Pretrial Medical Malpractice Screening Panels: A State Law Guide

In an attempt to discourage frivolous medical malpractice lawsuits, most states have made it harder for patients to sue healthcare providers than it would be to sue your neighbor, a convenience store or even a large pharmaceutical manufacturer. Around half of states have passed so-called “damages caps,” which limit the amount of money recoverable under law, hoping to make cases involving minor injuries economically unfeasible. Another strategy is to require preliminary vetting on the facts of a medical malpractice claim before allowing the case to proceed to trial.

State Laws On Pre-Litigation Medical Negligence Review

In any medical malpractice lawsuit, plaintiffs will need to establish four essential facts:

1. the physician owed a duty of care to the patient
2. a specific standard of care should have been followed during diagnosis and / or treatment of the patient
3. that standard of care was violated by the physician
4. the patient suffered a compensable injury, one that can be redressed through financial compensation
5. the physician’s violation of the standard of care caused the patient’s injury

In many states, these elements don’t just come up at trial. Many jurisdictions mandate a pretrial screening process – in which the facts of a medical malpractice case are first scrutinized by independent medical professionals and attorneys. These state-established laws, however, are extremely diverse. Some states require only that a plaintiff have their medical records reviewed by a medical professional, an expert who can testify in a written certificate of merit (usually filed along with the plaintiff’s initial complaint) that their claim holds water. Other states have erected an even more rigorous framework, in which medical review panels are appointed by the state to analyze potential claims and encourage early resolution or withdrawal.

In this guide, we’ll cover specific state laws that establish pre-litigation medical review panels, require written certificates of merit prior to the filing of a case or utilize both methods to encourage malpractice claims to settle early.

Alaska

When a patient and doctor have not agreed to resolve disputes through arbitration or mediation, courts in Alaska are generally required to appoint a three-person medical advisory panel to review a case of alleged malpractice.

Law: Alaska Stat. §09.55.536

Within 30 days of the panel’s appointment, the advisory group’s three members must complete a thorough evaluation of the case’s allegations. The panel can compel witness testimony, interview the parties involved, physically examine the injured patient, consult with relevant medical specialists and examine relevant hospital and medical records. Attorneys are allowed to attend these proceedings, but cannot participate.

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 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? If so, what is the nature and extent of the medical injury?
5. What specifically caused the medical injury?
6. Was the medical injury caused by unskillful care? Explain.
7. If a medical injury had not occurred, what would have been the likely outcome of the medical case?

Alaska’s version of a medical advisory panel was not intended to screen out frivolous malpractice claims. Instead, the state’s Congress set out to establish a system in which truly independent medical experts would be able to review the facts of each case, without being influenced by the plaintiff or defendant. With that being said, Alaska’s court retains the right to dismiss claims that a medical advisory panel has deemed wholly frivolous.

At trial, the medical advisory panel’s report becomes admissible as evidence, although either party is allowed to submit contrasting testimony to refute the report’s findings. Moreover, the panel’s members can be called as witnesses to testify before a jury.

Connecticut

As set forth in Connecticut’s General Statutes §52-190c, any civil action for personal injury or wrongful death that involves the alleged negligence of a healthcare professional must be sent through mandatory mediation before a trial can be commenced.

Even before mediation can begin, however, malpractice attorneys are legally required to make a “reasonable inquiry […] to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment” of the plaintiff. To do so, the attorney must secure the written opinion of another healthcare provider that there is evidence to suggest that medical negligence took place. Only after this certificate has been submitted to a Connecticut court can the process of mediation begin.

While mediation is required, it need not lead to a successful resolution of the claim. Cases that aren’t cleared up in mediation can proceed to discovery and, eventually, a trial.

Delaware

Delaware’s medical review panel system is distinct. Instead of relying solely on medical professionals and malpractice lawyers, the state’s legislature has established a system in which professionals and non-professionals join forces to vet potential cases of medical malpractice. Only four jurisdictions – Idaho, Guam, Utah and Wyoming – have established a similar malpractice screening mechanism, in which laypeople are required to participate.

