TITLE 18

Insurance Code

Insurance

CHAPTER 68. HEALTH CARE MEDICAL NEGLIGENCE INSURANCE AND LITIGATION

Subchapter III. Medical Negligence Review Panels


Medical negligence review panels are hereby provided for to the extent necessary to carry out this chapter.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;

(a) Each medical negligence review panel convened in an action shall be composed of 5 voting members and shall include 2 health care provider members, at least 1 of whom shall be a physician, and the other 1 of whom shall be, if available, from 1 of the health care disciplines involved in such action, 1 attorney and 2 lay persons who are not health care providers nor licensed to practice law nor associated with the insurance industry. The attorney member shall act as chairperson of the panel and shall preside at all meetings.

(b) The Commissioner shall also designate 1 member of the Commissioner's staff who shall sit as a nonvoting ex officio member of the panel and who shall have custody of and responsibility for the keeping of all evidence, records and related material used by the panel.

60 Del. Laws, c. 373, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 373, § 3.;

The members of each medical negligence review panel shall be selected in the following manner:

(1) The Commissioner shall compile, and keep current, 3 separate lists as follows: a. A list of all physicians engaged for not less than 3 years in the active practice of medicine in the State and who hold a license to practice medicine and surgery; b. A list of all of the attorneys engaged for not less than 3 years in the active practice of law in this State and who are admitted to the Bar of this State; and c. A list of 100 objective and judicious persons of appropriate education and experience residing in this State who are neither health care providers nor licensed to practice law in this State, nor associated with the insurance industry, who in the Commissioner's opinion would be appropriate to serve as lay members of medical negligence review panels. The Commissioner shall compile such additional lists of other categories of health care providers as may be appropriate.

(2) The parties may agree upon 1 or more members from each of the lists to constitute the medical negligence review panel.

(3) In the event that the parties shall not agree upon the selection of any 1 or more members, such members shall be selected by the Commissioner by lot from the appropriate list. As to each list from which selection is made by lot, each party shall have 3 peremptory challenges to such selections.

(4) Members selected by agreement or by lot shall be designated by the Commissioner to serve unless disqualified by reason of close relationship with or personal bias toward any party to the action.

(5) Any member from any category so selected to serve shall serve upon the panel unless for good cause shown he or she is excused by the Court. The Court shall excuse a member from any category from serving only if it finds, on the basis of facts set forth in an affidavit submitted by such member, that such service would constitute an unreasonable burden, undue hardship or that such service would give rise to a conflict of interest.

(6) A party to the proceeding before the medical negligence review panel may also challenge any member so selected by submitting an affidavit to the Court setting forth the facts that the party believes show cause for striking such member from the panel. The Court may strike such member from the panel if it finds such cause to exist.

(7) After the Court has excused or struck a member, the parties shall select a substitute member from the same list, each party retaining any previously unused peremptory challenge.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;

(a) The Commissioner shall be responsible for the administration of the procedures of selection of candidates for service on medical negligence review panels.

(b) The Commissioner shall adopt and publish such rules and regulations as may be necessary to carry out the provisions of this subchapter and to establish the procedures for the selection and operation of medical negligence review panels. Such rules and regulations shall be consistent with the common and statutory law of the State and the Rules of Civil Procedure of the Superior Court of the State and shall be modified from time to time to reflect the changes in the law or Superior Court Rules. The Commissioner shall publish the initial set of such rules and regulations not later than 60 days after April 26, 1976.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;

The evidence to be considered by the medical negligence review panel shall be promptly submitted to the panel and parties in written form wherever practicable. Evidence may consist of medical charts, X-rays, laboratory tests, excerpts of treatises, depositions of witnesses including parties and any other form of evidence allowable by the medical negligence review panel. The chairperson of the panel shall advise the panel relative to any legal questions involved in the review proceeding and shall prepare the opinion of the panel as provided in § 6811 of this title. To the extent practicable, a copy of the evidence shall be sent to each member of the panel. All evidence considered by the medical negligence review panel shall constitute a part of the record in the Superior Court.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;

Any party or the panel itself, sua sponte, after submission of all evidence and upon 10 days' notice to all parties, shall have the right to a hearing before the panel at a time and place agreeable to the members of the panel. At such hearing, any party may adduce evidence by the testimony of witnesses and otherwise and may address the panel concerning any matters relevant to issues to be decided by the panel before the issuance of their report. The panel shall have the authority to subpoena witnesses, administer oaths and compel the production of documents, and all witnesses appearing before it at a hearing shall be sworn and a stenographic record of the proceedings shall be made. The rules of evidence applicable to the Superior Court shall be followed insofar as practicable; provided, however, that evidence will be considered by the panel which, in its opinion, possesses probative value commonly accepted by reasonable, prudent persons in the conduct of their affairs.

