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Is it always necessary to go to a medical review panel?

A surface reading of the Louisiana Medical Malpractice Act indicates that before a medical malpractice plaintiff can take the matter to court he or she should submit the matter to a medical review panel for consideration. Cases have taken place, however, in which the plaintiff did not rigidly follow this process, leading to the question of whether the failure to strictly adhere to the medical review panel requirement is fatal to a medical malpractice cause of action. According to a decision by the United States Fifth Circuit Court of Appeals, such a failure will not necessarily preclude a medical malpractice cause of action.

The case in question involved a Louisiana plaintiff who included in his medical malpractice lawsuit two out-of-state manufacturer defendants for manufacturing medical products used in surgery, but who did not wait for the opinion of the medical review panel before initiating his lawsuit. The defendants prevailed in federal district court (based on diversity jurisdiction removing them from the jurisdiction of the Louisiana state courts).

The Court of Appeals reversed the decision of the District Court, however, based on its conclusion that the state medical malpractice act 's medical review panel requirement does not mean that a plaintiff cannot establish a reasonable basis to predict that he or she might still be able to establish liability on the part of the defendants. The court also stated that this rationale will help to avoid piecemeal litigation of medical malpractice claims that have multiple named defendants (especially when some of those defendants are not in-state persons or companies).

Although it is certainly preferable in a medical malpractice action to comply with the medical review panel requirement before initiating a lawsuit, what this case suggests is that federal courts at the very least can read the statutory language of the medical malpractice act broadly enough to allow for some flexibility in its application.

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