Established by Del. Code Ann. tit. 18, §6803 et seq., each medical review panel in Delaware has five members: two healthcare providers, one of whom comes from a discipline relevant to the case; one attorney; and two members of the general public, who are not attorneys, healthcare providers or associated with the insurance industry. The panel, which can request medical charts and the results of diagnostic tests, is also allowed to depose witnesses.

Within 30 days of reviewing the evidence, the panel is required to make its findings known, signing off on one of four possible options:

• the evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care;
• the evidence does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care;
• 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
• the conduct complained of was or was not a factor in the resultant damages, and if so, whether the plaintiff suffered any disability or impairment

The advisory panel’s final report can be submitted as prima facie evidence in a pending medical malpractice lawsuit before Delaware’s Superior Court, but is not considered conclusive. In short, the report’s findings can be refuted given the right conflicting evidence.

Washington, D.C.

In the District of Columbia, healthcare malpractice cases must be sent through mediation before any further litigation. This provision kicks in after a civil action has been filed, according to D.C. Code Ann. §16-2821. Mediation sessions are entirely confidential; no statement made during mediation can be used in court.

Florida

Florida does not mandate arbitration proceedings as a matter of course, but the state’s courts can require nonbinding arbitration upon request from either party. In arbitration, a panel will review the relevant evidence and ultimately decide the questions of liability and damages. When both parties agree to the arbitration panel’s decision, that judgment can be considered a final settlement of the case. If the dispute persists, any party involved can request a new trial in one of Florida’s circuit courts.

In contrast to Florida’s nonbinding arbitration provisions, the state requires mediation in all cases involving medical negligence, as established in Fla. Stat. §766.107. When the parties to a suit do not request nonbinding arbitration, their case must go before a mediator within 120 days of filing the complaint. If all alternative dispute resolution options have failed, Florida’s courts require a final settlement conference at least three weeks before the trial date.

Guam

Every case of medical negligence in Guam must go through arbitration, per Guam Code Ann. tit. 10, §10100. Arbitration sessions are heard by three-member panels, comprised of an attorney, a physician and a layperson. At least two of these three members must be residents of Guam. This mandatory arbitration law, passed in 1975, was intended to limit the financial exposure of physicians on Guam, where obtaining adequate medical malpractice insurance can be difficult.

Hawaii

Hawaii requires that potential malpractice claims be heard first by an appointed medical inquiry and conciliation panel. Each panel has two members: an attorney licensed in Hawaii and a physician. After making an initial inquiry, all parties to dispute will meet for informal panel proceedings, focusing on reaching a voluntary settlement or disposition of the case. Nothing said during these proceedings can be admitted as evidence in a subsequent trial. The medical inquiry and conciliation panel can be bypassed, however. As Hawaii’s Office of Administrative Hearings notes, state law allows lawsuits to be filed for medical negligence if all parties involved agree in writing to submit the claim to an alternative dispute resolution process, like arbitration or mediation.

Idaho

Before litigation, every medical malpractice claim in Idaho is required to appear first before a hearing panel, structured much like a special civil grand injury. While these proceedings are both informal and nonbinding, they are nonetheless mandatory, as established in Idaho Code §6-1001. The panel is comprised of at least three members, including one individual licensed to practice medicine in Idaho. A second member, who must be an attorney licensed to practice law in the state, is appointed by the Idaho state bar. Most panels are rounded out by a layperson appointed by the other panel members. Claims against hospitals require a fourth-panel member, who must be a serving administrator of a licensed acute care general hospital in Idaho.

Once the hearing panel’s proceedings are complete, the panel will inform both parties of its “comments and observations,” according to Idaho state law, opining on whether the malpractice claim appears to be frivolous or meritorious. The panel can also make suggestions about what amount of damages seem appropriate, but again their findings are not binding.

Indiana

Indiana requires the vast majority of medical malpractice claims to proceed before a medical review panel before litigation can commence. Lawsuits can only be filed without the review of a medical panel if the damages demanded are no more than $15,000.