60 Del. Laws, c. 373, § 1.;

The panel shall have the right and duty to obtain any information that the panel deems reasonably necessary. On notice to the parties, the panel may consult experts, text or other authorities. The panel may examine reports of such other health care providers necessary to inform itself regarding the issue to be decided. Both parties shall have full access to any material obtained by or submitted to the panel and shall be given a reasonable opportunity to rebut any such materials submitted to the panel.

60 Del. Laws, c. 373, § 1.;

The panel may appoint persons it determines to be disinterested and qualified experts to make any necessary professional or expert mental or physical examination of the plaintiff or review of the relevant evidentiary matters, and testify or submit a report in respect thereto. The panel shall give notice, reasonable under the circumstances to all parties, of its intent to appoint such experts, and shall allow them a reasonable time within which to communicate to the panel any objections they may have to the appointment of such experts. Such expert witnesses shall be allowed reasonable and necessary expenses connected with their travel, meals and lodging in connection with their testimony and work on behalf of the panel as well as a reasonable fee to be fixed by the panel and paid pursuant to § 6813 [terminated] of this title.

60 Del. Laws, c. 373, § 1.;

(a) A majority vote of the medical negligence review panel shall be required to decide all matters before it.

(b) The panel shall have the duty of making a finding as to whether or not in its opinion the evidence supports the conclusion that the defendant or defendants acted or failed to act within the applicable standards of care. After reviewing all evidence and after any hearing before the panel requested by any party, the panel shall, within 30 days, render to the Court a written opinion, including any minority opinion or opinions, signed by the chairperson expressing 1 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.

(c) Any opinion rendered by the medical negligence review panel shall state the grounds upon which it is based and shall further identify the persons, texts or other authorities which were consulted by the panel in reaching its conclusion, and shall be admissible as prima facie evidence in any proceeding before the Superior Court.

(d) Any party aggrieved by the opinion of the panel shall have the right to review by the Superior Court of such opinion, and the evidence considered by the panel. Application for review by the Superior Court shall be by motion with a certified copy of the opinion attached, and shall state the grounds for objection thereto. Such motion shall be served by the movant on the Commissioner and the other parties to the action, the proof of such service to be as provided by the Rules of the Superior Court. A motion for review shall be filed within 30 days after the rendering of the opinion by the panel.

(e) Upon receipt of a motion for review, the Prothonotary shall promptly schedule it for consideration by the Court and the Court shall review the panel's opinion on the record made before the panel and shall strike any portion of the panel's opinion which the Court finds to be based on error of law or not supported by substantial evidence.

(f) The complete record of the proceedings before the panel including all exhibits and evidence introduced before it shall be filed with the Prothonotary at the time the panel renders its opinion. A transcript of such proceedings shall be required only in the event that a motion for review shall be filed.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;

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.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;

Each member of the medical negligence review panel shall be paid at the rate of $100 per diem plus actual and necessary expenses incurred in the performance of their official duties, but not to exceed a total of $700 for both expenses and compensation paid to any 1 member of the panel for 1 matter. The member of the Commissioner's staff designated to serve as a panel's ex-officio member shall receive only actual and necessary expenses incurred as compensation. The medical negligence review panel shall have the authority to assess such costs, up to a maximum amount of $1,000, upon the party or parties against whom the majority opinion of the panel is rendered; provided, however, that this power to assess costs shall be discretionary and the panel shall assess such costs only in those cases where they deem it appropriate. In the event that a judgment shall be entered in any Superior Court action on the same matter, the fees and expenses of the panel may be assessed as costs to the extent allowable above and shall follow such judgment.

68 Del. Laws, c. 383, § 1; 71 Del. Laws, c. 373, § 3.;

The Commissioner shall convene medical negligence review panels in the manner set forth in this subchapter upon request of a Federal District Court Judge sitting in a civil action in the District of Delaware alleging medical negligence in the manner instructed by the said federal court, but also in a manner as consistent as possible with the process of selecting such panels provided for in Superior Court actions in this chapter. The selection process of any such panel in a federal court action and its powers and duties shall be subject to the order of that said court and/or such rules as the federal court system shall designate for the implementation of such panels. The Commissioner shall not, however, convene any such panels at the request of any such federal court unless provisions are made for the payment of the compensation and expenses of such panelists and the compensation and expenses of all witnesses called by such panel out of the funds other than those of the General Fund of the State.

60 Del. Laws, c. 373, § 1; 71 Del. Laws, c. 373, § 3.;