§1237.4. Emergency/Disaster Medicine Review Panel; establishment; review process

A. The following panel review process is established to review health care services of medical personnel, as defined in R.S. 37:1731, during a declared state of emergency, disaster, or public health emergency.

B. An Emergency/Disaster Medicine Review Panel (hereinafter referred to in this Section as "panel") shall consist of three members and shall include all of the following:

(1) The coroner in the parish where the health care services were rendered, or if unavailable, his designee with a medical license from the state of Louisiana, or alternatively, a coroner with a medical license selected from the Louisiana Coroner's Association. The coroner shall act as its chairperson and preside over the panel.

(2) A member of the Louisiana State Medical Society selected by the Louisiana State Medical Society if the respondent is a physician, or a member of the Louisiana State Nurse's Association if the respondent is a nurse, or a member of a peer organization supervising any other respondent medical personnel. Such organization should be prepared to designate a member within thirty days of any such emergency or disaster and provide a panel member within ten days of the prosecuting authority's referral of the matter to the coroner.

(3) One member appointed by the governor with expertise in disaster medicine or, if unavailable, within the time required to form the panel, such an expert selected by the other two members of the panel.

C. Prior to the institution of criminal prosecution for acts arising out of the rendering of or failing to render health care services during a state of disaster, medical emergency, or public health emergency, the district attorney or the attorney general, whichever is the prosecuting agency, may refer in confidence those portions of the investigative file to the panel created for a peer review of the clinical judgment of the respondent physician, nurse, or other medical personnel to determine whether the respondent's judgment was exercised in good faith given the circumstances under which such judgment was rendered.

D. Emergency/disaster medicine review process

(1) The panel shall provide an opportunity to the respondent physician, nurse, or other member of the medical profession to set forth, in writing, the respondent's position with regard to the clinical judgment rendered, including any expert opinion on the matter subject to investigation.

(2) The panel shall have the right and duty to request and procure all necessary information regarding the care rendered. The panel may consult with medical authorities and others to become fully informed regarding the issues to be decided. The panel may subpoena medical records consistent with federal and state laws for patient privacy, and any such records shall remain confidential.

(3) The panel shall have as its sole duty to express its expert opinion as to whether or not scientific reliable evidence supports the conclusion that the respondent's or respondents' exercise of clinical judgment was in good faith given the circumstances under which the judgment was rendered.

(4) The panel shall render one or more of the following expert opinions which shall be in writing and signed by the members of the panel, together with written reasons for their conclusions.

(a) The evidence supports the conclusion that the respondent medical personnel exercised good faith clinical judgment given the circumstances under which judgment was rendered.

(b) The evidence does not support the conclusion that the respondent medical personnel exercised good faith clinical judgment under the circumstances under which such judgment was rendered.

(c) There exists a material issue of fact, not requiring expert opinion, bearing on whether the respondent exercised good faith clinical judgment under the circumstances under which such judgment was rendered.

(5) The panel opinion shall be advisory only and shall be submitted in confidence to the prosecutorial authority and the respondent medical personnel.

(6) Upon receipt of the advisory opinion from the panel, the prosecuting authority, after giving due consideration to the panel opinion, may proceed in accordance with the United States Constitution and constitution and laws of this state to prosecute conduct which, in the prosecuting authority's sole discretion, is deemed actionable.

(7) Other procedures for the panel process and opinion shall be similar to the panel process for civil proceedings provided in R.S. 40:1237.2 et seq. but shall be confidential as provided in Subsection F of this Section.

(a) The panel members shall take the oath provided for in R.S. 40:1237.2(C)(5)(a) and (c).

(b) The panel deliberations shall be governed by the provisions of R.S. 40:1237.2(C)(7).

(c) Qualification of physicians/medical personnel shall be the same as R.S. 40:1237.2(C)(3)(f).

(d) Costs of the panel shall be paid by the division of administration and compensation for panel members shall be the same as R.S. 40:1237.2(I)(1).

(e) Evidence to be considered shall be the same as R.S. 40:1237.2(D)(1), (2), (5), and (6) except that no depositions may be set or utilized during this process.

(8) The procedures for the review shall be on an expedited basis.

(a) The district attorney or attorney general may refer, in confidence, the matter to the coroner who will chair and activate the panel within ten days of the receipt of the investigative file. Upon referral to the coroner, the prosecuting authority shall notify the governor and the respective medical peer organization of the need for the appointment of a panel member.

(b) After the formation of the panel, the respondent medical personnel shall be given fifteen days notice in order to provide an opportunity for a written response to the matter under investigation. The chair may grant the respondent medical personnel an extension of time for good cause.

(c) The panel shall render an opinion within ninety days of the referral, with one extension of thirty days at the panel's option. The panel opinion shall be submitted in confidence to the prosecuting authority and the respondent medical personnel within five days of the panel rendering its opinion.

(d) If the panel has been unable to act within one hundred twenty days of referral, the prosecuting authority may withdraw the referral of the matter or in writing extend to a reasonable specified date the time for the panel to render its opinion.

(9) The prescriptive period for prosecution shall be suspended from the time period of the prosecuting authority's referral to the coroner until such time as the panel opinion has been rendered or the expiration of the one hundred twenty days or the specific date provided for in Subparagraph (8)(d) of this Subsection.

E. The prosecuting authority shall refrain from arresting a respondent until such time as the panel created by this Section has concluded its review, and an advisory opinion has been received by the prosecuting authority, except where there is probable cause to believe the respondent is a risk of flight or delay will adversely affect the investigation.

F. The panel review process and panel opinion shall remain confidential and shall not be utilized in subsequent civil or criminal proceedings unless by orders of the court. The respondent medical personnel and the prosecuting authority may agree to the public disclosure of the panel opinion if it is in the public interest.

G. For purposes of this Section, the following words shall have the following meanings:

(1) "During a declared state of emergency or public health emergency" means during the period of time set forth in a declaration of the governor as provided in R.S. 29:724 or 766 and shall include the time period as set forth in the declaration and shall also be retroactive to the precipitating event requiring the declaration of disaster or public emergency.

(2) "Health care services" means any act of diagnosis, treatment, medical evaluation, or advice or such other acts as may be permissible under the applicable health care licensing provisions of the state of Louisiana.

(3) "Medical personnel" means any individual or person subject to the provisions of R.S. 37:1731, regardless of compensation.

(4) "Scientific reliable evidence" means evidence that will meet the criteria for use of expert evidence as set forth by the United States Supreme Court in Daubert vs. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993).

Acts 2008, No. 758, §2; Redesignated from R.S. 40:1299.39.3 by HCR 84 of 2015 R.S.