpractice arena are well familiar with the informal process of the medical review panel.

“In view of the fact that the legislature clearly intended for the medical review panel to function in an informal manner in rendering its expert medical opinion, we believe that the legislature did not simultaneously intend to empower trial courts to dictate to the medical review panel concerning either the content of the panel’s opinion or the manner in which the panel arrives at its opinion, or the matters that the panel may consider in arriving at its opinion.” Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992).

This informality dispenses with the requirements of the Indiana Rules of Evidence at the panel stage, which should expedite the panel process. Bojko v. Anonymous Physician, No. 23S-CT-343, 2024 WL 2073685, at *4 (Ind. May 9, 2024).

The formality of authenticating records is obviated. Attorneys frequently discuss medical literature without the necessity of presenting expert opinion attesting that the journals, treatises, or articles referenced are reasonably relied upon by experts in the field.

Another by-product of this informality has been the introduction of character evidence or evidence of other alleged wrongs that is routinely excluded by a court under Ind. Evidence Rules 403 and 404(b).

This includes summaries of other malpractice claims that have been filed (not just judgments or settlements) and even unrelated criminal charges or critical newspaper articles that seem to have no purpose other than to persuade panel members that a particular party deserves an adverse panel opinion.

Earlier this month, our supreme court held that neither the trial courts nor the chairpersons of the medical review panel have the authority to exclude such material.

“The plain, unambiguous language of Section 34-18-10-17 does not provide trial courts with the authority to redact or otherwise exclude evidence a party submits to the medical review panel.” Bojko, at *4. “[T]rial courts have no authority under Section 34-18-10-14 to act as gatekeeper of the evidence a party submits to the medical review panel. And that evidence includes any material submitted by a party that tends to produce conviction in the mind as to the existence of an alleged fact.” Id. at *6.

In this writer’s experience, such negative character evidence frequently has no impact on the medical review panel or even undermines the case of its proponent. The great majority of panel members take their responsibilities seriously and focus their attention on the medical issues presented. But what about the panel that considers and relies upon negative character evidence in reaching its opinion?

This scenario creates a classic evidentiary harpoon. Cross-examining a panel member who admits having reached an adverse opinion based in part upon otherwise inadmissible character evidence serves only to highlight the inadmissible evidence. On the other hand, simply accepting the negative panel opinion based upon otherwise inadmissible character evidence is equally unappealing.

Case law addressing an evidentiary harpoon in a civil case is surprisingly spare. The only reported opinion this writer found in a medical malpractice context involved questioning a healthcare provider if he had been sued eleven times. Miller v. Ryan, 706 N.E.2d 244, 253 (Ind. Ct. App. 1999).

Counsel’s objection was sustained and his request for a mistrial denied. However, the issue was deemed waived on appeal because he did not request an admonition. Id. Evidentiary harpoons have been frequently addressed in the criminal context, which may provide some guidance for future appeals in civil cases. See, e.g., Turner v. State, 216 N.E.3d 1179, 1184 (Ind. Ct. App. 2023) (Where an evidentiary harpoon has been introduced at trial, we “require a high level of assurance that the irregularity did not affect the verdict before we will affirm the judgment.”)

There is also the distinct possibility that a panel opinion based upon negative character evidence may be inadmissible at trial.

Experienced practitioners may view this statement skeptically. After all, the Medical Malpractice Act specifically states that the opinion is admissible and that panel members shall testify if called upon. Ind. Code § 34-18-10-23. However, these mandates of Ind. Code § 34-18-10-23 are subordinate to Evidence Rule 703, which requires that opinion testimony may be based on inadmissible evidence only if it is of the type reasonably relied upon by experts in the field.

“When there is a conflict between a statute and a rule of evidence, the rule of evidence prevails over any statute.” Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 52 (Ind. Ct. App. 2010). A panel opinion and panel member’s testimony based upon character evidence may be inadmissible under Evidence Rule 703. Id. While Bojko allows practitioners unlimited discretion in determining what evidence to submit at the panel stage, prudence dictates self-policing this freedom to avoid potential pitfalls when the case progresses to trial.•

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David J. Beach is a partner in the Hammond office of Eichhorn & Eichhorn and serves on the board of directors of the DTCI. Opinions expressed are those of the author.