CHEYENNE - Although critics say Wyoming's resurrected medical review panels to screen malpractice claims aren't working, a report suggests they may have had the desired effect in 11 out of 39 closed cases.

The panels, adopted by the 2005 Legislature, didn't go into effect until November of that year.

Although the law has been in effect for less than two years, defense attorneys and the director of the Wyoming Medical Society say it is flawed and the panels are not having any impact on medical malpractice liability costs for physicians and other health care providers.

The purpose of the 2005 law is to screen out frivolous medical malpractice lawsuits against physicians, dentists, hospitals or nurses.

Opponents said the review panels delay injured patients' access to justice.

Voters in November 2004 amended the state constitution to give the Legislature the ability to resurrect the panels, which had been struck down by the Wyoming Supreme Court in 1988.

In the 11 cases cited by Eric Easton of the attorney general's office, the director of the program, the petitioner - the patient - either withdrew the medical malpractice claim or settled with the health care provider.

Of the 39 closed cases, 18 resulted in lawsuits being filed. In five cases, the patients withdrew their claims. They are barred from filing lawsuits because they didn't participate in the panel.

"I think we have an effect on 25 percent of the cases. That's just a guess," Easton said. "They have the option to opt out and just go to court, but it gives them an opportunity to talk ahead of time."

All the claims are confidential until they are filed in District Court, and then it is up to the judge whether to disclose the panel findings.

But two medical malpractice defense attorneys who represent the health care providers say they recommend their clients waive or skip the medical review process.

One, Hank Combs of Casper, who defends in these cases, said flatly the system isn't working.

He said he has had 10 or so medical malpractice cases since the panels began operation and he has waived a hearing in each one.

The reason, he said, is that the doctor is required to appear before the panel and give sworn testimony that is not confidential and can be used in other proceedings.

"So the plaintiffs get a free crack at getting the doctor under oath at a time when he hasn't had his case reviewed by expert witnesses and hasn't had time to sit with his lawyers and get a complete review of the case," Combs said.

"I waive every one," he added.

Combs said the doctors wanted the review panel, but the Legislature didn't talk to the defense lawyers when they developed the bill.

The bill was a compromise.

The Wyoming Medical Society wanted a stronger bill, said director Susie Pouliot.

If the panel appearance were mandatory, for example, the program might be more effective, she said.

"From the society's point of view, we can't see it has had any impact on the liability problem," Pouliot said.

Jeff Brinkerhoff, a Casper attorney who represents health care providers, said he also recommends his clients waive the panel review because of the risk the findings of the panel will be admissible if the case goes to trial.

In all likelihood the judge would not allow it, but "I'm not going to take a chance," he said.

Moreover, he said time is on the side of the patient, who can take one to two years to put together a case. Once it's filed with the panel, deadlines click in that force the defense to find an expert quickly, he said.

Robert Tiedeken, a Cheyenne lawyer, said all the patient claims he filed with the panel were waived by the health care providers.

"In my experience, all the panel is for my client is an early notice of a lawsuit," he said. "And perhaps an early identification of the experts who will back it."

"I don't particularly mind that myself, because I don't have anything to hide. But it hasn't induced some early resolution of the claims, per se, in my experience," he added.

He said he can understand why the health are providers or their attorneys waive the review hearing.

"If I was defending a health care provider, there's really no benefit of going any further with the claim, because then I have to start disclosing on my side," Tiedeken said.

He said the very small pool of attorneys who handle these medical malpractice cases weed out claims that have no merit themselves.

Yet, Tiedeken said, if the panel resulted in even five patients dropping their claims, that's good because those cases probably shouldn't be pursued.

In his report to the Legislature's Joint Judiciary Committee at the end of the general session this winter, Easton recommended the Legislature make the panel decisions nonadmissable in court.

He also recommended a penalty for the health care providers if they don't answer claims. As it stands now, only the patient is penalized for failure to participate in the panel. "They cannot file a lawsuit," Easton said in the report.

Sen. Tony Ross, R-Cheyenne, chairman of the Senate Judiciary Committee, said legislators want to let the review panel program mature more before making any changes.

Capital bureau reporter Joan Barron can be reached at (307) 632-1244 or at joan.barron@casperstartribune.net.