The requirements for a medical review panel are set forth in Indiana Code §34-18-10. Each panel has four members: three medical professionals and one attorney, who serves as the panel’s chairperson. After reviewing the relevant evidence, the panel must give one or more of the following expert opinions:

• the evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint
• 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
• there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury
• the conduct complained of was or was not a factor of the resultant damages (and, if so, whether the plaintiff suffered any disability or permanent impairment)

The panel’s expert opinion report is admissible as evidence in subsequent court proceedings, but cannot be considered a conclusive decision.

Kansas

While medical malpractice screening panels are not mandatory for all claims filed in Kansas, a panel must be convened upon the request of a party to the suit or the court itself. According to Kan. Stat. Ann. §65-4901, each panel must be comprised of four members:

1. one healthcare provider designated by the defendant
2. one healthcare provider designated by the plaintiff
3. one healthcare provider selected jointly by the plaintiff and defendant
4. one attorney selected by a judge of the relevant district court

The attorney serves as a nonvoting member of the panel, but fulfills the function of a chairperson. In reviewing relevant medical evidence, the panel’s three healthcare members will determine whether or not the defendant medical professional deviated from standard practices and whether a causal relationship can be determined between any violations and the plaintiff’s damages. The panel’s written report then becomes admissible as evidence in any subsequent court proceedings.

Louisiana

In Louisiana, no legal action can be filed against a health care provider before the proposed complaint has been submitted to a medical review panel. The panel must be comprised of three health care providers licensed in Louisiana and one attorney, as set forth in La. Rev. Stat. Ann. §40:1299.47. Within 30 days of reviewing the relevant medical evidence, the panel must provide one or more of the following expert opinions:

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, and, if so, that the conduct complained of was or was not a factor of the resultant damages
2. 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
3. that there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court

The panel’s expert opinion can be submitted as evidence in subsequent trial proceedings, but will not be considered a conclusive finding.

Maine

Maine requires that every claim involving professional negligence, including but not limited to medical malpractice, be heard first by a screening panel, as introduced to state law in Me. Rev. Stat. Ann. tit. 24, §2851. Where cases of medical negligence are concerned, the panel is comprised of three to four members: one retired or active retired justice or judge to serve as the panel’s chairperson; one attorney; one health care practitioner; and, when more than one defendant has been named, a second health care provider.

After the screening panel has been presented with relevant evidence, the panel’s members have 30 days to provide written answers to the following questions:

• whether the acts or omissions complained of constituting a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care;
• whether the acts or omissions complained of proximately caused the injury complained of;
• 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

In contrast to the mandatory screening laws in most states, Maine does not allow the expert opinions provided by a panel to be admitted as evidence in court proceedings. Moreover, the medical screening process can be bypassed if all parties involved agree unanimously to proceed straight to litigation. Alternatively, the screening panel can be empowered to dispose of the case through a binding decision if all parties consent.

Maryland

According to Md. Courts and Judicial Proceedings Code Ann. §3-2A-01, claims against medical professionals in Maryland must be filed with the state’s Health Care Alternative Dispute Resolution Office for arbitration proceedings. These proceedings, however, can be waived by both claimants and defendants. In fact, injured patients in Maryland can bypass arbitration at any time after having filed a certificate of merit written by a qualified expert health professional. This is routine practice in the state and many medical malpractice lawsuits make their way to court, despite Maryland’s nominal emphasis on mandatory arbitration.

Massachusetts

Pursuant to Mass. Gen. Laws Ann. ch. 231, §60B, every medical malpractice claim in Massachusetts is heard by a tribunal of three members: one justice of the state’s superior court; one healthcare professional licensed to practice medicine in Massachusetts; and one attorney authorized to practice law in the state.

At a hearing, the plaintiff will present his or her case, submitting relevant evidence for the tribunal’s scrutiny. The panel will then “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.”

If the tribunal finds in favor of the plaintiff, the case can proceed to litigation without impediment. When hearings are decided in favor of a defendant, on the other hand, plaintiffs must first file bond (usually $6,000) before proceeding to civil court. In either case, the tribunal’s expert opinion becomes admissible as evidence at trial.

