“The number of firms willing to take medical malpractice claims are dwindling as lawsuits are becoming more difficult, more expensive, and less successful.”
Patients’ rights to recover damages have been compromised by effective and organized interest groups. These lobbyists represent physicians associations and insurance companies, and their efforts to minimize the number of medical malpractice claims has been successful.
One example in Montana is the Montana Medical Legal Panel or MMLP. The MMLP is the result of effective lobbying efforts to protect medical providers from claims made against them. No other professions are given same legal protections against litigation that the MMLP gives the medical community.
What is the MMLP?
The MMLP is an administrative body that screens all potential malpractice claims before the claims are allowed to be filed in court. Around a dozen states currently have some sort of medical liability screening panel; their sole purpose is to dissuade and discourage claimants and their attorneys from filing lawsuits against physicians or health care providers.
These aims of the Montana Medical Legal Panel (MMLP) are not covert. The declared purpose of the MMLP is stated as:
“to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well-founded.”
When an individual has a malpractice claim, they’re required to present their claim to the MMLP panel before they can file a complaint in the district court. The 6-person panel is composed of three lawyers and three medical professionals.
Interestingly, the vote of the MMLP is non-binding—that is, it holds no weight as evidence in a court of law. The panel could decide 6-0 in favor of the physician. This decision cannot bar a claimant from filing a lawsuit, and furthermore cannot be used as evidence if the case were to go to court.
How can the MMLP make it more difficult to file a malpractice suit if they don’t retain any form of legally-binding power?
How the MMLP Discourages Claimants and Attorneys
With no real court-recognized power, the MMLP exerts their influence through the logistical, financial, and time-consuming hurdles that they present to attorneys.
The MMLP, as currently administered, blatantly attempts to delay the processing of a claim and regularly acts to take actions that are prejudicial to claimants; for instance, allowing medical providers to control the proceedings and opening discovery for medical providers while denying discovery for claimants.
Here’s an example: In order to file a complaint with the court, the claimant and attorney must first submit an application to the MMLP. The application must include the names of the physicians/facilities involved, a thorough account of the claim, alleged deviations from the standard care, and itemized damages that are being sought. These applications can be 15+ pages in length depending on the events that occurred and the number of providers involved.
Once the application is submitted, the Montana Medical Legal Panel (MMLP) can either accept the document or request amendments. If the application is accepted, the health care providers will supply an answer to the claimant and set a hearing date. This hearing date is mandatory, and will usually be accompanied by a pre-hearing conference (telephonic or in-person). If the attorney wants to take each provider to court separately, then there must be an MMLP hearing for each individual defendant.
Thus if eight medical professionals are involved in the malpractice claim, the attorney must attend eight MMLP hearings and eight pre-hearings also. Remember, this is all prior to ever filing a complaint with the court. Also remember, the verdict of the MMLP doesn’t matter whatsoever.
This is a massive investment of time and money for the claimant’s legal representative. It’s these types of procedural barriers that discourage firms from taking medical malpractice cases.
The Montana Medical Legal Panel (MMLP) is hardly the only device used to dissuade attorneys and claimants from filing med mal cases. A few others include shortened serving/filing time-frames, caps placed on non-economic damages, and mandatory provision of expert witnesses.
No other profession has such a wall of protection intended to limit liability for negligent acts committed in-practice. It is the only known example of the legislature acting to insulate a particular class of individuals from being sued.
Unfortunately, these efforts are widely successful. The individuals affected the most by these special interest groups are the claimants, whose rights have been slowly but effectively diluted. In truth, these procedural barriers greatly negate the rights of claimants to receive compensation for the negligence of their health care providers.