Michigan

In Michigan, all legal actions involving medical malpractice must be referred to mediation, pursuant to Mich. Comp. Laws §600.4903. The mediation panel must be comprised of five voting members: three licensed attorneys; one licensed or registered health care provider selected by the defendant; and one licensed or registered health care provider selected by the plaintiff. After mediation hearings have ended, the panel is required to make an “evaluation” within 14 days, including a specific finding on the applicable standard of care at issue in the case. If the panel’s five voting members unanimously agree that the plaintiff’s claim is frivolous, the plaintiff is required to post a $5,000 bond before proceeding to a subsequent trial. That applies to defendants with frivolous defenses as well, who are also obligated to post bond before trial.

Montana

Before filing a legal complaint in any Montana court, plaintiffs in medical malpractice cases are required to submit their case to a medical legal panel, as established in Mont. Code Ann. §27-6-301. Applications for the panel’s review must include at least two statements:

1. a statement in reasonable detail of the elements of the health care provider’s conduct that are believed to constitute a malpractice claim, the dates on which the conduct occurred, and the names and addresses of all physicians, dentists, podiatrists, and hospitals having contact with the claimant and all witnesses
2. a statement authorizing the panel to obtain access to all medical, dental, podiatric, and hospital records and information pertaining to the claim and, for the purposes of its consideration of this matter only, waiving any privilege as to the contents of those records. The statement may not in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court

Montana’s medical legal panel provides, at a reasonable fee to the plaintiff, the assistance of a medical expert’s consultation, who may be a physician qualified in the applicable field of medicine or a similarly-appropriate dentist. The panel itself is made up of six members: three physicians and three attorneys. In cases that involve a health care facility, two of the panel members must be administrators of similar health care facilities, who are joined by one physician and three attorneys. Cases involving multiple defendants may be reviewed by separate panels or a single combined panel.

Panel hearings in Montana must be informal and official transcripts are not allowed. Witnesses can be called to testify before the panel. Supporting documentation, including medical journal articles and studies, are allowed, as are written statements of fact from treating health care provider. After reviewing the relevant evidence, the panel must decide:

• whether substantial evidence exists to suggest that the acts complained of occurred and constitute malpractice
• a reasonable medical probability that the patient was injured by the alleged malpractice

These questions are answered by majority vote. The panel’s decision, however, is not binding and, while the panel is allowed to recommend awards, the decision itself, along with the reasoning behind it, are not admissible as evidence in a subsequent court proceeding. Medical legal panels in Montana have the authority to approve settlement agreements, which shall be binding on all parties involved.

Nebraska

Nebraska Revised Statute 44-2840 establishes medical review panels to scrutinize “all malpractice claims against health care providers.” However, injured patients can affirmatively waive their right to panel review and file their claim directly in court.

Medical review panels in Nebraska have four members: a non-voting attorney and three voting physicians. After a hearing, the panel is required to render one or more of the following expert opinions:

1. 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;
2. the evidence supports the conclusion that the defendant involved met the applicable standard of care required under the circumstances; or
3. 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 panel’s report, along with any dissenting opinions, are admissible as evidence in subsequent court proceedings, but cannot be considered conclusive.

Nevada

Any medical malpractice lawsuit filed in Nevada without an accompanying affidavit from a medical expert will be dismissed, pursuant to Nev. Rev. Stat. §41A.071. The expert’s affidavit must meet four criteria:

• supports the allegations contained in the action
• submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the the time of the alleged professional negligence
• identifies by name, or describes by conduct, each provider of health care who is alleged to be negligent
• sets forth factually a specific act or acts of alleged negligence separately as to each defendant in simple, concise and direct terms

While Nebraska law does not establish the requirement for medical review panels, at least one settlement conference is mandatory before trial. All parties involved in the action, along with their insurers and attorneys, are required to attend. Settlement conferences are heard by district judges, but cannot be heard by the judge assigned to preside over the court case.

New Hampshire

New Hampshire uses pretrial screening panels to identify medical malpractice claims that merit compensation or should be deemed frivolous. Meritorious claims are encouraged to be resolved early, prior to the commencement of a lawsuits, while frivolous claims are encouraged to be withdrawn or dismissed. Claims must be heard by a screening panel, comprised of attorneys and healthcare practitioners, before proceeding to trial. In practice, many claims are settled even before reaching a medical screening panel, according to New Hampshire Business Review.

New Jersey

Cases of medical malpractice that involve damage amounts of $20,000 or less must be referred to arbitration, as set forth in N.J. Rev. Stat. §2A:23A-20. When arbitration is unsuccessful in resolving the dispute, no statements, admissions or testimony made during arbitration proceedings can be admitted as evidence in a subsequent trial. Judges in New Jersey are empowered to refer malpractice claims to complementary dispute resolution options, like arbitration or mediation, at any point, but must do so within 30 days after the end of a case’s discovery phase.

New Mexico

New Mexico’s medical review panels, established by N.M. Stat. Ann. §41-5-14, hear all malpractice claims against health care providers before a legal complaint can be filed in court. Moreover, the panel must render a decision in the claim before a patient can file suit.

Each review panel in New Mexico is comprised of six members: three health care providers and three attorneys. Another attorney serves as non-voting chairperson. In hearings, the panel will review relevant evidence, including witness testimony and relevant medical texts. The proceedings are informal and New Mexico state law prohibits the panel from making any inquiry or conducting any discussion on the subject of monetary damages. The panel’s deliberations are only concerned with 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

In contrast to other states, New Mexico does not allow the decisions or reasoning of a medical review panel to be admitted as evidence in any subsequent trial proceedings. The panel’s judgment is not binding.

New York

New York has not established medical review panels to analyse malpractice claims prior to trial. There is, however, one legal mechanism intended to promote the early resolution of cases: a mandatory settlement conference, which must be held within 45 days after the filing of a note of issue and certificate of readiness, documents that signal to the court that discovery is over and a trial date can be set. This requirement is set forth in N.Y. Civil Practice Law and Rules §3409.

North Dakota

While North Dakota does not have a formal pretrial screening mechanism for malpractice claims, state law (N.D. Cent. Code §32-42-01) requires that claimants and health care providers make a “good-faith effort” to resolve portions or all of the claim through alternative dispute resolution procedures, like arbitration or mediation, before the claimant is allowed to file their case in court.

Oregon

Pursuant to Or. Rev. Stat. §31.250, all medical malpractice claims must be sent through some form of alternative dispute resolution within 270 days of the lawsuit’s filing, unless:

1. the action is settled or otherwise resolved with 270 days after the action is filed
2. all parties to the action (plaintiff and defendant) agree in writing to waive dispute resolution

While alternative dispute resolution procedures, like arbitration or mediation, need not be successful, the vast majority of malpractice lawsuits in Oregon will need to attempt one before going forward.

Puerto Rico

Judges who preside over malpractice claims in Puerto Rico have the option, but not an obligation, to refer their cases to an arbitration panel when alternative dispute resolution is deemed an expedient way of resolving the claim or clarifying the medical controversies involved.

South Carolina

Before filing a medical malpractice lawsuits, injured patients in South Carolina are required to file a Notice of Intent and the written affidavit of an expert medical witness. The medical professional’s affidavit must cover a few basic points:

• all adverse parties as defendants
• a short and plain statement of the facts showing that the party filing the notice is entitled to relief

As established by S.C. Code Ann. §15-79-120, the parties involved in a medical malpractice claim must participate in mediation at some point before trial. The parties also have the right to agree to participate in nonbinding arbitration, binding arbitration or other forms of alternative dispute resolution, but only mediation is mandatory. This mandatory mediation hearing must be held with 90 days and later than 120 days from the service of previously-mentioned Notice of Intent to File Suit. Only when mediation sessions have failed to resolve the claim will the plaintiff be able to file their complaint in court. The complaint must be filed within 60 days after the mediator determines that the mediation is not viable or within the applicable statute of limitations, whichever date comes later.

Utah

Pursuant to Utah Code Ann. §78B-3-416, a prelitigation panel review must be requested before any medical malpractice claim can be formally initiated. While the proceedings will be informal and nonbinding, panel review is mandatory. Each review panel is comprised of three to four members: one attorney licensed in Utah, who will serve as chairperson; one licensed health care provider; one layperson who is not an attorney or health care provider; and, in cases filed against hospitals or hospital employees, one current hospital administrator. After reviewing relevant evidence, the panel will render its opinion:

• whether each claim against each health care provider has merit or has no merit
• if a claim is meritorious, whether the conduct complained of resulted in harm to the claimant

However, no information from the review panel’s proceedings, including its ultimate determination, can be admitted as evidence in a subsequent court trial or arbitration proceeding. In fact, the panel’s members cannot be compelled to testify in civil court proceedings. With that being said, the review panel’s proceedings, with the consent of all parties involved, can be considered a binding arbitration.

Virginia

In Virginia, both plaintiffs and defendants in medical malpractice claims have the right to request review from a malpractice review panel, as set forth in Va. Code §8.01-581.2. Pretrial review is optional, not mandatory. Each review panel consists of four voting members: two impartial attorneys and two impartial health care providers. The judge of the circuit court in which the malpractice claim has been filed serves as the panel’s chairperson, but has not vote in the proceedings.

After reviewing the medical evidence and deliberating, the panel has the duty 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 a 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 a 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 medical review panel’s opinion is admissible as evidence in any subsequent court proceedings, but cannot be considered conclusive.

U.S. Virgin Islands

No malpractice claim can be filed in the US Virgin Islands until the injured patient’s proposed complaint has first been filed with the territory’s Medical Malpractice Action Review Committee. The Committee’s purpose, as set forth in V.I. Code Ann. tit. 27, §166i, is to arrange for expert review of malpractice claims. After reviewing medical evidence, a screening panel of attorneys and health care providers will render their opinion on the claim’s merits. These findings can be used by either party as evidence in any subsequent court proceedings.

Washington State

Unless the parties involved have already agreed to arbitration, all claims of medical malpractice in Washington must be submitted to mediation proceedings prior to trial, as established by Wash. Rev. Code §7.70.100.

West Virginia

At least thirty days before filing a medical malpractice lawsuits, plaintiffs in West Virginia are required to serve on each defendant a notice of claim. In this notice, the plaintiff must include:

• a statement of the theory or theories of liability upon which a cause of action may be based
• a list of all health care providers and health care facilities to whom notices of claim are being sent

Alongside the notice of claim, every plaintiff must include a screening certificate of merit, in which a health care provider under oath shall state with particularity:

• the expert’s familiarity with the applicable standard of care in issue
• the expert’s qualifications
• the expert’s opinion as to how the applicable standard of care was breached
• the expert’s opinion as to how the breach of the applicable standard of care resulted in injury or death

In West Virginia, health care providers who face malpractice claims are allowed to make a written demand for pre-litigation mediation. Mediation need not resolve the dispute. As set forth in W. Va. Code §55-7B-6, the results of any mediation proceedings cannot be admitted as evidence in subsequent trial proceedings, unless the court determines that a failure to disclose the mediation’s result would cause a miscarriage of justice.

Wisconsin

Pursuant to Wis. Stat. §655.42, plaintiffs in Wisconsin medical malpractice claims may request mediation proceedings, but no form of alternative dispute resolution has been made mandatory. State law prohibits the entrance of any oral or written communication related to mediation as evidence in a court proceeding.

Wyoming

Medical malpractice claims in Wyoming must be heard by a prelitigation screening panel before a lawsuit can be filed. Review panels in Wyoming, pursuant to Wyo. Stat. §9-2-1520, must be comprised of five members: two health care providers; two attorneys; and one layperson. Hearings themselves are informal. After reviewing relevant evidence, the panel must determine:

• whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and
• whether there is a reasonable probability that the patient was injured as a result of the acts complained of

The panel’s decision, along with any testimony, documents or materials submitted during review panel proceedings, can only be admitted as evidence in a subsequent court proceeding with the intention of calling a witness’ credibility into question.